EXHIBIT 10.5
FIRST AMENDMENT TO
JOINT MARKETING AGREEMENT
This First Amendment ("Amendment One") to the Joint Marketing Agreement
("JMA") among DealerTrack Holdings, Inc. ("Parent"), DealerTrack, Inc. ("DT"),
Credit Online, Inc., ("COL") and First American CREDCO, a division of First
American Real Estate Solutions LLC, a California limited liablility company
("CREDCO"), effective as of March 19, 2003 (the "Effective Date") amends the JMA
as of the "Live Production Date" as defined in that certain agreement (the
"CreditReportPlus Agreement") between CreditReportPlus, LLC., a Maryland limited
liability corporation and subsidiary of First American Credit Management
Solutions, Inc and Affiliate of CREDCO ("CreditReportPlus") and DT (a copy of
which is attached hereto, marked Exhibit "E"), dated as of even date herewith
("Amendment One Date").
WHEREAS, this Amendment One modifies the JMA to address, in part, changes
in business structures related to the creation of CreditReportPlus and the
CreditReportPlus Service. For the purposes of this Agreement, the
"CreditReportPlus Service" means the CreditReportPlus Service as defined in the
CreditReportPlus Agreement. As used in this Amendment One, initially capitalized
terms not otherwise defined herein shall have the meanings set forth in the JMA.
NOW, THEREFORE, for good and valuable consideration the sufficiency of
which the parties agree upon, the parties agree to the following amendments and
modifications to the JMA:
A. JMA MODIFICATIONS:
1. JMA Section 1.2(e) is amended by adding the phrase "or the
CreditReportPlus Agreement" following both instances of "Repository
Agreements" in the opening sentence and in subparagraph (i) and after
the phrase "the R&R Agreement or this Agreement" in the fifth line.
Section 1.2(e) is further amended by deleting the last sentence in its
entirety.
2. JMA Section 1.2(a) is modified by deleting the first sentence in its
entirety and replacing it with the following sentences:
"Subject to Section 6.4.1(j) as added by Amendment One, the DealerTrack
Companies that offer credit bureau reports through the DealerTrack
Network will not promote, offer, market, or sell credit bureau report
products of any other Credit Bureau Report Provider and will not
themselves become a Credit Bureau Report Provider except in connection
with (A) agreements between a Repository and a DealerTrack Company
entered into in connection with the CreditReportPlus Agreement (each
such agreement, a "CRP Related Agreement"), (B) Existing Arrangements
(as defined below) and (C) the CreditReportPlus Agreement. The
DealerTrack Companies that offer credit bureau reports through the
DealerTrack Network will not receive compensation from Repositories for
the delivery of credit bureau report products of any other Credit
Bureau
Report Providers except in connection with (A) a CRP Related
Agreement, (B) Existing Arrangements and (C) the CreditReportPlus
Agreement.
3. The following definition in JMA Section 1.2(d) is amended by
deleting the definition of "Repository Agreements" in its entirety
and replacing it with the following sentence:
""Repository Agreements" means the agreements listed in
subparagraphs (iii), (iv), and (v), and as amended in (vi) in
Section 1.2(a), above, and the CRP Related Agreements."
4. JMA Section 1.3 is deleted and replaced in its entirety as follows:
"1.3 Non-Exclusive Distributorship. For the avoidance of doubt,
nothing in Section 1.2 shall preclude the DealerTrack Companies from
distributing to Customers through the DealerTrack Network credit
reports provided by the Repositories, ADP, CreditReportPlus or R+R,
or under the circumstances described in the CreditReportPlus
Agreement, provided that in the course of distributing such credit
reports, no DealerTrack Company promotes, offers, or markets credit
reports other than CREDCO Products, except as permitted under
Section 1.2."
5. The second sentence of JMA Section 1.4 is amended to read as
follows: "CREDCO further acknowledges that DT and COL have entered
into an agreement with R&R, and that pursuant to the R&R Agreement,
DT has agreed not to and has agreed to cause COL not to promote,
offer, market or sell credit reports, except for CREDCO Products, to
Customers which use R&R's dealer management system (each such
Customer, an "R&R DMS Dealer") unless otherwise agreed to in writing
by R&R.
6. JMA Section 3.1(a) is amended by adding the phrase "or via the
DealerTrack/CreditReportPlus Interface as such term is defined in
the CreditReportPlus Agreement" after the parenthetical "(Lease
Line)" at the end of the first sentence and after the term "Lease
Line" in the second sentence. JMA Section 3.1(a) is further amended
by adding the following sentence at the end of such Section 3.1(a):
"The parties acknowledge that notwithstanding any other provision of
this Agreement, DT will have no obligations or liability of any type
or description to CREDCO for or by reason of any act or omission of
CreditReportPlus in connection with the transmission, receipt,
storage, or maintenance of any data or information."
7. JMA Section 3.2(c) is deleted in its entirety up to the third to
last sentence that begins, "The DealerTrack Companies further
agree..." The last three (3) sentences of Section 3.2(c) shall
remain in full force and effect. JMA Section 3.2(b) is deleted in
its entirety and replaced by the following: "(b) the DealerTrack
Companies may only store, archive, copy or otherwise retain CREDCO
Products (or any information therein) when the DealerTrack Companies
are acting on behalf of, or as an agent for, those DealerTrack
Participating Customers who have authorized the DealerTrack
Companies in writing to store, archive, copy or otherwise retain
such CREDCO Products (or any information
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
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therein) on their behalf for the following purposes: (i) data
storage for up to twenty-five (25) months, and (ii) non-consumer
specific aggregate or summary report functionality in accordance
with DealerTrack's agreements with the Repositories. The DealerTrack
Companies represent and warrant that the DealerTrack Companies will:
(1) utilize the CREDCO Products (or any information therein) for the
purposes stated above; (2) not utilize the CREDCO Products (or any
information therein) for any other purpose ; (3) not use the CREDCO
Products (or any information therein) to create or maintain a
database for themselves or otherwise other than in accordance with
DealerTrack's agreements with the Repositories; and (4) with regard
to any credit risk scores included with CREDCO Products, the
DealerTrack Companies shall not use such scores for model
validation, model benchmarking, reverse engineering, or model
calibration. The DealerTrack Companies will purge all CREDCO
Products (or any information therein) in accordance with
DealerTrack's agreements with the Repositories. In no event will the
DealerTrack Companies distribute, disseminate, transfer or provide
other access to the CREDCO Products (or any information therein) to
any person other than that DealerTrack Participating Customer for
whom the CREDCO Products were provided other than in accordance with
DealerTrack's agreements with the Repositories. In no event will the
DealerTrack Companies resell CREDCO Products (or any information
therein). The DealerTrack Companies agree that CREDCO may audit the
DealerTrack Companies' compliance with the requirements set forth in
subsection (b) above at CREDCO's sole cost and expense at any time
(but not more often than once per calendar year unless required by a
Repository or applicable law) on reasonable notice to the pertinent
DealerTrack Company and that the DealerTrack Companies will
cooperate with CREDCO in such audits."
8. JMA Section 3.3 is amended by adding the phrase "or through the
DealerTrack/CreditReportPlus Interface" in the first sentence after
the phrase "originating from the CREDCO host system" and before the
parenthetical.
9. JMA Section 5.1 is modified by adding the following at the end of
the last sentence:
"The DealerTrack Companies agree to reasonably enhance and maintain
the DealerTrack Network such that the DealerTrack Network has the
capability to receive CREDCO Products from CREDCO via the
CreditReportPlus Service during the term of and subject to the
CreditReportPlus Agreement. DealerTrack's obligations under this
Section 5.1 are conditioned upon CREDCO and CreditReportPlus
providing reasonable support and technical assistance to the
DealerTrack Companies in developing and implementing the referenced
capacities and building an appropriate interface to enable the
DealerTrack Companies to do so."
10. JMA Section 6.1 is deleted in its entirety and is replaced as
follows:
"6.1 CREDCO Report Fees. CREDCO shall charge a DealerTrack
Participating Customer for each CREDCO Product ordered by the
DealerTrack Participating Customer and transmitted by CREDCO to the
DealerTrack Participating Customer through the DealerTrack Network
in accordance with the terms of CREDCO's then-current pricing
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
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list for such reports (the "CREDCO Report Fees"); provided,
however, that for a period of time, the length of which shall be
determined by CREDCO in its sole and reasonable discretion,
Convertible DT Bureau Customers (as defined in number seventeen
(17) of Amendment One), Assigned COL Bureau Customers and
Subcontracted COL Bureau Customers shall continue on their
current pricing. A copy of CREDCO's current pricing is attached
as Exhibit B. CREDCO may change the CREDCO Report Fees upon
thirty (30) days prior written notice to the DealerTrack
Companies. The DealerTrack Companies agree that all marketing,
promoting and offering of CREDCO Products performed by a
DealerTrack Company, if any, will reflect the then-current CREDCO
Report Fees, provided that CREDCO has provided the DealerTrack
Companies with thirty (30) day notice of such changes in fees.
CREDCO will update its marketing materials to reflect all current
CREDCO Report Fees at all times, and CREDCO will reimburse the
DealerTrack Companies for any and all expenses reasonably
incurred by the DealerTrack Companies as a result of changes in
the CREDCO Report Fees. Any deviation in pricing offered by a
DealerTrack Company must be approved, in advance, and in writing
by CREDCO."
11. JMA Section 6.4.1 is deleted in its entirety and is replaced as
follows:
"6.4.1 Fees.
(a) Subject to Section 6.4.2, commencing December 1, 2004, CREDCO
will pay the applicable DealerTrack Company a fee for each CREDCO
Report Unit accessed by a DealerTrack Participating Customer during
each calendar month as follows:
(1) For each Tier 1 CREDCO Report Unit, CREDCO will pay the
applicable DealerTrack Company the sum of forty and one half cents
($.405);
(2) For each Tier 2 CREDCO Report Unit, CREDCO will pay the
applicable DealerTrack Company the sum of twenty cents ($.20);
(3) For each Tier 3 CREDCO Report Unit, CREDCO will pay the
applicable DealerTrack Company the sum of fifteen cents ($.15);
(4) For each Tier 4 CREDCO Report Unit, CREDCO will pay the
applicable DealerTrack Company the sum of ten cents ($.10); and
(5) For each Tier 5 CREDCO Report Unit, CREDCO will pay the
applicable DealerTrack Company a sum as provided in Exhibit D.
A "CREDCO Report Unit" means each bureau accessed by a DealerTrack
Participating Customer within a CREDCO Credit Report or Instant
Merge Report and transmitted to the DealerTrack Participating
Customer through the DealerTrack Network, provided the DealerTrack
Participating Customer uses the Instant Merge or other CREDCO
account number and password provided to it by CREDCO. For purposes
of clarity, a joint three-bureau merged file (for example, on a
husband and a wife) is considered to be six (6)
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
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CREDCO Report Units. In addition, a CREDCO Report Unit is only
counted once per consumer regardless of the number of times the
DealerTrack Participating Customer requests the same report on the
same consumer in a thirty (30) calendar day period.
A "CREDCO Subscriber" means a Dealer that subscribes to CREDCO
Products. CREDCO Subscribers will consist of two types: i) CREDCO
Subscribers enrolled as a result of CREDCO's efforts and not
reactivated by DT's efforts ("Core CREDCO Subscribers"); and ii)
CREDCO Subscribers enrolled as a result of DT's efforts and such
Dealer has never been enrolled as a CREDCO Subscriber prior to
becoming a DealerTrack Participating Customer or reactivated CREDCO
Subscribers ("DT CREDCO Subscribers"). References herein to
"enrolled and enrollment" will mean the process and the date a
Dealer enrolls as a CREDCO Subscriber and for which DT supplies
CREDCO with executed customer documents to enroll the Dealer as a
CREDCO Subscriber. References herein to "reactivated and
reactivation" will mean the process and the date a Dealer becomes
active as a DealerTrack Participating Customer accessing CREDCO
Products after such Dealer has not used CREDCO Products in the
6-month period prior to such date.
(b) As used herein, a "Tier 1 CREDCO Report Unit" will mean the
following CREDCO Report Units accessed in any calendar month:
1. A CREDCO Report Unit accessed by a DealerTrack
Participating Customer that is a Core CREDCO Subscriber, but not to
exceed 20,000 such CREDCO Report Units.
(c) As used herein, a "Tier 2 CREDCO Report Unit" will mean the
following CREDCO Report Units accessed in any calendar month:
1. A CREDCO Report Unit accessed by a DealerTrack
Participating Customer that is an R&R DMS Dealer and a DT CREDCO
Subscriber; or
2. A CREDCO Report Unit accessed by a DealerTrack
Participating Customer that is: i) currently an R&R DMS Dealer; ii)
originated its relationship with DT prior to November 30, 2003 using
a direct Credit Bureau Report Provider connection with Equifax,
Experian or Trans Union; and iii) at any time thereafter becomes a
DT CREDCO Subscriber.
(d) As used herein, a "Tier 3 Credit Report Unit" will mean the
following CREDCO Report Units accessed in any calendar month:
1. A CREDCO Report Unit accessed by a DealerTrack
Participating Customer that is a Core CREDCO Subscriber in excess of
1,400,000 total such CREDCO Report Units.
(e) As used herein, a "Tier 4 Credit Report Unit" will mean the
following CREDCO Report Units accessed in any calendar month:
1. A CREDCO Report Unit accessed by a DealerTrack
Participating Customer that is a Core CREDCO Subscriber in excess of
20,000 total such CREDCO Report Units, up to and including 1,400,000
total such CREDCO Report Units.
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
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(f) As used herein, a "Tier 5 Credit Report Unit" will mean the
following CREDCO Report Units accessed in any calendar month:
1. A CREDCO Report Unit accessed by a DealerTrack
Participating Customer that is not an R&R DMS Dealer and is a DT
CREDCO Subscriber; or
2. A CREDCO Report Unit accessed by a DealerTrack
Participating Customer that is: i) not currently an R&R DMS Dealer;
ii) originated its relationship with DT prior to November 30, 2003
using a direct Credit Bureau Report Provider connection with
Equifax, Experian or Trans Union; and iii) at any time thereafter
becomes a DT CREDCO Subscriber.
(g) In addition, CREDCO will pay the applicable DealerTrack Company
that facilitates enrollment of a DT CREDCO Subscriber that is
currently an R&R DMS Dealer for CREDCO Products a one-time fee of
One Hundred Fifty Dollars ($150) upon the occurrence of the
following: (1) the Customer enrolls to be able to receive CREDCO
Products; and (2) the DealerTrack Participating Customer is
cumulatively billed $250 for CREDCO Products following the
enrollment. The applicable DealerTrack Company will configure its
employee compensation arrangements to take such sums into account in
determining compensation elements for members of its sales force who
are responsible for increasing CREDCO Product sales to Customers.
(h) If CreditReportPlus terminates the CreditReportPlus Agreement
within twenty-four (24) months after the Amendment One Date for an
uncured material breach by Parent or DealerTrack, and provided: (1)
CreditReportPlus is not in default of the CreditReportPlus Agreement
as of the date of the material breach by Parent or DealerTrack and
there exists no event or circumstance which, with the giving of
notice or passage of time or both, would constitute such a default
as of the date of the material breach by Parent or DealerTrack; (2)
no legal action is taken to determine if such termination is
authorized by the CreditReportPlus Agreement within two (2) months
of such termination, and (3) if such action is pursued within the
two (2) months and after its diligent prosecution,
CreditReportPlus's termination is upheld as proper by a final order
or judgment of a court of competent jurisdiction which cannot be
appealed; then CREDCO, in its sole discretion may decide:
(i) that all or part of the fee obligations set forth in the
amended Section 6.4.1 will have no force or effect, and
(ii) in lieu of the revised Section 6.4, the pricing terms
(Section 6.4 only) of the JMA prior to this Amendment One shall
thereupon take effect and become prospectively applicable and
binding upon the parties as and from the date that CREDCO sends
notice to DT of the change in terms back to the terms of the JMA
prior to this Amendment One and after the effective date of
termination of the CreditReportPlus Agreement, provided however, JMA
Section 6.4.1 is modified by deleting the first sentence in its
entirety and replaced with the following sentence:
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
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"6.4.1 Fees. Subject to Section 6.4.2, with respect to each CREDCO
Report Unit (as defined in Amendment One of the JMA), CREDCO shall
pay the applicable DealerTrack Company:"
(i) In the event DT terminates the CreditReportPlus Agreement for an
uncured material breach by CreditReportPlus and provided: (1)
DealerTrack is not in default of the CreditReportPlus Agreement as
of the date of the material breach by CreditReportPlus and there
exists no event or circumstance which, with the giving of notice or
passage of time or both, would constitute such a default as of the
date of the material breach by CreditReportPlus; (2) no legal action
is taken to determine if such termination is authorized by the
CreditReportPlus Agreement within two (2) months of such
termination, or (2) if such action is pursued within the two (2)
months and after its diligent prosecution is upheld by a final order
or judgment of a court of competent jurisdiction which cannot be
appealed; , then CREDCO in its sole discretion, may continue to
offer the functionality of the CreditReportPlus Service and if
CREDCO so desires to offer such functionality to DealerTrack, then
(i) DT agrees to continue to support the existing interface or a
substantially similar interface as mutually agreed upon by the
parties hereto, and (ii) the foregoing fee obligations will continue
in full force and effect as an obligation from CREDCO to DT without
regard to the status or operations of CreditReportPlus.
(j) If any DealerTrack Company obtains control of an entity that is
not a DealerTrack Company as of the Amendment One Date (each a "New
Affiliate"), and such New Affiliate is in the business of providing
credit bureau reports to Dealers, CREDCO will have an option (the
"Option") to purchase from the DealerTrack Company or the New
Affiliate such credit bureau report business (the "Optioned
Business"). Promptly after the transaction closes resulting in the
entity becoming a New Affiliate, the applicable DealerTrack Company
will give written notice to CREDCO identifying the Optioned Business
and valuing the Option under the same economic terms as the New
Affiliate was acquired by the DealerTrack Company ("Value"). It is
currently anticipated that such business will be Valued utilizing a
discounted cash flow analysis ("DCF"). The price of the Option will
be the difference in the Value of the New Affiliate with and without
the Optioned Business (the "Valuation Amount"). If CREDCO desires to
exercise the Option, the parties will negotiate in good faith for a
120-calendar day period to reach an agreement containing the
material terms for CREDCO's exercise of the Option, including
payment of the Valuation Amount and assumption of the underlying
obligations subject to CREDCO's completion of normal and customary
due diligence during the aforementioned 120-calendar day period. If
the parties fail to reach agreement within such time, the Option
will expire. If required, the parties will each use its best efforts
to obtain shareholder approval of the Option sale to CREDCO and if
such approval is not obtained within 60 days following the
completion of the 120-day negotiation period, the Option will also
expire. If the parties enter an agreement and CREDCO pays the
Valuation Amount, the appropriate DealerTrack Company and the New
Affiliate will, upon CREDCO's request, use commercially reasonable
efforts to: (i) migrate the Optioned Business directly to CREDCO and
(ii) migrate any or all of the Optioned Business to CreditReportPlus
that cannot be migrated to CREDCO. If CREDCO does not exercise the
Option or the Option expires, the DealerTrack Company or the New
Affiliate may continue to perform and receive compensation under
such agreements between the New
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Affiliate and the Credit Bureau Report Providers, provided that
performance of such agreements that consists of proactively
promoting, marketing, offering, or selling credit bureau report
products of any Credit Bureau Report Provider other than CREDCO will
be limited to existing customers of the New Affiliate receiving
credit bureau report products as of the date a DealerTrack Company
obtains control of the New Affiliate and their successors and
assigns, unless this limitation will cause a material breach of any
such agreement.
12. JMA Sections 6.4.2(a) - (c) are deleted in their entirety and
replaced with the following sentence. It is understood and agreed to
by the Parties hereto, that the amounts paid by CREDCO to the
applicable DealerTrack Company under the original JMA Section
6.4.2(a) in excess of $8,100.00 pro-rata per month for the period
after July 1, 2004 shall be credited back to CREDCO from July 1,
2004 to November 30, 2004. Section 6.4.2(d) is renumbered Section
6.4.2(a). The Section number "2.1" is deleted where it appears after
subparagraph (b) at the top of page 15 of the JMA.
13. JMA Section 6.5 is amended by deleting the words "Assigned DT Bureau
Customers" and "Subcontracted DT Bureau Customers" in the
parenthetical and replacing the deleted words with "Convertible DT
Bureau Customers."
14. Add to the end of Section 6.9(b). In the event DT rejects a
CreditReportPlus proposal for advanced functionality and CREDCO
engages CreditReportPlus to implement such advanced functionality,
DT agrees that such features and functionality shall not be deemed
to be a breach of this Section 6.9(b).
15. CREDCO and DT will use commercially reasonable efforts to mutually
develop and launch in a timely manner the functionality on their
respective web sites to enable Dealers to securely apply for CREDCO
Products via a click through application process. CREDCO will link
such click through application process to the DealerTrack Web
Product via mutually agreed upon specifications. It is understood by
DT that CREDCO currently does not have electronic signature
capability and until such time, the Dealer may be required, as
CREDCO determines in its sole discretion, to complete, print, and
fax or mail applicable Customer Documents with their written
signature to CREDCO before the Dealer can become a DealerTrack
Participating Customer.
16. JMA Section 8.2(a) is amended by inserting the word "misuse" after
the word "any" and before the word "alteration."
17. JMA Section 1.5 is deleted in its entirety and replaced with the
following:
"1.5 Conversion of DT Credit Bureau Customers.
The DealerTrack Companies agree to work with CREDCO to use
commercially reasonable efforts to proactively convert Customers
which can use a process whereby a Customer accesses credit
reports directly from a Credit Bureau Report Provider through the
DealerTrack Network other than ADP DMS Dealers or Enterprise
Dealers (as defined in the CreditReportPlus Agreement), to the
provision of credit bureau reports from
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CREDCO (the "Convertible DT Bureau Customers"). The Parties will
work together to develop plans to convert such Convertible DT
Bureau Customers which plans will be conducted at each party's
respective expense.
18. The DealerTrack Companies will use commercially reasonable
efforts to complete the following in a timely manner:
a. Modification of the user interface to reduce the number of
duplicate Credit Report requests as caused by the DealerTrack
Network; and
b. Correct errors in tracking Credit Report transactions enabling
transaction counts to reconcile between the DealerTrack
Network and CREDCO Products. It being understood by the
parties that until the DealerTrack Companies transaction
counts and the CREDCO transaction counts match, all Credit
Report transactions will be counted according to CREDCO's
counting methodology in the CREDCO Products.
19. With regards to the Joint Marketing Agreement between CREDCO and
Lease Marketing, Ltd. dated as of the 23rd day of March 2001 (the
"CREDCO-LeaseLink Agreement"), the DealerTrack Companies have
requested, and CREDCO has agreed, that the CREDCO-LeaseLink
Agreement remain in full force and affect as it relates to those
applicable Participating Customers as defined therein. CREDCO
further consents to the assignment of the CREDCO-LeaseLink
Agreement by Lease Marketing, Ltd to webalg, inc. Once those
Participating Customers are converted or migrated to the
DealerTrack Network, then the provisions of the JMA and Amendment
One will prevail for those converted Participating Customers.
Further, CREDCO or the DealerTrack Companies may terminate the
CREDCO-LeaseLink Agreement pursuant to the terms of that
Agreement. For the avoidance of doubt, it is understood that for
any DealerTrack Participating Customer utilizing a CREDCO
subscriber code issued under the CREDCO-LeaseLink Agreement,
webalg, inc. will be compensated for such DealerTrack
Participating Customer under the terms of the CREDCO-LeaseLink
Agreement and DT will receive no compensation for such
transaction.
20. Exhibit D is amended by revising the "Duplicate/Re-access
Inquiries" fee to be $.50 per report. For the avoidance of doubt,
a "report" as used in Exhibit D shall have the meaning of one
CREDCO Credit Report as defined in Recital A in the original,
unamended JMA, as such a Duplicate/Re-access Inquiry of a joint
three-bureau merged file is considered one Duplicate/Re-access
Inquiry.
21. Section 10 of the JMA is amended by adding a provision (l) as
follows: "DT agrees to use commercially reasonable efforts to
give notice to CREDCO of DealerTrack Participating Customers that
DT designates to be Enterprise Dealers (as defined in the
CreditReportPlus Agreement) within fourteen (14) days of DT
agreeing with the Enterprise Dealer to provide Credit Reports (as
defined in the CreditReportPlus Agreement) to the Enterprise
Dealer."
22. Section 10 (k) is amended by adding Exhibit E to the list of
exhibits.
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B. Other Provisions of this Amendment One:
1. Assignment and Assumption of Experian Credit Bureau Report Contracts.
DealerTrack hereby sells, assigns, transfers, and delivers to CREDCO those
rights and obligations arising or accruing from and after December 1, 2004 or
such later date as set forth below, that the DealerTrack Companies have with
respect to the provision of Experian credit bureau reports to those Customers
identified in Exhibit F (such rights and obligations are referred to herein as
the "Experian Reseller Relationships"). DealerTrack represents it has the rights
to assign the rights and obligations of the Experian Reseller Relationships to
CREDCO as of December 1, 2004. DealerTrack represents the Experian Reseller
Relationships comprises all such relationships except ADP DMS Dealers.
DealerTrack will give notice of the assignment to the affected Customers by
November 30, 2004. CREDCO hereby assumes from DealerTrack all rights and
obligations arising or accruing from or relating to the Experian Reseller
Relationships as and from the later of December 1, 2004 or when DealerTrack
activates the Experian Reseller Relationship for CREDCO Products, including the
obligations as a reseller in accordance with applicable law (the "Assumed Rights
and Liabilities"). Upon receipt of the Experian Reseller Relationship files and
contracts from DealerTrack, CREDCO will convert the Experian Reseller
Relationships to DT CREDCO Subscribers and assign CREDCO subscriber codes to
access Experian credit reports for such Customers in a timely manner. For those
Experian Reseller Relationships who also utilize Equifax and/or Trans Union
subscriber codes, CREDCO will activate those Customers to access Equifax and
Trans Union credit reports, as approved by the applicable Customer. If such a
Customer fails to give approval to a universal CREDCO Subscriber Code within a
reasonable time, DealerTrack will permit the Customer to continue to receive
only Equifax and Trans Union credit reports via direct subscriber codes.
DealerTrack will activate the CREDCO subscriber codes for the Experian Reseller
Relationships in a timely manner after the respective subscriber codes are
provided by CREDCO to DealerTrack. The DealerTrack Companies agree to work with
CREDCO to convert these affected Customers and ensure they are able to process
CREDCO Products via the DealerTrack Network. CREDCO will not raise the current
prices for any Experian Reseller Relationship or Equifax or Trans Union credit
bureau report product before November 30, 2005. Current pricing is $1.99 per
Experian credit bureau report and standard FICO score, a portion of which is
remitted to Experian. CREDCO agrees to defend and indemnify DealerTrack from the
Assumed Rights and Liabilities pursuant to the indemnity provisions of the JMA.
However, CREDCO shall not assume any rights or obligations of DealerTrack
arising or accruing from or relating to the Experian Reseller Relationships
prior to December 1, 2004 (the "Excluded Rights and Liabilities"). DealerTrack
agrees to defend and indemnify CREDCO from the Excluded Rights and Liabilities
pursuant to the indemnity provisions of the JMA. As between CREDCO and the
DealerTrack Companies, CREDCO shall have the right to sign Experian Reseller
Relationships to new contracts.
2. The JMA will not apply to dealerAccess Canada Inc. ("dealerAccess
Canada") to the extent dealerAccess Canada promotes, offers, markets, sells or
delivers credit bureau reports regarding consumers residing in Canada and, to
such extent, for purposes of the JMA will not be deemed to be a DealerTrack
Company until such time, if ever, as: the parties agree to terms applicable to
dealerAccessCanada and dealerAccess Canada is able to terminate its agreements
with other credit report providers without penalty in contemplation of such an
agreement. Nothing contained herein will obligate either Party or dealerAccess
Canada to enter into such an agreement.
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
10
During the term of the JMA, to the extent dealerAccess Canada promotes, offers,
markets, sells or delivers credit bureau reports regarding consumers residing in
the United States, its territories and possessions dealerAccess Canada shall be
subject to the JMA and, to such extent, shall be deemed a DealerTrack Company.
3. This Amendment One, together with the JMA (including all Exhibits to
the JMA) constitutes the entire agreement between the parties with respect to
its subject matter, and there are no other agreements written or oral, express
or implied. Except as set forth expressly in this Amendment One, this Amendment
One does not otherwise amend or modify the JMA. The JMA remains in full force
and effect.
4. This Amendment One may be executed in one or more counterparts, each of
which, taken together, will constitute but one original Amendment.
5. In both the JMA and the Amendment One, unless the context otherwise so
provides:
i) the term "including" means "including but not limited to"; and
ii) terms in the singular shall include the plural.
Signature Page Follows
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
11
IN WITNESS WHEREOF, the parties hereto have caused this Amendment One to be
executed by their respective duly authorized officers, as of the Amendment One
Date.
FIRST AMERICAN REAL ESTATE SOLUTIONS, DEALERTRACK HOLDINGS, INC.
LLC ("CREDCO") ("Parent")(only for purposes of
Sections 7.2, 9 and 10 of the JMA)
By: __________________________________ By: __________________________________
Name: Name:
Title: Title:
DEALERTRACK, INC. ("DT") CREDIT ONLINE, INC. ("COL")
By: __________________________________ By: __________________________________
Name: Name:
Title: Title:
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
12
