EXHIBIT 10.11
AGREEMENT FOR SERVICE - CONSUMER REPORTING AGENCIES
THIS AGREEMENT, made this 8th day of October, 1998, by and between EQUIFAX
CREDIT INFORMATION SERVICES, INC., a Georgia corporation with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
("EQUIFAX"), and FACTUAL DATA CORPORATION, a Colorado corporation with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (a
consumer reporting agency, or "CRA").
WHEREAS, CRA certifies that it is a credit bureau or consumer reporting
agency; and that it provides an on-line computer-assisted or other information
reporting service which allows its Subscribers to access and receive certain
information services; and
WHEREAS, EQUIFAX publishes and distributes individual consumer credit
report information known as "EQUIFAX Credit Information"; and
WHEREAS, CRA desires to, and EQUIFAX agrees to allow CRA to, make EQUIFAX
Credit Information available to certain of CRA's Subscribers;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained in this Agreement, the parties agree as
follows:
1. PROVISION OF EQUIFAX CREDIT INFORMATION.
1.1 CRA certifies that consumer reports, as defined by the federal Fair
Credit Reporting Act, 1681 U.S.C. et seq. ("FCRA"), will be ordered
only when intended to be used as a factor in establishing a consumer's
eligibility for new or continued credit, collection of an account,
insurance, licensing, employment purposes, or otherwise in connection
with a legitimate business transaction involving the consumer, and
such reports will be used for no other purpose, including resale to
the subject consumer or to another reseller or broker of consumer
reports. Each request for a report which is intended to be used for
employment purposes will be specifically identified to EQUIFAX at the
time of the request. CRA certifies that reports on its employees will
be requested only by its designated representative. CRA's employees
will be forbidden to attempt to obtain reports on themselves or
associates, or on any other person except in the exercise of their
official duties. CRA further certifies that its policies and
procedures are designed to comply with Section 1681(e) of the FCRA and
other applicable state or federal laws.
Subject to the terms and conditions of this Agreement, on a
nonexclusive basis, EQUIFAX authorizes CRA to access and make EQUIFAX
Credit Information, as available, available for use by only those of
CRA's Subscribers that are "qualified" to receive EQUIFAX Credit
Information.
A "Qualified Subscriber" of CRA is a Subscriber of CRA that:
(A) CRA has verified and confirmed through an on-site visual
inspection of Subscriber's premises that the Subscriber:
(i) is a valid business, and
(ii) has a true business identity, and
(iii) will use EQUIFAX Credit Information only for the
permissible purpose set out in the FCRA for which EQUIFAX
Credit Information will be provided, and
(iv) has placed any direct access terminal(s) or other equipment
or hardware that will be used to receive EQUIFAX Credit
Information in a secure location, and
(B) Certifies that it will use EQUIFAX Credit Information for one or
more of the following purposes permitted under the FCRA:
(i) in connection with a credit transaction involving the
consumer on whom the information is to be furnished and
involving the extension of credit to, or review or
collection of an account of, the consumer; or
(ii) for employment purposes, or
(iii) in connection with the underwriting of insurance involving
the consumer, or
(iv) for determination of the consumer's eligibility for a
license or other benefit granted by a governmental
instrumentality required by law to consider an applicants
financial responsibility or status, or
(v) otherwise has a legitimate business need for the
information in connection with a business transaction
involving the consumer, and
(C) Has signed an Agreement for Service with CRA containing
substantially the terms and conditions set out in Exhibit 1,
attached to this Agreement (any changes to the Subscriber
Agreement for Service proposed by a prospective or current
Subscriber of CRA must be approved by EQUIFAX in writing prior to
CRA beginning to serve Subscriber), and
(D) Has read and understands its obligations under the FCRA and the
penalties for requesting consumer report information, such as
EQUIFAX Credit Information, under false pretenses and signed a
certification to this effect with CRA, and
(E) Is not a private detective, private detective agency, private
investigative company, bail bondsman, attorney, law firm, credit
counseling firm, financial counseling firm, credit repair clinic,
or a person or entity that is not an end-user or decision-maker,
unless approved in writing by EQUIFAX.
Nevertheless, EQUIFAX may in its sole discretion deny access to
EQUIFAX Credit Information by certain Subscribers, even though
otherwise "qualified." CRA releases EQUIFAX from any and all claims,
demands, actions, causes of action, suits, costs, damages, expenses,
compensation, penalties, liabilities and obligations of any kind or
nature whatsoever arising out of or relating to such denial. Further,
CRA covenants not to ▇▇▇ or maintain any claim, cause of action,
demand, cross-action, counterclaim, third-party action or other form
of pleading against EQUIFAX arising out of or relating to such denial.
1.2 CRA understands that EQUIFAX Credit Information will only be available
to Qualified Subscribers for the FCRA permissible purposes listed in
Section 1.1(B).
1.3 CRA will establish strict procedures so that CRA's employees or agents
do not access EQUIFAX Credit Information except on behalf of a
Qualified Subscriber of CRA. CRA will monitor its Qualified
Subscribers on an ongoing basis to confirm and assure that the
Qualified Subscriber's business situation has not changed, that the
Qualified Subscriber is using EQUIFAX Credit Information only for the
FCRA permissible purposes allowed under this Agreement, and that the
Qualified Subscriber, in all other respects, continues to meet the
"qualification" requirements. CRA will immediately cease providing
EQUIFAX Credit Information to any Subscriber that is no longer
"qualified."
CRA understands that EQUIFAX may periodically audit Qualified
Subscribers regarding their compliance with the FCRA. Audits will be
conducted by mail whenever possible and will require Subscriber to
provide documentation as to permissible uses of particular consumer
reports. CRA will cooperate fully and promptly in the conduct of such
audits.
1.4 CRA will, in relaying any and all EQUIFAX Credit Information to its
Qualified Subscribers, faithfully transmit the EQUIFAX Credit
Information in its entirety, including, but not limited to,
transmitting the date the information was last checked or revised by
EQUIFAX and the full name and mailing address of the EQUIFAX office
providing the EQUIFAX Credit Information. CRA will not maintain, copy
capture, re-use or otherwise retain in any manner any EQUIFAX Credit
Information provided to Qualified Subscribers; except (1) for purposes
of disclosing the information to the subject consumer who has been
denied a benefit, or (2) under separate contract with Equifax. Also,
CRA may capture and retain the name and address of the subjects of the
information and the date and time of inquiries solely for the purpose
of (a) audit trail; (b) calculation of the amount of usage of EQUIFAX
Credit Information and provision of specifics relating to such usage
to Qualified Subscribers; and (c) billing. EQUIFAX Credit Information
may be merged with information from any other credit reporting source
only to provide a merged report for (a) mortgage purposes, (b)
consumer disclosure as described above, or (c) tenant screening.
If the disclosure of any information or reports by CRA or by its
Subscribers leads to any claims or litigation, CRA will indemnify
EQUIFAX, its agents, employees, and independent contractors, for any
liability, damages or expenses resulting therefrom.
1.5 CRA will establish strict procedures so that CRA's employees and
agents refer to EQUIFAX all requests for disclosure from the subject
of EQUIFAX Credit Information, except that CRA may disclose to subject
consumers, pursuant to the FCRA, who have been denied a benefit based
on information contained in the consumer report. In those disclosures
to consumers, CRA may disclose only the information disclosed to its
Subscribers. CRA may not access EQUIFAX Credit Information for
purposes of disclosure to consumers who wish disclosure for
"curiosity" reasons only, and may not handle consumer disputes of
EQUIFAX Credit Information as described in Section 1681(i) of the
FCRA. Consumer requests for disclosure based on curiosity, and all
consumer disputes, will be referred to EQUIFAX for handling. Consumer
disclosure products which incorporate EQUIFAX Credit Information may
be sold only under the terms of a separate agreement with EQUIFAX.
1.6 In accessing EQUIFAX Credit Information via personal computer or
direct access terminals (in either case, a "DAT"), CRA will: (i)
restrict access to each DAT to those employees trained by Equifax
personnel on a DAT, (ii) inform all trained DAT operators and other
employees of CRA's FCRA and other obligations with respect to the
access and use of consumer reports, (iii) ensure that
neither trained operators nor other employees will obtain credit
reports for personal reasons or provide them to any third party, and
(iv) take all necessary measures to prevent unauthorized use of the
terminals by any persons other than the trained operators for
permissible purposes, including (a) limiting knowledge of the CRA
number(s) Equifax assigns, any telephone access number(s) Equifax
provides, and any DAT user passwords CRA uses to trained DAT
operators, and those employees with a need to know, (b) changing the
user passwords on the DAT at least every 90 days, or when an employee
trained to operate the DAT is no longer responsible for accessing
credit reports, or when CRA suspects an unauthorized person has
learned the password, and (c) using all security features in the
software and hardware CRA uses to access Equifax's system. CRA will
immediately notify Equifax if CRA suspects or knows of unauthorized
access to Equifax's system. CRA will inform trained DAT users and
other employees with a need to know that unauthorized access to
consumer reports may subject them to civil and criminal liability
under the FCRA punishable by fines and imprisonment. Equifax makes no
warranties whatsoever in connection with the performance of the DAT,
and Equifax will not be responsible for transmission distortion,
interruptions or failures of the DAT or any Information Service.
CRA will ensure a secure means of delivery of EQUIFAX Credit
Information and will not deliver it via any publicly accessible
network (for example, on the Internet) without EQUIFAX's express
written permission.
1.7 CRA will pay EQUIFAX promptly for all EQUIFAX Credit Information
requested by CRA on behalf of Qualified Subscribers, or otherwise,
according to the rate scheduled of cash prices now or subsequently
established by EQUIFAX, and will pay any applicable taxes and charges
for any special telephone services or other services rendered by
EQUIFAX.
1.8 CRA understands that EQUIFAX is under no obligation, and may refuse,
to accept information from Subscribers, regarding Subscribers
accounts, for inclusion in EQUIFAX Credit Information.
2. PROMOTION AND TRAINING.
EQUIFAX will have the opportunity to review and approve CRA-created
advertising, marketing and promotional material that describes EQUIFAX
Credit Information in detail or which refers to the nature or capabilities
of EQUIFAX or EQUIFAX Credit Information, or otherwise mentions or refers
to EQUIFAX by name.
CRA is responsible for training Qualified Subscribers in the use of EQUIFAX
Credit Information and for developing and distributing training materials
as it reasonably believes are necessary or useful to enable Qualified
Subscribers to use EQUIFAX Credit Information. EQUIFAX will have the
opportunity to review and the right to approve material regarding EQUIFAX
Credit Information that CRA proposes to provide to Qualified Subscribers.
3. RELEASE AND COVENANT WITH RESPECT TO ACCURACY OF EQUIFAX CREDIT
INFORMATION.
CRA recognizes that the accuracy of any information furnished is not
guaranteed by EQUIFAX, and CRA releases EQUIFAX and EQUIFAX's agents,
employees, affiliated credit reporting agencies and independent contractors
from liability for any negligence in connection with the preparation of
EQUIFAX Credit Information and from any loss or expense suffered by CRA or
CRA's Subscribers or users resulting directly or indirectly from EQUIFAX
Credit Information. CRA, and on behalf of its Subscribers, covenants not to
▇▇▇ or maintain any claim, cause of action, demand, cross-action,
counterclaim, third-party action or other form of pleading against EQUIFAX,
EQUIFAX's agents, employees, affiliated credit reporting agencies, and
independent contractors arising out of or relating in any way to the
accuracy or inaccuracy, validity or nonvalidity, or any of the EQUIFAX
Credit Information.
4. DISCLAIMER OF WARRANTIES.
OTHER THAN THOSE EXPRESSED IN THIS AGREEMENT, EQUIFAX MAKES NO
REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, RESPECTING ACROPAC OR ANY OTHER MACHINERY,
EQUIPMENT, MATERIALS, PROGRAMMING AIDS OR OTHER ITEMS UTILIZED BY CRA IN
CONNECTION WITH OR RELATED TO, OR RESPECTING THE ACCURACY OF, ANY EQUIFAX
CREDIT INFORMATION FURNISHED BY EQUIFAX TO CRA OR TO ANY SUBSCRIBERS OF
CRA.
5. INDEMNIFICATION BY CRA.
If the disclosure of any information or reports by CRA or by its
Subscribers leads to any claims or litigation, CRA will indemnify Equifax,
its agents, employees, affiliated credit reporting agencies and independent
contractors for any liability, damage or expense resulting from that
disclosure.
6. CONFIDENTIALITY.
CRA acknowledges that EQUIFAX is owner of an automated credit reporting
system (ACROPAC System ) and of all interests, programs, codes, software
documentation or other appurtenances related to it and derived from it. CRA
further acknowledges that the ACROPAC System and any codes, procedures or
ACROPAC System documentation are confidential and proprietary to EQUIFAX.
During the term of this Agreement and thereafter, CRA will maintain, and
CRA will cause its directors, officers, employees and agents to maintain,
in strict confidence and not to disclose to any other person or entity any
information, including EQUIFAX Credit Information, materials and know-how
as may be provided to CRA by EQUIFAX during the term of this Agreement and
to take any actions necessary to protect against disclosure thereof. CRA
will make no use of any information, including EQUIFAX Credit Information,
materials and know-how whatsoever except solely for the purpose of this
Agreement, in accordance with the terms and during the existence of this
Agreement. Upon the termination of this Agreement, CRA will return to
EQUIFAX all copies and partial copies of manuals, materials and documents
pertaining to EQUIFAX or the ACROPAC System obtained from EQUIFAX during
the term of this Agreement.
7. RELATIONSHIP OF PARTIES.
Each party to this Agreement is an independent contractor, and nothing
contained in this Agreement may be construed as creating a joint venture,
partnership, licensor-licensee, principal-agent or mutual agency
relationship between or among the parties. No party, by virtue of this
Agreement, has any right or power to create any obligation, express or
implied, on behalf of any other party. No party, or employee of any party,
will be deemed to be an employee of another party by virtue of this
Agreement.
8. NO THIRD-PARTY BENEFITS.
EQUIFAX and CRA acknowledge and intend that this Agreement was entered into
solely for the respective benefit of each of them and their respective
successors and assigns, and nothing in this Agreement will be construed as
giving any person, firm, corporation or other entity (including any
Subscriber of CRA), other than the parties to this Agreement and their
respective successors and permitted assigns, any right, remedy or claim
under or in respect of this Agreement or any of its provisions.
9. ASSIGNMENT.
Due to the special and unique purposes of this Agreement, neither this
Agreement nor any rights or obligations in it are assignable by CRA without
the prior written consent of EQUIFAX. Consent will not be unreasonably
withheld (taking into account the nature of the services provided under
this Agreement, the economic or other interests of EQUIFAX, competitive
effects, any circumstances which may affect the performance of this
Agreement, the protection of sensitive or proprietary commercial
information, the operations and integrity of the ACROPAC System, the
protection of data therein and the interests of other entities utilizing
the System). Any dissolution, merger, consolidation or other reorganization
of CRA, the sale or other transfer of all or substantially all of the
assets or properties of CRA, or the sale or other transfer of a controlling
interest in CRA, constitutes an assignment of this Agreement for all
purposes of this Paragraph 9.
10. FORCE MAJEURE.
Notwithstanding any provision to the contrary, no party to this Agreement
will be liable to the other party for any delay or interruption in
performance of any obligation resulting from governmental emergency orders,
judicial or governmental action, emergency regulations, sabotage, riots,
vandalism, labor strikes, or disputes, acts of God, fires, electrical
failure, major computer hardware or software failures, equipment delivery
delays, acts of third parties, or any other cause, if the delay or
interruption in performance is beyond its reasonable control.
11. NOTICES.
All notices, requests, demands, and other communications must be in writing
except as expressly stated in this Agreement, and will be deemed to have
been given when received upon delivery by hand or by certified mail,
addressed as follows:
(a) If to CRA:
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
(b) If to EQUIFAX:
Equifax Credit Information Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Post Office Box 4091
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Contract Administrator
The parties may, by notice given under this section, designate additional
or different addresses to which notices must be sent.
12. SEVERABILITY.
In the event any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, that holding will not
invalidate or render unenforceable any other provision of this Agreement.
13. EXHIBITS.
All Exhibits attached are a part of this Agreement and are expressly
incorporated into it, and all blanks in the Exhibits, if any, will be
completed as required in order to consummate the transactions contemplated
and in accordance with this Agreement.
14. INJUNCTIVE RELIEF.
CRA acknowledges that its failure to comply with Paragraph 6 of this
Agreement will give rise to irreparable injury to EQUIFAX which cannot be
adequately compensated in damages and that EQUIFAX may seek and obtain
equitable, injunctive relief to prevent or restrain non-compliance with
Paragraph 6, together with any other remedies which may be available to
EQUIFAX.
15. USE OF EQUIFAX SERVICES.
EQUIFAX does not convey or transfer, nor does CRA obtain any right or
interest in, any of the programs, systems, data, material, or credit
information utilized or provided by EQUIFAX in the performance of this
Agreement.
16. HEADINGS.
The section and other headings in this Agreement are solely a matter of
convenience for reference and are not a part of this Agreement.
17. GOVERNING LAW.
This Agreement will be governed by and construed in accordance with the
laws of the State of Georgia.
18. WAIVER OF RIGHTS.
Failure of any party to enforce any of its respective rights or remedies
hereunder with respect to any specific act or failure to act of any party
will not constitute a waiver of the rights of that party to enforce those
rights and remedies with respect to any other or subsequent act or failure
to act.
19. ENTIRE AGREEMENT.
This Agreement, including the Exhibit hereto, constitutes the entire
Agreement between the parties and supersedes and cancels any and all prior
agreement between the parties relating to the subject matter. No changes in
this Agreement may be made except in writing signed by both parties.
20. TERM AND TERMINATION.
This Agreement remains in force and effect until written notice of
cancellation is given by either party at least ten days prior to the
cancellation date. However, if CRA is delinquent in the payment of charges
or is guilty of violating the term of this Agreement, EQUIFAX may, at its
election, discontinue providing services to CRA and cancel this Agreement
immediately by written notice to CRA. In the
event of termination of this Agreement for any reason, the provisions of
the foregoing paragraphs will remain in full force and effect as to all
EQUIFAX Credit Information which CRA has requested or received from EQUIFAX
prior to the cancellation date.
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the
day and year first above written.
EQUIFAX CREDIT INFORMATION SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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CRA NAME: FACTUAL DATA CORP.
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By: /s/ ▇.▇. ▇▇▇▇▇▇
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