1
EXHIBIT 10.6B
FACTUAL EXPRESS/BUNDLED SERVICES
SOFTWARE SYSTEM CONTRACT
This agreement is made between the following parties
PROVIDER LENDERS RESOURCE, INC. ("PROVIDER" or "LRI")
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
FACTUAL EXPRESS\BUNDLED SERVICES CLIENT ("CLIENT")
------------------------------
ADDRESS
-------------------------------------------------------------------------
CITY
STATE ZIP
-----------------------------------------------------------------------
RESPONSIBLE
PHONE PERSON
-------------------------------------- ------------------------------
800 PHONE FAX NUMBER
-------------------------------------------- ----------------
MODEM ACCESS
TELEPHONE OFFICE ID CODE
-------------------------------------------- ------------
TIME IN BUSINESS
----------------------------------------------------------------
MORTGAGE CREDIT REPORTS
COMPLETED EACH OF LAST 3 MONTHS , ,
-------------------------------------------------
CLIENT REFERENCE
NAME
---------------------------- -------------------------------
ADDRESS
CONTACT
PERSON PHONE ( ) -
--------------------------- -------------------------------
CLIENT REFERENCE
NAME
----------------------------- -------------------------------
ADDRESS
CONTACT
PERSON PHONE ( ) -
--------------------------- -------------------------------
CLIENT REFERENCE
NAME
----------------------------- -------------------------------
ADDRESS
CONTACT
PERSON PHONE ( ) -
--------------------------- -------------------------------
BANK REFERENCE
NAME
--------------------------- -------------------------------
ADDRESS
CONTACT
PERSON PHONE ( ) -
--------------------------- -------------------------------
DESCRIPTION OF EXCLUSIVE TERRITORY (attach map):
--------------------------------
--------------------------------------------------------------------------------
2
I. SERVICES TO BE FURNISHED BY PROVIDER:
(A) BASIC FACTUAL EXPRESS \ BUNDLED SERVICES SOFTWARE
(MORTGAGE CREDIT REPORTING SYSTEM)
(B) A MINIMUM OF FIVE (5) DAYS TRAINING AT FACTUAL DATA CORP HEADQUARTERS
PRIOR TO SOFTWARE INSTALLATION, PLUS INSTALLATION AND TRAINING FOR A
FIVE (5) DAY SESSION AT CLIENT'S LOCATION
(C) RIGHT TO PURCHASE FACTUAL DATA'S ADVERTISING BROCHURES AND FORMS
(D) PROVIDER SHALL EXERCISE ITS CUSTOMARY AND USUAL EFFORTS IN PROVIDING
ADEQUATE SOFTWARE AND SOFTWARE SUPPORT TO CLIENT DURING THE TERM OF
THIS AGREEMENT. NOTHING HEREIN MODIFIES, AMENDS, OR SUPERSEDES THE
PROVISIONS REGARDING WARRANTIES AND LIMITATION OF LIABILITY CONTAINED
IN PARAGRAPH VII., AND THE SUBPARAGRAPHS THERETO, OF THIS AGREEMENT.
(E) OPERATIONS MANUAL/UPDATES
(F) 800 HELP LINE
(G) AFFILIATION WITH NATIONAL CLIENTS - NATIONAL VENDOR PRICING DISCOUNTS
(H) USE OF ALL TRADE NAMES, SERVICE MARKS AND LOGOTYPES
(I) ACCOUNTS RECEIVABLE SOFTWARE
(J) DIRECT CONNECT
2
3
(K) RENTAL RELIANCE CREDIT REPORTING SOFTWARE
II. COMPENSATION: As consideration for the services described in Paragraph
1 hereinabove, CLIENT agrees to pay PROVIDER as follows:
(A) RENEWAL OF FACTUAL EXPRESS\BUNDLED SERVICES SOFTWARE $ .00
-------------------
INSTALLATION OF FACTUAL EXPRESS\BUNDLED SERVICES
SOFTWARE AND TRAINING FOR EACH ADDITIONAL LOCATION $ 5000.00 per week
-------------------
1/2 OF ENTIRE INSTALLATION AND TRAINING FEE DUE
AT TIME OF CONTRACT SIGNING $
-------------------
BALANCE OF INSTALLATION AND TRAINING FEE DUE
AT INITIATION OF INSTALLATION PROCESS $
-------------------
FEES FOR ADDITIONAL REQUESTS FROM CLIENT
$ .00
-------------------
(B) MONTHLY USER FEES
1. FACTUAL EXPRESS MONTHLY USER FEES ARE BASED ON A PERCENTAGE OF
ALL GROSS BILLED INCOME THAT IS DERIVED FROM THE USE OF
FACTUAL EXPRESS SOFTWARE. THE FEE IS THE GREATER OF $700.00 OR
FIVE PERCENT (5%) OF ALL GROSS BILLED INCOME.
2. FACTUAL DATA BUNDLED SERVICES SOFTWARE USER FEES ARE BASED ON
A PERCENTAGE OF ALL GROSS BILLED INCOME THAT IS DERIVED FROM
THE USE OF THE FACTUAL DATA BUNDLED SERVICES PROGRAM. THE FEE
IS 3% OF ALL GROSS BILLED INCOME.
3. A MONTHLY WIDE AREA NETWORK FEE WILL BE BILLED AT A RATE OF
$495.00 PER MONTH AND IS SUBJECT TO CHANGE AS NATIONAL CLIENTS
ARE ADDED TO THE NETWORK. ALL LONG DISTANCE PHONE CHARGES
DERIVED FROM USE OF THE WIDE AREA NETWORK WILL BE BILLED
DIRECTLY TO "CLIENT" BY THE LONG DISTANCE CARRIER.
3
4
(C) All prices herein are subject to change by giving CLIENT at least 60 days
advance notice in writing.
(D) Fees provided herein do not include sales, use, excise, personal property or
any other taxes of any such nature. Any such taxes are to be paid by CLIENT in
addition to the fees provided hereinabove in paragraph II.(A) and II.(B). Any
such taxes shall be invoiced in accordance with paragraph 3 hereinafter.
III. BILLING AND TERMS FOR PAYMENT: PROVIDER shall prepare and mail invoices for
services rendered, at the close of each calendar month. Invoices shall be due
and payable within 10 days after presentation. Any invoices unpaid after ten
(10) days shall incur interest at the rate of twenty-one percent (21%) per
annum.
IV. FAILURE TO PAY WITHIN 30 DAYS: In the event payment IN FULL is not received
at FDC within thirty (30) days, in addition to PROVIDER'S remedies at law,
PROVIDER shall also have the right to discontinue any and all services and
FACTUAL EXPRESS\BUNDLED SERVICES software usage to CLIENT, without any further
notice or demand. CLIENT hereby waives any rights to continued usage of FACTUAL
EXPRESS\BUNDLED SERVICES software if these payment terms are not met. PROVIDER
shall be held harmless by CLIENT for any claim whatsoever arising out of
discontinuance of usage of Software due to nonpayment. Insofar as any laws may
afford CLIENT any additional or contrary rights, CLIENT hereby expressly waives
such rights.
V. TERM OF AGREEMENT: This agreement shall commence upon the date of PROVIDER's
acceptance and shall continue for a period of three (3) years unless earlier
terminated as hereinafter provided. This agreement shall automatically renew in
successive three (3) year terms unless and until terminated by either party
giving at least sixty (60) days advance notice in writing of such termination to
the other party. Immediately after termination, PROVIDER shall, at its sole
election, either destroy, use, rent, sell or otherwise utilize, any programs or
materials in its possession generated in conjunction with servicing CLIENT,
except that any data or material that contains confidential material concerning
CLIENT shall be destroyed.
(A) CLIENT is not allowed to utilize any other mortgage credit reporting
software during the term of this contract. Use of other mortgage reporting
software will cause immediate termination of the Factual Express Software System
Contract.
(B) CLIENT is not allowed to sell, market or provide any type of bundled service
without the use of FACTUAL EXPRESS\BUNDLED SERVICES software, without the
express written consent of PROVIDER.
VI. PROPERTY RIGHTS:
(A) PROVIDER owns property rights to any and all programs, or other materials
furnished by PROVIDER to CLIENT in performance of this agreement, and CLIENT is
permitted to use such programs or other materials under a license hereby
granted. Upon termination of this agreement, the license to use any such
programs or other materials shall also terminate and any further use shall be
prohibited.
(B) CLIENT owns all information entered by the CLIENT, which includes
confidential information. PROVIDER shall have the right to the production
figures generated by CLIENT during the term of this agreement. It is
acknowledged that such production figures are gathered monthly and disseminated
to all FDC offices. Except for such usage in the normal course of business,
PROVIDER shall have no right to use such information without the written consent
of CLIENT. Upon termination of this agreement, CLIENT shall retain any of the
confidential information which it has generated internally including, but not
limited to, CLIENT lists and information concerning CLIENT'S clientele.
4
5
(C) The source code relating to the licensed systems is the exclusive property
of FDC. Any modification or enhancement of the licensed system requiring use of
the source code may only be performed by FDC at CLIENT'S expense or at the
express written consent of FDC. Prior to the execution of this agreement FDC has
deposited a copy of the source code of the license system in escrow with MARCH &
▇▇▇▇▇, P.C., the Escrow Agent, pursuant to the terms of Escrow Instructions
dated August 1, 1990. CLIENT is hereby considered to be a "contract holder" as
defined and identified in such Escrow Instructions. A copy of which has been
provided to CLIENT upon the execution of the within agreement. CLIENT hereby
accepts the terms of said Escrow Instructions and agrees to be bound by the
terms contained therein.
VII. WARRANTIES AND LIMITATION OF LIABILITY:
(A) CLIENT agrees to indemnify and save PROVIDER completely harmless from any
and all costs, expenses, attorney's fees, suits, liabilities, damages or claims
for damages by CLIENT, including, but not limited to those arising out of any
injury or death to any person or persons or damage to any property of any kind
whatsoever and to whomsoever belonging, including CLIENT, in anyway relating to
the services under this agreement by PROVIDER or the performance or exercise of
any of the duties, obligations, powers, or authorities herein or hereafter
granted to PROVIDER.
(B) PROVIDER shall not be liable to CLIENT for any error of judgment or for any
mistake or fact or for anything it may do or refrain from doing, except in cases
of willful misconduct or gross negligence.
(C) CLIENT is notified that it is possible that CLIENT's data base for CLIENT
could be destroyed, and CLIENT understands that CLIENT is responsible for
maintaining adequate supporting material to enable reconstruction of CLIENT's
data base in the event of such destruction.
(D) CLIENT is notified that software processing services furnished by PROVIDER
are aids to CLIENT, and that CLIENT has been instructed to carefully inspect and
check all services furnished to CLIENT by PROVIDER for accuracy and content.
Accordingly, PROVIDER is not liable for any damages caused by any inaccurate or
incorrect material furnished to CLIENT by PROVIDER, and CLIENT hereby agrees to
indemnify and hold PROVIDER harmless from any claims resulting from any such
incorrect or inaccurate service.
(E) CLIENT is solely responsible for any programs or data owned by CLIENT that
are tendered hereunder to PROVIDER. PROVIDER shall not be liable to CLIENT in
the event that any such programs, data, reports or other media are lost.
(F) PROVIDER makes no warranty, express or implied, that the software supplied
CLIENT under this agreement is or will be free from errors and PROVIDER makes no
warranty, express or implied, with respect to any other services or materials
covered under this agreement.
(G) The obligations, rights and remedies of CLIENT and PROVIDER are set forth in
the foregoing subparagraphs and are exclusive and in substitution for all other
warranties, obligations and liabilities of CLIENT and PROVIDER. Any other
claims, rights, or remedies of either CLIENT or PROVIDER against the other,
whether express, implied, arising by law, or arising otherwise, with respect to
any services performed under this agreement, including but not limited to any
implied warranty or merchantability or fitness, or any implied warranty arising
from course of performance, course of dealing or usage of trade, or for any
other direct, incidental, or consequential damages are hereby expressly waived
by CLIENT and PROVIDER.
5
6
(H) Neither party shall be responsible for, or liable to the other on account of
delays or failures in performance resulting from acts beyond the control of such
party, including, but not limited to, acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations superimposed after the fact,
fire, communication line failures, power failures, nonperformance by delivery
services, earthquakes, or other disasters, except that the provisions of this
subparagraph shall not be applicable to the requirements of paragraphs III. or
IV. hereinabove.
VIII. WAIVER OF BREACH NOT WAIVER OF CONDITION: Any consent by any party hereto,
or waiver of, a breach hereof by the other, whether express or implied, shall
not constitute a consent to, waiver of, or excuse for any other, different, or
subsequent breach.
IX. SURVIVAL BEYOND TERMINATION: The terms, provisions, representations and
warranties contained in paragraphs III., IV., V., VI., and VII. and (including
all subparts) of this agreement shall survive the termination of this agreement.
X. ENTIRE AGREEMENT:
(A) This agreement contains the full, final and exclusive statement of the
agreement between CLIENT and PROVIDER relating to the services provided for
herein, and cannot be amended, altered, or changed except by written instrument
signed by the parties hereto. This written agreement supersedes and takes
precedence over all prior agreements, proposals, representations or
negotiations, whether written or verbal.
(B) Any changes or amendments to this agreement either initially or upon an
extended term shall be made by a fully signed and dated addendum attached to
this agreement.
XI. NOTICES: All notices under this agreement shall be in writing and deemed to
have been duly given if actually received by the other party or if deposited in
the United States mail, postage prepaid and addressed to the other party as set
forth in page 1 of this agreement, or to the last known business address for the
other party hereto, if known to be different than the address herein above in
page 1.
XII. EXCLUSIVE AREA OF TERRITORY:
(A) During the term of this agreement, and so long as CLIENT is not in default
of any material provisions of this agreement, PROVIDER will grant CLIENT a
territory in which CLIENT will have the exclusive right to market services using
FACTUAL EXPRESS\BUNDLED SERVICES software. The extent of the territory bounded
by such a right is negotiable and dependent upon various factors such as size of
city, population dispersal, average income figures and the like. As noted above,
site selection within CLIENT's territory is made by the CLIENT, subject to
approval by the PROVIDER. In any event, the territory so bounded will be
described by a map contained in Exhibit A attached to the Agreement.
(B) PROVIDER may not grant another the right to establish a FACTUAL DATA office
competitive with that of CLIENT within the territory licensed to the CLIENT, nor
may PROVIDER engage in any FACTUAL DATA business competitive with that of the
CLIENT within the licensed territory, without the written consent of CLIENT. All
CLIENTS are prohibited from soliciting sales or accepting orders outside of
their defined territory unless approval of the Provider is obtained. Such
approval will not be granted if the business is within the territory of another
CLIENT. Only upon any breach, default or other material failure by CLIENT under
the provisions of the Agreement, may PROVIDER compete with CLIENT, and may
PROVIDER grant to others the right to compete with CLIENT, within the licensed
territory.
(C) Should either party breach the provisions of paragraph XII., the party not
in default will be entitled to recover damages arising from such breach, and
seek injunctive relief; both parties hereby acknowledge that damages alone would
not be sufficient relief.
6
7
XIII. TRADEMARKS, SERVICE MARKS, TRADE NAMES, LOGOTYPES, COPYRIGHTS AND
COMMERCIAL TYPES:
(A) FACTUAL DATA CORP has obtained a registered Service ▇▇▇▇ with the United
States Trade ▇▇▇▇ Office on June 14, 1988, Registration Number 1,492,582, for
the Service ▇▇▇▇ "FACTUAL DATA". The registration is on the Principal Register.
FACTUAL DATA CORP licenses to the CLIENT for the term of the agreement, the
right to use at the premises, the name FACTUAL DATA, together with such other
insignia, symbols and service marks which may be approved and authorized from
time to time.
(B) FACTUAL DATA CORP computer system software is copyrighted with the United
States Copyright Office. Registration TXu 376 818.
(C) During the term of this agreement, CLIENT may use but is not obligated by
this agreement to use the tradename of FACTUAL DATA with the exception that all
reports issued using the FACTUAL EXPRESS\BUNDLED SERVICES Software must be
issued on FACTUAL DATA Data Secure paper. CLIENT may not use the name FACTUAL
DATA CORP or FACTUAL DATA INC as a part of its corporate name but may use the
words FACTUAL DATA as a part of a corporate name or together with other
modifying words, terms, designs, or symbols if it receives the prior written
consent of PROVIDER. In addition, CLIENT may not use any FACTUAL DATA name or
▇▇▇▇ in connection with the sale of any unauthorized product or service or in
any other manner not expressly authorized in writing by FACTUAL DATA CORP. Upon
termination of this agreement, CLIENT may not make any further use of any
FACTUAL DATA name, ▇▇▇▇, logo, copyright or trademark, protected by FACTUAL DATA
CORP.
(D) There are no agreements currently in effect which limit the use by PROVIDER
of the servicemark "FACTUAL DATA".
(E) PROVIDER is not obligated under the Agreement to protect CLIENT's use of any
servicemark, trademark, tradename, logo or other commercial symbol, but it is
the PROVIDER's intention to protect the goodwill related to PROVIDER's name and
servicemark, and safeguard its own proprietary interest therein.
(F) CLIENT recognizes that the FACTUAL EXPRESS\BUNDLED SERVICES Software Systems
are copyrighted. Client shall not modify any of the programs or data of
PROVIDER. CLIENT shall not, either during the term of this Agreement or upon or
after its termination, copy or cause to be duplicated PROVIDER'S FACTUAL
EXPRESS\BUNDLED SERVICES Software Systems. CLIENT shall not develop or cause to
be developed any software system which, either in appearance or usability is
identical or similar to that of PROVIDER'S FACTUAL EXPRESS\BUNDLED SERVICES
Software Systems. CLIENT shall be liable to PROVIDER for damages, both direct
and consequential, caused by any breach of CLIENT'S covenant hereunder. PROVIDER
shall also be entitled to injunctive relief, as both parties acknowledge that
damages alone would not be sufficient relief.
CLIENT will guard the confidentiality of the FACTUAL EXPRESS\BUNDLED
SERVICES software systems, the training methods and materials developed or
provided by PROVIDER. If CLIENT should notice, become aware of, or suspect any
compromise of the confidentiality of either Software System, CLIENT will notify
PROVIDER promptly. PROVIDER will promptly endeavor to seek out any such misuse
or compromise and may, at its discretion and through its attorneys, proceed to
take the necessary steps to correct any such infraction.
7
8
XIV. CONFIDENTIAL OPERATIONS MANUAL:
(A) Under this agreement CLIENT is presented with PROVIDER's Operations Manual.
(B) CLIENT shall, at all times, treat as confidential, and shall not at any time
disclose, copy, duplicate, record or otherwise reproduce, in whole or in part,
or otherwise make available to any unauthorized person or source, the contents
of said Manual.
(C) The Operations Manual shall, at all times, remain the sole property of
PROVIDER and shall be returned promptly upon the expiration or other termination
of this Agreement. Upon sale to a new CLIENT, all materials will be made
available to the purchaser after all purchase and CLIENT contracts are
completed.
XV. ACCOUNTING AND RECORDS:
(A) To enable CLIENT and PROVIDER to best ascertain their costs and maintain an
economical method of operation, CLIENT agrees to keep and preserve, at it's
cost, during the term of this agreement granted hereunder, full, complete, and
accurate books and accounts in an accounting form and manner as prescribed in
the Operations Manual.
(B) CLIENT, within 3 business days of month end must communicate with PROVIDER
by computer modem for month end closing and billing through FACTUAL
EXPRESS\BUNDLED SERVICES system.
(C) PROVIDER's representatives shall have the right at any time to inspect
CLIENT's books, records, and cash control devices or systems in regard to
reports produced on FACTUAL EXPRESS\BUNDLED SERVICES system only and to access
network via modem to access billing information that pertains to the FACTUAL
EXPRESS\BUNDLED SERVICES system.
XVI. STANDARDS OF QUALITY: CLIENT recognizes that it is essential to the proper
marketing of "FACTUAL DATA" and to the preservation and promotion of its
reputation and acceptance by the public at large, that uniform standards of
quality and of appearance be maintained; that uniform size, quality, texture,
absorbency, strength, finish, and appearance, displaying PROVIDER's various
Proprietary Marks, be used in distribution to the public. CLIENT therefore
agrees, as part of the consideration for this Agreement, that CLIENT will at all
times dispense, sell or offer for sale to the public, only such services as
shall meet the reasonable specifications and standards from time to time
designated in writing by PROVIDER for sale and service from or at the "FACTUAL
DATA" business licensed herein; and CLIENT shall sell, serve and dispense all
such services as shall meet all such specifications and standards designated by
PROVIDER.
XVII. USE AND PURCHASE OF PRINTED MATERIALS: CLIENT is urged to but not
obligated to use FACTUAL DATA's printed marketing materials and forms. CLIENT is
obligated to use FACTUAL DATA Data Secure forms. CLIENT shall purchase all such
printed materials required from PROVIDER through requisition procedures and at
prices as set forth in the Operations Manual.
XVIII. COMPUTER HARDWARE COMPATIBILITY:
(A) CLIENT recognizes that the FACTUAL EXPRESS\BUNDLED SERVICES software system
requires specific computer hardware and Novell(TM) networking software to be
functional. These computer requirements are described in the FACTUAL EXPRESS
equipment guidelines.
(B) PROVIDER does not warrant, sell or provide computer hardware to CLIENT under
this agreement.
8
9
XIX. PLACE OF CONTRACT (VENUE):
This agreement shall be deemed made and entered into in the State of
Colorado, and the parties agree that any action or proceeding related to this
agreement shall be brought only within a court of competent jurisdiction located
in the County of Larimer, State of Colorado, and no proceedings shall be
initiated in any forum outside of the state of Colorado. The provisions of this
paragraph are a material part of this agreement.
XX. COSTS AND EXPENSES:
In the event of any litigation or arbitration arising out of this
contract, the court shall award to the prevailing party all reasonable costs and
expenses, including attorneys' fees.
CLIENT ACCEPTS PROVIDER ACCEPTS
THIS AGREEMENT THIS AGREEMENT
LENDERS RESOURCE, INC.
--------------------------- ---------------------------
x x
--------------------------- ---------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
--------------------------- ---------------------------
NAME (TYPED OR PRINTED) NAME (TYPED OR PRINTED)
--------------------------- ---------------------------
TITLE DATE TITLE DATE
9
