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EXHIBIT 10.6
CREDIT CONNECTION(R)
LENDER AGREEMENT
This CREDIT CONNECTION(R) LENDER AGREEMENT is made as of the ____ day of
_______, 1996 (the "Effective Date") by and between CREDIT CONNECTION, L.L.C.
("CREDIT CONNECTION"), with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and ABC Bank ("ABC"), with its principal place
of business at _______________________________________________________.
Explanatory Statement
CREDIT CONNECTION operates under the service ▇▇▇▇ "Credit Connection(R)"1 an
automated service which, in order to facilitate the credit approval process for
consumer loans, electronically assembles and transmits credit applications
between various parties, including automobile dealers, merchants, and banks and
lenders. The parties have agreed that ABC will subscribe to the Credit
Connection service. This AGREEMENT sets forth the terms and conditions of
ABC's subscription.
Agreements
IN CONSIDERATION OF the mutual covenants and agreements set forth herein,
CREDIT CONNECTION and ABC, intending to be legally bound, agree as follows:
1. Definitions. As used in this AGREEMENT, the following capitalized terms
have the indicated meanings, unless the context in which a term is used
requires a different meaning.
a. "ACCEPTANCE DATE" means the date upon which the ABC SYSTEM is first
capable of interfacing with the SERVICE to receive credit application data from
a CREDIT CONNECTION DEALER, and to transmit a notice of acceptance or rejection
back to such CREDIT CONNECTION DEALER.
b. "AGREEMENT" means this CREDIT CONNECTION(R) LENDER AGREEMENT, as it may
from time to time be amended or modified by the parties or in accordance with
its terms, all addenda hereto executed by both parties, and all exhibits
attached hereto, as they may from time to time be modified.
c. "ABC AFFILIATE" means any person or entity (i) that owns, directly or
indirectly, through one or more affiliates, at least a majority of the voting
capital stock of ABC, or (ii) at least a majority of whose voting capital stock
is owned, directlyor indirectly, through one or more affiliates, by ABC, or
(iii) at least a majority of whose voting capital stock is owned directly or
indirectly, through one or more affiliates, by another person or entity that at
such time also owns, directly or indirectly, through one or more affiliates, at
least a majority of the voting capital stock of ABC. For the purpose of
establishing the rights and obligations of ABC AFFILIATES under this Agreement,
a person or entity shall be considered an ABC AFFILIATE only so long as it
continues to satisfy the criteria for an ABC AFFILIATE established in this
Section 1(c).
d. "ABC COMPUTER(S)" means the computer(s) on which ABC or ABC AFFILIATES
maintain their automatic credit application processing functions with which the
SERVICE is to interface.
e. "ABC SOFTWARE" means any and all of ABC's, and any ABC AFFILIATES',
credit underwriting software package(s) (whether internally developed, or
licensed, by ABC or an ABC AFFILIATE) for which an INTERFACE(s) with the
SERVICE is established and maintained.
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(1) Patent Pending.
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f. "ABC SYSTEM" means, collectively, the INTERFACE, the ABC SOFTWARE, the
ABC COMPUTER(S), and all operating or system software installed on the ABC
COMPUTER(S).
g. "CREDIT CONNECTION DEALER" means an automobile dealer or other merchant
who is a subscriber to the SERVICE.
h. "DATA" means (i) credit application data encompassing the information
set forth on the credit application form(s) utilized by the SERVICE, (ii)
notices of the acceptance or rejection of such credit applications, all as
posted in electronic form on the SERVICE by ABC (or any ABC AFFILIATE) or any
CREDIT CONNECTION DEALER, and (iii) any third party data (e.g., value guide
information) which may be accessed or requested by means of the SERVICE. CREDIT
CONNECTION may in its sole discretion, from time to time and with prior written
notice, add additional data fields to, or as appropriate delete certain data
fields from, the SERVICE. Data entered on the SERVICE in such additional
fields shall be included in the term "DATA."
i. "DOCUMENTATION" means the system and user documentation for the SERVICE
provided by CREDIT CONNECTION to LENDER SUBSCRIBERS generally, as modified by
CREDIT CONNECTION from time to time.
j. "EFFECTIVE DATE" means the date first set forth above when this
AGREEMENT becomes legally binding upon the parties.
j. "INTERFACE" means all software code developed by or under the direction
of ABC based on the INTERFACE REQUIREMENTS DOCUMENT, and installed on the ABC
COMPUTER(S), to permit the electronic transfer of DATA between CREDIT
CONNECTION's computer(s) and the ABC COMPUTER(S) in a format that permits the
DATA to be (i) uploaded from the SERVICE into the ABC SYSTEM for processing,
and (ii) downloaded from the ABC SYSTEM back to the SERVICE upon completion of
such processing.
l. "INTERFACE EQUIPMENT" means all equipment (including without limitation
hardware, software and telecommunications devices) used by ABC and the ABC
AFFILIATES to establish the capability for ABC COMPUTER(S), by means of the
SERVICE, to receive DATA from and send DATA to CREDIT CONNECTION's computer(s).
m. "INTERFACE REQUIREMENTS DOCUMENT" means the document (as revised from
time to time) provided by CREDIT CONNECTION to ABC describing the technical
requirements which the INTERFACE must meet in order to allow ABC and ABC
AFFILIATES to utilize the SERVICE.
n. "LENDER" means any bank or other financial institution which is in the
business of funding credit applications submitted by customers of automobile
dealers or other merchants, and therefore either is, or is a candidate to
become, a LENDER SUBSCRIBER.
o. "LENDER SUBSCRIBER" means any LENDER who is a subscriber to the
SERVICE, including without limitation ABC.
p. "▇▇▇▇" means the service ▇▇▇▇ under which the SERVICE is operated by
CREDIT CONNECTION. CREDIT CONNECTION may from time to time adopt a new service
▇▇▇▇(s) under which the SERVICE is operated, and thereafter the term "▇▇▇▇"
shall be expanded to include the new service ▇▇▇▇(s).
q. "SERVICE" means the Credit Connection(R) automated electronic credit
application assembly and transfer service described and provided for in this
AGREEMENT plus, as the context permits, all equipment, computer programs,
patents, trade secrets, designs, documentation, manuals and specifications
thereof or incorporated therein, exclusive of the ABC SYSTEM.
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2. Subscription to and On-Going Operation of the SERVICE.
a. ABC hereby subscribes to the SERVICE, and CREDIT CONNECTION agrees to
provide the SERVICE to ABC and ABC AFFILIATES, for the term of this AGREEMENT.
The SERVICE shall commence upon the ACCEPTANCE DATE.
b. CREDIT CONNECTION shall operate the SERVICE so that it performs in all
material respects in accordance with the DOCUMENTATION. CREDIT CONNECTION
shall not be responsible for operational problems affecting use of the SERVICE
to the extent such problems result from the performance or non-performance of
ABC or any third parties. The foregoing notwithstanding, CREDIT CONNECTION
shall exercise all reasonable efforts to cooperate and work with ABC and/or
such third parties in order to correct promptly any circumstances causing such
problems.
c. CREDIT CONNECTION shall be responsible for supporting ABC's and ABC
AFFILIATES' use of the SERVICE in accordance with the LENDER Support Document
attached hereto as Exhibit A, as may be revised with prior written notice from
time to time by CREDIT CONNECTION. ABC shall be responsible for submitting all
support requests in accordance with the procedures set forth in the LENDER
Support Document. ABC shall be responsible for paying CREDIT CONNECTION for
all support requested when such support is not offered as a non-chargeable
component of the SERVICE (as identified in the LENDER Support Document).
d. Throughout the term of this AGREEMENT, ABC shall maintain the INTERFACE
in accordance with the INTERFACE REQUIREMENTS DOCUMENT and any further
INTERFACE specifications which may be provided or approved by CREDIT CONNECTION
from time to time. Further, any changes to the ABC SYSTEM authorized or
otherwise made by ABC shall be performed in a reasonably prudent manner so as
to avoid or minimize any disruption to the operation of the SERVICE. ABC
acknowledges that CREDIT CONNECTION shall have no responsibility for any
failures of the SERVICE caused in whole or in part by any failure to maintain
the INTERFACE and/or to perform changes to the ABC SYSTEM in accordance with
the terms of this Section 2(d).
e. Throughout the term of this AGREEMENT, ABC (and, as applicable, ABC
AFFILIATES) shall be responsible for maintaining the INTERFACE EQUIPMENT
configuration in accordance with the applicable maintenance standards of the
equipment manufacturer, so as to not adversely impact the performance of the
SERVICE.
f. The parties agree to use all reasonable efforts to finalize and agree
upon an ABC CREDIT CONNECTION(R) Marketing Plan within sixty (60) days after
EFFECTIVE DATE. The Marketing Plan shall describe the respective efforts of
the parties to encourage dealers with which ABC ordinarily conducts credit
underwriting activities to join the SERVICE as subscribers. ABC acknowledges
that the Application Transmission Credit program provided for in Exhibit B is
granted in consideration of ABC's substantial contributions to enrolling
dealers as subscribers and to providing initial and ongoing training and other
support to such dealers throughout the terms of their subscriptionsto the
SERVICE. Following approval of the ABC CREDIT CONNECTION(R) Marketing Plan by
CREDIT CONNECTION and ABC, the parties agree to use all reasonable efforts to
conduct their marketing activities relating to the SERVICE and ABC's
subscription thereto consistent with the ABC CREDIT CONNECTION(R) Marketing
Plan.
3. License.
a. In accordance with the terms of this AGREEMENT and for the term hereof,
CREDIT CONNECTION grants ABC a non-exclusive and non-transferable license to
use the SERVICE for its own internal business purposes (and those of ABC
AFFILIATES), and to permit its employees and agents (and employees and agents
of ABC AFFILIATES) to interact with the SERVICE through remote computer
terminals solely for ABC's internal business purposes (and those of ABC
AFFILIATES). Use of the SERVICE for the internal business purposes of ABC and
ABC AFFILIATES means that the SERVICE may be used to support credit
applications to be evaluated for funding by ABC or ABC AFFILIATES, but not by
any third party. ABC has no right to make any changes or modifications to the
SERVICE except as directed by CREDIT CONNECTION.
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b. In accordance with the terms of this AGREEMENT and for the term hereof,
CREDIT CONNECTION grants ABC and ABC AFFILIATES a non-exclusive and
non-transferable license to use the ▇▇▇▇ for the sole purpose of identifying
that it/they are licensed to use the SERVICE. The ▇▇▇▇, which is a registered
trademark, is the following:
CREDIT CONNECTION(R)
Due to certain restrictions regarding CREDIT CONNECTION's rights to the
trademark "Credit Connection," ABC acknowledges that CREDIT CONNECTION DEALERS
may not use the ▇▇▇▇ or the words "Credit Connection" in advertising or other
media regarding the availability of the SERVICE in any of the following states:
Iowa, Illinois, Wisconsin or Missouri. CREDIT CONNECTION retains all rights to
the ▇▇▇▇ not specifically granted to ABC under this AGREEMENT. ABC has no
right to make any changes or modifications to the ▇▇▇▇ except as directed by
CREDIT CONNECTION.
c. CREDIT CONNECTION may from time to time by thirty (30) days prior
written notice to ABC impose regulations upon the use of the ▇▇▇▇, provided
that the regulations are applicable to LENDER SUBSCRIBERS generally. ABC shall
comply with all such regulations on the use of the ▇▇▇▇. ABC shall not adopt
or use any trade name, trademark, service ▇▇▇▇ or other name or identification
for the SERVICE other than the ▇▇▇▇, without the prior written consent of
CREDIT CONNECTION.
d. CREDIT CONNECTION retains all rights to the SERVICE and the ▇▇▇▇ not
specifically granted to ABC under this AGREEMENT. All revisions, modifications
and derivative works to the SERVICE developed by CREDIT CONNECTION or any other
party, including all updates, enhancements or modifications to the SERVICE,
will be the sole and exclusive property of CREDIT CONNECTION and will be
subject to all of the use and nondisclosure restrictions which apply to the
SERVICE under this AGREEMENT.
e. If and to the extent that CREDIT CONNECTION incorporates the software
of any third party in the SERVICE, and use of such third party software is not
subject to the terms of a license agreement directly between ABC (and any ABC
AFFILIATE, if applicable) and the third party licensor, the license of ABC and
all ABC AFFILIATES to such third party software shall be defined and limited by
the license to the SERVICE granted by CREDIT CONNECTION under this AGREEMENT.
ABC specifically acknowledges that the licensors of such third party software
and any data contained therein shall retain all ownership rights thereto, and
ABC agrees that it shall not decompile, disassemble or reverse engineer such
third party software for the purpose of revealing the proprietary information
contained therein, or otherwise use such third party software to develop
functionally similar computer software, or modify, alter or delete any of the
copyright notices embedded in or affixed thereto, or permit any ABC AFFILIATE
to do any of the foregoing.
f. ABC acknowledges that the right or ability of CREDIT CONNECTION to
license other LENDERS to use the SERVICE or ▇▇▇▇ is not restricted in any
manner by this AGREEMENT, and that it is CREDIT CONNECTION's intention to
license a number of other LENDERS, in addition to automobile dealers and other
merchants, to use the SERVICE and ▇▇▇▇ under separate agreement. ABC also
agrees that CREDIT CONNECTION shall be free to transmit credit applications
from any CREDIT CONNECTION DEALERS, at the CREDIT CONNECTION DEALERS' request,
to other LENDER SUBSCRIBERS and non-subscribing LENDERS. ABC acknowledges that
CREDIT CONNECTION is free to terminate its agreement with any CREDIT CONNECTION
DEALER in accordance with the terms of that agreement and CREDIT CONNECTION's
judgment on whether to invoke such terms. CREDIT CONNECTION shall have no
liability to ABC for any such action.
4. Connection of ABC SYSTEM to the SERVICE.
a. In the event that any components of the ABC SYSTEM require installation
by CREDIT CONNECTION (or its third party contractors) of computer equipment at
an ABC or ABC AFFILIATE site, ABC shall be responsible for the following:
i. ABC will arrange access for CREDIT CONNECTION or CREDIT
CONNECTION's contractors to the location(s) of the ABC
COMPUTER(S) on an as needed basis.
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ii. ABC will pay any charges, including, but not limited to,
reasonable travel and related expenses, associated with access
to the location(s) of the ABC COMPUTER(S) by CREDIT CONNECTION
or CREDIT CONNECTION's contractors.
iii. ABC will reimburse CREDIT CONNECTION for (i) the time of
CREDIT CONNECTION's or its contractors' personnel (at CREDIT
CONNECTION's, or its contractors', respective then current
standard time and materials rates unless otherwise agreed in
advance), and (ii) actual expenses, if the services intended
to be performed by such personnel, and agreed upon by the
parties, are delayed due to delays by ABC in arranging or
allowing access by such personnel to (1) the location(s) of
the ABC COMPUTER(S) or (2) such information as may reasonably
be required to perform the services.
b. In the event that ABC shall at any time change the configuration of the
ABC SYSTEM in a manner which interrupts (i) the transfer of DATA between CREDIT
CONNECTION's computer(s) and the ABC COMPUTER(S), and/or (ii) the processing of
DATA by the ABC SOFTWARE, ABC shall be responsible, at its expense, for
implementing such changes to the ABC SYSTEM as may be appropriate to remedy
such interruption. Except as expressly provided in a change order executed by
the parties, CREDIT CONNECTION shall not be responsible for any interruption in
ABC's use of the SERVICE caused by such change(s) to the ABC SYSTEM
configuration or any components thereof.
c. In the event that CREDIT CONNECTION at any time makes any generally
released change to the programs supporting the SERVICE on CREDIT CONNECTION's
computer(s), and such change makes an alteration to the INTERFACE necessary or
advisable, CREDIT CONNECTION shall give ABC at least ninety (90) days prior
written notice of the change. ABC shall be responsible, at its expense, for
securing any alteration to the INTERFACE made necessary or advisable by such
change, and CREDIT CONNECTION shall exercise all reasonable efforts to assist
ABC in this regard. CREDIT CONNECTION shall not be responsible for any
interruption in ABC's or any ABC AFFILIATE's use of the SERVICE caused by such
change(s), provided that such change(s) have not been made by CREDIT CONNECTION
until at least ninety (90) days have elapsed after CREDIT CONNECTION's notice
to ABC of its intent to make the change(s).
d. ABC shall be responsible for training its operators in the operation of
the ABC COMPUTER(S) hardware or operating software.
e. CREDIT CONNECTION may suspend the electronic connection between the ABC
COMPUTER(S) and CREDIT CONNECTION's computer(s) at any time that such
connection for any reason is materially degrading the performance of CREDIT
CONNECTION's computer(s) or the SERVICE. In the event that a suspension of the
electronic connection between the ABC COMPUTER(S) and CREDIT CONNECTION's
computer(s) should become necessary, the parties agree to cooperate in good
faith to resolve any problems as quickly as reasonably possible so that the
electronic connection can be re-established with minimal delay.
5. Access Security; Unauthorized Use. Access to the SERVICE will be
restricted to persons logging in with the proper user identification
code/password. ABC will be responsible for limiting access to its user
identification code(s)/password(s) to authorized personnel and for the charges
due to CREDIT CONNECTION with respect to all use of the SERVICE under its user
identification code(s)/password(s), including the misuse or unauthorized use
thereof. ABC agrees to hold CREDIT CONNECTION harmless from, and indemnify it
against, all claims, causes of action, losses, liabilities or expenses
(including attorneys' fees) arising in connection with any misuse or
unauthorized use of ABC's user identification code(s)/password(s).
6. Term of AGREEMENT; Termination.
a. The term of this AGREEMENT shall begin on the Effective Date, and shall
continue for a period of five (5) years (the "Initial Term") unless sooner
terminated as provided below. Upon expiration of the Initial Term, and
thereafter each Renewal Term (as defined below), this AGREEMENT shall renew for
additional two (2) year terms
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("Renewal Term(s)") unless terminated by either party by notice of termination
given not less than one hundred and eighty (180) days prior to the expiration
of the then current term.
b. Either party may terminate this AGREEMENT for cause at any time if the
other party fails to cure a breach of any term of this AGREEMENT within thirty
(30) days after notice of the breach is given, or, with respect to those
breaches which cannot reasonably be cured within thirty (30) days, if the
breaching party fails within thirty (30) days to commence curing the breach and
thereafter to proceed with all due diligence substantially to cure the same.
Notwithstanding the foregoing, CREDIT CONNECTION may terminate this AGREEMENT,
after giving ABC notice of non-payment and an opportunity to cure, at any time
that a payment due from ABC is more than forty-five (45) days past due.
7. Payments and Payment Terms.
a. ABC agrees to pay CREDIT CONNECTION when due the fees and charges on
the Schedule of Fees and Charges set forth in Exhibit B attached hereto. Unless
otherwise specified, all fees and charges shall be due and payable thirty (30)
days after receipt of invoice.
b. No more than once every twelve (12) months CREDIT CONNECTION may, upon
at least thirty (30) days prior notice to ABC, modify any of the charges
provided in the Schedule of Fees and Charges, provided that the modified
charges conform to the standard charges then quoted by CREDIT CONNECTION to
potential LENDER SUBSCRIBERS and charged by CREDIT CONNECTION to its existing
LENDER SUBSCRIBERS generally, subject to volume usage discounts. Further,
CREDIT CONNECTION reserves the right to increase its prices annually based on
increases in the Consumer Price Index.
c. Late payments will bear interest at the lesser rate of one and one-half
percent (1 1/2%) per month or the maximum rate permitted by law on any unpaid
amount due CREDIT CONNECTION under this AGREEMENT for each month (or fraction
thereof) that such amount remains unpaid.
8. Warranties by CREDIT CONNECTION.
a. CREDIT CONNECTION warrants to ABC that:
i. CREDIT CONNECTION is the owner of the SERVICE or otherwise has
obtained the right to grant to ABC and ABC AFFILIATES the
license specified in this AGREEMENT to use the SERVICE and the
▇▇▇▇.
ii. Throughout the term of this AGREEMENT, subject to maintenance
and periods of shutdown caused by equipment failure, software
failure, power failure or causes beyond CREDIT CONNECTION's
control, the SERVICE will operate substantially as provided in
the DOCUMENTATION.
iii. Services performed by CREDIT CONNECTION pursuant to this
AGREEMENT will be of a professional and workmanlike manner in
accordance with the standards set forth in this AGREEMENT or,
in the absence thereof, at a minimum in accordance with
industry standards and practices.
iv. The SERVICE shall operate without any adverse impact due to
date related processing associated with the year 2000. This
warranty does not include operational or other problems which
may result from the SERVICE interfacing with any third party
system that cannot operate without any adverse impact due to
date related processing associated with the year 2000.
b. THE WARRANTIES SET FORTH IN THIS SECTION 8 ARE LIMITED WARRANTIES
AND ARE THE ONLY WARRANTIES MADE BY CREDIT CONNECTION. SUCH WARRANTIES ARE IN
LIEU OF, AND CREDIT CONNECTION EXPRESSLY HEREBY DISCLAIMS, ALL OTHER
WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE SERVICE OR THE ▇▇▇▇ INCLUDING,
BUT NOT
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LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
9. Infringement Claims of Third Parties.
a. At its own expense, CREDIT CONNECTION will defend ABC against any
claim by any third party alleging that the SERVICE or use of the ▇▇▇▇ in
accordance with Section 3(b) above infringes a patent or copyright in the
United States, and CREDIT CONNECTION will pay all costs, damages and attorneys'
fees finally awarded to any such third party in any infringement action or
negotiated by CREDIT CONNECTION in settlement; provided that ABC provides
prompt written notice to CREDIT CONNECTION of such claim (if ABC has
knowledge), and allows CREDIT CONNECTION sole control of, and fully cooperates
with CREDIT CONNECTION in, the defense of such claims and all related
negotiations.
b. CREDIT CONNECTION's obligations under this Section 9 are
conditional upon ABC's agreement that if the SERVICE and/or the ▇▇▇▇ are, or in
CREDIT CONNECTION's opinion are likely to become, subject to a claim of
infringement, CREDIT CONNECTION, at its option and expense, may either (i)
procure for ABC and the ABC AFFILIATES the right to continue using the SERVICE
and/or the ▇▇▇▇; or (ii) modify the SERVICE and/or the ▇▇▇▇ to make it/them
non-infringing in a manner that does not materially impair its/their
functionality. If neither of these two options is reasonably available to
CREDIT CONNECTION, then CREDIT CONNECTION may terminate this AGREEMENT by
notice to ABC.
c. CREDIT CONNECTION will have no obligation with respect to any
actual or threatened infringement claim based in whole or in part upon (i) the
ABC System, or (ii) any enhancements, upgrades or modifications to the SERVICE
and/or the ▇▇▇▇ made by ABC, any ABC AFFILIATE, or any party that ABC
authorizes or directs to make an enhancement, upgrade or modification, or (iii)
ABC's (or any ABC AFFILIATE's) failure to use all enhancements, updates,
upgrades, or modifications to the SERVICE and/or the ▇▇▇▇ offered by CREDIT
CONNECTION, or (iv) ABC's (or any ABC AFFILIATE's) failure to use the SERVICE
and/or the ▇▇▇▇ in accordance with this AGREEMENT or the DOCUMENTATION, or (v)
ABC's (or any ABC AFFILIATE's) combination, operation, or use of the SERVICE
and/or the INTERFACE with software or systems created by parties other than
CREDIT CONNECTION. ABC shall indemnify and hold CREDIT CONNECTION harmless
from any damages, losses or costs associated with such claims. Further, CREDIT
CONNECTION will have no obligation with respect to any actual or threatened
infringement claim, to the extent such claim is based on third party services
or products provided to ABC (or any ABC AFFILIATE's) as part of the SERVICE,
except to pass through to ABC any infringement indemnification related
obligations of such third party to LENDER SUBSCRIBERS which have been
established by contract between CREDIT CONNECTION and such third party.
d. This Section 9 states CREDIT CONNECTION's entire obligation to ABC
with respect to actual or threatened third-party infringement claims.
10. Warranties by ABC.
a. ABC warrants to CREDIT CONNECTION that its execution, delivery and
performance of this AGREEMENT do not violate the terms of any law, regulation,
court order or material agreement to which ABC or any ABC AFFILIATE which may
use the SERVICE or ▇▇▇▇ is subject. ABC also warrants that ABC and all ABC
AFFILIATES shall comply with applicable laws, statutes, regulations and
ordinances related to this AGREEMENT and its subject matter. ABC acknowledges
and agrees that, to the extent ABC or any ABC AFFILIATE does not maintain in
good standing its contractual relationship(s) with any third party where such
relationship(s) is a prerequisite for CREDIT CONNECTION to meet its obligations
hereunder, CREDIT CONNECTION shall be excused from such obligations.
b. With respect to its/their rights, obligations and performance in
connection with this AGREEMENT, ABC, and the ABC AFFILIATES, shall not
infringe, misappropriate, or violate any third party copyrights, patent,
contractual, or other proprietary rights.
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11. Protection of Proprietary Rights.
a. ABC acknowledges that the SERVICE, DOCUMENTATION, INTERFACE
REQUIREMENTS DOCUMENT and the ▇▇▇▇ are valuable confidential and/or proprietary
rights, trade secrets and property belonging to CREDIT CONNECTION or to third
parties who have granted CREDIT CONNECTION the right to distribute such
property, and that title to the SERVICE, DOCUMENTATION, INTERFACE REQUIREMENTS
DOCUMENT, and the ▇▇▇▇ remains in CREDIT CONNECTION or such third parties.
Additionally, ABC acknowledges that by receiving access to the SERVICE and the
limited right to use the ▇▇▇▇, ABC is entering into a relationship of trust and
confidence with CREDIT CONNECTION pursuant to which ABC agrees to take such
steps, consistent with the same steps which ABC takes to protect its own highly
confidential and proprietary information and systems, as are necessary to
preserve the confidential and/or proprietary nature of the SERVICE,
DOCUMENTATION, INTERFACE REQUIREMENTS DOCUMENT, and the ▇▇▇▇.
b. ABC and the ABC AFFILIATES will use the SERVICE, and will use,
copy and disclose the DOCUMENTATION and the ▇▇▇▇, only as permitted under this
AGREEMENT. Further, ABC and the ABC AFFILIATES will grant access to the
SERVICE and the DOCUMENTATION to employees or agents of ABC and the ABC
AFFILIATES only on a "need to know" basis, and will ensure that any persons or
entities receiving such access are obligated to protect the SERVICE and the
DOCUMENTATION in a manner consistent with the terms of this AGREEMENT. Except
as expressly permitted herein, ABC agrees that neither it nor any ABC
AFFILIATES will, at any time, without written permission of CREDIT CONNECTION,
(i) copy, duplicate or permit any other person, corporation or entity to copy
or duplicate the SERVICE or any part thereof; (ii) create, attempt to create,
or permit others to create or attempt to create the source program and/or
object program associated with any software component of the SERVICE; or (iii)
decompile, disassemble or reverse engineer any software component of the
SERVICE for the purpose of revealing the proprietary information contained
therein or otherwise use the SERVICE to develop functionally similar computer
software or services, or modify, alter or delete any of the copyright notices
embedded in or affixed to the copies of any components of the SERVICE, or
permit any third party to do any of the foregoing.
c. ABC will notify CREDIT CONNECTION promptly of any violation of
CREDIT CONNECTION's proprietary rights in the SERVICE, DOCUMENTATION or ▇▇▇▇ of
which ABC becomes aware when such violation is related to the rights granted to
or the obligations incurred by ABC hereunder, and will assist CREDIT CONNECTION
as reasonably necessary to remedy the violation. In such case, ABC agrees at
CREDIT CONNECTION's request (and, if not occasioned by ABC's or any ABC
AFFILIATE's breach of this AGREEMENT, at CREDIT CONNECTION's expense) to
institute legal proceedings and/or join in any lawsuit or other action by
CREDIT CONNECTION against any such third party to enforce these provisions, to
cooperate fully with CREDIT CONNECTION in such litigation, and, unless CREDIT
CONNECTION has requested ABC to institute such suit or action, to permit CREDIT
CONNECTION to assume exclusive control of all aspects of such suit or action.
d. ABC shall ensure the compliance by ABC AFFILIATES with the
provisions of this Section 11.
12. Non-Disclosure of Confidential Information.
a. During the term of this AGREEMENT, ABC and CREDIT CONNECTION may
have access to confidential and/or proprietary information regarding the other
party or the other party's affiliates (including without limitation ABC
AFFILIATES and CMSI or third party contractors or suppliers). Both parties
agree during the term of this AGREEMENT and at all times thereafter (i) to
maintain in confidence all such information acquired from the other party
(including their affiliates and their third party contractors or suppliers),
(ii) not to disclose any such information to anyone except the disclosing
party's employees authorized to receive it and third parties to whom such
disclosure is specifically authorized in writing by the other party, and (iii)
not to use the other party's confidential and/or proprietary information for
any purpose other than that for which it is disclosed.
b. Information considered confidential and/or proprietary shall
include, without limitation, (i) matters of a technical nature such as trade
secret processes or devices, data formulas, inventions and specifications, (ii)
matters of a business nature such as information about costs, profits, pricing
policies, employees, product plans and marketing plans
CREDIT CONNECTION (10/3/96) 8
CONFIDENTIAL AND PROPRIETARY
9
or strategies, (iii) other information of a similar nature not generally
disclosed to the public, (iv) information containing confidential and/or
proprietary notices, and (v) confidential and/or proprietary information of
third parties disclosed to a party under a non-disclosure agreement and
appropriately identified as confidential and/or proprietary.
c. The foregoing shall not prevent a party from using or disclosing
information that has been disclosed by or otherwise is claimed as belonging to
the other party if such information is (i) already known by the recipient party
without an obligation of confidentiality, (ii) publicly known or becomes
publicly known through no unauthorized act of the recipient party, (iii)
rightfully received from a third party, (iv) independently developed by the
recipient party without use of the other party's information, (v) disclosed
without similar restriction to a third party by the party owning the
information, (vi) approved by the other party for disclosure, or (vii) required
to be disclosed pursuant to a requirement of a governmental agency or law so
long as the disclosing party provides the other party with prompt written
notice of such requirement prior to any such disclosure.
d. Both parties agree that during the term of this AGREEMENT and at
all times thereafter they shall protect the confidentiality of all pricing and
payment related terms associated with this AGREEMENT.
13. Limitation of Liability.
a. In the event of the loss or damage of any DATA on CREDIT
CONNECTION's computer(s) or in data transfers between the ABC COMPUTER(S), any
CREDIT CONNECTION DEALERS' terminals/computers, and CREDIT CONNECTION's
computer(s), due to a cause for which CREDIT CONNECTION is responsible, the
sole remedy of ABC against CREDIT CONNECTION shall be to require CREDIT
CONNECTION to allow ABC and the CREDIT CONNECTION DEALERS to re-enter the lost
or damaged DATA on CREDIT CONNECTION's computer(s) without any additional fees
accruing to CREDIT CONNECTION.
b. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 13(a) ABOVE,
CREDIT CONNECTION'S LIABILITY TO ABC WITH RESPECT TO EACH CLAIM OR CAUSE OF
ACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL BE
LIMITED TO THE CHARGES ACTUALLY PAID BY ABC UNDER THIS AGREEMENT FOR THE
TRANSACTION OR PERIOD OF TIME TO WHICH SUCH CLAIM OR CAUSE OF ACTION RELATES,
PROVIDED THAT CREDIT CONNECTION'S LIABILITY ON EACH CLAIM OR CAUSE OF ACTION
ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES
AND CHARGES PAID BY ABC UNDER THIS AGREEMENT IN THE TWO (2) MONTHS PRECEDING
THE ACCRUAL OF THE CLAIM OR CAUSE OF ACTION. IN NO EVENT WILL CREDIT
CONNECTION BE LIABLE TO ABC FOR LOST PROFITS, LOST SAVINGS, LOSS OF USE, LOSS
OF DATA (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT TO THE CONTRARY), OR
FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR SIMILAR
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY THIRD
PARTY CLAIM AGAINST ABC IN CONNECTION WITH OR CONCERNING THE SERVICE, OR
ARISING OUT OF OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT,
EXCEPT FOR ANY CLAIM OF INFRINGEMENT FOR WHICH INDEMNIFICATION IS REQUIRED AS
PROVIDED UNDER SECTION 9 ABOVE.
c. CREDIT CONNECTION shall have no duty to verify the content or
accuracy of, or in any manner to analyze, DATA. As such, CREDIT CONNECTION is
not acting as a credit bureau reporting agency in and of itself, and ABC is to
refer to the specific credit bureau(s) when making reference to the credit
reporting. ABC will have full responsibility for any decisions and/or analyses
in which the SERVICE or any DATA may be used or relied upon. Any reliance by
ABC upon any DATA or the SERVICE shall not diminish that responsibility, and
ABC agrees to hold CREDIT CONNECTION harmless from, and indemnify it against,
all claims, expenses, losses or liabilities (including legal fees) in
connection with any claim by any third party relating to any decisions or
analyses made by ABC while using any DATA or the SERVICE.
14. ABC's Project Authority. At all times during the term of this
AGREEMENT, ABC shall designate one person and one alternate to serve as ABC's
primary contact and project authority on the INTERFACE and the
CREDIT CONNECTION (10/3/96) 9
CONFIDENTIAL AND PROPRIETARY
10
SERVICE, and shall disclose the identities of such persons to CREDIT
CONNECTION. The project authority and alternate will be authorized to make all
decisions, to request and receive services from CREDIT CONNECTION, and to
modify or waive the terms of this AGREEMENT on behalf of ABC. ABC may change
the project authority and alternate at any time by written notice to CREDIT
CONNECTION.
15. Miscellaneous.
a. Publicity. ABC agrees to permit CREDIT CONNECTION to include
ABC's name in reference and user lists of LENDER SUBSCRIBERS for advertising
and other promotional purposes. Other than as required by law, all
advertisements, media releases, public announcements and public disclosures by
either party, or their employees or agents, relating to this Agreement or the
name of ABC, any ABC AFFILIATE, CREDIT CONNECTION, or any CREDIT CONNECTION
affiliate, shall be coordinated with and approved by the other party prior to
the release thereof.
b. Entire Agreement. This AGREEMENT sets forth the entire agreement
between the parties with respect to the subject matter hereof, and no party
shall be bound by any conditions, definitions, warranties, understandings or
representations with respect to such subject matter other than as expressly
provided herein. This AGREEMENT supersedes all prior oral or written
representations, agreements, promises, or other communications, concerning or
relating to the subject matter of this AGREEMENT. No terms or conditions of
any ABC purchase order or other form originated by ABC will be effective as a
modification of the terms and conditions of this AGREEMENT. No changes to the
terms and conditions of this Agreement will be considered valid unless the
changes are mutually accepted by both parties.
c. Modifications and Amendments; Waiver. Except as otherwise
expressly provided in this AGREEMENT, this AGREEMENT may not be amended or
modified except by a written agreement signed by authorized representatives of
each party. The failure of CREDIT CONNECTION or ABC in any one or more
instances to insist upon strict performance of any of the terms or provisions
of this AGREEMENT will not be construed as a waiver or relinquishment, to any
extent, of the right to assert or rely upon any such terms or provisions on any
future occasion.
d. Sections Surviving Termination. Sections 3(d), 5, 7(c), 9, 11,
12, 13, 15(i), 15(l), 15(m) of this AGREEMENT shall remain in effect following
the termination of this AGREEMENT and shall be binding upon the parties
thereafter.
e. Headings. The captions to sections of this AGREEMENT are for
convenience of reference only and do not in any way limit or amplify the terms
or conditions hereof.
f. Severability. If any provision of this AGREEMENT is held by a
court of competent jurisdiction to be invalid or unenforceable, such provision
or requirement will be enforced only to the extent it is not in violation of
such law or is not otherwise unenforceable and all other provisions and
requirements of this AGREEMENT will remain in full force and effect.
g. Force Majeure. Neither party shall be liable for damages for
delay in performance hereunder arising out of causes beyond its control and
without its fault or negligence, including, but not limited to, interruptions
of telecommunications or network services provided by third parties, credit
bureau outages or downtime, acts of God or the public enemy, governmental acts,
fires, floods, epidemics, strikes, labor disturbances or freight embargoes (but
not including delays caused by subcontractors or suppliers). Without limiting
the generality of the foregoing, CREDIT CONNECTION shall not be liable for the
failure of any CREDIT CONNECTION DEALER to access and utilize the SERVICE in
any particular manner or to maintain its authorization with ABC or its
subscription and license with CREDIT CONNECTION to use the SERVICE.
h. Notices. Where notice, approval or similar action by either party
is permitted or required by any provision of this AGREEMENT, such action shall
not be unreasonably delayed or withheld. Any notice, demand or other
communication required or permitted under the terms of this AGREEMENT shall be
in writing and shall be made by Federal Express, Airborne Express, or other
similar overnight delivery service, telegram, telex, facsimile or electronic
CREDIT CONNECTION (10/3/96) 10
CONFIDENTIAL AND PROPRIETARY
11
transmitter or certified or registered mail, return receipt requested. A
notice shall be deemed to be received by the addressee: one (1) business day
after sending, if sent by Federal Express, Airborne Express, or other similar
overnight delivery service; on the date of sending, if sent by telegram, telex,
facsimile or electronic transmitter; and three (3) business days after mailing,
if sent by certified or registered mail. Notices shall be addressed as
follows:
In the case of notices to ABC:
------------------------------------------------
------------------------------------------------
------------------------------------------------
------------------------------------------------
Attn: President (with a copy to General Counsel)
In the case of notices to CREDIT CONNECTION:
Credit Connection, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President (with a copy to General Counsel)
Any party hereto may from time to time change its address for notification
purposes by giving the other prior written notice of the new address and the
date upon which it will become effective.
i. Limitation of Actions. No suit, action, or proceeding may be
brought or instituted on or with respect to this AGREEMENT or any transaction
hereunder more than five (5) years after the cause of action on which the suit
is based accrued, unless otherwise limited by the applicable statute of
limitations.
j. Successors and Assigns. This AGREEMENT may not be assigned by
either party without the prior written consent of the other party, and any
attempted unauthorized assignment will be void; provided, however, that a party
may assign this AGREEMENT to any of its affiliates upon prompt written notice
to the other party. No assignment will relieve the assignor or the assignee of
its obligations under this AGREEMENT. Notwithstanding the foregoing, either
party may assign any of its rights and obligations under this AGREEMENT to the
surviving corporation with or into which that party may merge or consolidate,
or an entity to which that party transfers all, or substantially all, of its
business and assets.
k. Independent Contractors; Third Party Beneficiaries. CREDIT
CONNECTION will perform all services under this AGREEMENT as an independent
contractor and not an agent, employee, partner, or joint venturer of or with
ABC or any CREDIT CONNECTION DEALER. Except for third parties whose software
is incorporated into the SERVICE as provided in Section 3(e) above, no person
or entity not a party hereto, including but not limited to CREDIT CONNECTION
DEALERS, will be deemed to be a third party beneficiary of this AGREEMENT or
any provision hereof.
l. Hiring Restriction. Each party agrees that, during the term of
this AGREEMENT and for twenty-four (24) months thereafter, neither it nor any
of its subsidiaries or affiliates shall, except with the prior written consent
of the other party, offer employment to or employ any person employed then or
within the preceding twenty-four (24) months by the other party (including any
of that party's subsidiaries or affiliates).
m. Governing Law; Jurisdiction. This AGREEMENT will be governed by
and construed and enforced in accordance with the laws of the State of
Maryland, exclusive of its choice of law rules and without application of the
rule of contract construction that ambiguities in a contract are construed
against the interests of the party drafting the contract. The parties consent
to the jurisdiction of the courts of the State of Maryland, and the United
States District Court for the District of Maryland, as to any issues related to
this AGREEMENT, including the validity, enforceability, or interpretation
thereof, which require judicial resolution.
CREDIT CONNECTION (10/3/96) 11
CONFIDENTIAL AND PROPRIETARY
12
n. Explanatory Statement, Definitions and Exhibits. The Explanatory
Statement and definitions set forth at the top of this AGREEMENT and the
exhibits referred to in the text of this AGREEMENT, as they may be modified in
according with the terms hereof, are incorporated by reference herein and shall
constitute substantive parts of this AGREEMENT. As of the EFFECTIVE DATE, this
AGREEMENT includes the following exhibits:
Exhibit A: LENDER Support Document
Exhibit B: Schedule of Fees, Charges and CREDITS (Credit Applications from
CREDIT CONNECTION DEALERS)
IN WITNESS WHEREOF, the parties hereto have signed and affixed their seals to
this AGREEMENT effective as of the day and year first written above.
CREDIT CONNECTION, L.L.C. ABC Bank
------------------------------- -----------------------------------
Signature Signature
------------------------------- -----------------------------------
Print Name/Title Print Name/Title
------------------------------- -----------------------------------
Date Date
CREDIT CONNECTION (10/3/96) 12
CONFIDENTIAL AND PROPRIETARY
13
Exhibit A
LENDER SUPPORT DOCUMENT
ORGANIZATION
CREDIT CONNECTION will utilize a three (3) tiered customer support hierarchy.
All calls from participating CREDIT CONNECTION LENDERS ("LENDERS") and CREDIT
CONNECTION DEALERS ("DEALERS") will enter through an 800 number and the calls
will be sequenced by the AT&T telephone system to the next available help desk
person. The caller may be issued a pre-recorded message depending on the
nature of the call.
Incoming calls will be answered by the CREDIT CONNECTION help desk first.
After the initial help desk diagnosis, unresolved problems will be passed to
technical support for further diagnosis and resolution. Technical support will
also initiate calls to third party providers as needed for such issues as
telecommunications problems or hardware malfunctions.
When notifying CREDIT CONNECTION, the following information should be
available:
- Institution ID, User ID of user who encountered the problem
- Application number
- Station or screen where problem occurred
- Exact error message and error number, if available
- Detailed description of problem
This information is very important for CREDIT CONNECTION to ensure a quick and
accurate resolution.
SUPPORT CATEGORIES
There are several categories of support supplied by the CREDIT CONNECTION
staff.
LENDER INSTALLATION SUPPORT
During and immediately after the installation of the SERVICE at a LENDER, the
following kinds of support will be available:
- Supply to the LENDER relevant SERVICE information, CompuServe User
Identification Code (UIC) and other information required to have the LENDER
complete installation.
- Assist the LENDER's installation staff to install the SERVICE.
- Setup the LENDER on the SERVICE.
- Test the LENDER's connection with CompuServe.
- Test the LENDER's configuration with the SERVICE.
- Test a simulated DEALER connection with the LENDER.
- Follow-up on additional training issues through the help desk.
Credit Connection (7/23/96)
14
ONGOING LENDER SUPPORT
After the installation phase the following types of support are available
through the CREDIT CONNECTION help desk:
- LENDER is not receiving applications.
- LENDER is receiving corrupted data from the SERVICE.
- The level of activity has decreased but not stopped.
- LENDER cannot send responses to the SERVICE.
- LENDER begins receiving faxed applications from DEALER(s).
- LENDER is not getting proper or timely responses from DEALER(s), credit
bureaus or other remote sites.
- Link to the SERVICE is down.
DEALER INSTALLATION SUPPORT
During and immediately following the installation of a new DEALER onto the
SERVICE the following kinds of support will be available:
- Provide the LENDER and DEALER with the information required to setup the
DEALER on the SERVICE (DEALER #, Compuserve UIC).
- Assist setup of the DEALER's configuration.
- Test the DEALER's connection with CompuServe.
- Test the DEALER's configuration with the SERVICE.
- Test the DEALER's connection with the LENDER.
- Follow-up on additional training issues through the help desk.
ONGOING DEALER SUPPORT
After the installation phase the following types of support are available
through the CREDIT CONNECTION help desk:
- DEALER cannot startup the terminal.
- DEALER cannot connect to CompuServe.
- DEALER cannot log into the SERVICE because of problems or is no longer a
subscriber to the SERVICE.
- DEALER is disconnected from the SERVICE.
- DEALER needs training to perform a new function.
- DEALER cannot enter or process an application properly.
- DEALER is not getting proper or timely responses from LENDER, credit
bureaus or other remote sites.
- DEALER cannot process the statistical reports properly.
Credit Connection (7/23/96) Exhibit A--Page2
15
PROBLEM DIAGNOSIS & ESCALATION PROCEDURES
CREDIT CONNECTION will take all reasonable steps to correct the failure of the
SERVICE to operate substantially in accordance with its DOCUMENTATION and will
provide updates, corrections, new releases and modifications of the SERVICE.
CREDIT CONNECTION will use its best efforts to resolve critical SERVICE Program
Errors in order to minimize business interruption on the part of Licensee.
Business critical Program Errors involve errors such as an inability to call
credit bureaus, a database is down and/or unavailable for use, loans cannot be
entered into the SERVICE or decisioned, or comparable problems with the
SERVICE. CREDIT CONNECTION reserves the right to determine, in its good faith
judgment, the priority and criticality of Program Errors reported by Licensee.
CREDIT CONNECTION defines three types of support calls to prioritize responses.
In each case, CREDIT CONNECTION will take all reasonable steps to correct
problems and address concerns.
Priority A
- Indicates that a problem has effectively interrupted the LENDER's business
to the degree that the LENDER is unable to operate or function. Priority A
problems will be addressed immediately on a best efforts basis.
Priority B
- Indicates that the SERVICE is operating at less than its full functionality
and the LENDER's business is moderately affected. Priority B problems will
be addressed during normal business hours.
Priority C
- Indicates that the operation of the SERVICE has an identifiable problem but
the LENDER's business is only slightly affected. Priority C problems will
be resolved within a mutually established time frame.
PROBLEM POINT OF CONTACT DIAGNOSIS & ESCALATION PROCEDURES
CREDIT CONNECTION terminal/communication CREDIT CONNECTION 1. CREDIT CONNECTION Customer
equipment at DEALER site non-functional Help Desk Support
2. Technical Support
3. Local 3rd party support will be
dispatched by Technical Support if
required
CompuServe not responding (no login to CREDIT CONNECTION 1. CREDIT CONNECTION Customer
CompuServe or the SERVICE) Help Desk Support
2. Technical Support
3. CompuServe Help Desk
Login to CompuServe but not the SERVICE CREDIT CONNECTION 1. CREDIT CONNECTION Customer
Help Desk Support
2. Technical Support
CREDIT CONNECTION Software Application CREDIT CONNECTION 1. CREDIT CONNECTION Customer
Problems Help Desk Support
2. Technical Support
The SERVICE cannot deliver/receive data CREDIT CONNECTION 1. CREDIT CONNECTION Customer
with/from LENDER Help Desk Support
2. Technical Support
3. CompuServe Help Desk (if network)
Credit Connection (7/23/96) Exhibit A--Page3
16
CREDIT CONNECTION is not required to perform corrective maintenance to
malfunctions of the SERVICE caused by the following:
- LENDER's modifications to the SERVICE
- LENDER's failure to use enhancements or error corrections or to operate
according to the most recently distributed SERVICE DOCUMENTATION.
- Misuse of the SERVICE.
- Problems with non-CREDIT CONNECTION provided hardware, network, operating
system software, or other third-party software.
- Failure to use the SERVICE in accordance with the terms of the LENDER's
CREDIT CONNECTION AGREEMENT.
- Use of the SERVICE with non-CREDIT CONNECTION software/hardware or in an
operating environment outside of the environment recommended by CREDIT
CONNECTION
HOURS OF OPERATION(1)
Monday through Friday 6:00 AM to 10:00 PM
Saturday 7:00 AM to 9:30 PM
Sunday 11:00 AM to 8:00 PM
Closed Easter and Christmas
(1) All times are Eastern Time
Administrative functions such as DEALER and
LENDER additions, deletions or changes should
occur Monday through Friday from 9AM-5PM.
Credit Connection (7/23/96) Exhibit A--Page4
17
Exhibit B
SCHEDULE OF FEES, CHARGES AND CREDITS
(Credit Applications from CREDIT CONNECTION DEALERS)
The following fees, charges and credits shall apply to ABC's subscription to
the SERVICE:
FEES AND CHARGES
1. ABC shall pay to CREDIT CONNECTION a monthly subscription/licensing
fee of ___________ Dollars ($_______) for each calendar month or part of a
calendar month that the AGREEMENT remains in effect, invoiced monthly and due
thirty (30) days after the date of the invoice.
2. For the purposes of this Exhibit B, an "Application Transmission" is
defined as the transmission of a credit application by means of the SERVICE to
a LENDER. ABC shall pay to CREDIT CONNECTION a ___ dollar ($____) fee for each
Application Transmission to ABC or any ABC AFFILIATE. CREDIT CONNECTION shall
invoice ABC monthly for such fees, which shall be due thirty (30) days after
receipt of the invoice.
3. ABC shall pay CREDIT CONNECTION's then current time and materials
rates (unless otherwise agreed) for any additional services provided by CREDIT
CONNECTION at ABC's request.
4. ABC shall be solely responsible for all taxes and duties, federal,
state or otherwise imposed, resulting from this AGREEMENT or based upon amounts
payable hereunder (exclusive of taxes based upon the net income of CREDIT
CONNECTION) or upon ABC's or any ABC AFFILIATE's license or use of the SERVICE
and/or the ▇▇▇▇.
5. ABC shall pay CREDIT CONNECTION an interface implementation fee of
$________ which (1) includes interface installation and implementation related
support, and (2) the purchase price of a CREDIT CONNECTION PC server.
CREDITS
ABC shall be entitled to a credit of $____ for each Application Transmission
initiated by an ABC Dealer to a LENDER (an "Application Transmission Credit").
For the purposes of this Exhibit B, an ABC Dealer is any CREDIT CONNECTION
DEALER (1) which is enrolled as a subscriber to the SERVICE by ABC (including
ABC obtaining the CREDIT CONNECTION DEALER's execution of a standard Credit
Connection Dealer Subscription Agreement) and (2) with which ABC assists CREDIT
CONNECTION in providing initial training and on-going support throughout the
term of the Credit Connection Dealer Subscription Agreement.
The ____ dollar ($_____) Application Transmission Credit shall apply to each
Application Transmission from an ABC Dealer to a LENDER, regardless of whether
the Application Transmission is sent to ABC or any ABC AFFILIATE. By way of
example, if an ABC Dealer sends an Application Transmission to ABC and to two
(2) other LENDERS, ABC shall be entitled to a total of _____ dollars ($____) in
Application Transmission Credits. If an ABC Dealer sends an Application
Transmission to a total of three (3) LENDERS, none of which includes ABC, ABC
still shall be entitled to a total of ____ dollars ($___) in Application
Transmission Credits.
The Application Transmission Credit program specified under this "CREDITS"
section shall not apply to any credit applications transmitted by means of the
SERVICE by automobile superstores ("SUPERSTORES"), as opposed to traditional
franchise automobile dealerships. SUPERSTORES include business operations such
as CARmax, AutoNation, Car America, Car Choice, Drivers Mart, or other similar
companies, including automobile retailers
Credit Connection (10/2/96) Confidential and Proprietary
18
which conduct sales through mass merchandising and/or non-dealer related
marketing activities like direct marketing.
The Application Transmission Credit program specified under this "CREDITS"
section shall not apply for any credit applications originated from CREDIT
CONNECTION DEALERS that have been enrolled in the SERVICE by, or that are
receiving SERVICE related training and/or support from, a CREDIT CONNECTION
value added reseller partner (a "VAR"). A VAR includes any entity (1) that is
in the business of providing automated systems relating to dealership
management and operations (e.g., any finance and insurance vendor), and (2)
with which CREDIT CONNECTION establishes a value added marketing arrangement.
CREDIT CONNECTION DEALERS shall have discretion in electing whether to obtain
SERVICE related training and support from ABC or a VAR. In the event that any
CREDIT CONNECTION DEALER which ABC has enrolled and for which ABC has been
providing support elects to receive on-going support instead from a VAR, ABC
shall cease earning Application Transmission Credits with respect to such
CREDIT CONNECTION DEALER as of the date that such VAR assumes support for the
CREDIT CONNECTION DEALER.
ABC's Application Transmission Credits shall be applied against the monthly
subscription and licensing fee and the Application Transmission fees owed by
ABC.
CREDIT CONNECTION shall be responsible for collection efforts related to any
ABC Dealer which refuses or fails to pay to CREDIT CONNECTION any Application
Transmission fees owed. Based on the refusal or failure of an ABC Dealer to
pay for Application Transmission fees owed, and CREDIT CONNECTION's
non-collection of such fees, CREDIT CONNECTION reserves the right to adjust the
amount of Application Transmission Credits credited to ABC. The result of such
adjustment shall be that ABC shall not receive a $____ Application Transmission
Credit when a $____ Application Transmission fee has not been collected by
CREDIT CONNECTION.
THIRD PARTY FEES AND CHARGES
ABC shall be responsible for paying all charges and costs of third party
products and services which ABC orders or procures in connection with the
SERVICE. Such payment shall be made by ABC in accordance with the applicable
payment terms relating to such third party products and services.
Credit Connection (10/2/96) Exhibit B--Page 2
Confidential and Proprietary