EXHIBIT 10.4
INTERCOMPANY DATA PURCHASE AGREEMENT
BETWEEN EQUIFAX INC.
AND
CERTEGY INC.
DATED _________________, 2001
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................ 1
Section 1.1. Definitions.................................... 1
ARTICLE II DATA PURCHASE..................................... 5
Section 2.1. General........................................ 5
Section 2.2. Supplemental Terms............................. 6
Section 2.3. FCRA Certification............................. 7
Section 2.4. Effect of Data Purchase........................ 7
Section 2.5. Effect of Change in Law........................ 7
Section 2.6. Obligations of Providers and Recipients........ 8
ARTICLE III FEES AND PAYMENT................................. 8
Section 3.1. Fees and Charges............................... 8
Section 3.2. Payment Terms.................................. 8
Section 3.3. Disputed Amounts............................... 8
Section 3.4. Interest....................................... 8
Section 3.5. Taxes.......................................... 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................... 9
ARTICLE V LIMITATION ON ACTIONS AND LIABILITIES.............. 10
Section 5.1. Covenant Not to ▇▇▇............................ 10
Section 5.2. Release........................................ 10
Section 5.3. Limitation of Liability........................ 10
ARTICLE VI INDEMNIFICATION................................... 11
Section 6.1. Certegy Indemnification of the Equifax Group... 11
Section 6.2. Equifax Indemnification of the Certegy Group... 12
Section 6.3. Insurance and Third Party Obligations.......... 12
ARTICLE VII INDEMNIFICATION PROCEDURES....................... 12
Section 7.1. Notice and Payment of Claims................... 12
Section 7.2. Notice and Defense of Third Party Claims....... 13
ARTICLE VIII CONFIDENTIALITY................................. 14
Section 8.1. Exclusions..................................... 14
Section 8.2. Confidentiality................................ 14
Section 8.3. Employee Confidentiality Agreements............ 15
Section 8.4. Rights and Remedies............................ 16
Section 8.5. Competitive Activities......................... 16
Section 8.6. No Implied Rights.............................. 16
ARTICLE IX CONTINUED ASSISTANCE.............................. 17
Section 9.1. Continued Assistance and Transition............ 17
TABLE OF CONTENTS
(continued)
Section 9.2. Litigation Cooperation......................... 17
ARTICLE X TERM AND TERMINATION............................... 17
Section 10.1. Term; Termination............................. 17
Section 10.2. Effect of Termination and Expiration.......... 18
ARTICLE XI MISCELLANEOUS..................................... 19
Section 11.1. Expenses...................................... 19
Section 11.2. Notices....................................... 19
Section 11.3. Amendment and Waiver.......................... 20
Section 11.4. Entire Agreement.............................. 20
Section 11.5. Parties in Interest........................... 20
Section 11.6. Further Assurances and Consents............... 20
Section 11.7. Severability.................................. 21
Section 11.8. Governing Law................................. 21
Section 11.9. Counterparts.................................. 21
Section 11.10. Disputes..................................... 21
Section 11.11. Force Majeure................................ 21
Section 11.12. Headings..................................... 22
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TABLE OF CONTENTS
(continued)
EXHIBITS
EXHIBIT A Certegy Group Entities
EXHIBIT B Certegy Group Products & Pricing
EXHIBIT C Equifax Group Products & Pricing
EXHIBIT D Equifax Group Products - Supplemental Terms
EXHIBIT E Certegy Group Products - Supplemental Terms
THIS INTERCOMPANY DATA PURCHASE AGREEMENT dated as of _________, 2001,
is entered into by EQUIFAX INC., a Georgia corporation ("Equifax"), and CERTEGY
INC., a Georgia corporation ("Certegy").
BACKGROUND
A. Certegy is a wholly-owned subsidiary of Equifax formed among other
reasons for the purposes of receiving and conducting the business of the Certegy
Group (as defined below) and taking title to the intellectual property assets
and assuming the associated liabilities related to the business operations of
the Certegy Group.
B. The transfer of such business, assets and liabilities, as well as
other assets, will be effected pursuant to the Distribution Agreement (as
defined below).
C. The parties intend that the Distribution (as defined in the
Distribution Agreement) not be taxable to Equifax or its shareholders pursuant
to Section 355 of the Code (as defined below).
D. Equifax and its Affiliates (as defined below) provide various Data
(as defined below) to each other and to their respective customers. Prior to
the Distribution, Equifax and its Affiliates utilized certain common resources
and discrete, commercial products purchased from one another in the conduct of
their respective businesses. At and after the Effective Time, Equifax and
Certegy desire to purchase from each other and their Group members certain Data
for their own use and for resale to their Group customers.
E. The parties have determined that it is necessary and desirable to
set forth the arrangements required to effect the purchase and sale of their
respective Data to the members of each Group and to set forth their other
agreements that will govern certain other matters regarding the parties'
respective purchase and sale of Data following the Distribution.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements and covenants contained in this Agreement and other valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
As used herein, the following terms have the following meanings:
(a) "Action" means any claim, suit, arbitration, inquiry, proceeding
or investigation by or before any court, governmental or other regulatory or
administrative agency or commission or any other tribunal.
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(b) "Affiliate" means, with respect to a party, any corporation,
partnership (general or limited), limited liability company, joint venture or
other form of business entity that controls, is controlled by or is under common
control with that party; and "control" means (i) either directly or indirectly
owning or having the right to vote ownership interests possessing a majority of
the aggregate voting power of all ownership interests of that entity, or (ii)
having the power to control and direct, either directly or indirectly, the
business and affairs of that entity or to elect or appoint the person (or if
more than one, a majority of the persons) who is responsible for the management
and control of the business and affairs of that entity.
(c) "Agreement" means the terms and conditions of this Intercompany
Data Purchase Agreement and the Exhibits attached hereto.
(d) "Ancillary Agreements" means all of the written agreements,
instruments, understandings, assignments or other arrangements entered into in
connection with the transactions contemplated hereby and in the Distribution
Agreement, including without limitation, the Distribution Agreement, the
Employee Benefits Agreement, the Transition Support Agreement, the Intellectual
Property Agreement, the Tax Sharing and Indemnification Agreement, and the Real
Estate Agreements.
(e) "Certegy Group" means the entities set forth on Exhibit A, and,
at any point in time following the Distribution Date, a Person that is then an
Affiliate of any such entity.
(f) "Certegy Indemnitees" has the meaning given in Section 6.2.
(g) "Certegy Products" means those products, services and
deliverables listed on Exhibit B.
(h) "Code" means the Internal Revenue Code of 1986, as amended.
(i) "Company Information" means collectively the Proprietary
Information and the Confidential Information of the disclosing party. Company
Information also includes information that has been disclosed to Equifax or any
of its Affiliates prior to the Effective Time, or to any member of either Group
after the Effective Time, by a third party subject to an obligation to treat
such information as confidential or secret.
(j) "Confidential Information" means any and all confidential company
business information of the disclosing party that does not constitute
Proprietary Information and that is the subject of efforts by the disclosing
party that are reasonable under the circumstances to maintain its secrecy and
confidentiality, including without limitation, the Data furnished hereunder, the
existence and nature of the relationship between the parties including, without
limitation, the prices set forth in the Exhibits to this Agreement, employees of
the disclosing party, and any and all additional information disclosed by the
disclosing party to the receiving party as a result of the receiving party's
access to and presence at the disclosing party's facilities.
(k) "Consumer Report" has the meaning given in the FCRA.
(l) "Consumer Reporting Agency" has the meaning given in the FCRA.
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(m) "DAT" means a personal computer or direct access terminal.
(n) "Data" means information provided by either party or the members
of its respective Group pursuant to this Agreement.
(o) "Direct Damages" means actual, direct damages incurred by the
claiming party which include, by way of example but without limitation, the
costs to correct any deficiencies in the Data rendered by Provider and similar
damages, but "Direct Damages" shall not include (A) loss of interest, profit or
revenue of the claiming party or (B) incidental, consequential, special,
indirect, punitive or exemplary damages suffered by the claiming party arising
from or related to this Agreement, even if such party has been advised of the
possibility of such losses or damages described in (A) and (B) above.
(p) "Distribution" has the meaning given in the Distribution
Agreement.
(q) "Distribution Agreement" means that certain Distribution
Agreement entered into on or prior to the Distribution Date between Equifax and
Certegy, as amended from time to time.
(r) "Distribution Date" means the date upon which the Distribution
shall be effective, as determined by the Board of Directors of Equifax, or such
committee of such Board of Directors as shall be designated by the Board of
Directors of Equifax.
(s) "Effective Time" means 11:59 p.m. Atlanta time on June 30, 2001.
(t) "End User" means a Recipient or its Subscriber, which Person will
use a given Report, or on whose behalf such Report will be used, in making a
business decision concerning the subject of such Report.
(u) "Equifax Group" means Equifax and its Affiliates existing at the
Effective Time and as modified from time to time thereafter, excluding all
members of the Certegy Group.
(v) "Equifax Indemnitees" has the meaning given in Section 6.1.
(w) "Equifax Products" means those products, services and
deliverables listed on Exhibit C.
(x) "FCRA" means the federal Fair Credit Reporting Act, 15 U.S.C.
Section 1681, et. seq.
(y) "GLBA" has the meaning given in Section 2.5.
(z) "Group" means the Certegy Group or the Equifax Group.
(aa) "Indemnifiable Loss" means any and all Liability and expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses) incurred by an Indemnified Party in
connection with any and all Actions or threatened Actions.
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(bb) "Indemnified Party" has the meaning given in Section 7.1.
(cc) "Indemnifying Party" has the meaning given in Section 7.1.
(dd) "Liabilities" means any and all claims, debts, liabilities and
obligations, absolute or contingent, matured or not matured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising, with
respect to a specified object, matter, contract, commitment or undertaking,
including without limitation, all debts, liabilities and obligations arising
under any law, rule, regulation, action, order or consent decree of any
governmental entity or any award of any arbitrator of any kind, related thereto
and those arising under any contract, commitment or undertaking relating to such
specified object, matter, contract, commitment or undertaking.
(ee) "Permissible Purposes" means one of the permitted purposes for
which a Consumer Report may be provided pursuant to the FCRA.
(ff) "Person" means any individual, entity (whether or not formed as a
corporation, sole proprietorship, partnership, limited liability company or
other form of entity and whether or not conducting its affairs for profit), and
any governmental entity or agency.
(gg) "Prime Rate" shall have the meaning set forth in the Distribution
Agreement.
(hh) "Proprietary Information" means all non-public information,
whether tangible or intangible, related to the services or business of the
disclosing party that (i) derives economic value, actual or potential, from not
being generally known to or readily ascertainable by another Person who can
obtain economic value from its disclosure or use; and (ii) is the subject of
efforts by the disclosing party that are reasonable under the circumstances to
maintain its secrecy, including without limitation, (A) marking any information
reduced to tangible form clearly and conspicuously with a legend identifying its
confidential or proprietary nature; (B) identifying any oral communication as
confidential immediately before, during, or after such oral communication; or
(C) otherwise treating such information as confidential or secret. Assuming the
criteria in clauses (i) and (ii) above are met, Proprietary Information includes
information, without regard to form, including but not limited to, technical and
nontechnical data, databases, formulas, patterns, designs, compilations,
computer programs and software, devices, inventions, methods, techniques,
drawings, processes, financial data, financial plans, product plans, lists of
actual or potential customers and suppliers (which are not commonly known by or
available to the public), research, development, and existing and future
products.
(ii) "Provider" means any member of either Group when providing Data
to the members of the other Group pursuant to this Agreement.
(jj) "Recipient" means any member of either Group when acquiring Data
from the other Group pursuant to this Agreement.
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(kk) "Report" means Data regarding any Person, at the individual or
aggregated levels, contained in any Certegy Product or Equifax Product,
respectively, offered to any member of the other party's Group.
(ll) "Representatives" means, individually and collectively, officers,
directors, employees, agents, and/or independent contractors of each member
of the Group.
(mm) "Subscriber" means any customer of a Recipient which obtains Data
furnished hereunder from that Recipient; provided, however, that a Subscriber
will be deemed to be a "Qualified Subscriber" only if the Subscriber meets the
criteria therefor set forth in the Provider's Supplemental Terms in effect from
time to time, as amended and/or modified by the Provider.
(nn) "Supplemental Terms" means the Equifax Group's supplemental terms
and conditions set forth in Exhibit D and the Certegy Group's supplemental terms
and conditions set forth in Exhibit E, as amended from time to time during the
term of this Agreement.
(oo) "System Affiliate" means a Person that is not an Affiliate of
Equifax that has entered into a written agreement with Equifax Information
Services, LLC regarding the provision of consumer reporting services through the
automated credit reporting service operated by Equifax Information Services,
LLC.
(pp) "Third Party Claim" has the meaning given in Section 7.2.
ARTICLE II
DATA PURCHASE
Section 2.1. General.
(a) During the term hereof, each provision of Data by any member of
one Group to any member of the other Group will be subject to the terms and
conditions of this Agreement and the Supplemental Terms applicable to the
elements comprising the Data as amended and/or modified from time to time during
the term of this Agreement by the Provider. The Data which are provided by
members of one Group to the members of the other Group as of the Distribution
Date, and which will continue to be provided during the term of this Agreement,
are set forth on Exhibits B and C.
(b) The parties acknowledge that the Data to be provided by the
Equifax Group may contain Data owned by the Equifax Group as well as by System
Affiliates, and that the Equifax Group can only provide Data containing
information owned by its System Affiliates to the extent that the System
Affiliates authorize the provision of such information and subject to the
applicable charges to be paid by, and payment terms for, the Certegy Group as
established by the applicable System Affiliate.
(c) The parties have each exerted their best efforts to identify each type of
Data presently provided by the members of one Group to the members of the other
Group and to address such Data in this Agreement or in an appropriate Ancillary
Agreement. The parties
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acknowledge that there may be Data provided by the members of one Group to the
members of the other Group which are not addressed in this Agreement, but agree
that all such items are intended to be governed by this Agreement except to the
extent that such items are governed by an Ancillary Agreement. Moreover, the
parties agree: that the Data provided may require adjustments during the term of
this Agreement to reflect the evolving business and operations of each Group and
applicable law; that the relationship memorialized by this Agreement is dynamic
in nature and will evolve as the operating and business environment of each
Group changes and evolves; and that the scope of the Data that will be provided
during the term and the corresponding fees charged and payment terms extended by
the parties may need to be modified to reflect the foregoing. The parties agree
to cooperate and negotiate with each other in good faith in order to modify this
Agreement as appropriate to give effect to the intent of the parties and to
satisfy the requirements of each party for additional data; provided, however,
that no member of either group shall be obligated to provide Data that is not
identified on Exhibit B or C, as applicable, or to provide Data that is
identified on Exhibit B or C, as applicable, for a purpose that is not
identified on such Exhibit, except as provided in Section 2.1(d).
(d) For the one hundred-eighty (180) days following the Effective
Time, each party shall have the right to inventory, validate and update any
information and the services, products and deliverables that comprise the Data
that are reflected in or omitted from this Agreement and attached Exhibits. If
the parties determine that this Agreement or the Exhibits hereto contain
discrepancies from the intent of this Agreement, this Agreement and/or Exhibits
shall be promptly changed, modified, updated and adjusted to correct such
discrepancies, so that this Agreement and/or Exhibits will be correct and
accurately reflect the Data, and attendant charges and payment terms, provided
by one Group to the other Group at the Effective Time. In the event that either
party discovers such an omission from this Agreement or a discrepancy from the
intent hereof: (a) that party will promptly notify the other party and the
parties will promptly negotiate in good faith to establish the specific terms
and conditions applicable to such Data; (b) this Agreement will govern the
general terms and conditions applicable to the provision of such Data; and (c)
the Provider will not cease to provide such Data, unless the parties are unable
to agree upon the specific terms and conditions applicable to such Data. If
either party disputes the existence of a discrepancy identified by the other
party, the parties will submit the matter for dispute resolution as specified in
Section 11.10.
(e) Subject to Article IV, each Provider will perform its obligations
in a commercially reasonable manner, and in accordance with any service levels
specified in a particular Exhibit.
(f) This Agreement is nonexclusive. Each Provider shall furnish Data
on an as-ordered basis only. Each Recipient shall have the right to satisfy any
and all of its requirements for information of any type from any third party in
addition to, or in lieu of, any Data it is permitted to purchase hereunder.
Section 2.2. Supplemental Terms.
The terms and conditions applicable to any given provision of Data
pursuant to this Agreement will vary depending on (a) whether such Data are
regulated pursuant to the FCRA or other law or regulation, (b) the type of Data
purchased, (c) the role in which the
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Recipient purchases such Data, including without limitation, as a Non-Consumer
Reporting Agency, Consumer Reporting Agency or End User, (d) the purpose for
which the Recipient's Subscriber ordered the products, services and deliverables
based upon such Data, and (e) the third party limitations and restrictions
applicable to the provision of the Data by the Provider. Accordingly, the terms
and conditions applicable to any given acquisition of Data by any Recipient
pursuant to this Agreement are supplemented by the terms and conditions of the
Supplemental Terms with respect to the type of Data purchased, the role in which
the Recipient purchases such Data and the purpose for which the Recipient's
Subscriber ordered the products, services and deliverables that are based upon
such Data, as such Supplemental Terms are modified and/or amended from time to
time during the term of this Agreement by the Provider. In the event of a
conflict between the terms and conditions set forth in the body of this
Agreement and the specific terms and conditions set forth in the Provider's
Supplemental Terms, the terms and conditions set forth in the Supplemental Terms
will be controlling; provided, however if any provision contained in Articles
III, IV, V, VI, VII, VIII, X and/or XI conflicts with and/or overlaps in subject
matter with any provision contained in the Supplemental Terms, the terms and
conditions set forth in such Articles will prevail and be controlling.
Section 2.3. FCRA Certification.
Certegy and Equifax each certify, and shall ensure that each member of
the Certegy Group and Equifax Group shall certify, that it will order Reports
that are Consumer Reports only for use for a Permissible Purpose in accordance
with the FCRA, as amended from time to time.
Section 2.4. Effect of Data Purchase.
Notwithstanding anything in this Agreement to the contrary, each
Recipient of Data hereunder acquires only the right to use such Data for the use
or uses specified on Exhibit B or C, as applicable. Except as specifically set
forth in Exhibit B or C, as applicable, the Recipient is not authorized to
resell Data purchased hereunder. Except for the rights expressly granted in
this Agreement and the applicable Exhibits, each Provider reserves all right,
title and interest in and to the Data it provides hereunder.
Section 2.5. Effect of Change in Law.
Notwithstanding anything to the contrary in this Agreement, if the
continued provision of all or any portion of the Data becomes impossible,
impractical, or undesirable due to (i) a change in applicable national, state or
local laws or regulations, (ii) a change in the regulatory enforcement of such
laws or regulations, (iii) a change in the Provider's good faith interpretation
of laws or regulations, presently in force or subsequently enacted, or (iv)
pending or threatened litigation, the Provider may cease to provide the affected
Data within, or pertaining to persons residing within, the affected
jurisdiction. The Provider will attempt to provide written notice of its
actions as far in advance of the effective date as is reasonably possible under
the circumstances. In particular, but not in limitation of the foregoing, upon
and with the effective date of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, 15 U.S.C. Section
6801, et seq. ("GLBA") and its implementing regulations, the performance of any
covenant or term hereof shall be required only insofar as the use, disclosure or
provision of any Data in the United States that does not comprise
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a Consumer Report will comply with Title V of the GLBA and the implementing
regulations issued thereunder and shall be pursuant to Section 6802(c) or one of
the general exceptions of Section 6802(e) of the GLBA and the corresponding
provisions of the applicable regulations, and no Provider shall have any
liability hereunder for any failure to perform which is excused in accordance
with the foregoing terms.
Section 2.6. Obligations of Providers and Recipients.
(a) Certegy agrees that it will cause each member of the Certegy Group
that is designated as a Provider or a Recipient of Data in Exhibit B or C to
assume the obligations applicable to such Provider or Recipient, effective as of
the Effective Time, and to timely perform, pay or discharge all such
obligations.
(b) Equifax agrees that it will cause each member of the Equifax Group
that is designated as a Provider or a Recipient of Data in Exhibit B or C to
assume the obligations applicable to such Provider or Recipient, effective as of
the Effective Time, and to timely perform, pay or discharge all such
obligations.
ARTICLE III
FEES AND PAYMENT
Section 3.1. Fees and Charges.
Each Recipient will pay the Provider for all Data supplied to such
Recipient according to the rates set forth on Exhibits B and C during the two-
year term of this Agreement and according to such rates as are subsequently
established by the Provider from time to time thereafter.
Section 3.2. Payment Terms.
Each Recipient shall pay all invoices for Data requested by such
Recipient within thirty (30) days after the date of each invoice.
Section 3.3. Disputed Amounts.
In the event that a member of either Group disputes the accuracy or
applicability of a charge or credit by a member of the other Group, such member
will notify Equifax or Certegy, respectively, of such dispute prior to the date
on which the charge is to be paid or the credit issued or as soon as practicable
after the discrepancy has been discovered after the applicable invoice is paid
or credit is issued. The parties will investigate and resolve such disputes
using the dispute resolution process provided in Section 11.10 of this
Agreement. Any undisputed amounts contained on the invoice will be paid
pursuant to Section 3.2.
Section 3.4. Interest
Any and all amounts not paid when due shall bear interest on a day to
day basis from the due date to the date of payment (both dates inclusive) at the
lower rate of one and one-half percent (1 1/2%) per month or the highest rate
allowable under applicable law.
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Section 3.5. Taxes.
All fees and charges payable under this Agreement are exclusive of all
federal, state and local sales, excise, use, value added and similar taxes not
measured by the income of Provider, which taxes shall be the sole responsibility
of Recipient and shall be paid by Recipient at the rate and in the manner
prescribed by applicable law and Section 3.2 hereof; provided, however, if
required by applicable law, Provider shall separately itemize such taxes on
Provider's invoice to Recipient, Recipient shall pay the amount of such taxes to
Provider and Provider shall remit such amount to the applicable taxing
authority. In lieu thereof, Recipient shall, where applicable, furnish Provider
with a properly executed tax exemption certificate acceptable to the applicable
taxing authority.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The parties and each Recipient and Provider recognize that every
business decision represents an assumption of risk and that neither party, nor
the members of either party's Group, in furnishing the Data to the other Group
underwrites or assumes the other's risk in any manner. NEITHER PARTY, NOR ANY
MEMBER OF EITHER PARTY'S GROUP NOR ANY OF ITS INFORMATION SOURCES, GUARANTEES
OR WARRANTS THE CORRECTNESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE DATA PROVIDED TO ANY MEMBER OF THE OTHER
PARTY'S GROUP. NEITHER PARTY, NOR ANY OF ITS REPRESENTATIVES, INFORMATION
SOURCES, LICENSORS, SYSTEM AFFILIATES OR MEMBERS OF ITS RESPECTIVE GROUP WILL BE
LIABLE TO ANY OTHER PARTY OR ANY OF ITS REPRESENTATIVES, INFORMATION SOURCES,
LICENSORS, SYSTEM AFFILIATES OR MEMBERS OF THE OTHER PARTY'S GROUP FOR ANY LOSS
OR INJURY ARISING OUT OF, OR CAUSED IN WHOLE OR IN PART BY, ITS ACTS OR
OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, PROCESSING,
REPORTING OR TRANSMITTING ANY INFORMATION OR THE DATA, EVEN IF DUE TO
NEGLIGENCE. THE DATA ARE PROVIDED ON AN "AS IS" BASIS.
No Provider makes any warranties whatsoever in connection with the
performance of the DAT, or any other means of communication or provision of the
Data from one party to the other, and no Provider will be responsible for
transmission distortion, interruptions or failures of the DAT, or any other
means of communication or provision of the Data, or of any Data. Each Recipient
will use a secure means to deliver Data received hereunder to its Subscribers,
unless otherwise agreed by the Provider, and will not deliver such information
by means of any publicly accessible network (including without limitation, the
Internet) without Provider's express written permission.
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ARTICLE V
LIMITATION ON ACTIONS AND LIABILITIES
Section 5.1. Covenant Not to ▇▇▇.
Each member of each Group covenants not to ▇▇▇ or maintain any claim,
cause of action, demand, cross-action, counterclaim, third-party action or other
form of pleading against a Provider or a Provider's Representatives, sources of
information, affiliated Credit Reporting Agencies, and/or System Affiliates (if
applicable) arising out of or relating in any way to the accuracy or inaccuracy
and/or validity or invalidity of any of the Data received hereunder, even if
caused by the negligence of any such Person; provided, however, this Section
shall not be applicable if the injury is caused by the willful misconduct of
such Person.
Section 5.2. Release.
Each member of each Group recognizes that the accuracy of any Data
received hereunder furnished is not warranted or guaranteed by the Provider
thereof for any purpose, and releases the Provider and the Provider's
Representatives, sources of information, affiliated Credit Reporting Agencies
and System Affiliates (if applicable) from all liability in connection with the
accuracy or inaccuracy and/or validity or invalidity of the Provider Information
and from any and all charge, damage, loss and/or expense suffered by Recipient
resulting directly or indirectly from such matters, even if caused by the
negligence of any such Person; provided, however, this sentence shall not be
applicable if the injury is caused by the willful misconduct of such Person.
Each member of each Group shall include in its agreements with its Subscribers a
release concerning the information received from any Provider substantially
equivalent to the first sentence of this paragraph; provided that if a Group
member currently has Subscriber contracts in place, or standard contract forms,
that omit such a release, it will not be in breach of this section, but that
member will use its best efforts to incorporate such a release in its future
contracts as soon as reasonably practicable.
Section 5.3. Limitation of Liability.
(a) Unless specifically provided to the contrary in this Agreement,
neither party shall, nor shall any member of the party's respective Group, have
any liability to the other party for any damages other than Direct Damages
whether based on contract, tort (including without limitation, that caused by
negligence, but excluding willful misconduct), warranty, guarantee or any other
legal or equitable grounds. The liability of any member of either Group to the
other Group arising out of or resulting from all breaches by such member and/or
its Representatives of its obligations under this Agreement during any Contract
Year shall not exceed the fees received by such member from the other Group
during such Contract Year. "Contract Year" means a twelve month period beginning
at the Effective Time or the first anniversary of the Effective Time.
(b) The limitations set forth in Section 5.3(a) shall not apply to:
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(i) Any failure by any member of either Group to pay fees and
expenses for the Data that are due and payable hereunder up to the effective
date of the termination of the Agreement;
(ii) Claims arising under Section 5.1 (Covenant Not to ▇▇▇) and/or
Section 5.2 (Release);
(iii) Indemnification obligations under Article VI; and
(iv) Any incident or event resulting in damages, charges and/or
losses caused by the action or inaction of a member of either Group constituting
willful misconduct.
(c) Neither party nor the members of its Group shall be liable for
any damages to the other party or the members of its Group if and to the extent
caused by the failure of such other party or the members of its Group to perform
its responsibilities under this Agreement.
(d) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY SECTION OF THIS
AGREEMENT EXCEPT THIS SECTION 5.3, INCLUDING ANY AND ALL FUTURE AMENDMENTS AND
ADDENDA, NEITHER PARTY, NOR ANY OF ITS REPRESENTATIVES, INFORMATION SOURCES,
LICENSORS, SYSTEM AFFILIATES OR MEMBERS OF ITS RESPECTIVE GROUP WILL HAVE ANY
LIABILITY, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE
GROUNDS FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR
SPECIAL DAMAGES, INCLUDING ,WITHOUT LIMITATION, LOSS OF DATA, PROFITS, INTEREST
OR REVENUE, OR INTERRUPTION OF BUSINESS, WHETHER OR NOT SUCH PARTY HAS BEEN
INFORMED OF OR MIGHT OTHERWISE HAVE ANTICIPATED OR FORESEEN THE POSSIBILITY OF
SUCH DAMAGES.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Certegy Indemnification of the Equifax Group.
If the Distribution occurs, on and after the Distribution Date,
Certegy shall indemnify, defend and hold harmless each member of the Equifax
Group and each of their respective Representatives (the "Equifax Indemnitees")
from and against any and all Indemnifiable Losses incurred or suffered by any of
the Equifax Indemnitees and arising out of, or due to, (a) any breach of
Sections 5.1 (Covenant Not to ▇▇▇), 5.2 (Release) or 8.2 (Confidentiality) by a
member of the Certegy Group; (b) any Third Party Claim arising out of or in
connection with any breach of Section 2.3 or any Supplemental Terms relating to
permitted uses of Data or compliance with laws applicable to the Data by a
member of the Certegy Group, or a breach of any certification made by a member
of the Certegy Group in the Supplemental Terms; or (c) any Third Party Claim
alleging that Data supplied by a Provider that is a member of the Certegy Group,
or the act of providing such Data, infringes upon a copyright or other
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intellectual property right under the law of the country in which such Data is
intended to be used; except such damages, loss, liability and expense resulting
from the willful misconduct of a member of the Equifax Group.
Section 6.2. Equifax Indemnification of the Certegy Group.
If the Distribution occurs, on and after the Distribution Date,
Equifax shall indemnify, defend and hold harmless each member of the Certegy
Group and each of their respective Representatives (the "Certegy Indemnitees")
from and against any all Indemnifiable Losses incurred or suffered by any of the
Certegy Indemnitees and arising out of, or due to, (a) any breach of Sections
5.1 (Covenant Not to ▇▇▇), 5.2 (Release) or 8.2 (Confidentiality) by a member of
the Equifax Group; (b) any Third Party Claim arising out of or in connection
with any breach of Section 2.3 or any Supplemental Terms relating to permitted
uses of Data or compliance with laws applicable to the Data by a member of the
Equifax Group, or a breach of any certification made by a member of the Equifax
Group in the Supplemental Terms; or (c) any Third Party Claim alleging that Data
supplied by a Provider that is a member of the Equifax Group, or the act of
providing such Data, infringes upon a copyright or other intellectual property
right under the law of the country in which such Data is intended to be used;
except such damages, loss, liability and expense resulting from the willful
misconduct of a member of the Certegy Group.
Section 6.3. Insurance and Third Party Obligations.
No insurer or any other third party shall be, by virtue of the
foregoing indemnification provisions, (a) entitled to a benefit it would not be
entitled to receive in the absence of such provisions, (b) relieved of the
responsibility to pay any claims to which it is obligated, or (c) entitled to
any subrogation rights with respect to any obligation hereunder.
ARTICLE VII
INDEMNIFICATION PROCEDURES
Section 7.1. Notice and Payment of Claims.
If any Equifax or Certegy Indemnitee (the "Indemnified Party")
determines that it is or may be entitled to indemnification by a party (the
"Indemnifying Party") under Article VI (other than in connection with any Action
or claim subject to Section 7.2), the Indemnified Party shall deliver to the
Indemnifying Party a written notice specifying, to the extent reasonably
practicable, the basis for its claim for indemnification and the amount for
which the Indemnified Party reasonably believes it is entitled to be
indemnified. After the Indemnifying Party shall have been notified of the
amount for which the Indemnified Party seeks indemnification, the Indemnifying
Party shall, within thirty (30) days after receipt of such notice, pay the
Indemnified Party such amount in cash or other immediately available funds (or
reach agreement with the Indemnified Party as to a mutually agreeable
alternative payment schedule) unless the Indemnifying Party objects to the claim
for indemnification or the amount thereof. If the Indemnifying Party does not
give the Indemnified Party written notice objecting to such claim and setting
forth the grounds therefor within the same thirty (30) day period, the
Indemnifying Party shall be deemed to have acknowledged its liability for such
claim and the Indemnified
-12-
Party may exercise any and all of its rights under applicable law to collect
such amount. Any amount owed under this Section 7.1 that is past due shall bear
interest at a simple rate of interest per annum equal to the Prime Rate plus 2%.
Section 7.2. Notice and Defense of Third Party Claims.
(a) Promptly following the earlier of (i) receipt of notice of the
commencement by a third party of any Action against or otherwise involving any
Indemnified Party or (ii) receipt of information from a third party alleging the
existence of a claim against an Indemnified Party, in either case, with respect
to which indemnification may be sought pursuant to Article VI of this Agreement
(a "Third Party Claim"), the Indemnified Party shall give the Indemnifying Party
written notice thereof. The failure of the Indemnified Party to give notice as
provided in this Section 7.2 shall not relieve the Indemnifying Party of its
obligations under this Agreement, except to the extent that the Indemnifying
Party is prejudiced by such failure to give notice. Within thirty (30) days
after receipt of such notice, the Indemnifying Party shall by giving written
notice thereof to the Indemnified Party, (i) acknowledge, as between the parties
hereto, liability for, and at its option, assumption of the defense of such
Third Party Claim at its sole cost and expense or (ii) object to the claim of
indemnification set forth in the notice delivered by the Indemnified Party
pursuant to the first sentence of this Section 7.2 setting forth the grounds
therefor; provided that if the Indemnifying Party does not within the same
thirty (30) day period give the Indemnified Party written notice acknowledging
liability and electing to assume the defense or objecting to such claim and
setting forth the grounds therefor, the Indemnifying Party shall be deemed to
have acknowledged, as between the parties hereto, its liability to the
Indemnified Party for such Third Party Claim.
(b) Any contest of a Third Party Claim as to which the Indemnifying
Party has elected to assume the defense shall be conducted by attorneys employed
by the Indemnifying Party and reasonably satisfactory to the Indemnified Party;
provided that the Indemnified Party shall have the right to participate in such
proceedings and to be represented by attorneys of its own choosing at the
Indemnified Party's sole cost and expense. If the Indemnifying Party assumes the
defense of a Third Party Claim, the Indemnifying Party may settle or compromise
the claim without the prior written consent of the Indemnified Party; provided
that the Indemnifying Party may not agree to any such settlement pursuant to
which any remedy or relief, other than monetary damages for which the
Indemnifying Party shall be responsible hereunder, shall be applied to or
against the Indemnified Party, without the prior written consent of the
Indemnified Party, which consent shall not be unreasonably withheld.
(c) If the Indemnifying Party does not assume the defense of a Third
Party Claim for which it has acknowledged liability for indemnification that
arises under Article VI, the Indemnified Party may require the Indemnifying
Party to reimburse it on a current basis for its reasonable expenses of
investigation, reasonable attorneys' fees and reasonable out-of-pocket expenses
incurred in defending against such Third Party Claim, and the Indemnifying Party
shall be bound by the result obtained with respect thereto by the Indemnified
Party; provided that the Indemnifying Party shall not be liable for any
settlement effected without its consent, which consent shall not be unreasonably
withheld. The Indemnifying Party shall pay to the Indemnified Party in cash the
amount for which the Indemnified Party is entitled to be indemnified (if any)
within fifteen (15) days after the final resolution of such Third Party Claim
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(whether by settlement, compromise, or the final nonappealable judgment of a
court of competent jurisdiction or otherwise), or, in the case of any Third
Party Claim as to which the Indemnifying Party has not acknowledged liability,
within fifteen (15) days after such Indemnifying Party's objection has been
resolved by settlement, compromise or the final nonappealable judgment of a
court of competent jurisdiction.
ARTICLE VIII
CONFIDENTIALITY
Section 8.1. Exclusions.
Notwithstanding anything to the contrary contained in this Agreement,
"Company Information" does not include any information that before being
divulged by the receiving party (a) has become generally known to the public
through no wrongful act of the receiving party; (b) has been rightfully received
by the receiving party from a third party without restriction on disclosure and
without, to the knowledge of the receiving party, a breach of an obligation of
confidentiality running directly or indirectly to the disclosing party; (c) has
been approved for release to the general public by a written authorization of
the disclosing party; (d) has been independently developed by the receiving
party without use, directly or indirectly, of Company Information received from
the disclosing party; or (e) has been furnished to a third party by the
disclosing party without restrictions on the third party's rights to disclose
the information.
Section 8.2. Confidentiality.
(a) Each party acknowledges, and shall cause each member of its Group
to acknowledge, that it is in possession of significant confidential or
proprietary information concerning the business, operations and tangible and
assets of the members of the other Group.
(b) Each party shall, and shall ensure that each member of its Group
shall, (i) protect the Company Information of the other Group from disclosure
and in no event take any action causing, or fail to take the action necessary in
order to prevent, any such Company Information to lose its character as Company
Information; (ii) exercise at a minimum the same care it would exercise to
protect its own highly confidential information (which shall in no event be less
than a reasonable standard of care); and (iii) not use, reproduce, distribute,
disclose, or otherwise disseminate the Company Information of the other party
(x) except as authorized pursuant to this Agreement and in the Supplemental
Terms attached hereto, as amended from time to time, or any Ancillary Agreement,
or (y) except pursuant to a requirement of a governmental agency or of law,
without similar restrictions or other protections against public disclosure;
provided, however, with respect to disclosures pursuant to (y) above the
receiving party must first give written notice of such required disclosure to
the disclosing party, take reasonable steps to allow the disclosing party to
seek to protect the confidentiality of the Company Information required to be
disclosed, make a reasonable effort to obtain a protective order requiring that
the Company Information so disclosed be used only for the purposes for which
disclosure is required, and shall disclose only that part of the Company
Information which, in the written opinion of its legal counsel, it is required
to disclose. Any and all reproductions of such Company Information must
prominently contain a confidential legend.
-14-
(c) The receiving party may make disclosures of the Company
Information of the disclosing party only to Representatives of the receiving
party (i) who have a specific need to know such information; and (ii) who the
receiving party has obligated under a written agreement to hold such Company
Information in trust and in strictest confidence and otherwise to comply with
the terms and provisions of this Agreement or terms and conditions substantially
similar to and implementing the same restrictions and covenants as those set
forth in this Agreement. Certegy and Equifax agree, and shall ensure that each
member of their respective Groups agrees, to diligently monitor each such
Representative, diligently enforce such agreements with its Representatives,
and, upon request by the other party, promptly to furnish to the other party a
list of the receiving party's Representatives having had access to such Company
Information.
(d) Within thirty (30) days following the receipt of a written
request from the disclosing party, the receiving party must deliver to the
disclosing party all tangible materials containing or embodying the disclosing
party's Company Information applicable to a triggering event, together with a
certificate executed by the president or any vice president of the receiving
party certifying that all such materials in the receiving party's possession
have been delivered to the disclosing party or, at the disclosing party's
option, certify that all such materials in the receiving party's possession have
been destroyed. For the purposes of this Article VIII, a "triggering event"
means the cessation of the provision of Data by the disclosing party to the
receiving party under this Agreement or the termination of the Agreement.
(e) The covenants of confidentiality set forth in this Agreement (i)
will apply after the Effective Time to all Company Information disclosed to the
receiving party before and after the Distribution Date and (ii) will continue
and must be maintained from the Effective Time through the termination of the
relationship under this Agreement between Equifax and Certegy and (A) with
respect to Proprietary Information, at any and all times after the termination
of the relationship under this Agreement between Equifax and Certegy during
which such Proprietary Information retains its status as a "trade secret" under
applicable law; and (B) with respect to Confidential Information, for three (3)
years after termination of the relationship under this Agreement between Equifax
and Certegy.
Section 8.3. Employee Confidentiality Agreements.
The members of each Group have entered into confidentiality and non-
disclosure agreements with their respective employees. To the extent that any
employee during or after employment violates such agreement and such violation
is or may in the future be to the detriment of the other Group, at the written
request of the affected party, the other party shall promptly take remedial
measures with such employee if and to the extent reasonable under the
circumstances to preserve the value of the Data and to enforce its obligations
hereunder. The party employing the affected employee shall have the unilateral
right to determine the forum for, the manner of proceeding in, and legal counsel
for such action and shall be entitled to any damages or other relief against
such employee awarded in such action to the extent related to such party's Data
or business. Such enforcement against and recovery by a party from its
breaching employee shall not constitute a release or sole remedy for the members
of the other Group injured by such breaching employee's actions, and such
members of the other Group may bring a claim against the party employing the
breaching employee for a breach of
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this Agreement. Each party shall bear all of its own out-of-pocket costs of
pursuing such action and the other party shall cooperate in connection
therewith.
Section 8.4. Rights and Remedies.
(a) If either party, or any member of the Group, should breach or
threaten to breach any of the provisions of this Article VIII, the non-breaching
party, in addition to any other remedies it may have at law or in equity, will
be entitled to a restraining order, injunction, or other similar remedy in order
to specifically enforce the provisions of this Article VIII. Each party
specifically acknowledges, and shall cause each member of its respective Group
to acknowledge, that money damages alone would be an inadequate remedy for the
injuries and damage that would be suffered and incurred by the non-breaching
party as a result of a breach of any of the provisions of this Article VIII. In
the event that either party, or a member of such party's Group, should seek an
injunction hereunder, the other party hereby waives, and shall cause each member
of its Group to waive, any requirement for the submission of proof of the
economic value of any Company Information or the posting of a bond or any other
security. In the event of a dispute between the parties under this Article VIII,
the non-prevailing party shall pay all costs and expenses associated with
resolving the dispute, including, but not limited to, reasonable attorneys'
fees.
(b) The receiving party shall notify the disclosing party upon
discovery of any unauthorized use or disclosure of Company Information, or any
other breach of Article VIII of this Agreement by the receiving party, or any
Representative of the receiving party's Group, and will cooperate with the
disclosing party in every reasonable way to help the disclosing party regain
possession of its Company Information and prevent its further unauthorized use
or disclosure. The receiving party shall be responsible for the acts of any
Representative of its Group that are in violation of this Article VIII.
Section 8.5. Competitive Activities.
Subject to the rights and obligations set forth in Article VIII, each
party understands and acknowledges that the other party's Group may now market
or have under development products that are competitive with products or
services now offered or that may be offered by it and/or the members of its
Group, and the parties' communications hereunder will not serve to impair the
right of either party or any member of its respective Group to independently
develop, make, use, procure, or market products or services now or in the future
that may be competitive with those offered by the other party's Group, nor
require either party and/or the members of its Group to disclose any planning or
other information to the other party.
Section 8.6. No Implied Rights.
All Company Information is and shall remain the property of the
disclosing party and/or the member of its respective Group. By disclosing
Company Information to the receiving party's Group, the disclosing party and/or
the members of its respective Group do(es) not grant any express or implied
rights or license to the receiving party's Group to or under any patents, patent
applications, inventions, copyrights, trademarks, trade secret information, or
other
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intellectual property rights heretofore or hereafter possessed by the disclosing
party and/or the members of its respective Group.
ARTICLE IX
CONTINUED ASSISTANCE
Section 9.1. Continued Assistance and Transition.
(a) Following the Effective Time, Equifax and Certegy shall, and shall
cause each member of their respective Groups to, cooperate in the orderly
purchase and sale of Data hereunder. From time to time, at Equifax's or
Certegy's request and without further consideration, the other party shall, and
shall cause each member of the other party's Group, as applicable, to execute,
acknowledge and deliver such documents, instruments or assurances and take such
other action as the requesting party may reasonably request to more effectively
evidence compliance with the Supplemental Terms applicable to the purchase and
sale of Data as reflected in the Supplemental Terms for the applicable Data in
effect from time to time, as amended and/or modified by the Provider.
Section 9.2. Litigation Cooperation.
(a) Upon written request, Equifax and Certegy shall, and shall cause
each member of its Group to, use reasonable efforts to cooperate in the
evaluation and defense of third party Actions regarding (i) Data provided by the
other party or a member of its Group hereunder or (ii) arising out of the
business of the other party or of any member of the other party's Group prior to
the Distribution Date in which the requesting party or any member of its Group
may from time to time be involved, at the cost and expense of the requesting
party. Such cooperation shall include, without limitation, making its
Representatives available as witnesses or consultants to the extent that such
persons may reasonably be required in connection with such third party Actions.
(b) Equifax and Certegy shall, and shall cause each member of its
respective Group, to use reasonable efforts to notify the other if it learns of
a potential or actual third party claim related to the Data provided pursuant to
this Agreement to be brought against any member of the other's Group.
ARTICLE X
TERM AND TERMINATION
Section 10.1. Term; Termination
(a) The term of this Agreement shall commence at the Effective Time
and shall continue for two (2) years.
(b) Notwithstanding Section 10.1(a) above, either Equifax or Certegy,
as the Provider, may terminate provision of Data to any given Recipient if such
Recipient materially breaches any of the terms hereof, including without
limitation the applicable Supplemental
-17-
Terms, and the breach is not cured within thirty (30) days after written notice
of breach is delivered to the breaching Recipient; provided, however, that if
the breach is not capable of being cured within such thirty (30) day period and
the breaching party is proceeding to cure the breach with reasonable diligence,
the cure period shall be extended to sixty (60) days.
(c) Notwithstanding Section 10.1(a) above, this Agreement may be
terminated in its entirety in accordance with any of the following:
(i) Upon written agreement of the parties;
(ii) By either Certegy or Equifax for material breach by the other of
any of the terms hereof if the breach is not cured within thirty (30) calendar
days after written notice of breach is delivered to the breaching party;
provided, however, that if the breach is not capable of being cured within such
thirty (30) day period and the breaching party is proceeding to cure the breach
with reasonable diligence, the cure period shall be extended to sixty (60) days;
(iii) By either Certegy or Equifax, upon written notice to the other
if the other becomes insolvent or makes an assignment of substantially all of
its assets for the benefit of creditors, or is placed in receivership,
reorganization, liquidation or bankruptcy;
(iv) By Equifax, upon written notice to Certegy, if, for any reason,
the ownership or control of Certegy or any of Certegy's operations becomes
vested in, or is made subject to the control or direction of, any direct
competitor of Equifax or one of its subsidiaries, but such termination shall be
applicable only with respect to Data provided by Equifax Group members to
Recipients that have been affected by the change in control; or
(v) By Certegy, upon written notice to Equifax, if, for any reason,
the ownership or control of Equifax or any of Equifax's operations becomes
vested in, or is made subject to the control or direction of, any direct
competitor of Certegy or one of its subsidiaries, but such termination shall be
applicable only with respect to Data provided by Certegy Group members to
Recipients that have been affected by the change in control.
(d) Upon any termination pursuant to Sections 10.1(b) or 10.1(c)
above, the involved Providers shall be compensated for all Data provided up to
the date of termination in accordance with the provisions of this Agreement.
Section 10.2. Effect of Termination and Expiration.
Upon termination or expiration of the term of this Agreement, all
rights and obligations of the parties under this Agreement will immediately
cease and terminate (except for the rights and obligations pursuant to Articles
IV (Representations and Warranties), V (Limitations on Actions and Liabilities),
VI (Indemnification), VII (Indemnification Procedures), and VIII
(Confidentiality) and XI (Miscellaneous) and Sections 9.2 and 10.2, and the
definitions required thereby which will survive such termination or expiration),
and neither party will have
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any further obligation to the other party with respect to this Agreement, except
for (a) fees and reimbursable expenses payable to the other party accrued but
unpaid at the date of termination or expiration, and (b) the provisions of this
Agreement which are specifically designated herein as surviving such termination
or expiration.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Expenses.
Except as specifically provided in this Agreement or any Ancillary
Agreement, all costs and expenses incurred in connection with the preparation,
execution, delivery and implementation of this Agreement and the Ancillary
Agreements shall be paid by Equifax.
Section 11.2. Notices.
All notices and communications under this Agreement shall be deemed to
have been given (a) when received, if such notice or communication is delivered
by facsimile, hand delivery or overnight courier, or (b) three (3) business days
after mailing if such notice or communication is sent by United States
registered or certified mail, return receipt requested, first class postage
prepaid. All notices and communications, to be effective, must be properly
addressed to the party to whom the same is directed at its address as follows:
If to Equifax, to:
Equifax Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Equifax Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Vice President & General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Certegy, to:
Certegy Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Corporate Vice President,
General Counsel and Secretary
Fax: _________________________
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with a copy to:
Certegy Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Corporate Vice President
and Chief Financial
Officer
Fax: _________________________
Either party may, by written notice delivered to the other party in accordance
with this Section 11.2, change the address to which delivery of any notice shall
thereafter be made.
Section 11.3. Amendment and Waiver.
This Agreement may not be altered or amended, nor may any rights
hereunder be waived, except by an instrument in writing executed by the party or
parties to be charged with such amendment or waiver. No waiver of any terms,
provision or condition of or failure to exercise or delay in exercising any
rights or remedies under this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further continuing waiver of any such term,
provision, condition, right or remedy or as a waiver of any other term,
provision or condition of this Agreement.
Section 11.4. Entire Agreement.
This Agreement and Exhibits constitute the entire understanding of the
parties hereto with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and understandings relating
to such subject matter.
Section 11.5. Parties in Interest.
Neither of the parties hereto may assign its rights or delegate any of
its duties under this Agreement without the prior written consent of each other
party. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and permitted assigns.
Without limiting the generality of the foregoing statement, the parties
acknowledge that certain of the legal entities designated as Providers and
Recipients in Exhibits B and C are intended to be renamed, formed or reorganized
prior to or concurrently with the Distribution, and this Agreement shall be
binding upon, and shall inure to the benefit of, the successors of such
designated Providers and Recipients. Nothing contained in this Agreement,
express or implied, is intended to confer any benefits, rights or remedies upon
any person or entity other than members of the Equifax Group and the Certegy
Group and the Equifax Indemnitees and Certegy Indemnitees under Articles VI and
VII hereof.
Section 11.6. Further Assurances and Consents.
In addition to the actions specifically provided for elsewhere in this
Agreement, each of the parties hereto will use its reasonable efforts to (a)
execute and deliver such further instruments and documents and take such other
actions as any other party may reasonably
-20-
request in order to effectuate the purposes of this Agreement and to carry out
the terms hereof and (b) take, or cause to be taken, all actions, and do, or
cause to be done, all things reasonably necessary, proper or advisable under
applicable laws, regulations and agreements or otherwise to consummate and make
effective the transactions contemplated by this Agreement, including without
limitation, using its reasonable efforts to obtain any consents and approvals
and to make any filings and applications necessary or desirable in order to
consummate the transactions contemplated by this Agreement; provided that no
party hereto shall be obligated to pay any consideration therefor (except for
filing fees and other similar charges) to any third party from whom such
consents, approvals and amendments are requested or to take any action or omit
to take any action if the taking of or the omission to take such action would be
unreasonably burdensome to the party or its Group or the business thereof.
Section 11.7. Severability.
The provisions of this Agreement are severable and should any
provision hereof be void, voidable or unenforceable under any applicable law,
such provision shall not affect or invalidate any other provision of this
Agreement, which shall continue to govern the relative rights and duties of the
parties as though such void, voidable or unenforceable provision were not a part
hereof.
Section 11.8. Governing Law.
This Agreement shall be construed in accordance with, and governed by,
the laws of the State of Georgia, without regard to the conflicts of law rules
of such state. Notwithstanding the foregoing, if both the Provider and
Recipient of certain Data are residents of the same county (other than the
United States), this Agreement shall be construed in accordance with, and
governed by, the laws of such country with respect to such Data only.
Section 11.9. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original instrument, but all of which together shall
constitute but one and the same agreement.
Section 11.10. Disputes.
All disputes arising from or in connection with this Agreement,
whether based on contract, tort, statute or otherwise, including, but not
limited to, disputes in connection with claims by third parties, shall be
resolved only in accordance with the provisions of Section 15.10 of the
Distribution Agreement.
Section 11.11. Force Majeure.
Neither party will be liable for any loss or damage due to causes
beyond its control, including, but not limited to, fire, accident, labor
difficulty, war, power or transmission failures, riot, Acts of God or changes in
laws and regulations, provided that the affected party must (a) promptly notify
the other party in writing and furnish all relevant information concerning the
event of force majeure; (b) use reasonable efforts to avoid or remove the cause
of
-21-
its non-performance; and (c) proceed to perform its obligations with dispatch
when such cause is removed.
Section 11.12. Headings.
The Article and Section headings set forth in this Agreement are
included for administrative, organizational and convenience purposes, and are
not intended to affect the meaning of the provisions set forth in this Agreement
or to be used in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
EQUIFAX INC.
By:
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Title:
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Date:
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CERTEGY INC.
By:
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Title:
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Date:
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