DEBTRESOLVE CUSTOMIZED SOLUTION PROGRAM LICENSE AGREEMENT
EXHIBIT
10.10
DEBTRESOLVE
CUSTOMIZED SOLUTION PROGRAM
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Parties:
Debt
Resolve, Inc. (“DebtResolve”)
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[INSERT
CLIENT NAME]_
(“Client”)
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Address:
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▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇
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[ADDRESS]
____________
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▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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_______________________
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Attn:
General Counsel
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_______________________
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Entity
Type:
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Delaware
Corporation
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_______________________
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Effective
Date:
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__________________
(the
“Effective
Date”)
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Term:
_____________________(such
period, the “Initial
Term”)
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||
DebtResolve
and Client are hereby each a “Party”
and
collectively, the “Parties”.
* * * * *
WHEREAS,
DebtResolve provides proprietary internet-based software tools and technology,
utilizing a blind bidding system, based upon patented technology licensed
to
DebtResolve, for the collection of consumer debts to financial institutions,
lenders and holders of consumer debt to assist such persons with the collection
of such debts (collectively, the “DebtResolve
System”);
and
WHEREAS,
Client is a financial institution, debt collector or other holder of consumer
indebtedness, and desires to license the DebtResolve System described on
Exhibit
A
from
DebtResolve for purposes of evaluating its effectiveness, in accordance with
the
terms and conditions as set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS.
The
following are the definition of certain capitalized terms used in this
Agreement.
1.1. “Agreement”
means
this DebtResolve Customized Solution Program License Agreement.
1.2. “End-User”
shall
mean each of Client’s customer debtors whose Debtor Account Information is
provided to DebtResolve by Client and entered into the Customized Solution
Database.
1.3. “Intellectual
Property”
means,
for any person or entity, patents (including patent applications), know-how,
trademarks, trade names, service marks, domain names, trade dress, logos
or
other identifying indicia, trade secrets, copyrights and copyrighted materials,
software, Confidential Information, systems, technology, supplier data and
access to any other intellectual property owned or controlled by, or licensed
to
such person or entity.
2. SUMMARY
OF PROGRAM. DebtResolve
shall create a series of Web pages using the DebtResolve System described
on
Exhibit
A
prominently branded with the Client’s trademarks and logos (such customized
version of the DebtResolve System identified on Exhibit
A
may be
referred to herein as the “Customized
Solution”).
DebtResolve shall be responsible for hosting the Customized Solution. From
time
to time as agreed by the Parties, Client shall forward to DebtResolve the
Debtor
Account Information to facilitate use of the Customized Solution. The Debtor
Account Information permits an End-User to access the Customized Solution
over
the Internet and utilize the Customized Solution to attempt to resolve the
account with Client. Client will be solely responsible for establishing
settlement parameters (amount, terms, etc.) for all accounts. The Customized
Solution shall be enabled to accept payments so that the End-User can make
payment in full, or the first payment of an agreed upon payment plan, as
part of
the agreed upon resolution.
3. LICENSE
TO CUSTOMIZED SOLUTION.For
the
duration of the Term, provided that the Client is not in material breach
of any
term or condition of this Agreement, DebtResolve hereby grants to Client,
and
Client hereby accepts, subject to the terms and conditions of this Agreement,
a
non-exclusive, non-transferable and nonassignable license, without the right
to
sublicense, to use the DebtResolve System, in the form of the Customized
Solution, while hosted by DebtResolve, and to permit End-Users to access
the
Customized Solution through the Internet, for use solely in connection with
the
collection of consumer debts (the “Licensed
Field”)
within
the United States of America and, to the extent agreed to in writing by the
Parties, other specifically identified countries (collectively, the
“Licensed
Territory”).
All
software used in connection with the Customized Solution shall be hosted
by or
at the direction of DebtResolve. Accordingly, no physical media containing
the
software for the Customized Solution shall be provided to Client. The foregoing
license grant is personal to Client and shall not include any affiliates,
subsidiaries or other related parties of Client, unless this Agreement expressly
provides otherwise. Except
for such rights expressly granted to Client herein, no license, right, title
or
interest in or to the DebtResolve System, the Customized Solution or any
other
Intellectual Property of DebtResolve is granted to Client or any other person
or
entity, either expressly or by implication, estoppel or otherwise.
4. PARTIES’
RESPONSIBILITIES
4.1. Creation
of the Customized Solution. Following the Effective Date, DebtResolve, with
the assistance and cooperation of Client, will take the necessary actions
to
create the Customized Solution and make the same available for access by
Client’s customers over the Internet. Client shall provide DebtResolve with
digital versions of the Client Trademarks and Client Copyrightable Materials
in
any format reasonably requested by DebtResolve. The Customized Solution
shall
include the DebtResolve logo and phrase “Powered by ▇▇▇▇▇▇▇▇▇▇▇.▇▇”
at appropriate positions as mutually agreed by the Parties. Before the
Customized Solution is made available generally to End-Users, DebtResolve
shall
make the proposed Customized Solution available to Client for review and
approval of the use of the Client Trademarks therein, such approval not
to be
unreasonably withheld or delayed. Once Client had approved the Customized
Solution, it shall be made available to End-Users generally over the Internet
on
Web pages within Client’s primary second-level domain. Accordingly, the URL for
the web pages containing the Customized Solution shall have the second
level
domain name consistent with that of Client’s primary web site (e.g.,
▇▇▇.▇▇▇▇▇▇.▇▇▇), evidencing to an End-User that they are dealing directly
with
Client at an URL to be suggested by DebtResolve as the host of the Customized
Solution, usually ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. The date on which Client approves
the Customized Solution may be referred to as the “Approval
Date.”
4.2. Procedures.
4.2.1. From
time
to time as agreed by the Parties, for each debtor, Client shall provide
DebtResolve with the information identified on Exhibit
B
hereto
(such information, collectively, the “Debtor
Account Information”),
which
DebtResolve shall upload into a database accessible through the Customized
Solution (the “Customized
Solution Database”).
An
invitation code (the “Invitation
Code”),
different from the account number, shall be given to each account of an End-User
by Client, which Invitation Code shall be established by using an algorithm
provided to Client by DebtResolve. Once Client provides DebtResolve with
the
Debtor Account Information with respect to any account, Client shall not
utilize
or attempt to utilize any other collection methods with respect to such account
during the Term.
4.2.2. Upon
transfer of Debtor Account Information to DebtResolve, Client shall take
reasonable actions to contact the End-User on each such account to (a) advise
End-User of the availability of the Customized Solution tool to resolve the
End-User’s account, (b) encourage the End-User to utilize the Customized
Solution; and (c) provide each End-User with his or her unique Invitation
Code,
which will permit the End-User to access the Customized Solution. These contacts
shall take the form of regular mailings, billing stuffers, words on an
End-User’s account statement or other account correspondence, telephone calls
and/or e-mail, as appropriate, all as agreed to by the Parties.
2
4.2.3. Client
agrees to be bound by any settlement within the settlement parameters it
provides to DebtResolve, subject to all payments being made in accordance
with
the terms of such settlement. Client agrees to hold DebtResolve harmless
from
any and all costs, damages, expenses, and losses, including, without limitation,
reasonable attorneys’ fees (collectively, “Losses”),
DebtResolve may incur as a result of, or arising from, claims related to
the
Customized Solution settling an account within the settlement parameters
provided by Client.
4.3. Payments
from End-Users.
Upon
reaching a settlement, the Customized Solution will require the End-User
to
either make payment in full (if that was a condition of the settlement) or
make
the first payment of the scheduled payments pursuant to the agreed upon
settlement. Client shall make available to DebtResolve for interface with
and
use in the Customized Solution, one or more electronic payment methods, which
shall enable such payments to be received directly by Client. In no event
shall
DebtResolve receive or be responsible to collect from End-Users any payments
made in satisfaction of a debt. Where the settlement provides for more than
one
payment, the End-User shall make all such payments through the payment methods
made available in the Customized Solution to the extent such payments become
due
during the Term.
4.4. Reports.
Client
shall have real-time access to the data specified on Exhibit
C
hereto.
Customized reports shall be provided to Client as agreed to in writing by
the
Parties.
5. FEES.
Client
shall pay to DebtResolve the fees (collectively, the “Fees”)
identified on, and in accordance with the payment schedule in, Part I of
Exhibit
D.
Client
shall be responsible for any and all taxes due, assessments or other charges
of
any kind that may be imposed on DebtResolve or Client by any governmental
taxing
authority as a result of the goods or services provided under this Agreement
other than any taxes based upon the income of DebtResolve.
6. TERM
AND TERMINATION
6.1. Following
the Initial Term (or any extension thereof), the term of this Agreement shall
be
automatically extended for additional six (6) month periods unless either
party
provides the other with written notice at least thirty (30) days prior to
the
end of the then-current term that it does not intend to extend the current
term.
The Initial Term plus all extensions thereof may be referred to as the
“Term.”
Notwithstanding anything herein to the contrary, Client shall not provide
to
DebtResolve, and DebtResolve shall not be required to process, any Debtor
Account Information first provided following any notice of an intent not
to
renew pursuant to this Section 6.1 or a notice to terminate pursuant to Section
6.2.
6.2. Client
acknowledges that DebtResolve has extended to Client special introductory
pricing and other terms during the Initial Term. Each of the parties
acknowledges and agrees to negotiate in good faith during the thirty (30)
day
period immediately prior to the end of the Initial Term revised pricing and
terms for the balance of the Term following the Initial Term. Notwithstanding
anything herein to the contrary, in the event the parties cannot reach mutually
agreeable pricing and terms for the period following the Initial Term, either
party may terminate this Agreement following the Initial Term by providing
ten
(10) days prior written notice to the other.
6.3. Either
Party may terminate this Agreement upon written notice in the event the other
party materially breaches any of the material terms of this Agreement. Prior
to
any termination, however, the non-breaching Party will notify the breaching
party in writing of all outstanding deficiencies and/or complaints, and the
breaching party will have (i) thirty (30) (or, in the event of a payment
default
under Section 5 of this Agreement, five (5)) calendar days (the “Cure
Period”),
to
cure such deficiencies or complaints or begin to do so in good faith. If
the
breaching Party cures all such deficiencies or complaints within the Cure
Period, the material breach will be deemed corrected, and the non-breaching
Party shall not be entitled to terminate this Agreement. Immediately upon
termination or expiration of the Term, (a) Client agrees to: (i) stop using
the
Customized Solution and any and all related documentation (not including
reports
provided to Client hereunder) and to return all such documentation to
DebtResolve; (ii) return to DebtResolve any other Intellectual Property or
Confidential Information of DebtResolve, and (iii) if so requested, certify
in
writing that it has complied with the foregoing; and (b) DebtResolve agrees
to:
(i) stop using the Client Trademarks and Client Copyrightable Materials;
(ii)
return to Client any other Intellectual Property or Confidential Information
of
Client, and (iii) if so requested, certify in writing that it has complied
with
the foregoing. Termination or expiration of this Agreement shall not effect
Client’s obligation to make payment of all Fees or other costs related to a
period prior to the effective date of such termination or expiration or
otherwise in accordance with their terms to the extent any Fee obligation
may
arise following any such termination or expiration.
3
6.4. Survival
of Terms.
Terms
and conditions which by their nature survive the termination of this Agreement
shall survive and continue beyond the term and termination of this Agreement,
including, without limitation, Sections 5, 6 and 7 (including Exhibit
E).
7. MISCELLANEOUS
7.1. Program
Standard Terms and Conditions; Exhibits.
The
DebtResolve Program Standard Terms and Conditions, a copy of which is attached
hereto as Exhibit
E,
are
incorporated herein by reference and shall have the same force and effect
as if
such provisions were set forth herein in their entirety. Moreover, all Exhibits
referenced in this Agreement are incorporated into this Agreement by reference
herein and shall have the same force and effect as if the provisions thereof
were explicitly included herein.
7.2. Notices.
Except
as otherwise permitted by this Agreement, any notice required by this Agreement
will be in writing and sent to the other Party by United States certified
mail
or by nationally recognized overnight courier service to the addresses of
the
Parties set forth on the first page of this Agreement or to such other address
as a Party may provide in accordance with the provisions of this Section.
All
notices will be deemed given or delivered when actually received.
7.3. Headings.
The
titles and headings of the various sections and paragraphs in this Agreement
are
intended solely for convenience of reference and are not intended for any
other
purpose whatsoever, or to explain, modify or place any construction upon
or on
any of the provisions of this Agreement.
7.4. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which will
be
deemed an original, but which collectively will constitute one and the same
instrument.
[Signature
page follows]
4
IN
WITNESS WHEREOF,
the
Parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the date first above written.
| DEBT RESOLVE, INC. | [INSERT CLIENT NAME] | ||
| By: | By: | ||
|
Name: Title: |
Name: Title: |
5
EXHIBIT
A
DESCRIPTION
OF THE DEBTRESOLVE SYSTEM
The
DebtResolve System is largely comprised of a software product made available
over the Internet that permits holders of consumer debts (“Creditors”)
to
utilize a patented blind bidding system to facilitate the settlement of such
debts with the debtor. The DebtResolve System is designed in such a manner
as to
enable the debtor to interact directly with the Creditor in connection with
the
outstanding debt.
The
DebtResolve System permits the Creditor administrator access by which Creditor
establishes the settlement parameters to be used by the DebtResolve System.
Creditor may establish settlement parameters that are a function of both
time
and amount. For example, for an outstanding balance of $1,000, Creditor could
establish settlement parameters that would accept (i) a lump-sum payment
of
$500, (ii) three monthly payments of $200 for an aggregate payment of $600,
or
(iii) six monthly payments of $150 for an aggregate payment of $750. The
direct
administrator access permits the settlement parameters may be modified at
any
time directly by Creditor without the knowledge or involvement of DebtResolve.
DebtResolve will not establish, and shall not be responsible for establishing,
settlement parameters for the Creditor.
When
a
debtor utilizes the Debtresolve System, following compliance by debtor with
required security log-in procedures, the debtor will be provided with his
or her
outstanding balance. The DebtResolve System has the ability to provide a
debtor
the opportunity to dispute the outstanding debt and provide Creditor an
explanation for the dispute. If the debtor is provided this opportunity and
disputes the debt, his or her ability to continue using the DebtResolve System
will terminate, and the dispute notice will be transmitted to Creditor. If
the
debtor does not dispute the debt (or if this option is not provided), the
debtor
will have an opportunity to make an offer to settle the debt by specifying
a
payment amount offered by the debtor and selecting from a schedule of payment
options established by Creditor by way of the settlement parameters inputted
though Creditor’s administrative access. The DebtResolve System will compare the
settlement offer against the settlement parameters established by Creditor.
If
the
debtor’s offer is within Creditor’s settlement parameters, the debtor will
receive an immediate reply that the offer was accepted. The debtor will be
able
to confirm his or her agreement with the settlement and to enter information
to
permit processing of the payment amount due at that time. Payments are made
by
debtors directly to Creditor. DebtResolve does not receive payments from
any
debtor but may provide access to electronic payment gateways.
If
the
offer is rejected, the debtor will be provided at least two more opportunities
to make a better offer. A final opportunity to make an improved offer may
be
extended after an unsuccessful third round if the third round offer is close
to
the settlement parameters set by Creditor. Whether an offer is close enough
to
invite a fourth offer is among the parameters to be set by Creditor. If still
unsuccessful after completion of this process, the debtor will have an
opportunity to submit any suggestions or other offers directly to Creditor
by
email. This information is provided directly to Creditor, and no further
screens
are presented to the debtor until Creditor has contacted the
debtor.
If
a
debtor seeks assistance, the DebtResolve System will provide the debtor with
two
different telephone numbers: one, Client’s customer service line, to allow
discussion of the debtor’s account, and the other for technical questions on the
use of the DebtResolve System. Client’s customer service line shall be the sole
and absolute responsibility of Client. DebtResolve will not be involved in
any
conversations relating to the debtor’s account. The technical support telephone
line will be the responsibility of DebtResolve. Technical Support shall be
limited to assisting debtors in utilizing or navigating the DebtResolve System.
In no event will technical support include any assistance relating to the
debt
owed. Operators at the technical support line will direct debtors with any
questions concerning their debts or accounts to call the Creditor customer
service line.
EXHIBIT
B
DEBTOR
ACCOUNT INFORMATION
Invitation
Code
Product
Code
Product
Account Number
Client
Account Number
SS
Number
Status
Indicator
Balance
Date
Last
Payment
Days
Past
Due
Last
Pay
Amount
Account
Score
Cure
Amount
First
Name
Middle
Name
Last
Name
Address
1
Address
2
City
State
Zip
Country
Home
Phone
Work
Phone
Mobile
Phone
Fax
Phone
Email
Address
Comaker
Flag
Manual
Settlement
Settlement
Percent
Floor
Amount
Manual
Max Term
Discount
Amount
EXHIBIT
C
DATA
AVAILABLE FOR REAL-TIME ACCESS
Client
shall have the ability to view the following types of data, on a real-time
basis, with respect to each account of an End-User within the Customized
Solution database, by accessing the Customized Solution over the Internet
through a password-protected log-in made available to Client:
| Ø |
Detailed
User Activity
|
| § |
customer
details
|
| § |
account
details
|
| § |
settlement
floor & overrides
|
| § |
workflow
(time stamped passage through
system)
|
| § |
offer
history
|
| § |
disputes
|
| § |
qualifying
treatment
|
| § |
payment
history
|
| § |
notification
history
|
| § |
login
history
|
| Ø |
Group/Product
Usage Statistics
|
| § |
balances
settled
|
| § |
dollars
impacted
|
| § |
registered
users
|
| § |
accounts
invited
|
| Ø |
Bidding
Process Statistic
|
| Ø |
Payment
Summary/Detail Statistics
|
| Ø |
All
Registrations/Logins
|
EXHIBIT
D
FEES
Client
shall pay to DebtResolve the following Fees, in accordance with the time
schedule specified herein. DebtResolve shall be entitled to be reimbursed
for
any transaction fees, discounts or other third party expenses incurred in
processing any payment.
| · |
Fixed
Licensing Fee for the Term paid on a monthly
basis.
|
| · |
One-Time
Customized Solution Set-Up
Fee
|
| · |
Fixed
Web pages monthly maintenance
fee
|
| · |
Boarding/Setup
Fee for each Debtor account inputted into the Customized
Solution
|
| · |
Click
Fees for each visit to Customized Solution Web pages and a Set-Up
Fee
|
| · |
Transaction
fees for each Debtor offer submitted and responded to on behalf
of
creditor
|
| · |
Fixed
“success fee” for each accepted payment arrangement (consider whether tail
is necessary)
|
| · |
Percentage
“success fee” for each payment actually received on behalf of Client
(consider whether tail is
necessary)
|
Client
shall pay to DebtResolve an amount equal to ____ percent (___%) of the aggregate
amounts paid to Client (prior to any reduction in the amounts paid due to
transaction fees, discounts, or other third party expenses incurred in
collection of, or processing, the amounts paid) on any account of any End-User
who (i) utilized the Customized Solution and satisfied all or any portion
of his
or her account obligations through the Customized Solution; or (ii) satisfied
all or any portion of his or her account obligations other than through the
Customized Solution during a period commencing on the date on which such
End-User’s Debtor Account Information is provided to DebtResolve and ending ___
(___) days thereafter.
Any
payment of a Fee shall be due and payable on or prior to the tenth
(10th)
day of
the calendar month immediately following the month in which the collection
giving rise to such Fee occurred. The payment of such Fee shall be accompanied
by a monthly report from Client indicating the proceeds collected from each
End-User during such month, including for each End-User account: (i) what
amount
of such collections were made through the Customized Solution, (ii) what
amount
of such collections were made other than through the Customized Solution,
(iii)
if payment was made other than through the Customized Solution, the date
on
which such payment was made and whether such payment was within the period
for
which Client owes DebtResolve a Fee; and (iv) the amount of any Fee owed
DebtResolve as a result of payments made other than through the Customized
Solution. To the extent DebtResolve has custody of such collected funds,
DebtResolve shall have the right to deduct any Fees owed DebtResolve before
transferring such proceeds to Client.
EXHIBIT
E
PROGRAM
STANDARD TERMS AND CONDITIONS
The
following are the Program Standard Terms and Conditions (the “Terms
and Conditions”)
incorporated into the DebtResolve Customized Solution Program License Agreement
(the “Agreement”).
By
agreeing to the terms of the Agreement, the parties are agreeing to the terms
and provisions included herein. Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Agreement.
1. Regulatory
Compliance. DebtResolve
acknowledges that Client may be in a regulated industry, or subject to
legislative requirements that relate to customer data privacy and information
security. To the extent applicable to Client, promptly upon execution of
the
Agreement, Client shall provide DebtResolve with written instructions detailing
Client’s privacy and information security requirements and procedures
established for its contractors. DebtResolve agrees to use commercially
reasonably efforts to abide by such privacy and information security
requirements. Client acknowledges and agrees that DebtResolve has not
represented itself to Client as a debt collector nor has DebtResolve offered
to
perform the services of a debt collector. To the extent Client’s activities ay
be subject to debt collection or similar laws or regulations, whether state
or
federal, compliance with such laws or regulations shall be the sole
responsibility of Client.
2. Intellectual
Property Protections.
2.1. No
Right to Own Derivative Works; No Reverse Engineering.
Client
shall not, nor shall Client permit any third party to, disassemble, reverse
engineer, de-compile, alter, or otherwise modify the DebtResolve System or
the
Customized Solution, including without limitation, the software used in
connection with such system. Any derivative works from, or other improvements
or
enhancements to, the DebtResolve System or the Customized Solution and any
other
Intellectual Property created, acquired or developed by or for Client that
is
directly or indirectly derived from the DebtResolve System or the Customized
Solution shall be owned exclusively by DebtResolve. Client shall not
remove,
nor permit any person to remove any copyright, trademark, patent, or other
proprietary notices from any portion of the DebtResolve System or Customized
Solution, including, without limitation, the software associated
therewith.
Client
shall have no right to receive or use the source code of the software associated
with the DebtResolve System or the Customized Solution. Client shall not
take
any action that is inconsistent with DebtResolve’s ownership of the DebtResolve
System and Customized Solution.
2.2. Terms
of Use.
No
End-User shall be permitted to utilize or access the Customized Solution
until
such End-User shall have agreed to Client’s terms of use, as the same may be
amended from time to time (the “Terms
of Use”).
Such
Terms of Use will be a click-wrap agreement made available as part of the
End-User’s registration to use the Customized Solution.
3. CLIENT
INTELLECTUAL PROPERTY LICENSES
3.1. Trademark.
Client
hereby grants to DebtResolve for the Term of this Agreement a nonexclusive,
royalty-free right and license to use, display and reproduce Client’s name,
logo, trademarks and service marks (collectively, the “Client
Trademarks”),
solely for the purpose of effectuating DebtResolve’s duties and obligations
under this Agreement, including, without limitation, use in connection with
the
Customized Solution. All of Client’s rights in and to the Client Trademarks will
remain at all times the sole and exclusive property of Client. DebtResolve
shall
comply with the standards established by Client and provided to DebtResolve
in
writing with respect to the form of the Client Trademarks, their usage, and
the
underlying goods and/or services. All use of the Client Trademarks shall
inure
to the benefit of Client.
3.2. Copyright.
Client
hereby grants to DebtResolve for the Term of this Agreement a nonexclusive,
royalty-free right and license to use, display and reproduce all copyrighted
and
copyrightable materials supplied to DebtResolve by or on behalf of Client,
including, without limitation, Client’s web site privacy policy and Terms of Use
(such materials, collectively, the “Client
Copyrightable Materials”)
solely
for the purpose of effectuating DebtResolve’s duties and obligations under this
Agreement. All of Client’s rights in and to the Client Copyrightable Materials
will remain at all times the sole and exclusive property of Client.
4. Representations
and Warranties.
4.1. Mutual
Representations and Warranties.
Each
Party represents and warrants to the other Party that: (i) it is a corporation,
limited liability company, or other entity (as set forth on the first page
to
the Agreement), duly organized, validly existing and in good standing under
the
laws of its state of organization (as set forth in the introductory paragraph
to
the Agreement) (ii) it
has
full power and authority to enter into this Agreement and to consummate the
transactions and perform its obligations contemplated hereby; (iii) the
execution, delivery and performance by such Party of this Agreement have
been
duly authorized by all requisite company action; (iv) this Agreement has
been
duly executed and delivered by such Party and constitutes a valid and binding
agreement of it, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally or by general equitable
principles; and (v) the
execution, delivery and performance of this Agreement by such Party does
not
constitute or cause a breach of its organizational documents, governing
documents, any license or permit, or any other agreement to which it is a
party.
4.2. Disclaimer
of Representations and Warranties.
TO THE
MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THIS AGREEMENT, EACH
PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED
OR
STATUTORY, ORAL OR IN WRITING, ARISING UNDER THE LAWS OF THE UNITED STATES,
INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO VALIDITY, ENFORCEABILITY,
NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OR THE LIKE WITH RESPECT TO THIS AGREEMENT,
THE TRANSACTIONS CONTEMPLATED HEREBY AND THE GOODS AND SERVICES TO BE PROVIDED
HEREUNDER.
5. Infringement.
5.1. Defense
Against Infringement Claims.
.
Subject to the penultimate sentence of this paragraph, DebtResolve shall
defend
and hold harmless Client from and against any infringement claims, demands
or
actions by a third party relating to the use of the Customized Solution in
the
Licensed Field and Licensed Territory (“Third
Party Infringement Claims”).
Client agrees to cooperate with DebtResolve with respect to the foregoing.
Client shall have no claim of any kind against DebtResolve based on or arising
from DebtResolve’s handling of or decisions concerning any such Third Party
Infringement Claim, or any settlement or compromise thereof, and Client hereby
irrevocably releases DebtResolve from any such claim. DebtResolve shall have
no
obligation pursuant to this Section 5 in connection with any claim that arises
because of (i) any modification or enhancement to the Customized Solution
other
than by DebtResolve; (ii) specifications required by Client or materials
provided by Client that are included in the Customized Solution (including,
without limitation, the Customized Solution Database, Terms of Use, Client
Trademarks, Client Copyrightable Materials and privacy policy); (iii) use
of the
Customized Solution in any way other than as intended and permitted by the
Agreement, or (iv) Client’s failure to use a work-around or substitute made
available by DebtResolve for the Intellectual Property at issue. In the case
of
any claim arising by reason identified in the immediately preceding subsections
(i), (ii), (iii) or (iv), Client will defend, indemnify and hold DebtResolve
harmless from any such claims.
5.2. Infringement
Remedy.
In the
event that the Customized Solution is held by a court of competent jurisdiction,
pursuant to a final order from which no legal appeal can be taken, to infringe
the Intellectual Property rights of a third party in the Licensed Territory,
or
threatened to so infringe, then DebtResolve shall use commercially reasonable
efforts to either (i) procure for Client the right to continue using the
Customized Solution; or (ii) replace or modify the Customized Solution to
make
the same noninfringing. In the event DebtResolve determines it not to be
commercially reasonable to either (i) procure for Client the right to continue
using the Customized Solution or (ii) replace or modify the Customized Solution
to make the same noninfringing, then DebtResolve may terminate the Agreement,
which termination shall relieve Client of its obligations to pay Fees following
the date of such final order and entitle Client to reimbursement of any Fees
previously paid for the period following the date of the final order. This
Section 5.2 sets forth Client’s sole and exclusive rights and remedies, and
DebtResolve’s sole and exclusive obligations and liability, under this Agreement
with respect to any infringement, misappropriation, dilution or other violation
of the Intellectual Property rights of any third party.
6. Record
Retention and Inspection.
DebtResolve shall retain the records relating to transactions that occur
through
the Customized Solution (the “Transaction
Records”)
for a
period of one (1) year or longer, if required by law. Upon reasonable written
notice, during the Term, Client shall be permitted to inspect the Transaction
Records at DebtResolve’s place of business unless the Parties mutually agree on
a different location. Client’s inspection shall be performed during normal
business hours and shall be performed in such a manner so as to not interfere
with the regular operations of DebtResolve.
7. Indemnification
7.1. Indemnification.
Subject
to Sections 5.2 and 7.3 of these Terms and Conditions, each Party (an
“Indemnifying
Party”)
agrees
to defend, indemnify, and hold the other Party, and its respective directors,
officers, employees and agents (the “Indemnified
Party”),
harmless from and against any and all Losses, resulting from, arising out
of, or
in any way connected with claims due to (i) the material breach by the
Indemnifying Party of any of its representations, warranties, covenants or
agreements contained herein, or (ii) the grossly negligent, intentionally
wrongful or illegal acts or omissions of the Indemnifying Party or any of
its
dealers, agents, employees or subcontractors. In addition, Client agrees
to
defend, indemnify, and hold DebtResolve, and its respective directors, officers,
employees and agents harmless from and against any and all Losses resulting
from
claims, arising out of, or in any way connected with, (a) the Client Trademarks,
(b) the Client Copyrightable Materials, or (c) compliance by DebtResolve
with
any specifications required by Client in connection with the Customized Solution
or the related services. Notwithstanding anything herein to the contrary,
the
foregoing indemnification shall not apply to any Losses by Client resulting
from, arising out of, or in any way connected with Third Party Infringement
Claims.
7.2. Procedures.
With
respect to any third-party claims, it will be an ongoing condition of the
foregoing indemnity that the Indemnified Party give the Indemnifying Party
prompt written notice of any actual or threatened claim, and provide the
Indemnifying Party with all reasonably accessible information regarding such
claims in the Indemnified Party’s possession. If the Indemnifying Party fails to
undertake and continue such defense, the Indemnified Party will have the
right
(but not the obligation) to make and continue such defense as it considers
appropriate, and the expenses and costs thereof, including but not limited
to
reasonable attorneys’ fees, out-of-pocket expenses and the costs of an appeal
and bond thereof, together with the amounts of any judgment rendered against
the
Indemnified Party, will be paid by the Indemnifying Party. The Indemnifying
Party shall not enter into any settlement of an indemnified claim that does
not
provide the Indemnified Party with a general release as a condition of
settlement without the prior written approval of the Indemnified Party.
7.3. Damage
Limitations.
NOTWITHSTANDING
ANY PROVISIONS IN THIS AGREEMENT TO THE CONTRARY, UNDER
NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT
TO ANY
SUBJECT MATTER OF THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS EVEN IF INFORMED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS
SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE AND APPLIES
TO ALL
CAUSES OF ACTION IN THE AGGREGATE INCLUDING, WITHOUT LIMITATION, BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION,
AND OTHER TORTS.
DEBTRESOLVE’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE AN AMOUNT EQUAL TO
THE FEES ACTUALLY RECEIVED BY IT DURING THE TERM.
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7.4. Survival.
The
indemnification obligations contained in this Section 7 of these Terms and
Conditions will survive the termination or expiration of the Agreement for
a
period of one (1) year after the date of such termination or
expiration.
8. Confidential
Information
8.1. “Confidential
Information”
means:
(i) the specific terms and conditions of this Agreement (but not the existence
hereof); (ii) any information, in whatever form, designated by a Party
(“Disclosing
Party”)
in
writing as confidential, proprietary and marked with words of like import
when
first provided to the other Party (“Receiving
Party”);
and
(iii) information the Receiving Party knew or reasonably should have known
was
confidential. Confidential Information will not include information which:
(i)
at or prior to the time of disclosure was known to the Receiving Party through
lawful means; (ii) at or after the time at which the disclosure by the
Disclosing Party becomes generally available to the public through no act
or
omission on the Receiving Party’s party; (iii) is
developed by the Receiving Party independent of any Confidential Information
it
receives from the Disclosing Party;
or (iv)
the Receiving Party lawfully receives from a third party free to make such
disclosure without breach of any legal obligation on such third party.
Aggregated Debtor Account Information and Customized Solution transaction
data
(in each case, that do not contain any personally identifying information)
and
End-User e-mail addresses shall not be deemed Confidential Information and
DebtResolve shall be permitted to use such information for purposes of
benchmarking, evaluating and demonstrating results and other uses.
8.2. Requirements.
Each
Party shall use the Confidential Information of the other Party solely to
fulfill its obligations and exercise its rights under this Agreement and,
without the prior written consent of the Disclosing Party, otherwise shall
not
disclose any of the Disclosing Party’s Confidential Information to any third
party. Except as otherwise provided in the Agreement, all Confidential
Information of the Disclosing Party shall remain at all times the sole and
exclusive property of the Disclosing Party. The Receiving Party shall use
the
same measures used to protect the Disclosing Party’s Confidential Information as
it uses to protect its own Confidential Information, but in no event less
than
commercially reasonable measures.
8.3. Disclosure
Due to Legal Obligations.
The
Receiving Party may disclose Confidential Information pursuant to any statute,
regulation, order subpoena or document discovery request, including, without
limitation, in publicly filed disclosure documents of the Receiving Party
under
federal or state securities laws if deemed reasonably necessary on advice
of
legal counsel; provided that prior written notice of such disclosure is
furnished to the Disclosing Party as soon as practicable in order to afford
it
an opportunity to seek a protective order (it being agreed that if the
Disclosing Party is unable to obtain or does not seek a protective order
and the
Receiving Party is legal compelled to disclose such information, disclosure
of
such information may be made without liability).
8.4. Return
of Information.
The
Receiving Party shall, at the request of the Disclosing Party, retrieve all
Confidential Information from its officers, employees, agents, advisors and
subcontractors and thereafter shall (a) promptly return all Confidential
Information held or used by the Receiving Party in whatever form, or (b)
at the
discretion of the Disclosing Party, promptly destroy all such Confidential
Information, and promptly cause an officer of the Receiving Party to certify
that the requirements of this Section 8.4 of these Terms and Conditions have
been fully complied with; provided, that during the Term the Disclosing Party
shall not make such a request with respect to Confidential Information necessary
for the Receiving Party to perform its obligations hereunder.
8.5. Injunctions.
In view
of the difficulties of placing a monetary value on the Confidential Information,
the Disclosing Party shall be entitled to a preliminary and final injunction
without the necessity of posting any bond or undertaking in connection therewith
to prevent any further breach of this Section or further unauthorized use
of its
Confidential Information. This remedy is separate from and in addition to
any
other remedy the Disclosing Party may have at law or equity.
9. Hosting.
The
Customized Solution shall be hosted on secure servers, located behind a
firewall, maintained by DebtResolve. DebtResolve agrees to make commercially
reasonable efforts to keep the Customized Solution operational 99.99% of
the
time, 24 hours a day, seven days a week, except for scheduled system
maintenance. Client acknowledges and agrees that the Internet and Internet
servers are susceptible to terminations and other interruptions and down
time
that are beyond the control of DebtResolve and for which DebtResolve shall
not
be liable.
10. Miscellaneous
10.1. Assignment.
This
Agreement will be binding on and will inure to the benefit of the Parties
hereto
and their respective successors and assigns. This Agreement may not be assigned
or otherwise transferred by either Party without the express written consent
of
the other Party.
10.2. Client
Link Placement.
Client
shall place hyperlinks within its website, on pages and locations on pages
as
agreed by the Parties, to the web pages containing the Customized Solutions,
for
purposes of encouraging use of, and facilitating access to, the web pages
containing the Customized Solution.
10.3. Force
Majeure.
Neither
Party
hereto
shall be liable for loss or damage resulting from any delay or non-performance,
or be held to be in breach, nor shall the other Party be entitled to terminate
this Agreement, due to any cause or causes beyond its reasonable control,
including, without limitation, an act of the other party, malfunctioning
or
nonfunctioning of equipment, a delay in transportation, acts of God, fire,
flood, earthquake, storm, war, sabotage, riot, civil commotion, or because
of
any law, rule, regulation, order or other action by any public
authority.
10.4. Entire
Agreement; No Waiver.
The
Agreement contains the entire agreement between the Parties and may not be
modified or amended except by a written instrument signed by both Parties.
Neither the failure to insist upon strict performance of any of the terms,
covenants or conditions of the Agreement, nor the acceptance of monies due
hereunder with knowledge of a breach of this Agreement, shall be deemed a
waiver
of any rights or remedies that either Party may have or a waiver of any
subsequent breach or default in any of such agreements, terms, covenants
and
conditions.
10.5. Modification
and Severability.
Wherever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be deemed modified to the extent necessary to make it enforceable under
applicable law. If any such provision is not enforceable as set forth in
the
preceding sentence, the unenforceability of such provision shall not affect
the
other provisions of this Agreement, but this Agreement
shall be construed as if such unenforceable provision had never been contained
herein.
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10.6. Governing
Law.
This
Agreement will be governed by the laws of the State of New York without regard
to its principles of conflicts of laws.
10.7. Dispute
Resolution; Arbitration.
Any
dispute between the Parties arising out of or related to this Agreement shall
be
resolved by final and binding arbitration to be conducted within Westchester
County, New York, before a single arbitrator in accordance with the then
current
Commercial Arbitration Rules of the American Arbitration Association
(“AAA”
and
“Rules
of the AAA”).
Either Party may commence arbitration. The arbitrator shall be selected by
the
Members from the AAA panel list in accordance with the appointment Rules
of the
AAA. Any award of the arbitrator shall be in writing, shall state the reasons
for the award (including any findings of fact and conclusions of law), and
shall
explain the basis for any damages awarded. The United States Arbitration
Act, 9
U.S.C. Sections 1 to 14 (as amended), shall govern the interpretation and
enforcement of this Section 10.7 of these Terms and Conditions. Judgment
upon
the arbitration award shall be entered in any court having jurisdiction over
(a)
the party against whom the judgment was rendered or (b) such party’s property.
Notwithstanding the foregoing, either party may seek equitable relief in
a court
of competent jurisdiction to preserve the status
quo
until
such time as a decision by the arbitrator is rendered.
10.8. Export
Control Regulations.
Client
acknowledges and agrees that none of the software or technology underlying
the
Customized Solution may be downloaded or otherwise exported or re-exported
into
or to a national or resident of any country to which the United States has
embargoed goods or to anyone on the U.S. Treasury Department’s List of Specially
Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.
Client represents and warrants that it is not located in, under the control
of,
or a national or resident of any such country or on any such list.
10.9. Interpretation.
The
Parties acknowledge and agree that this Agreement has been freely negotiated
and
entered into by each Party and that no court should in any manner construe
any
ambiguity against the draftsman solely by virtue of its role as draftsman.
Unless the context indicates otherwise, the term “or” shall be deemed to include
the term “and” and the singular or plural number shall be deemed to include the
other.
10.10. Independent
Parties.
The
parties acknowledge, confirm and agree that they are independent contractors
and
this Agreement is not intended to create a joint venture, association,
partnership, franchise or other form of business or relationship. Except
as
expressly provided in this Agreement, neither Party will have, nor hold itself
out as having, any right or power or authority to assume, create or incur
any
expense, liability or obligation, express or implied, on behalf of the other
Party, or to act on behalf of the other Party in any capacity or in any
manner.
[End
of
General Terms and Conditions]
4