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EXHIBIT 10.06
INTERCOMPANY INFORMATION SERVICES AGREEMENT
BETWEEN EQUIFAX INC.
AND
CHOICEPOINT INC.
DATED JULY 31, 1997
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS ................................................ 2
SECTION 1.1. DEFINITIONS ........................................... 2
ARTICLE II INFORMATION SERVICES ...................................... 7
SECTION 2.1. INFORMATION SERVICES .................................. 7
SECTION 2.2. SUPPLEMENTAL AGREEMENTS ............................... 8
SECTION 2.3. MUTUAL OBLIGATIONS .................................... 9
SECTION 2.4. FCRA CERTIFICATION .................................... 11
ARTICLE III FEES AND PAYMENT ......................................... 11
SECTION 3.1. FEES AND CHARGES ...................................... 11
SECTION 3.2. PAYMENT TERMS ......................................... 11
SECTION 3.3. DISPUTED AMOUNTS ...................................... 11
SECTION 3.4. INTEREST .............................................. 11
SECTION 3.5. TAXES ................................................. 12
ARTICLE IV REPRENTATIONS AND WARRANTIES .............................. 12
ARTICLE V LIMITATION ON ACTIONS AND LIABILITIES ...................... 13
SECTION 5.1. COVENANT NOT TO XXX ................................... 13
SECTION 5.2. RELEASE ............................................... 13
SECTION 5.3. LIMITATION OF LIABILITY ............................... 13
ARTICLE VI INDEMINIFICATION .......................................... 14
SECTION 6.1. CHOICE POINT INDEMNIFICATION OF THE EQUIFAX GROUP ..... 14
SECTION 6.2. EQUIFAX INDEMNIFICATION OF THE CHOICE POINT GROUP ..... 14
SECTION 6.3. INSURANCE AND THIRD PARTY OBLIGATIONS ................. 15
ARTICLE VII INDEMNIFICATION PROCEDURES ............................... 15
SECTION 7.1. NOTICE AND PAYMENT OF CLAIMS .......................... 15
SECTION 7.2. NOTICE AND DEFENSE OF THIRD PARTY CLAIMS .............. 15
ARTICLE VIII CONFIDENTIALITY ......................................... 17
SECTION 8.1. EXCLUSIONS ............................................ 17
SECTION 8.2. CONFIDENTIALITY ....................................... 17
SECTION 8.3. EMPLOYEE CONFIDENTIALITY AGREEMENTS ................... 18
SECTION 8.4. RIGHTS AND REMEDIES ................................... 19
SECTION 8.5. COMPETITIVE ACTIVITIES ................................ 19
SECTION 8.6. NO IMPLIED RIGHTS ..................................... 19
ARTICLE IX CONTINUED ASSISTANCE ...................................... 20
SECTION 9.1. CONTINUED ASSISTANCE AND TRANSITION ................... 20
SECTION 9.2. LITIGATION COOPERATION ................................ 20
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ARTICLE X TERM AND TERMINATION ....................................... 21
SECTION 10.1. TERM .................................................. 21
SECTION 10.2. TERMINATION ........................................... 21
SECTION 10.3. EFFECT OF TERMINATION AND EXPIRATION .................. 21
ARTICLE XI MISCELLANEOUS ............................................. 22
SECTION 11.1. EXPENSES .............................................. 22
SECTION 11.2. NOTICES ............................................... 22
SECTION 11.3. AMENDMENT AND WAIVER .................................. 23
SECTION 11.4. ENTIRE AGREEMENT ...................................... 23
SECTION 11.5. PARTIES IN INTEREST ................................... 23
SECTION 11.6. FURTHER ASSURANCES AND CONSENTS ....................... 24
SECTION 11.7. SEVERABILITY .......................................... 24
SECTION 11.8. GOVERNING LAW ......................................... 24
SECTION 11.9. COUNTERPARTS .......................................... 24
SECTION 11.10. DISPUTES ............................................. 24
SECTION 11.11. FORCE MAJEURE ........................................ 26
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THIS INTERCOMPANY INFORMATION SERVICES AGREEMENT dated as of July 31,
1997, is entered into by EQUIFAX INC., a Georgia corporation ("Equifax"), and
CHOICEPOINT INC., a Georgia corporation ("ChoicePoint").
BACKGROUND
A. ChoicePoint is a wholly owned subsidiary of Equifax formed among
other reasons for the purposes of receiving and conducting the business of the
ChoicePoint Group (as defined below) and taking title to the intellectual
property assets and assuming the associated liabilities related to the business
operations of the ChoicePoint Group.
B. The transfer of such business, assets and liabilities, as well as
other assets, will be effected pursuant to the Distribution Agreement (as
defined below).
C. The parties intend that the Distribution (as defined in the
Distribution Agreement) not be taxable to Equifax or its shareholders pursuant
to Section 355 of the Code (as defined below).
D. Equifax and its Affiliates (as defined below) provide various
Information Services (as defined below) to each other and to their respective
customers. Prior to the Distribution, Equifax and its Affiliates utilized both
common resources and discrete, commercial products purchased from one another in
the conduct of their respective businesses. At and after the Effective Time,
Equifax and ChoicePoint desire to purchase from each other and their Group
members certain Information Services for their own use and for resale to their
Group customers.
E. The parties have determined that it is necessary and desirable to
set forth the arrangements required to effect the purchase and sale of their
respective Information Services to the members of each Group and to set forth
their other agreements that will govern certain other matters regarding the
parties' respective purchase and sale of Information Services following the
Distribution.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements and covenants contained in this Agreement, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, each party agrees for itself and jointly and severally with each
member of its Group, and will cause each member of its Group to agree jointly
and severally with it, as follows:
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
As used herein, the following terms have the following meanings:
(a) "Action" means any claim, suit, arbitration, inquiry, proceeding
or investigation by or before any court, governmental or other regulatory or
administrative agency or commission or any other tribunal.
(b) "Affiliate" means, with respect to a party, any corporation,
partnership (general or limited), limited liability corporation, joint venture
or other form of business entity that controls, is controlled by or is under
common control with that party; and "control" means (i) either directly or
indirectly owning or having the right to vote ownership interests possessing a
majority of the aggregate voting power of all ownership interests of that
entity, or (ii) having the power to control and direct, either directly or
indirectly, the business and affairs of that entity or to elect or appoint the
person (or if more than one, a majority of the persons) who is responsible for
the management and control of the business and affairs of that entity.
(c) "Agreement" means the terms and conditions of this Intercompany
Information Services Agreement and the Exhibits attached hereto.
(d) "Ancillary Agreements" means all of the written agreements,
instruments, understandings, assignments or other arrangements entered into in
connection with the transactions contemplated hereby and in the Distribution
Agreement, including without limitation, the Distribution Agreement, the
Employee Benefits Agreement, the Transition Support Agreement, the Intellectual
Property Agreement, the CUE UK Agreements, the Tax Sharing and Indemnification
Agreement, and the Real Estate Agreements.
(e) "ChoicePoint Business" means the businesses conducted by the
members of the ChoicePoint Group as of the Effective Time.
(f) "ChoicePoint Group" means the entities set forth on Exhibit A.
(g) "ChoicePoint Indemnitees" has the meaning given in Section 6.2.
(h) "ChoicePoint Liabilities" means all unsatisfied Liabilities
incurred attendant with the purchase of Information Services from the Equifax
Group under this Agreement, whether arising before, on or after the Effective
Time.
(i) "ChoicePoint Products" means those products, services and
deliverables offered for sale by the ChoicePoint Group to the Equifax Group, in
its sole discretion from time to time.
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(j) "Code" means the Internal Revenue Code of 1986, as amended.
(k) "Company Information" means collectively the Proprietary
Information and the Confidential Information of the disclosing party. Company
Information also includes information that has been disclosed to Equifax or any
of its Affiliates prior to the Effective Time, or to any member of either Group
after the Effective Time, by a third party subject to an obligation to treat
such information as confidential or secret.
(l) "Confidential Information" means any and all confidential company
business information of the disclosing party that does not constitute
Proprietary Information and that is the subject of efforts by the disclosing
party that are reasonable under the circumstances to maintain its secrecy and
confidentiality, including without limitation, the Provider Information, the
existence and nature of the relationship between the parties including, without
limitation, the prices set forth in the Exhibits to this Agreement, employees
of the disclosing party, and any and all additional information disclosed by
the disclosing party to the receiving party as a result of the receiving
party's access to and presence at the disclosing party's facilities.
(m) "Consumer Credit Information" means information pertaining to (i)
a consumer's identification and credit accounts, including but not limited to,
the identity of the credit grantor, the type of account, the credit limit, the
transaction history of the account, the payment history of the account, and
other action taken by the consumer or the credit grantor with respect to the
account, such as the closing or writing off of the account, credit file
inquiries or collection items, or (ii) the consumer's check transactions,
including their check transaction history and instances where the consumer has
written checks that were not honored by the consumer's drawee, or (iii) public
record items regarding a consumer, including without limitation, judgments, tax
liens, and bankruptcy filings, or (iv) analytical or predictive scores based on
any or all of the above.
(n) "Consumer Insurance Information" means consumer-specific
information (i) not already available to the Equifax Group from its databases
and those of its System Affiliates and (ii) which, upon delivery to the End
User, is to be used in connection with the offering of insurance products to
consumers.
(o) "Consumer Report" has the meaning given in the FCRA.
(p) "Consumer Reporting Agency" has the meaning given in the FCRA.
(q) "DAT" means a personal computer or direct access terminal.
(r) "Designated ChoicePoint Member" means a member of the ChoicePoint
Group, as designated by ChoicePoint in its sole discretion from time to time.
(s) "Designated Equifax Member" means a member of the Equifax Group,
as designated by Equifax in its sole discretion from time to time.
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(t) "Direct Damages" means actual, direct damages incurred by the
claiming party which include, by way of example but without limitation, the
costs to correct any deficiencies in the Information Services rendered by
Provider and similar damages, but "Direct Damages" shall not include (A) loss of
interest, profit or revenue of the claiming party or (B) incidental,
consequential, special or indirect damages suffered by the claiming party and
shall not include punitive or exemplary damages suffered by the claiming party
arising from or related to this Agreement, even if such party has been advised
of the possibility of such losses or damages.
(u) "Disputes" has the meaning given in Section 11.10.
(v) "Distribution" has the meaning given in the Distribution
Agreement.
(w) "Distribution Agreement" means that certain Distribution Agreement
entered into on or prior to the Distribution Date between Equifax and
ChoicePoint, as amended from time to time.
(x) "Distribution Date" means the business day as of which the
Distribution shall be effective, as determined by the Board of Directors of
Equifax.
(y) "Effective Time" means 5:00 p.m. Eastern Daylight Time on July 31,
1997.
(z) "End User" means a Recipient or its Subscriber, which Person will
use a given item of Provider Information, or on whose behalf such information
will be used, in making a business decision concerning the subject of such
information.
(aa) "Equifax Business" means the businesses now or formerly conducted
by Equifax and its present and former Affiliates, other than the ChoicePoint
Business, at the Effective Time.
(bb) "Equifax Group" means Equifax and its Affiliates existing at the
Effective Time and as modified from time to time thereafter, excluding all
members of the ChoicePoint Group.
(cc) "Equifax Indemnitees" has the meaning given in Section 6.1.
(dd) "Equifax Liabilities" means all unsatisfied Liabilities incurred
attendant with the purchase of Information Services from the ChoicePoint Group
under this Agreement whether arising before, on or after the Effective Time.
(ee) "Equifax Products" means those products, services and deliverables
offered for sale by the Equifax Group to the ChoicePoint Group in its sole
discretion from time to time.
(ff) "FCRA" means the federal Fair Credit Reporting Act, 15 U.S.C.
Section 1681, et. seq.
(gg) "Group" means the ChoicePoint Group and/or the Equifax Group.
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(hh) "Indemnifiable Loss" means any and all damage, loss, liability and
expense (including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses) in connection with any and all Actions
or threatened Actions.
(ii) "Indemnified Party" has the meaning given in Section 7.1.
(jj) "Indemnifying Party" has the meaning given in Section 7.1.
(kk) "Information Services" means those on-line and off-line
computer-based information databases, the inspection services, reporting
services, processing services, and transmission services provided by either
party or the members of its respective Group pursuant to this Agreement,
including without limitation, the ChoicePoint Products, Equifax Products and
Provider Information.
(ll) "Intellectual Property Agreement" means that certain Intellectual
Property Agreement entered into on or prior to the Distribution Date between
Equifax and ChoicePoint, as amended from time to time.
(mm) "Liabilities" means any and all claims, debts, liabilities and
obligations, absolute or contingent, matured or not matured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising, with
respect to a specified object, matter, contract, commitment or undertaking,
including without limitation, all debts, liabilities and obligations arising
under any law, rule, regulation, action, order or consent decree of any
governmental entity or any award of any arbitrator of any kind, related thereto
and those arising under any contract, commitment or undertaking relating to such
specified object, matter, contract, commitment or undertaking.
(nn) "Non-Consumer Reporting Agency" means a Recipient that will resell
a given item of Provider Information that is not a Consumer Report .
(oo) "Permissible Purposes" means one of the permitted purposes for
which a Consumer Report may be provided pursuant to the FCRA.
(pp) "Person" means any individual, entity (whether or not formed as a
corporation, sole proprietorship, partnership, limited liability company or
other form of entity and whether or not conducting its affairs for profit), and
any governmental entity or agency.
(qq) "Prime Rate" means the prime rate of interest as determined from
time to time by SunTrust Bank, Atlanta.
(rr) "Proprietary Information" means all non-public information,
whether tangible or intangible, related to the services or business of the
disclosing party that (i) derives economic value, actual or potential, from not
being generally known to or readily ascertainable by another Person who can
obtain economic value from its disclosure or use; and (ii) is the subject of
efforts
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by the disclosing party that are reasonable under the circumstances to maintain
its secrecy, including without limitation, (A) marking any information reduced
to tangible form clearly and conspicuously with a legend identifying its
confidential or proprietary nature; (B) identifying any oral communication as
confidential immediately before, during, or after such oral communication; or
(C) otherwise treating such information as confidential or secret. Assuming
the criteria in clauses (i) and (ii) above are met, Proprietary Information
includes information, without regard to form, including but not limited to,
technical and nontechnical data, databases, formulas, patterns, designs,
compilations, computer programs and software, devices, inventions, methods,
techniques, drawings, processes, financial data, financial plans, product
plans, lists of actual or potential customers and suppliers (which are not
commonly known by or available to the public), research, development, and
existing and future products.
(ss) "Provider" means any member of either Group when providing
Information Services to the members of the other Group pursuant to this
Agreement.
(tt) "Provider Information" means information regarding any Person, at
the individual or aggregated levels, contained in any ChoicePoint Product or
Equifax Product, respectively, offered to any member of the other party's Group,
including without limitation, Consumer Credit Information and Consumer Insurance
Information.
(uu) "Recipient" means any member of either Group when acquiring
Information Services from the other Group pursuant to this Agreement.
(vv) "Representatives" means, individually and collectively, officers,
directors, employees, agents, and/or independent contractors of each member of
the Group.
(ww) "Subscriber" means any customer of a Recipient which obtains
Provider Information from Recipient; provided, however, that a Subscriber will
be deemed to be a "Qualified Subscriber" only if the Subscriber meets the
criteria therefor set forth in the Provider's Supplemental Agreement in effect
from time to time, as amended and/or modified by the Provider.
(xx) "Supplemental Agreements" means the Equifax Group's supplemental
terms and conditions set forth in Exhibit D and the ChoicePoint Group's
supplemental terms and conditions set forth in Exhibit E, as amended from time
to time during the term of this Agreement.
(yy) "System Affiliate" means a Person that is not an Affiliate of
Equifax that has entered into a written agreement with Equifax Credit
Information Services, Inc. regarding the provision of consumer reporting
services through the automated credit service known as "The Automated Credit
Reporting Online Package".
(zz) "Third Party Claim" has the meaning given in Section 7.2.
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ARTICLE II
INFORMATION SERVICES
Section 2.1. Information Services.
(a) During the term hereof, each provision of Information Services by
any member of one Group to any member of the other Group will be subject to the
terms and conditions of this Agreement and the Supplemental Agreements
applicable to the elements comprising the Information Services as amended and/or
modified from time to time during the term of this Agreement by the Provider,
whether such provision arises independently of any prior or subsequent
contractual obligation. The Information Services which are provided by members
of one Group to the members of the other Group as of the Distribution Date are
set forth on Exhibits B and C.
(b) The parties acknowledge that the Information Services to be
provided by the Equifax Group may contain Provider Information owned by the
Equifax Group as well as by System Affiliates, and that the Equifax Group can
only provide Information Services containing information owned by its System
Affiliates to the extent that the System Affiliates authorize the provision of
such information and subject to the applicable charges to be paid by, and
payment terms for, the ChoicePoint Group as established by the applicable System
Affiliate.
(c) The parties have each exerted their best efforts to identify each
type of Information Service presently provided by the members of one Group to
the members of the other Group and to address such Information Services in this
Agreement. The parties acknowledge that there may be Information Services
provided by the members of one Group to the members of the other Group which are
not addressed in this Agreement, but agree that all such services are intended
to be governed by this Agreement. Moreover, the parties agree: that the
Information Services provided may require adjustments during the term of this
Agreement to reflect the evolving business and operations of each Group and
applicable law; that the relationship memorialized by this Agreement is dynamic
in nature and will evolve as the operating and business environment of each
Group changes and evolves; and that the scope of the Information Services that
will be provided during the term and the corresponding fees charged and payment
terms extended by the parties may need to be modified to reflect the foregoing.
The parties agree to cooperate and negotiate with each other in good faith in
order to modify this Agreement as appropriate to give effect to the intent of
the parties and to satisfy the requirements of each party, as described in
Sections 2.1(a) and (d).
(d) For the one hundred-eighty (180) days following the Effective
Time, each party shall have the right to inventory, validate and update any
information and the services, products and deliverables that comprise the
Information Services that are reflected in or omitted from this Agreement and
attached Exhibits. If the parties determine that this Agreement or the Exhibits
hereto contain discrepancies from the intent of this Agreement, this Agreement
and/or Exhibits
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shall be promptly changed, modified, updated and adjusted to correct such
discrepancies, so that this Agreement and/or Exhibits will be correct and
accurately reflect the Information Services, and attendant charges and payment
terms, provided by one Group to the other Group at the Effective Time. In the
event that either party discovers such an omission from this Agreement or a
discrepancy from the intent hereof: (a) that party will immediately notify the
other party and the parties will promptly negotiate in good faith to establish
the specific terms and conditions applicable to such Information Services; (b)
this Agreement will govern the general terms and conditions applicable to the
provision of such Information Services; and (c) the Provider will not cease to
provide such Information Services, unless the parties are unable to agree upon
the specific terms and conditions applicable to such Information Services. If
either party disputes the existence of a discrepancy identified by the other
party, the parties will submit the matter for dispute resolution as specified in
Section 11.10.
(e) During the ninety (90) day period following the Effective Time,
the parties will negotiate in good faith to establish mutually agreed
operational procedures to effect the delivery of the Information Services and to
establish performance standards for the delivery of the Information Services.
(f) During the ninety (90) day period following the Effective Time,
the parties will negotiate in good faith to identify the off-line batch
Information Services products to be provided to either Group by the other Group
and the terms and conditions, including without limitation, the pricing, under
which such off-line Information Services products will be provided to the other
Group. Upon mutual agreement of the off-line Information Services products and
terms and conditions applicable thereto, the parties will amend Exhibits B, C, D
and E to reflect the addition of such off-line Information Services products and
applicable terms and conditions. During the ninety-day period following the
Effective Date, either Group may provide certain off-line Information Services
products to the other Group on a case by case basis upon the mutual agreement of
the parties.
Section 2.2. Supplemental Agreements.
The terms and conditions applicable to any given provision of Information
Services pursuant to this Agreement will vary depending on (a) whether such
Information Services are regulated pursuant to the FCRA or other law or
regulation, (b) the type of Information Services purchased, (c) the role in
which the Recipient purchases such Information Services, including without
limitation, as a Non-Consumer Reporting Agency, Consumer Reporting Agency or
End User, (d) the purpose for which the Recipient's Subscriber ordered the
products, services and deliverables based upon such Information Services, and
(e) the third party limitations and restrictions applicable to the provisions of
the Information Services by the Provider. Accordingly, the terms and conditions
applicable to any given acquisition of Information Services by any Recipient
pursuant to this Agreement are supplemented by the terms and conditions of the
Supplemental Agreement(s) with respect to the type of Information Services
purchased, the role
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in which the Recipient purchases such Information Services and the purpose
for which the Recipient's Subscriber ordered the products, services and
deliverables that are based upon such Information Services, as such
Supplemental Agreement(s) is modified and/or amended from time to time during
the term of this Agreement by the Provider. In the event of a conflict between
the terms and conditions set forth in the body of this Agreement and the
specific terms and conditions regarding provisions required by law or
regulation, the type of Information Services, the role of Recipient and/or use
of particular Information Services set forth in the Provider's Supplemental
Agreement, the terms and conditions set forth in the body of this Agreement
will be controlling. In the event that any provision contained in Articles
III, IV, V, VI, VII, VIII, X and/or XI conflicts with and/or overlaps in
subject matter with any provision contained in the Supplemental Agreements, the
terms and conditions set forth in the body of this Agreement will prevail and
be controlling.
Section 2.3. Mutual Obligations.
(a) ChoicePoint and Equifax hereby covenant and agree that, for the
one-year period following the Effective Time, the ChoicePoint Group, except for
CDB Infotek and its subsidiaries, will obtain all of its requirements for
Consumer Credit Information except for the check transaction information and the
public record information described in Section 1.1(l)(ii) and (iii), from the
Equifax Group and the Equifax Group shall provide to the ChoicePoint Group
Consumer Credit Information to fulfill the ChoicePoint Group's requirements
therefor; subject to the exceptions set forth in Section 2.3(c).
(b) ChoicePoint and Equifax covenant and agree that, for the one-year
period following the Effective Time, the Equifax Group will obtain all of its
requirements for the types of driver's license and motor vehicle information
contained in the ChoicePoint Group's products known as "Motor Vehicle Registry
(MVR)" and/or "Additional Drivers Data (ADD)" ("Driver Information") from the
ChoicePoint Group and the ChoicePoint Group will provide such information to the
Equifax Group, subject to the exceptions set forth in Section 2.3(c) below.
(c) Notwithstanding anything to the contrary contained in this Section
2.3, the ChoicePoint Group may obtain its requirements for Consumer Credit
Information and/or the Equifax Group may obtain its Driver Information
requirements from other sources if:
(i) the Provider has no file on the consumer, or does not
otherwise have the requested information readily available in its
databases; or
(ii) the Recipient's customer requests that the information be
obtained from a source other than the Provider, despite the Recipient's
recommendation to the customer that the information be obtained from the
Provider; or
(iii) the Recipient's customer or the product in which the
Provider's information is to be included requires that such information be
available from a single
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source of supply with respect to all or substantially all of the
geographic parts of the United States at a uniform price for all such
information and the Provider is unable or unwilling to provide information
with respect to all such geographic parts at such uniform price; provided,
however, that the Provider shall respond to Recipient's request for such
information within a reasonable period of time not to exceed ten (10)
calendar days after Provider's receipt of Recipient's request; or
(iv) the Recipient has been requested to obtain information from
multiple sources, as long as one of the sources is the Provider; provided,
however, if one of the exceptions set forth in subsections (i) through
(iii) above applies, the Recipient does not have to obtain such
information from the Provider; or
(v) the Provider does not allow the information requested by
the Recipient to be used in reports of the type or for the customers in
question.
(d) Notwithstanding anything to the contrary contained in this Section
2.3, the Equifax Group will not be obligated to provide Consumer Credit
Information to the ChoicePoint Group for sale to the current customers of the
Equifax Group as of the Effective Date, unless otherwise mutually agreed.
(e) ChoicePoint and Equifax hereby covenant and agree that if the Equifax
Group makes a material change regarding its sources of supply of public record
information for the United States during the one-year period following the
Effective Date, Equifax will offer to ChoicePoint the right to provide such
public record information to the Equifax Group under terms and conditions as
mutually agreed. If ChoicePoint and Equifax can mutually agree on commercially
competitive terms and conditions for the provision of public record information
to the Equifax Group, including without limitation, price, quantity, quality and
delivery terms, within a reasonable period of time not to exceed thirty (30)
days after delivery of notice of Equifax's intent to change its sources of
supply to ChoicePoint, then the Equifax Group will obtain public record
information from the ChoicePoint Group in accordance with such mutually agreed
terms and conditions. Notwithstanding anything to the contrary contained
herein, Equifax and ChoicePoint hereby specifically acknowledge and agree that
this Section 2.3(e) shall not apply to the Equifax Group's ability to exercise
any right of first refusal it may have to acquire any of its public record
information vendors pursuant to a contractual agreement that exists as of the
Effective Time with such vendors and/or its ability to obtain all or any portion
of public record information from such vendor as to which Equifax exercises such
right of first refusal. ChoicePoint hereby covenants and agrees not to directly
or indirectly make an offer to purchase or otherwise solicit the purchase of
such public record information vendors during the one-year period following the
Effective Time.
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Section 2.4. FCRA Certification.
ChoicePoint and Equifax each certify, and shall ensure that each member of
the ChoicePoint Group and Equifax Group shall certify that it will order
Provider Information that constitutes a Consumer Report only for use for a
Permissible Purpose in accordance with the FCRA, as amended from time to time.
ARTICLE III
FEES AND PAYMENT
Section 3.1. Fees and Charges.
Each Recipient will pay the Provider for all Information Services supplied
to such Recipient according to the rates set forth on Exhibits B and C during
the initial one-year term of this Agreement and according to such rates as are
subsequently established by the Provider from time to time thereafter.
Section 3.2. Payment Terms.
Each Recipient shall pay all invoices for Information Services requested
by such Recipient within thirty (30) days after the date of each invoice.
Section 3.3. Disputed Amounts.
In the event that a member of either Group disputes the accuracy or
applicability of a charge or credit by a member of the other Group, such member
will notify Equifax or ChoicePoint, respectively, of such dispute prior to the
date on which the charge is to be paid or the credit issued or as soon as
practicable after the discrepancy has been discovered after the applicable
invoice is paid or credit is issued. The parties will investigate and resolve
such disputes using the dispute resolution process provided in Section 11.10 of
this Agreement. Any undisputed amounts contained on the invoice will be paid
pursuant to Section 3.2. The party responsible for paying the disputed amount
or issuing the disputed credit shall place the disputed amount in an escrow
account until such dispute is resolved. Upon resolution of the dispute, the
party in whose favor the dispute was resolved shall be paid any interest having
accrued on the escrow monies and each party shall pay the escrow fees
attributable to the disputed amount in an inverse proportion to the percentage
of the disputed amount paid to each party.
Section 3.4. Interest
Any and all amounts not paid when due shall bear interest on a day to day
basis from the due date to the date of payment (both dates inclusive) at the
lower rate of one and one-half percent (1 1/2%) per month or the highest rate
allowable under applicable law.
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Section 3.5. Taxes.
All fees and charges payable under this Agreement are exclusive of all
federal, state and local sales, excise, use, value added and similar taxes not
measured by the income of Provider, which taxes shall be the sole
responsibility of Recipient and shall be paid by Recipient at the rate and in
the manner prescribed by applicable law and Section 3.2 hereof; provided,
however, if required by applicable law, Provider shall separately itemize such
taxes on Provider's invoice to Recipient, Recipient shall pay the amount of
such taxes to Provider and Provider shall remit such amount to the applicable
taxing authority. In lieu thereof, Recipient shall furnish Provider with a
properly executed tax exemption certificate acceptable to the applicable taxing
authority.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The parties and each Recipient and Provider recognize that every business
decision represents an assumption of risk and that neither party, nor the
members of either party's Group, in furnishing the Information Services to the
other Group underwrites or assumes the other's risk in any manner. NEITHER
PARTY, NOR ANY MEMBER OF EITHER PARTY'S GROUP NOR ANY OF ITS INFORMATION
SOURCES, GUARANTEES OR WARRANTS THE CORRECTNESS, COMPLETENESS, CURRENTNESS,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION SERVICES
PROVIDED TO ANY MEMBER OF THE OTHER PARTY'S GROUP. NEITHER PARTY, NOR ANY OF
ITS REPRESENTATIVES, INFORMATION SOURCES, LICENSORS, SYSTEM AFFILIATES OR
MEMBERS OF ITS RESPECTIVE GROUP WILL BE LIABLE TO ANY OTHER PARTY OR ANY OF ITS
REPRESENTATIVES, INFORMATION SOURCES, LICENSORS, SYSTEM AFFILIATES OR MEMBERS
OF THE OTHER PARTY'S GROUP FOR ANY LOSS OR INJURY ARISING OUT OF, OR CAUSED IN
WHOLE OR IN PART BY, ITS ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING,
INTERPRETING, PROCESSING, REPORTING OR TRANSMITTING ANY INFORMATION OR THE
INFORMATION SERVICES, EVEN IF DUE TO NEGLIGENCE. THE INFORMATION SERVICES ARE
PROVIDED ON AN "AS IS" BASIS.
No Provider makes any warranties whatsoever in connection with the
performance of the DAT, or any other means of communication or provision of the
Information Services from one party to the other, and no Provider will be
responsible for transmission distortion, interruptions or failures of the DAT,
or any other means of communication or provision of the Information Services,
or of any Information Services. Each Recipient will ensure a secure means of
delivery of Provider Information, unless otherwise agreed by the Provider, and
will not deliver such information by means of any publicly accessible network
(including without limitation, the Internet) without Provider's express written
permission.
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ARTICLE V
LIMITATION ON ACTIONS AND LIABILITIES
Section 5.1. Covenant Not to Xxx.
Each member of each Group covenants not to xxx or maintain any claim,
cause of action, demand, cross-action, counterclaim, third-party action or
other form of pleading against a Provider, a Provider's Representatives,
sources of information, affiliated Credit Reporting Agencies, and/or System
Affiliates (if applicable) arising out of or relating in any way to the
accuracy or inaccuracy and/or validity or invalidity of any of the Provider
Information, even if caused by the negligence of any such Person; provided,
however, this Section shall not be applicable if the injury is caused by the
intentional misconduct of such Person.
Section 5.2. Release.
Each member of each Group recognizes that the accuracy of any Provider
Information furnished is not warranted or guaranteed by the Provider thereof
for any purpose, and releases the Provider and the Provider's Representatives,
sources of information, affiliated Credit Reporting Agencies and System
Affiliates (if applicable) from all liability in connection with the accuracy
or inaccuracy and/or validity or invalidity of the Provider Information and
from any and all charge, damage, loss and/or expense suffered by Recipient
resulting directly or indirectly from such matters, even if caused by the
negligence of any such Person; provided, however, this Section shall not be
applicable if the injury is caused by the intentional misconduct of such
Person. Each member of each Group shall include in its agreements with its
Subscribers and End Users a release concerning the information received from
Provider substantially in the form of the foregoing release obligation
contained in this Section 5.2.
Section 5.3. Limitation of Liability.
(a) Unless specifically provided to the contrary in this Agreement,
neither party shall, nor shall any member of the party's respective Group, have
any liability to the other party for any damages other than Direct Damages
whether based on contract, tort (including without limitation, that caused by
negligence, but excluding intentional misconduct), warranty, guarantee or any
other legal or equitable grounds. The liability of any member of either Group
to the other Group arising out of or resulting from a breach by such member
and/or its Representatives of its obligations under this Agreement shall not
exceed the Direct Damages incurred by the Recipient as a result of such event.
(b) The limitations set forth in Section 5.3(a) shall not apply to:
(i) Any failure by any member of either Group to pay fees and
expenses for the Information Services that are due and payable hereunder
up to the effective date of the termination of the Agreement;
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(ii) Claims arising under Section 5.1 (Covenant Not to Xxx)
and/or Section 5.2 (Release);
(iii) Indemnification obligations under Article VI; and
(iv) Any incident or event resulting in damages, charges and/or
losses caused by the action or inaction of a member of either Group
constituting intentional misconduct.
(c) Except as set forth in Sections 6.1 and 6.2, neither party nor the
members of its Group shall be liable for any damages to the other party or the
members of its Group if and to the extent caused by the failure of such other
party or the members of its Group to perform its responsibilities under this
Agreement.
(d) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY SECTION OF THIS
AGREEMENT EXCEPT THIS SECTION 5.3, INCLUDING ANY AND ALL FUTURE AMENDMENTS AND
ADDENDA, NEITHER PARTY, NOR ANY OF ITS REPRESENTATIVES, INFORMATION SOURCES,
LICENSORS, SYSTEM AFFILIATES OR MEMBERS OF ITS RESPECTIVE GROUP WILL BE
RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR SPECIAL
DAMAGES, INCLUDING LOST PROFITS, WHETHER OR NOT THE OTHER PARTY HAS BEEN
INFORMED OF OR MIGHT OTHERWISE HAVE ANTICIPATED OR FORESEEN THE POSSIBILITY OF
SUCH DAMAGES.
ARTICLE VI
INDEMNIFICATION
Section 6.1. ChoicePoint Indemnification of the Equifax Group.
If the Distribution occurs, on and after the Distribution Date,
ChoicePoint shall indemnify, defend and hold harmless each member of the
Equifax Group and each of their respective Representatives (the "Equifax
Indemnitees") from and against any and all Indemnifiable Losses incurred or
suffered by any of the Equifax Indemnitees and arising out of or in connection
with (a) any breach of Sections 5.1 (Covenant Not to Xxx) or 5.2 (Release) by
a member of the ChoicePoint Group, or (b) breach of Section 8.2
(Confidentiality); except such damages, loss, liability and expense resulting
from the willful misconduct of a member of the Equifax Group.
Section 6.2. Equifax Indemnification of the ChoicePoint Group.
If the Distribution occurs, on and after the Distribution Date, Equifax
shall indemnify, defend and hold harmless each member of the ChoicePoint Group
and each of their respective Representatives (the "ChoicePoint Indemnitees")
from and against any all Indemnifiable Losses incurred or suffered by any of
the ChoicePoint Indemnitees and arising out of or in connection
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with (a) any breach of Sections 5.1 (Covenant Not to Xxx) or 5.2 (Release) by a
member of the Equifax Group, or (b) breach of Section 8.2 (Confidentiality);
except such damages, loss, liability and expense resulting from the willful
misconduct of a member of the ChoicePoint Group.
Section 6.3. Insurance and Third Party Obligations.
No insurer or any other third party shall be (a) entitled to a benefit it
would not be entitled to receive in the absence of the foregoing
indemnification provisions, (b) relieved of the responsibility to pay any
claims to which it is obligated, or (c) entitled to any subrogation rights with
respect to any obligation hereunder.
ARTICLE VII
INDEMNIFICATION PROCEDURES
Section 7.1. Notice and Payment of Claims.
If any Equifax or ChoicePoint Indemnitee (the "Indemnified Party")
determines that it is or may be entitled to indemnification by a party (the
"Indemnifying Party") under Article VI (other than in connection with any
Action or claim subject to Section 7.2), the Indemnified Party shall deliver to
the Indemnifying Party a written notice specifying, to the extent reasonably
practicable, the basis for its claim for indemnification and the amount for
which the Indemnified Party reasonably believes it is entitled to be
indemnified. After the Indemnifying Party shall have been notified of the
amount for which the Indemnified Party seeks indemnification, the Indemnifying
Party shall, within thirty (30) days after receipt of such notice, pay the
Indemnified Party such amount in cash or other immediately available funds (or
reach agreement with the Indemnified Party as to a mutually agreeable
alternative payment schedule) unless the Indemnifying Party objects to the
claim for indemnification or the amount thereof. If the Indemnifying Party
does not give the Indemnified Party written notice objecting to such claim and
setting forth the grounds therefor within the same thirty (30) day period, the
Indemnifying Party shall be deemed to have acknowledged its liability for such
claim and the Indemnified Party may exercise any and all of its rights under
applicable law to collect such amount. Any amount owed under this Section 7.1
that is past due shall bear interest at a simple rate of interest per annum
equal to the Prime Rate plus 2%.
Section 7.2. Notice and Defense of Third Party Claims.
(a) Promptly following the earlier of (i) receipt of notice of the
commencement by a third party of any Action against or otherwise involving any
Indemnified Party or (ii) receipt of information from a third party alleging the
existence of a claim against an Indemnified Party, in either case, with respect
to which indemnification may be sought pursuant to Article VI of this Agreement
(a "Third Party Claim"), the Indemnified Party shall give the Indemnifying Party
written notice thereof. The failure of the Indemnified Party to give notice as
provided in this
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Section 7.2 shall not relieve the Indemnifying Party of its obligations under
this Agreement, except to the extent that the Indemnifying Party is prejudiced
by such failure to give notice. Within thirty (30) days after receipt of such
notice, the Indemnifying Party shall by giving written notice thereof to the
Indemnified Party, (i) acknowledge, as between the parties hereto, liability
for, and at its option, assumption of the defense of such Third Party Claim at
its sole cost and expense or (ii) object to the claim of indemnification set
forth in the notice delivered by the Indemnified Party pursuant to the first
sentence of this Section 7.2 setting forth the grounds therefor; provided that
if the Indemnifying Party does not within the same thirty (30) day period give
the Indemnified Party written notice acknowledging liability and electing to
assume the defense or objecting to such claim and setting forth the grounds
therefor, the Indemnifying Party shall be deemed to have acknowledged, as
between the parties hereto, its liability to the Indemnified Party for such
Third Party Claim.
(b) Any contest of a Third Party Claim as to which the Indemnifying
Party has elected to assume the defense shall be conducted by attorneys employed
by the Indemnifying Party and reasonably satisfactory to the Indemnified Party;
provided that the Indemnified Party shall have the right to participate in such
proceedings and to be represented by attorneys of its own choosing at the
Indemnified Party's sole cost and expense. If the Indemnifying Party assumes
the defense of a Third Party Claim, the Indemnifying Party may settle or
compromise the claim without the prior written consent of the Indemnified Party;
provided that the Indemnifying Party may not agree to any such settlement
pursuant to which any remedy or relief, other than monetary damages for which
the Indemnifying Party shall be responsible hereunder, shall be applied to or
against the Indemnified Party, without the prior written consent of the
Indemnified Party, which consent shall not be unreasonably withheld.
(c) If the Indemnifying Party does not assume the defense of a Third
Party Claim for which it has acknowledged liability for indemnification that
arises under Article VI, the Indemnified Party may require the Indemnifying
Party to reimburse it on a current basis for its reasonable expenses of
investigation, reasonable attorneys' fees and reasonable out-of-pocket expenses
incurred in defending against such Third Party Claim and the Indemnifying Party
shall be bound by the result obtained with respect thereto by the Indemnified
Party; provided that the Indemnifying Party shall not be liable for any
settlement effected without its consent, which consent shall not be unreasonably
withheld. The Indemnifying Party shall pay to the Indemnified Party in cash the
amount for which the Indemnified Party is entitled to be indemnified (if any)
within fifteen (15) days after the final resolution of such Third Party Claim
(whether by settlement, compromise, or the final nonappealable judgment of a
court of competent jurisdiction or otherwise), or, in the case of any Third
Party Claim as to which the Indemnifying Party has not acknowledged liability,
within fifteen (15) days after such Indemnifying Party's objection has been
resolved by settlement, compromise or the final nonappealable judgment of a
court of competent jurisdiction.
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ARTICLE VIII
CONFIDENTIALITY
Section 8.1. Exclusions.
Notwithstanding anything to the contrary contained in this Agreement,
"Company Information" does not include any information that (a) is already known
to the receiving party at the time it is disclosed to the receiving party by the
disclosing party; or (b) before being divulged by the receiving party (i) has
become generally known to the public through no wrongful act of the receiving
party; (ii) has been rightfully received by the receiving party from a third
party without restriction on disclosure and without, to the knowledge of the
receiving party, a breach of an obligation of confidentiality running directly
or indirectly to the disclosing party; (iii) has been approved for release to
the general public by a written authorization of the disclosing party; (iv) has
been independently developed by the receiving party without use, directly or
indirectly, of Company Information received from the disclosing party; or (v)
has been furnished to a third party by the disclosing party without restrictions
on the third party's rights to disclose the information.
Section 8.2. Confidentiality.
(a) Each party acknowledges, and shall cause each member of its Group
to acknowledge, that it is in possession of significant confidential or
proprietary information concerning the business operations and tangible and
intangible property of the members of the other Group.
(b) Each party shall, and shall ensure that each member of its Group
shall, (i) receive and hold the Company Information of the other party in trust
and in strictest confidence; (ii) protect such Company Information from
disclosure and in no event take any action causing, or fail to take the action
necessary in order to prevent, any such Company Information to lose its
character as Company Information; (iii) exercise at a minimum the same care it
would exercise to protect its own Company Information; and (iv) not use,
reproduce, distribute, disclose, or otherwise disseminate the Company
Information of the other party except as authorized pursuant to this Agreement
and in the Supplemental Agreements attached hereto, as amended from time to
time, or any Ancillary Agreement, or except pursuant to a requirement of a
governmental agency or of law, without similar restrictions or other protections
against public disclosure; provided, however, the receiving party must first
give written notice of such required disclosure to the disclosing party, take
reasonable steps to allow the disclosing party to seek to protect the
confidentiality of the Company Information required to be disclosed, make a
reasonable effort to obtain a protective order requiring that the Company
Information so disclosed be used only for the purposes for which disclosure is
required, and shall disclose only that part of the Company Information which, in
the written opinion of its legal counsel, it is required to disclose. In no
event shall the receiving party exercise less than a reasonable standard of care
to keep confidential
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the Company Information. Any and all reproductions of such Company Information
must prominently contain a confidential legend.
(c) The receiving party may make disclosures of the Company
Information of the disclosing party only to Representatives of the receiving
party (i) who have a specific need to know such information; and (ii) who the
receiving party has obligated under a written agreement to hold such Company
Information in trust and in strictest confidence and otherwise to comply with
the terms and provisions of this Agreement. ChoicePoint and Equifax agree, and
shall ensure that each member of its respective Group agrees, to monitor each
such Representative, enforce such agreements with its Representatives, and, upon
request by the other party, promptly to furnish to the other party a list of
the receiving party's Representatives having had access to such Company
Information.
(d) Within thirty (30) days following the receipt of a written request
from the disclosing party, the receiving party must deliver to the disclosing
party all tangible materials containing or embodying the disclosing party's
Company Information applicable to a triggering event, together with a
certificate executed by the president or any vice president of the receiving
party certifying that all such materials in the receiving party's possession
have been delivered to the disclosing party or, at the disclosing party's
option, certify that all such materials in the receiving party's possession have
been destroyed. For the purposes of this Section 8, a "triggering event" means
the cessation of the provision of an Information Service by the disclosing party
to the receiving party under this Agreement or the termination of the Agreement.
(e) The covenants of confidentiality set forth in this Agreement (i)
will apply after the Effective Time to all Company Information disclosed to the
receiving party before and after the Distribution Date and (ii) will continue
and must be maintained from the Effective Time through the termination of the
relationship under this Agreement between Equifax and ChoicePoint and (A) with
respect to Proprietary Information, at any and all times after the termination
of the relationship under this Agreement between Equifax and ChoicePoint during
which such Proprietary Information retains its status as a "trade secret" under
applicable law; and (B) with respect to Confidential Information, for the
shorter of a period equal to two (2) years after termination of the relationship
under this Agreement between Equifax and ChoicePoint, or until such Confidential
Information no longer qualifies as confidential under applicable law.
Section 8.3. Employee Confidentiality Agreements.
The members of the Group have entered into confidentiality and
non-disclosure agreements with their respective employees. To the extent that
any employee during or after employment violates such agreement and such
violation is or may in the future be to the detriment of the other party's
Group, at the written request of the affected party, the other Party shall
promptly take remedial measures with such employee if and to the extent
reasonable under the circumstances to preserve the value of the Information
Services and to enforce its obligations hereunder. The party employing the
affected employee shall have the unilateral right to determine
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the forum for, the manner of proceeding in, and legal counsel for such action
and shall be entitled to any damages or other relief against such employee
awarded in such action to the extent related to such party's Information
Services or business. Each party shall bear all of its own out-of-pocket costs
of pursuing such action and the other party shall cooperate in connection
therewith.
Section 8.4. Rights and Remedies.
(a) If either party, or any member of the Group, should breach or
threaten to breach any of the provisions of this Article VIII, the non-breaching
party, in addition to any other remedies it may have at law or in equity, will
be entitled to a restraining order, injunction, or other similar remedy in order
to specifically enforce the provisions of this Article VIII. Each party
specifically acknowledges, and shall cause each member of its respective Group,
to acknowledge that money damages alone would be an inadequate remedy for the
injuries and damage that would be suffered and incurred by the non-breaching
party as a result of a breach of any of the provisions of this Article VIII. In
the event that either party, or a member of such party's Group, should seek an
injunction hereunder, the other party hereby waives, and shall cause each member
of its Group to waive, any requirement for the submission of proof of the
economic value of any Company Information or the posting of a bond or any other
security.
(b) The receiving party shall notify the disclosing party upon
discovery of any unauthorized use or disclosure of Company Information, or any
other breach of Article VIII of this Agreement by the receiving party, or any
Representative of the receiving party's Group, and will cooperate with the
disclosing party in every reasonable way to help the disclosing party regain
possession of its Company Information and prevent its further unauthorized use
or disclosure. The receiving party shall be responsible for the acts of any
Representative of its Group that are in violation of this Article VIII.
Section 8.5. Competitive Activities.
Subject to the rights and obligations set forth in Section 2.3 and Article
VIII, each party understands and acknowledges that the other party's Group may
now market or have under development products that are competitive with
products or services now offered or that may be offered by it and/or the
members of its Group, and the parties' communications hereunder will not serve
to impair the right of either party or any member of its respective Group to
independently develop, make, use, procure, or market products or services now
or in the future that may be competitive with those offered by the other
party's Group, nor require either party and/or the members of its Group to
disclose any planning or other information to the other party.
Section 8.6. No Implied Rights.
All Company Information is and shall remain the property of the disclosing
party and/or the member of its respective Group. By disclosing Company
Information to the receiving party's Group, the disclosing party and/or the
members of its respective Group do(es) not grant any
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express or implied rights or license to the receiving party's Group to or under
any patents, patent applications, inventions, copyrights, trademarks, trade
secret information, or other intellectual property rights heretofore or
hereafter possessed by the disclosing party and/or the members of its respective
Group.
ARTICLE IX
CONTINUED ASSISTANCE
Section 9.1. Continued Assistance and Transition.
(a) Following the Effective Time, Equifax and ChoicePoint shall, and
shall cause each member of the Group to, cooperate in the orderly purchase and
sale of Information Services hereunder. From time to time, at Equifax's or
ChoicePoint's request and without further consideration, the other party shall,
and shall cause each member of the other party's Group, as applicable, to
execute, acknowledge and deliver such documents, instruments or assurances and
take such other action as the requesting party may reasonably request to more
effectively evidence compliance with the Supplemental Agreements applicable to
the purchase and sale of Information Services as reflected in the Supplemental
Agreements for the applicable Information Services in effect from time to time,
as amended and/or modified by the Provider.
Section 9.2. Litigation Cooperation.
(a) Upon written request, Equifax and ChoicePoint shall, and shall
cause each member of its Group to, use reasonable efforts to make available to
the other its Representatives as witnesses or consultants to the extent that
such persons may reasonably be required in connection with any legal,
administrative or other proceedings, with respect to the Information Services
provided thereby, arising out of the business of the other party or of any
member of the other party's Group prior to the Distribution Date in which the
requesting party or any member of its Group may from time to time be involved,
at the cost and expense of the requesting party.
(b) Equifax and ChoicePoint shall, and shall cause each member of its
respective Group, to use reasonable efforts to notify the other if it learns of
a potential or actual third party claim related to the Information Services
provided pursuant to this Agreement to be brought against any member of the
other's Group.
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ARTICLE X
TERM AND TERMINATION
Section 10.1. Term.
(a) The term of this Agreement shall commence at the Effective Time
and shall continue for one (1) year and shall be automatically renewed for
separate, successive one-year periods, unless terminated in accordance with
Section 10.2.
Section 10.2. Termination.
(a) Either party may terminate this Agreement upon at least ninety
(90) days written notice given prior to the expiration of the then-current
one-year term.
(b) Either party may terminate this Agreement:
(i) by giving notice to the other if the other party shall have
failed within thirty (30) days after the receipt of written notice to
remedy any material breach of this Agreement set forth in the notice;
(ii) if the other Party becomes insolvent, or is unable to pay
its debts as due, or enters into or files or has filed or commenced against
it a petition, arrangement, action or other proceeding seeking relief or
protection under the bankruptcy laws of the United States or any similar
laws of the United States or any State of the United States or of any other
country or jurisdiction, or has a trustee, receiver or liquidator appointed
for all or a substantial part of its assets.
(c) In addition, either party may cease to provide an Information
Service to the other party's group at any time upon thirty (30) days written
notice to the other party or a shorter time if necessary if, in such party's
reasonable judgment, continuation of the Information Service becomes impossible,
impractical, or undesirable due to legal, economic, or policy constraints or
circumstances.
Section 10.3. Effect of Termination and Expiration.
Upon termination or expiration of the term of this Agreement, all rights
and obligations of the parties under this Agreement will immediately cease and
terminate (except for the rights and obligations pursuant to Articles IV
(Representations and Warranties), V (Limitations on Actions and Liabilities),
VI (Indemnification), VII (Indemnification Procedures), and VIII
(Confidentiality) and XI (Miscellaneous) and Sections 9.2 and 10.3, and the
definitions required thereby which will survive such termination or
expiration), and neither party will have any further obligation to the other
party with respect to this Agreement, except for (a) fees and reimbursable
expenses payable to the other party
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accrued but unpaid at the date of termination or expiration, and (b) the
provisions of this Agreement which are specifically designated herein as
surviving such termination or expiration.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Expenses.
Except as specifically provided in this Agreement or any Ancillary
Agreement, all costs and expenses incurred in connection with the preparation,
execution, delivery and implementation of this Agreement and the Ancillary
Agreements shall be paid by Equifax.
Section 11.2. Notices.
All notices and communications under this Agreement shall be deemed to
have been given (a) when received, if such notice or communication is delivered
by facsimile, hand delivery or overnight courier, or (b) three (3) business
days after mailing if such notice or communication is sent by United States
registered or certified mail, return receipt requested, first class postage
prepaid. All notices and communications, to be effective, must be properly
addressed to the party to whom the same is directed at its address as follows:
If to Equifax, to:
Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Corporate Vice President and General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx
President and Chief Operating Officer
Fax: (000) 000-0000
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If to ChoicePoint, to:
ChoicePoint Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: J. Xxxxxxx xx Xxxxx, Esq.
General Counsel and Assistant Secretary
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx
President and Chief Executive Officer
Fax: (000) 000-0000
Either party may, by written notice delivered to the other party in accordance
with this Section 11.2, change the address to which delivery of any notice
shall thereafter be made.
Section 11.3. Amendment and Waiver.
This Agreement may not be altered or amended, nor may any rights hereunder
be waived, except by an instrument in writing executed by the party or parties
to be charged with such amendment or waiver. No waiver of any terms, provision
or condition of or failure to exercise or delay in exercising any rights or
remedies under this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further continuing waiver of any such term, provision,
condition, right or remedy or as a waiver of any other terms, provision or
condition of this Agreement.
Section 11.4. Entire Agreement.
This Agreement and Exhibits constitute the entire understanding of the
parties hereto with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and understandings
relating to such subject matter.
Section 11.5. Parties in Interest.
Neither of the parties hereto may assign its rights or delegate any of its
duties under this Agreement without the prior written consent of each other
party. This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective successors and permitted assigns.
Nothing contained in this Agreement, express or implied, is intended to confer
any benefits, rights or remedies upon any person or entity other than members
of the Equifax Group and the ChoicePoint Group and the Equifax Indemnitees and
ChoicePoint Indemnitees under Articles VI and VII hereof.
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Section 11.6. Further Assurances and Consents.
In addition to the actions specifically provided for elsewhere in this
Agreement, each of the parties hereto will use its reasonable efforts to (a)
execute and deliver such further instruments and documents and take such other
actions as any other party may reasonably request in order to effectuate the
purposes of this Agreement and to carry out the terms hereof and (b) take, or
cause to be taken, all actions, and do, or cause to be done, all things
reasonably necessary, proper or advisable under applicable laws, regulations
and agreements or otherwise to consummate and make effective the transactions
contemplated by this Agreement, including without limitation, using its
reasonable efforts to obtain any consents and approvals and to make any filings
and applications necessary or desirable in order to consummate the transactions
contemplated by this Agreement; provided that no party hereto shall be
obligated to pay any consideration therefor (except for filing fees and other
similar charges) to any third party from whom such consents, approvals and
amendments are requested or to take any action or omit to take any action if
the taking of or the omission to take such action would be unreasonably
burdensome to the party or its respective Group or the business thereof.
Section 11.7. Severability.
The provisions of this Agreement are severable and should any provision
hereof be void, voidable or unenforceable under any applicable law, such
provision shall not affect or invalidate any other provision of this Agreement,
which shall continue to govern the relative rights and duties of the parties as
though such void, voidable or unenforceable provision were not a part hereof.
Section 11.8. Governing Law.
This Agreement shall be construed in accordance with, and governed by, the
laws of the State of Georgia, without regard to the conflicts of law rules of
such state.
Section 11.9. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original instrument, but all of which together shall
constitute but one and the same Agreement.
Section 11.10. Disputes.
(a) All disputes arising from or in connection with this Agreement,
whether based on contract, tort, statute or otherwise, including, but not
limited to, disputes in connection with claims by third parties (collectively,
"Disputes"), shall be resolved only in accordance with the provisions of this
Section 11.10; provided, however, that nothing contained herein shall preclude
either party from seeking or obtaining (i) injunctive relief to prevent an
actual or threatened
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breach of any of the provisions of this Agreement, or (ii) equitable or other
judicial relief to enforce the provisions of this Section 11.10 hereof or to
preserve the status quo pending resolution of Disputes hereunder.
(b) Either party may give the other party written notice of any
Dispute not resolved in the normal course of business. Within ten (10) days
after delivery of the notice of a Dispute, the receiving party shall submit to
the other a written response. The notice and the response shall include a
statement of such party's position and a summary of arguments supporting that
position and the name and title of the executive who will represent that party
and of any other person who will accompany such executive in resolving the
Dispute. Within twenty (20) days after delivery of the first notice, the
executives of both parties shall meet at a mutually acceptable time and place,
and thereafter as often as they reasonably deem necessary, and shall negotiate
in good faith to attempt to resolve the Dispute. All reasonable requests for
information made by one party to the other will be honored.
(c) If the Dispute has not been resolved by negotiations within sixty
(60) days of the first party's notice, the Dispute shall be submitted, upon
application of either party, for resolution by binding arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
(the "Rules"). Arbitration shall be by a single arbitrator experienced in the
matters that are at issue in the Dispute, which arbitrator shall be selected by
the parties in accordance with the Rules. The arbitration shall be conducted in
Atlanta, Georgia (or at any other place agreed upon by the parties and the
arbitrator). The decision of the arbitrator shall be final and binding as to
all matters at issue in the Dispute; provided, however, if necessary such
decision may be enforced by either party in any court of law having jurisdiction
over the parties or the subject matter of the Dispute. Unless the arbitrator
shall assess the costs and expenses of the arbitration proceeding and of the
parties differently, each party shall pay its costs and expenses incurred in
connection with the arbitration proceeding, and the costs and expenses of the
arbitrator shall be shared equally by the parties.
(d) Notwithstanding anything to the contrary in this Section 11.10,
the Presidents of Equifax and ChoicePoint shall have the authority to stay the
time periods set forth in this Section 11.10 upon mutual agreement to take such
action.
(e) The parties agree to continue performing their respective
obligations under the Agreement while the Dispute is being resolved unless and
until such obligations are terminated or expire in accordance with the
provisions of the Agreement.
(f) Neither party will be compensated for any time or expense related
to the Dispute resolution process. Each party will treat the existence and
results of the dispute resolution process as Company Information of the party.
Neither party may disclose the existence of the Dispute, evidence taken,
resulting opinions or settlements of the Dispute hereunder without the prior
written consent signed by the other party. This prohibition shall not apply to
disclosures to counsel, made in documents filed with a court or required by law.
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Section 11.11. Force Majeure.
Neither party will be liable for any loss or damage due to causes beyond
its control, including, but not limited to, fire, accident, labor difficulty,
war, power or transmission failures, riot, Acts of God or changes in laws and
regulations, provided that the affected party must (a) promptly notify the
other party in writing and furnish all relevant information concerning the
event of force majeure; (b) use reasonable efforts to avoid or remove the cause
of its non-performance; and (c) proceed to perform its obligations with
dispatch when such cause is removed.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
EQUIFAX INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Corp. VP and General Counsel
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Date: 7/30/97
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CHOICEPOINT INC.
By: /s/ Xxxxxxx X. Curling
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Title: Executive Vice President
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Date: July 31, 1997
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