EXHIBIT 10.2.1
SERVICES AGREEMENT
THIS SERVICES AGREEMENT ("Agreement") is made as of October 24, 2006, by
and between Edentify, Inc., with its principal place of business at 00 Xxxx
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxx, 00000 ("Edentify"), and
ChoicePoint Public Records Inc., with its principal place of business at 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("ChoicePoint").
WHEREAS, Edentify wishes to engage ChoicePoint to perform certain services
in connection with Edentify's ongoing activities to assist its customers in
connection with the detection and prevention of fraud, specifically the
provision of a fraud detection score (the "Score") to such customers; and
WHEREAS, ChoicePoint wishes to perform such services in accordance with the
terms and conditions of this Agreement (and any Schedules entered into
concurrently with or subsequent to this Agreement);
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties, intending
to be legally bound, do hereby agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, all capitalized terms will have the meaning
ascribed to them as follows or as otherwise set forth in this Agreement:
1.1 "Agreement" means this Agreement and any SOW attached as a Schedule to the
Agreement, each of which is incorporated into and made a part of this Agreement.
1.2 "Affiliates" means with respect to any person or entity, any other person
now existing or existing in the future, that directly or indirectly through one
or more intermediaries, controls, is controlled by or is under common control
with that person or entity.
1.3 "Change of Control" means the purchase, merger or other transaction
regarding a Party whereby a third party assumes control of such Party. For
purposes of this definition, "control" shall mean the ability to direct the
management or policies of a Party by ownership, contract or otherwise.
1.4 "ChoicePoint Data" or "ChoicePoint Databases" means the data, records or
information, and their compilation in databases that ChoicePoint maintains or
accesses during the performance of the Services set forth in a SOW.
1.5 "ChoicePoint Marks" means all corporate names, domain names, trademarks,
service marks and logos owned by ChoicePoint.
1.6 "Confidential Information" includes (without limitation) the ChoicePoint
Data, ChoicePoint Databases, Intellectual Property of the Parties, the data
provided by either Party to the other in connection with performance of this
Agreement, information regarding each Parties' business processes, methods and
plans, any business or technical information of a Party or its customers,
including but not limited to any information relating to a Party's or its
customers' product plans, designs, costs, finances, marketing plans, business
opportunities, customer information, personnel, research, development or
know-how. Confidential Information does not include information which (i) is
already known by the recipient, (ii) becomes, through no act or fault of the
recipient, publicly known or available, (iii) is received by recipient from a
third party without a restriction on disclosure or use, (iv) is independently
developed by recipient
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without reference to the Confidential Information or (v) is required to be
disclosed as a result of legal process or government regulation.
1.7 "Derivative" means a revision, modification, translation, abridgment,
condensation, expansion or any other form in which pre-existing works of a Party
may be recast, transformed, or adapted.
1.8 "Effective Date" means the date, as first set forth, of this Agreement or
any SOW, as applicable.
1.9 "Fees" means the charge owed by Edentify to ChoicePoint for Services
rendered in accordance with a SOW.
1.10 "Edentify Marks" means all corporate names, domain names, trademarks,
service marks and logos owned by Edentify.
1.11 "Intellectual Property" means all (a) patents, (b) trademarks, service
marks, domain names, trade dress, logos, trade names and corporate names, (c)
copyrights, (d) computer software and data, (e) trade secrets and confidential
business information, whether patentable or un-patentable and whether or not
reduced to practice, know-how, manufacturing and production processes and
techniques, research and development information, copyrightable works,
financial, marketing and business data, pricing and cost information, business
and marketing plans and customer and supplier lists and information, (f)
applications and registrations related to any of the foregoing, (g) other
proprietary rights relating to any of the foregoing, and (h) copies and tangible
embodiments thereof.
1.12 "Marks" means the Edentify trademarks and service marks, or the ChoicePoint
trademarks or service marks, as applicable.
1.13 "Parties" means both Edentify and ChoicePoint collectively.
1.14 "Party" means either Edentify or ChoicePoint individually, as applicable.
1.15 "Schedule" means the documents attached to the Agreement and signed by the
Parties, if any, delineating Services to be provided by ChoicePoint and the
duties of Edentify in connection with those Services.
1.16 "Scope of Work" or "SOW" means a Scope of Work or SOW describing the
provision of Services under this Agreement and includes the initial SOW #1
attached hereto as Exhibit A. Except for SOW #1, each subsequent SOW (if any)
will be effective, incorporated into and form a part of this Agreement when duly
executed and delivered by the Parties. If there is a conflict between any SOW
and this Agreement, the terms of this Agreement shall govern the provision of
the Services unless expressly stated otherwise in the SOW.
1.17 "Services" means the work or functions performed by ChoicePoint as
described in the initial SOW #1 attached hereto as Exhibit A and in subsequent
SOW's which may be entered into by the Parties in accordance herewith.
1.18 "Subscriber" means a customer or client who receives the Score generated
based upon the use of (but not containing) ChoicePoint Data and uses such Score
internally as an end-user. Subscribers shall be limited to business entities
which are financial institutions or credit card companies that are the end user
of the Score and use the Score for fraud detection purposes only, and shall not
be other entities, consumers or members of the general public; provided, that
the Parties acknowledge that consumers are the subject of the inquiries which
cause the provisioning of the Score to Subscribers hereunder.
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1.19 "Term" means the length of time wherein this Agreement or a SOW shall
remain in full force and effect, unless earlier terminated as a result of a
breach of this Agreement or a SOW. If an applicable SOW's Term is longer than
the Term of this Agreement, then the Term of this Agreement shall be
automatically extended to run contemporaneously with the Term of such SOW.
2. CHOICEPOINT OBLIGATIONS
ChoicePoint shall provide to Edentify the Services described in the attached SOW
(or any additional SOW duly executed by the Parties). Choicepoint will timely
and diligently cooperate with Edentify to perform such duties and take such
actions as are necessary for Edentify to provide the Services detailed in each
SOW, and Choicepoint shall at all times act in good faith and abide by the terms
and conditions of this Agreement and any SOW duly executed by the Parties.
3. EDENTIFY OBLIGATIONS
Edentify will timely and diligently cooperate with ChoicePoint to perform such
duties and take such actions as are necessary for ChoicePoint to provide the
Services detailed in each SOW, and Edentify shall at all times act in good faith
and abide by the terms and conditions of this Agreement and any SOW duly
executed by the Parties. Edentify may utilize the Services described in the SOW
to provide the Score only to Subscribers.
4. PAYMENT OF FEES
Edentify shall pay the Fees due under this Agreement as specified in the
applicable SOW. All Fees are exclusive of any sales, use or other tax related to
ChoicePoint's performance of Services. Edentify will be responsible for
assessing and remitting to the appropriate taxing authority any sales, use or
other tax related to the performance of Services by ChoicePoint regardless of
whether that tax is currently existing or later enacted. Notwithstanding the
foregoing, neither Party will be responsible for taxes imposed on the revenues
or income of the other Party.
5. INTELLECTUAL PROPERTY
5.1 Each Party shall at all times retain full and complete ownership in and to
all Intellectual Property and Derivatives thereof existing as of the Effective
Date, and to all Intellectual Property and Derivatives thereafter created by a
Party outside the scope of the obligations specifically identified in a SOW.
Furthermore, there are no implied licenses under this Agreement or any SOW. Any
rights not expressly granted under this Agreement or a SOW is reserved by the
owner of the Intellectual Property.
5.2 Neither Party shall use the other Party's Marks without the other Party's
prior written consent, nor upon the expiration or termination of this Agreement
will either Party continue any use of the other Party's Marks. Notwithstanding
consent of use, title to and ownership of Party's Marks will remain with the
owner of a Xxxx, and a Party using the Marks of another Party shall not take any
action inconsistent with the other Party's right, title and interest in and to
the Marks.
5.3 Neither Party shall reverse engineer, decompile or disassemble the
algorithms, source or object code of the other Party or any portion thereof, nor
otherwise attempt to create or derive the algorithms, source object code of the
other Party for any reason whatsoever. Each Party acknowledges and agrees that
unauthorized reproduction, use, or disclosure of such technology or any part
thereof is likely to cause irreparable injury to the owner of such technology,
who shall therefore be entitled to injunctive relief to enforce these
restrictions, in addition to any other remedies available at law, in equity, or
under this Agreement, and without the need to post bail even if ordinarily
required.
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6. WARRANTIES
6.1 ChoicePoint warrants that (i) it, and each of the agents that it uses to
provide and perform the Services, as applicable, have the necessary knowledge,
skills, experience and resources to provide and perform the Services in
accordance with the terms of this Agreement and each SOW; (ii) the performance
of the Services in each SOW will not infringe upon or misappropriate the
Intellectual Property of any third party; and (iii) the performance of the
Services shall be in accordance with the specifications set forth in any SOW
attached hereto.
6.2 Each Party warrants to the other Party that it (a) is an entity in good
standing in all jurisdictions in which it is required to do so in order to do
business; (b) has all necessary consents, licenses or permits necessary to
perform their respective obligations under this Agreement and any duly executed
SOW; (c) has the right to enter into this Agreement and each SOW, and (d) that
it has the requisite authority to execute and deliver this Agreement and any
subsequently executed SOW and to perform the Services and obligations set forth
therein.
6.3 ChoicePoint does not warrant that the Services as described in each SOW will
operate uninterrupted or error-free, however, the Services shall operate
substantially as described therein and ChoicePoint shall take prompt
commercially reasonable steps to mitigate the effects of a material interference
with the operations of the business of Edentify caused by ChoicePoint. Except as
specifically set forth in this Agreement, ChoicePoint does not make and hereby
disclaims any warranty, express or implied, with respect to the Services
provided hereunder. Notwithstanding the foregoing, ChoicePoint acknowledges and
agrees that any substantial interruption of Edentify's business as a result of
material errors or disruption of Services provided by ChoicePoint that has not
been substantially remedied and the effects thereof mitigated within (5)
business days (or any extension thereof by the Parties in writing) after notice
of such issue in writing by Edentify to ChoicePoint (given in accordance with
the notice provisions of this Agreement) shall be deemed a material breach of
this Agreement and/or any duly executed SOW, whereupon the termination notice
and cure provisions of Section 8.2 hereof shall apply.
6.4 Each Party warrants that it will comply, to the extent required, with all
applicable laws and regulations, including (without limitation) the
Xxxxx-Xxxxx-Xxxxxx Act (15 U.S.C. Section 6801 et seq.) ("GLBA") and the
Driver's Privacy Protection Act (18 U.S.C. Section 2721 et seq.) ("DPPA"),
regarding the performance of their obligations under this Agreement and each
SOW, including without limitation, developing (if necessary) and implementing
commercially reasonable measures to protect, as required by applicable law, the
security and confidentiality of Confidential Information received from the other
Party. Notwithstanding the foregoing, Edentify acknowledges that some of the
ChoicePoint Data maintained in the ChoicePoint Databases is subject to the
provisions of the GLBA and DPPA, and hereby agrees that, if accessing same,
Edentify shall at all times have a permissible purpose to access such regulated
information. With respect to data governed by the GLBA, Edentify understands and
acknowledges that ChoicePoint has identified industry-specific GLBA-appropriate
uses for which the ChoicePoint Data is to be used, and Edentify understands and
acknowledges that GLBA may be amended at any time and/or that other industry
principles or ChoicePoint policies and procedures may be amended at any time,
which may have the effect of either limiting or expanding the ability of
Edentify or its Subscribers to use the ChoicePoint Data. Edentify understands
and acknowledges that the Subscriber(s) must agree to state their appropriate
use for the Score, must limit their use to those stated purposes, and must take
appropriate measures so as to protect against any misuse.
6.5 Edentify acknowledges and understands that ChoicePoint Data has not been
collected for FCRA (as defined below) purposes and is not intended to be
indicative of any consumer's credit worthiness, credit standing, credit
capacity, or other characteristics listed in Section 603(d) of the Fair Credit
Reporting Act ("FCRA"), 15 U.S.C. Section 1681a, and that ChoicePoint is not a
"consumer reporting agency" or a furnisher of "consumer reports" as such terms
are defined in the FCRA. Edentify agree not to use any ChoicePoint Data, which
is the subject of this Agreement, for consumer credit granting,
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consumer insurance underwriting, employment purposes, tenant screening purposes,
or for any other purpose(s) specified by the FCRA or similar state or federal
statute. The ChoicePoint Data is to be used for investigative or detection
purposes only. If, at any time upon the written advice of outside legal counsel
to ChoicePoint, ChoicePoint believes that Edentify's use of the ChoicePoint Data
may cause ChoicePoint to be deemed a "consumer reporting agency" or be deemed to
be furnishing "consumer reports," then ChoicePoint shall have the right to
terminate this Agreement immediately upon written notice to Edentify without
liability by ChoicePoint, and Edentify and its Subscribers will, upon receipt of
such notice, immediately cease the use of the Services and ChoicePoint Data.
6.6 EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, EACH PARTY
PROVIDES ALL DATA, SERVICES, AND INFORMATION TO THE OTHER PARTY "AS IS" AND EACH
PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ADDITIONALLY WITH
RESPECT TO DATA AND INFORMATION, ACCURACY, CORRECTNESS, CURRENTNESS AND
COMPLETENESS WITH RESPECT TO SUCH DATA AND INFORMATION.
7. ACCOUNT MANAGERS
Each Party will assign an account manager, or other person with equivalent
responsibilities within its respective organization, to be the principal point
of contact for all communications related to such Party's performance.
8. TERM AND TERMINATION
8.1 Unless earlier terminated as provided in this Agreement, the Term of this
Agreement will begin on the Effective Date and continue for three years. The
Term shall automatically renew for successive one (1) year renewal Terms unless
either Party notifies the other Party in writing that it intends not to renew at
least ninety (90) days prior to the expiration of the initial Term or any
renewal Term or this Agreement is otherwise terminated as provided herein. Upon
the expiration of this Agreement, or the earlier termination hereof for any
reason (i) all license rights granted in this Agreement to one Party by the
other will terminate; (ii) each Party will promptly pay the other Party for all
amounts accrued as of the date of termination; (iii) each Party will cease using
and return, or certify the destruction of, the other Party's Confidential
Information, and (iv) the Parties shall take such other actions, or cease from
acting, as reasonably required due to such termination. Sections 1, 4, 5, 6.6,
9, 10, 11, 12, 14.1, 14.2, 14.6, 14.7, 14.8 and 14.9 will survive expiration or
termination of this Agreement.
8.2 If one Party is in breach of a material provision of this Agreement or any
SOW, then the non-breaching Party may terminate this Agreement by providing
fifteen (15) business days written notice thereof to the other Party; provided,
however, that the breaching Party shall have fifteen (15) days from receipt of
written notice to cure the breach. Notwithstanding the foregoing, if Edentify
has breached, or ChoicePoint reasonably and in good faith suspects that Edentify
has breached any provision Section 9 herein, ChoicePoint may suspend the
provision of Services hereunder, upon the provision of three (3) business days
advance written notice to Edentify, and until ChoicePoint can reasonably
determine whether a breach has occurred as soon as possible; provided, however,
that in situations where ChoicePoint suspects a breach ChoicePoint may not
suspend the Services for more than two (2) business days while determining
whether a breach occurred. Furthermore, Edentify's obligation to make payments
due under this Agreement shall be temporarily suspended during any such
suspension of the services.
8.3 In the event either Party ceases conducting business in the ordinary course;
makes a general assignment for the benefit of its creditors; files a petition
seeking or acquiescing in any relief for itself under any present or future
federal, state or other statute or law relating to bankruptcy, insolvency or
other
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relief for debtors; seeks or consents to or acquiesces in the appointment of any
trustee, receiver or liquidator of all or any part of its business or property;
this Agreement may be automatically and immediately terminated by either Party
upon written notice to the other Party.
8.4. If at any time during the Term or any renewal Term, applicable law or
regulation, or ChoicePoint policy or procedure, restricts or forbids
ChoicePoint's resale of ChoicePoint Data ("Restricted ChoicePoint Data"),
ChoicePoint shall have the right to restrict or terminate the use of such
Restricted ChoicePoint Data, and if all of the ChoicePoint Data is or becomes
Restricted ChoicePoint Data, then ChoicePoint may, in its discretion, terminate
this Agreement upon thirty (30) days prior written notice to Edentify.
9. SECURITY AND OTHER PROVISIONS
9.1 The development, implementation and provision of the Services to Edentify
shall be in accordance with and subject to ChoicePoint policies and procedures
regarding information security. If Edentify is authorized by ChoicePoint
pursuant to a SOW to access ChoicePoint Data in any way, then Edentify shall
monitor and restrict such access to its authorized employees only, and implement
security measures to ensure that only such authorized employees may utilize such
access. Such procedures shall be at least as secure as those Edentify uses to
monitor and control access to its own most sensitive data. Edentify will comply
with the reasonable procedures and modifications to such procedures as may be
communicated by ChoicePoint to Edentify in writing from time to time, and shall
issue direction and appropriate instructions regarding these measures and the
contractual restrictions herein to any Edentify employee receiving such access.
9.2 In the event that Edentify learns or has reason to believe that ChoicePoint
Data has been disclosed or accessed by an unauthorized party by or through
Edentify, Edentify will promptly give notice of such event to ChoicePoint within
seventy two hours. Furthermore, in the event that Edentify has access to
personally identifiable information (e.g., Social Security Numbers, Driver's
License Numbers or Dates of Birth) in connection with the Agreement or any SOW,
the following shall apply: Edentify acknowledges that upon unauthorized access
or disclosure of such personally identifiable information contained within the
ChoicePoint Data by or through Edentify (a "Security Event"), Edentify shall, in
compliance with law, notify the individuals whose information was disclosed that
a Security Event has occurred. In addition, in the event of a Security Event and
the parties mutually agree to take remedial actions, Edentify shall bear the
expense of such remediation consistent with industry best practices in such
circumstances (i.e., credit monitoring on such individuals for one year).
Edentify shall be responsible for any other obligations which may be required
pursuant to applicable law in connection with such a Security Event.
9.3 With respect to Edentify's Subscribers, Edentify shall monitor and control
access to the Score by Subscribers and implement security measures to ensure
that only authorized and legitimate Subscribers of Edentify may receive the
Score. Such procedures shall include, at a minimum, those procedures set forth
on Exhibit B attached hereto. In addition, Edentify will comply with the
reasonable procedures and modifications to such procedures as may be
communicated by ChoicePoint to Edentify in writing from time to time. No
Subscriber may use or access the Score until execution by Subscriber of an
Edentify service agreement which shall contain, at a minimum, in substance, the
terms and conditions attached hereto as Exhibit C. ChoicePoint shall be provided
with an exemplar of such agreement containing the terms and conditions.
9.4 Edentify shall maintain thorough records for a period of five (5) years
which will permit the identification of (i) each Subscriber accessing, or
otherwise provided with, the Score, (ii) the type of access provided, and (iii)
the intended use of the Score as identified by the Subscriber (i.e., GLBA and/or
DPPA permitted purposes).
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9.5 Edentify is expressly prohibited from selling, marketing or otherwise
providing the Score to resellers, re-marketers, brokers or other entities that
are not Subscribers, without the prior written consent of ChoicePoint. In the
event that Edentify receives, obtains or is otherwise provided with access to
ChoicePoint Data, Edentify further acknowledges that it shall not disclose,
reproduce, copy, or otherwise transfer for any purpose any ChoicePoint Data
(except as expressly permitted in Section 2.12 of SOW #1 or any subsequent SOW).
If a Subscriber attempts to gain access to the ChoicePoint Data or grant access
to or distribute the Score to any third party in violation of this Agreement,
Edentify shall promptly notify ChoicePoint as provided herein. ChoicePoint
reserves the right to either terminate or require Edentify to terminate the
access of any Subscriber of Edentify found to be improperly accessing the
ChoicePoint Data or improperly granting access to or distributing the Score.
9.6 Edentify shall not assign, transfer, sublease, sublicense, rent, sell, offer
for sale or resell the ChoicePoint Data in any way nor, nor site license the
ChoicePoint Data in whole or in part to any third party (except as expressly
permitted in Section 2.12 of SOW #1 or any subsequent SOW).
9.7 With respect to personally identifiable information regarding consumers, the
parties further agree as follows: ChoicePoint has adopted the "ChoicePoint
Privacy Principles" ("Principles") recognizing the importance of appropriate
privacy protections for consumer data and Edentify agrees that Edentify
(including its directors, officers, employees or agents) will abide by the
Principles, as they may be amended and communicated to Edentify from time to
time (the Principles are available at xxx.xxxxxxxxxxxxxxxxxxxx.xxx). Edentify
shall implement and maintain reasonable security procedures and practices
appropriate to the nature of the information it accesses at ChoicePoint, to
protect the personal information from unauthorized access, destruction, use,
modification or disclosure.
9.8 Edentify will provide ChoicePoint legal and compliance employees with such
access to Edentify's services and systems at no cost to ChoicePoint for
compliance purposes as is reasonably necessary for ChoicePoint personnel to
confirm that all terms of this Agreement are being met. Edentify understands and
agrees that in order to ensure compliance with applicable laws, rules,
regulations and ChoicePoint policies, ChoicePoint and its third party suppliers
(such as credit bureaus and/or department of motor vehicles, as applicable) have
the right to conduct periodic audits and reviews of Edentify and Subscribers'
activity, including on-site visits. In addition, ChoicePoint and its third party
Suppliers may contact or visit Edentify to demonstrate, verify and/or obtain
documentation of compliance herewith. Any intentional or violation that is
continuing after written notice of same to Edentify by Edentify or its
Subscriber(s) may result in immediate termination of this Agreement thereafter
upon advance written notice to Edentify. In addition, ChoicePoint may terminate
Edentify's access to ChoicePoint Data on five (5) days advance written notice to
Edentify in the event that Edentify's access or use of any ChoicePoint Data is
(a) the subject of adverse consumer reaction related to consumer privacy issues
or (b) the subject of any investigation, proceeding or litigation by any
governmental agency.
9.9 ChoicePoint may, at any time, impose restrictions and/or prohibitions on
Edentify's use of ChoicePoint Data, ChoicePoint Databases or components thereof.
Edentify understands that such restrictions or changes in access may be the
result of a modification in ChoicePoint policy, a modification of contracts with
its data suppliers, a modification in industry standards, a Security Event or a
change in law or regulation. Upon prompt reasonable advance written notification
by ChoicePoint of such restrictions, Edentify agrees to comply with such
restrictions.
9.10 Notwithstanding any other provision of this Agreement, the content and
format of the ChoicePoint Data are subject to change. Such content and format
changes may include, but are not limited to, changes in data or records provided
by ChoicePoint suppliers, changes in available records or fields, and changes in
the format of the information provided by ChoicePoint's data suppliers.
ChoicePoint assumes no responsibility and shall not be liable for any costs
incurred by Edentify as a result of any such content or format change.
ChoicePoint will notify Edentify promptly in writing of any changes to the
ChoicePoint Data or Edentify's use of the ChoicePoint Data hereunder. In the
event that
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such changes materially adversely affect Edentify's agreements with its
Subscribers, Edentify may terminate this Agreement pursuant to notice as
provided in Section 14.7 of this Agreement and shall pay to ChoicePoint the
termination charges as may be applicable under Section 5.4 of SOW #1.
9.11 All service, marketing or other messages that appear on the Score, which
reference the ChoicePoint name or ChoicePoint logo, shall be approved in writing
by ChoicePoint prior to their use. Edentify shall not, in any advertising, press
releases, or other promotions, use ChoicePoint's name or logo, without prior
written approval. Neither party shall disclose to any third parties the terms,
conditions or contents of this Agreement except to the extent that it is
necessary to ensure that the Subscribers comply with the applicable restrictions
of this Agreement or to the extent required by applicable federal securities
laws or regulations. Edentify shall not advertise that ChoicePoint is the source
of the ChoicePoint Data contained therein, except with ChoicePoint's prior
written permission.
10. INDEMNIFICATION
10.1 Edentify Indemnification. Edentify shall protect, defend, indemnify and
hold ChoicePoint and each of its Affiliates and the officers, directors, agents,
representatives, employees, successors and assigns of each, harmless from and
against any and all third-party claims, damages, losses, liabilities,
obligations, settlements, injunctions, suits, actions, counterclaims,
proceedings, liens, demands, charges, fines, penalties, costs and expenses of
every kind and nature (whether based on tort, breach of contract, product
liability, patent or copyright infringement or otherwise), including, without
limitation, reasonable fees and expenses of attorneys and other professionals,
and disbursements which may be imposed on, incurred by or asserted against the
persons hereby required to be indemnified (but not against any of the same to
the extent that a negligent or willful act or omission of any such person was
the cause of same) (collectively, "Loss"), by whomsoever asserted, arising
directly or indirectly from, out of, or based on:
(a) any failure by Edentify to perform any of the agreements, terms,
covenants or conditions of this Agreement to be performed by Edentify or
any breach of any representation or warranty made by Edentify in this
Agreement;
(b) the failure of Edentify or its Affiliates to comply with applicable
law;
(c) the use by ChoicePoint or its Affiliates of any Edentify Intellectual
Property, provided that such use was in accordance with the terms and
conditions of this Agreement or any duly executed SOW or as otherwise
permitted or approved by Edentify in writing;
(d) any use of information or results by Edentify (or any third party
receiving such information or results from or through Edentify) furnished
by or through ChoicePoint.
As a condition precedent to receiving the above-described indemnification,
ChoicePoint shall: (i) give Edentify notice of the relevant claim as soon as
practicable, but in all events, within a period of time that will not prejudice
the rights of Edentify, (ii) cooperate with Edentify, at Edentify's expense, in
the defense of that claim, and (iii) give Edentify the right to control the
defense and settlement of any claim, except that Edentify will not enter into
any settlement that either (a) involves a remedy other than the payment of money
by Edentify, or (b) any admission on behalf of ChoicePoint without ChoicePoint's
prior written approval. ChoicePoint will have the right to participate in the
defense at its expense.
10.2 ChoicePoint Indemnification. ChoicePoint shall protect, defend, indemnify
and hold Edentify and each of its Affiliates and the officers, directors,
agents, representatives, employees, successors and assigns, of each, harmless
from and against any and all Loss, by whomsoever asserted, arising directly or
indirectly from, out of, or based on:
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(a) any failure by ChoicePoint to perform any of the agreements, terms,
covenants or conditions of this Agreement to be performed by ChoicePoint or
any breach of any representation or warranty made by ChoicePoint in this
Agreement. In the event that the third party claim is based upon
allegations of intellectual property or patent infringement, then
ChoicePoint will promptly, at its sole option and expense and in addition
to its obligations under the foregoing paragraph (i) modify the manner in
which it performs, uses or otherwise receives the Services to make the
provision, use or receipt of the Services non-infringing, provided that the
functionality of the Services is not compromised, or (ii) procure the right
to continue providing the Services, all in the case of an infringement
claim against the provision of ChoicePoint's data or technology without any
additional cost to Edentify; provided, however, that if options (i) and
(ii) are commercially impracticable, then either Party may terminate the
applicable SOW with sixty (60) days prior written notice.
(b) the failure of ChoicePoint or its Affiliates to comply with applicable
law;
(c) the use of Edentify or its Affiliates of any ChoicePoint Intellectual
Property, provided that such use was in accordance with the terms and
conditions of this Agreement or any duly executed SOW or as otherwise
permitted or approved by ChoicePoint in writing;
(d) any use, by ChoicePoint or its Affiliates and representatives, in
violation of this Agreement, of Confidential Information received by
ChoicePoint from or through Edentify.
As a condition precedent to receiving the above-described indemnification,
Edentify shall: (i) give ChoicePoint notice of the relevant claim as soon as
practicable, but in all events, within a period of time that will not prejudice
the rights of ChoicePoint, (ii) cooperate with ChoicePoint, at ChoicePoint's
expense, in the defense of that claim, and (iii) give ChoicePoint the right to
control the defense and settlement of any claim, except that ChoicePoint will
not enter into any settlement that either (a) involves a remedy other than the
payment of money by ChoicePoint, or (b) any admission on behalf of Edentify
without Edentify's prior written approval, which shall not be unreasonably
withheld. Edentify will have the right to participate in the defense at its
expense.
11. LIABILITY LIMITS
11.1 Neither ChoicePoint, nor any of its third-party data providers shall be
liable to Edentify (or to any person claiming through Edentify to whom Edentify
may have provided data received from ChoicePoint) for any loss or injury arising
out of or caused in whole or in part by ChoicePoint's acts or omissions in
procuring, compiling, collecting, interpreting, reporting, communicating, or
delivering the Services.
11.2 The Parties agree that the other Party's aggregate liability for any and
all loses or injuries arising out of any act or omission of such Party in
connection with anything to be done or furnished under this Agreement,
regardless of the cause of the loss or injury, and regardless of the nature of
the legal or equitable right claimed to have been violated, shall never exceed
the amounts paid under this Agreement (or pursuant to any SOW) during the prior
twelve (12) months; provided, however, that such limitation of liability shall
not apply to either Party's indemnification obligation detailed in Section 10
(Indemnification), or any breach of the provisions of Section 5 (Intellectual
Property), Section 9 (Security) or Section 12 (Confidential Information) hereof,
and Edentify covenants and promises that it will not xxx ChoicePoint for an
amount greater than such sum even if Edentify and/or third parties were advised
of the possibility of such damages.
11.3 Neither Party will be liable to the other Party or any third party for any
special, exemplary, punitive, indirect, multiple, incidental or consequential
damages, including (without limitation) lost profits, arising out of or in
connection with this Agreement or a SOW whether based in contract, tort
(including, without limitation, negligence) or on any other legal or equitable
grounds.
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11.4 Access to the ChoicePoint Data may be subject to interruptions caused by
data suppliers, communications carriers or other related companies. ChoicePoint
will make prompt reasonable efforts to notify Edentify of any significant
interruptions to the ChoicePoint Data that may be reasonably anticipated and
that are under the control of ChoicePoint. ChoicePoint is not liable for any
damages arising out of the operation, functionality, availability or lack
thereof of the ChoicePoint Data, actions of its data suppliers, communications
carriers or other related companies
12. CONFIDENTIAL INFORMATION
12.1 Each Party will protect the other Party's Confidential Information with at
least the same level of care that it uses to protect its own information of a
similar nature, but in no event less than a reasonable standard of care for the
type of Confidential Information, and (a) will not disclose the Confidential
Information to third parties, or (b) use the Confidential Information for any
purpose not specifically permitted hereby. In the event that the receiving Party
of Confidential Information becomes legally compelled (by legal process, by any
federal or state law or regulation) to disclose any Confidential Information, it
will provide the disclosing Party with prompt prior written notice of such
requirement so that the disclosing Party may seek a protective order or other
appropriate remedy. In the event that such protective order or other remedy is
not obtained, the receiving Party shall disclose only that portion of such
Confidential Information that it is advised by its legal counsel is legally
required to be disclosed and to use reasonable efforts to obtain assurance of
confidential treatment of the Confidential Information to be disclosed, if and
to the extent such treatment is possible. Each Party acknowledges that breach of
this Section 12 could cause irreparable harm to the other Party for which
monetary damages may be difficult to ascertain or an inadequate remedy. Each
Party therefore agrees that the disclosing Party may, in addition to any other
rights and remedies, seek injunctive relief for any violation or breach of this
Section.
12.2 For purposes of this Agreement, Confidential Information shall be deemed to
include the existence, terms and nature of this Agreement and the business
arrangement that it contemplates; provided, however, that notwithstanding
anything to the contrary herein, ChoicePoint may, in its sole discretion,
disclose or publicize the existence and nature of this Agreement and the
business arrangement that it contemplates to any third party or parties.
Furthermore, Edentify may disclose this Agreement without consent as required by
applicable securities laws and regulations, and with the prior written consent
of ChoicePoint, on a case by case basis, Edentify may disclose the existence of
this Agreement for security compliance and select business purposes.
12.3 The foregoing confidentiality obligations shall remain in effect during the
Term and shall survive and continue for a period of six (6) years after the
Agreement terminates or expires, except that the obligations with respect to
Confidential Information constituting a trade secret shall survive for so long
as such information remains a trade secret under applicable law.
13. INSURANCE
Edentify shall maintain during the Term of this Agreement, a business general
liability insurance policy, upon which ChoicePoint is named as an Additional
Insured, from a grade A or higher insurance company authorized to conduct
business in the Commonwealth of Pennsylvania, and that such insurance policy
have coverage in amounts not less than one million dollars (US$1,000,000.00) per
claim, two million dollars (US$2,000,000.00) aggregate. Edentify will notify
ChoicePoint in writing before any changes or modifications that decrease or
limit coverage in a material way, or cancellations are made to such policy, and
Edentify shall provide copies of the declarations page of such policies to
ChoicePoint.
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14. GENERAL.
14.1 Dispute Resolution. Company and ChoicePoint will make commercially
reasonable efforts to resolve any dispute between the parties in good faith.
These efforts will be done by discussions between the appropriate
representatives of the parties. If a dispute should arise, such representatives
will attempt to resolve the matter within five (5) business days of the matter
being referred to them, or any other period agreed upon by the parties. If the
matter is not resolved by them, the matter will be referred to senior officers
of the parties (CEO of Company and business unit general manager of
ChoicePoint), by the disputing party providing written notice of such dispute to
the senior officer of the other party and to the person identified in Section
14.7 below in accordance with the notice requirements of such section. Such
representatives will confer and attempt to resolve the dispute in good faith
within the next ten (10) business days prior to instituting any legal action;
provided, however, that the foregoing shall not limit or otherwise restrict in
any way a party's right to seek equitable relief as may be available.
14.2 Governing Law. This Agreement and each SOW will be governed and construed
in accordance with the internal laws of the State of New York, without giving
effect to conflict of law principles thereof.
14.3 Severability; Headings. If any provision in this Agreement or a SOW is held
to be invalid or unenforceable for any reason, the remaining provisions thereof
will continue in full force without being impaired or invalidated in any way.
Headings are for reference purposes only and in no way define, limit, construe
or describe the scope or extent of a section.
14.4 Force Majeure. Except as otherwise provided herein, if performance under
this Agreement or a SOW is interfered with by any condition beyond a Party's
reasonable control (excluding payment obligations), the affected Party, upon
giving prompt notice to the other Party, will be excused from performance to the
extent of the condition. In the event a force majeure interferes with
ChoicePoint's performance of the Service, (i) ChoicePoint will immediately take
commercially reasonable steps to mitigate the force majeure as quickly as
commercially reasonable to do so, and (ii) if the force majeure continues for
sixty (60) or more days without the ability to mitigate the effects thereof,
Edentify at its sole option may terminate this Agreement.
14.5 Independent Contractors. The Parties are independent contractors, and no
agency, partnership, joint venture, employee-employer or franchiser-franchisee
relationship is intended or created by this Agreement or a SOW. Neither Party
will make any warranties or representations on behalf of the other Party, except
as approved in writing by the other Party.
14.6 Non-Solicitation. Each Party is prohibited from, directly or indirectly,
soliciting employees or contractors of the other Party during the term or
performance of this Agreement and for a period of one (1) year following the
termination date of this Agreement. For purposes hereof, the term "solicit"
shall not include the following activities: (i) advertising for employment in
any bulletin board (including electronic bulletin boards), newspaper, trade
journal or other publication available for general distribution to the public;
(ii) participation in any hiring fair or similar event open to the public not
targeted at the employees or contractors of the other Party; and (iii)
negotiating with and/or offering employment to any employee or contractor of the
other Party who initially contacts such Party or who engages in discussions with
such Party as a result of any of the activities included in clauses (i) and
(ii). Such Party may employ any employee or contractor of the other provided
that such Party has not solicited such employee in contravention of this Section
14.6.
14.7 Notice. Any notices under this Agreement will be given to the appropriate
individual or officer as set forth in this Section, or at another address as a
Party specifies in writing. Notice will be deemed given: (i) upon personal
delivery; (ii) if sent by fax, upon confirmation of receipt; or (iii) if sent by
a reputable overnight courier with tracking capabilities, one (1) day after the
date of mailing.
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If to Edentify: With a copy to:
Edentify, Inc. Edentify, Inc.
00 Xxxx Xxxxx Xx. 00 Xxxx Xxxxx St.
Suite 350 Suite 350
Bethlehem, PA 18018 Xxxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax (000) 000-0000
Attn: Chief Executive Officer Attn: Xxxxxxx X. Xxxxxxx, Esq.
If to ChoicePoint: With a copy to:
ChoicePoint Public Records Inc. ChoicePoint Public Records Inc.
0000 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Fax: 000-000-0000 Fax: 000-000-0000
Attn: Legal Counsel Attn: Xxxxx Xxxxx, PFG CIO
14.8 Assignment. Neither Party may assign this Agreement or a SOW in whole or in
part without the prior written consent of the other Party, such consent not to
be unreasonably withheld; provided, however, that ChoicePoint may assign this
Agreement without consent to an Affiliate. For purposes of this Agreement, a
Change of Control of either Party shall constitute an assignment. In the event
the purchaser is not a competitor of the other Party, such Party agrees not to
unreasonably withhold consent.
14.9 Attorneys' Fees. The prevailing Party in any action, claim or lawsuit
brought pursuant to this Agreement is entitled to payment of all reasonable
attorney fees and costs expended by such prevailing Party in association with
such action, claim or law suit.
14.10 No Third Party Beneficiaries. There are no third party beneficiaries of
this Agreement other than as specifically detailed for indemnification purposes
in Section 10.
14.11 Entire Agreement; Waiver. This Agreement and each duly executed SOW sets
forth the entire understanding and agreement of the Parties, and supercede any
and all oral or written agreements or understandings between the parties, as to
the subject matter of the Agreement and each SOW. Modifications, amendments or
changes to the Agreement, a SOW or the Services rendered shall only be made by a
writing signed by authorized representatives of both Parties. The waiver of a
breach of any provision of this Agreement or a SOW will not operate or be
interpreted as a waiver of any other or subsequent breach.
14.12 Counterparts. This Agreement and each SOW may be executed in one or more
counterparts, each of which will be deemed an original and all of which will be
taken together and deemed to be one instrument. Execution and delivery of an
original via facsimile shall be valid for all purposes hereunder.
Wherefore the Parties hereto by the signatures below intend to be bound by the
terms and conditions hereof as of the Effective Date.
EDENTIFY, INC. CHOICEPOINT PUBLIC RECORDS INC.
By: /s/ Xxxxxxxx XxXxxxxx By: /s/ Xxxx Xxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx XxXxxxxx Name: Xxxx Xxxxx
Title: CEO Title: V.P. and Asst. General Counsel
Date: 10/26/06 Date: 10/30/06
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