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EXHIBIT 10.4
LICENSING AND WEB SITE HOSTING AGREEMENT
This Agreement is entered into on February 26, 1999, (the "Effective
Date") by and between Mortgage Logic.com, Inc. ("Client"), with an address at
Two Venture Plaza, 2 Venture, Irvine, California 92618 and TrueLink, Inc.
("TrueLink"), with an address at 3026 South Higuera, San Luis Obispo, California
93401.
WHEREAS, TrueLink is in the business of (i) developing and licensing
interface software (the "Interface") to third parties; (ii) providing access to
credit bureau information to third parties through the Interface; and (iii)
providing certain technical support and programming customization services to
users of the Interface substantially similar to those specifically enumerated
herein (collectively "Support Services"); and
WHEREAS, TrueLink is licensed (or will be licensed) to provide access
through the Interface to automated underwriting systems made available by
certain third party investors or mortgage insurers (each such system is referred
to hereafter as a "System", and all systems for which TrueLink is licensed to
provide access are collectively referred to hereafter as the "Systems"); and
WHEREAS, Client desires to obtain access (for itself and for certain of
Client's correspondent broker customers) for communications with, and use of,
the Interface, including credit bureau information, by transmitting information
and data to and receiving information and data from the Interface and such
Support Services as Client may from time-to-time specify; and
WHEREAS, TrueLink is willing to provide to Client and to certain of
Client's correspondent broker customers access to the Interface and various
Support Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
a. Browser. The term "Browser" refers to a program used to
provide interactive, graphical access to sites on the World Wide Web.
b. Client Content. The term "Client Content" means all
text, words, names, likenesses, trademarks, logos, artwork, graphics, video,
audio, HTML, JAVA or other coding, domain names, image maps, links, software
applications, or other content that appear on, or are provided to TrueLink by or
on behalf of Client for uploading to or downloading from, the Web Site.
c. Client's Intellectual Property. The term "Client
Intellectual Property" means, client's designs, customer lists, formulas,
procedures, methods, apparatus, ideas, creations, improvements, works of
authorship, materials, processes, inventions, techniques, data, know-how,
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show-how, algorithms, programs, subroutines, tools, patents and patentable
materials, copyrights and copyrightable materials and trade secrets.
d. Credit Data. The term "Credit Data" means data of any
borrower or loan applicant of Client or BNC Mortgage, Inc., or any of their
affiliates, or any of their customers or brokers, provided that such data (i)
consists only of raw credit data regarding the creditworthiness of such a
borrower or loan applicant provided by third party credit repositories which
currently consists of TransUnion Credit Information Services, Equifax Credit
Information Services or Experien Information Services that is submitted,
transmitted or in any way sent through the Interface and is the later of (I) the
later of 31 days old from that date of receipt thereof by TrueLink or that date
on which such data is "archived" pursuant to TrueLink's internal operating
procedures consistently applied or (II) such date as may be agreed to between
Client and Keith Guy provided that the parties acknowledge that such parties
will discuss a date on which such data is similarly "archived" third party
credit repositories as referred in this subparagraph (d) and (ii) is not
combined, compared with or against, integrated or presented in any way with any
Client Proprietary Information.
e. Credit Reporting Agreement. The term "Credit Reporting
Agreement" means the various agreements between TrueLink and each of TransUnion
Credit Information Services, Experien Information Services and Equifax Credit
Information Services pursuant to which TrueLink is provided raw credit data from
time to time.
f. TrueLink's Intellectual Property. The term "TrueLink
Intellectual Property" means any or its intellectual property associated with
the Interface, including, without limitation, designs, formulas, procedures,
methods, apparatus, ideas, creations, improvements, works of authorship,
materials, processes, inventions, techniques, data, know-how, show-how,
algorithms, programs, subroutines, tools, patents and patentable materials,
copyrights and copyrightable materials and trade secrets.
g. Internet. The term "Internet" refers to the global
network of computers using the TCP/IP protocol for communication.
h. Web Site. The term "Web Site" refers to the World Wide
Web site on which Client Content will appear.
i. System Agreements. The term "System Agreements" means
any agreement pursuant to which TrueLink is licensed to provide access to a
System.
2. LICENSE.
a. Grant. TrueLink hereby grants to Client a non-exclusive
license to use the Interface in the ordinary course of its business of the
origination, underwriting, processing and funding of consumer finance
receivables in accordance with this Agreement. Notwithstanding the foregoing,
Client is not obligated to utilize the License and is free to acquire, develop,
license or otherwise utilize any other hardware, software system, design,
formula, procedure or trade secret to provide software and services similar to
the ones provided by TrueLink hereunder, so long as such
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software or services do not infringe upon any of TrueLink's Intellectual
Property. Nothing in the foregoing sentence is meant to affect in any way
Client's confidentiality obligations pursuant to Section 10 herein.
b. Scope. The license granted to Client pursuant to section
2(a) consists of the following rights:
i. Use and execution of the Interface on a
compatible software platform (as such compatibility specifications may be issued
by TrueLink from time to time); and
ii. Access to the Interface from multiple computer
located at those sites listed on Exhibit "A." Client may amend Exhibit "A" by
giving TrueLink written notice of the new sites.
c. Term. The license shall last until this Agreement is
terminated in accordance with section 12.
d. Ownership. Notwithstanding the license granted under
section 2.1, TrueLink retains all of its ownership and license rights in the
Interface.
3. HOSTING SERVICES. TrueLink will provide the following services
to Client (the "Hosting Services"):
a. Storage. ___ megabytes (MB) of disk space on TrueLink's
servers will be used for storage of the Web Site and any data files associated
with the Web Site.
b. Response Time. TrueLink agrees to use reasonable
commercial efforts, consistent with efforts provided to its other Clients to
ensure reasonable response times for users accessing the Web Site. Reasonable
response times shall be measured as follows: at a mutually agreed to time Client
will conduct three tests of the time that it takes to load the home page of the
Web Site from an IBM compatible computer (with a 16550 UART chip and an Intel
80586 300 MHZ processor running Windows 98 or NT and Microsoft Internet Explorer
(with the cache turned off) accessing the Web Site over a phone line using a
28.8K baud modem (the results of these tests will be reported to TrueLink upon
completion); reasonable response times means that at all times the time it takes
to load the home page of the Web Site using a properly configured IBM compatible
computer (as set forth above) accessing the Web Site over a phone line using a
28.8K baud modem shall in no event exceed twice the average of the three test
response times.
c. Bandwidth. ___ MB of monthly bandwidth (data transfer).
In the event that the response time is not reasonable as determined under
section 3.1 hereof, upon written notice from Client, TrueLink will, within a
reasonable period of time, use reasonable commercial efforts to increase the
bandwidth as necessary to make the response time reasonable.
d. Availability. The Web Site will be available Client's to
Internet users approximately 24 hours a day, seven days a week, normal
maintenance and unforeseen hardware or communications problems excepted. To
minimize server downtime during peak usage periods,
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TrueLink will take all reasonable actions to attempt to schedule routine
maintenance between the hours of 8:00 p.m. to 5:00 a.m. pacific standard time.
e. Access. Client will have access to Interface usage
statistics and raw log files in real time via the Interface.
f. Backups. TrueLink will backup the Interface and all data
files associated with it at least once each day and will store the backup
materials in a safe, secure location, suitable for magnetic media, and not at
the same location as TrueLink's server.
g. Internet Connection. TrueLink will maintain redundant
connections to the Internet on diverse backbones.
h. Domain Names. TrueLink shall provide assistance to
Client in securing one or more domain names, sub-domain names or URL's
associated therewith; provided that prior to TrueLink providing such assistance,
Client shall engage in an appropriate trademark search reasonably satisfactory
to TrueLink in order to establish that no domain name proposed by Client shall
infringe upon the trademark, service mark, name, or logo of any third party.
TrueLink will not be responsible for, or have any liability in connection with,
the operation of the Web Site with respect to online commercial transactions, or
for the transmission accuracy or completeness of any data or information to or
from the Web Site or through the Interface by Client or Client's customers.
i. Credit Bureau Information. TrueLink shall transmit such
credit data to Client through the Interface as may be permitted under the Credit
Repository Agreements and applicable law, each as in affect from time to tome,
and in accordance with the certain Credit Bureau Agreement between TrueLink and
Client dated of even date herewith. Subject to the foregoing, Client shall order
TrueLink a credit report on each borrower for which an underwriting approval is
requested through a System using the Interface. TrueLink makes no representation
or warranty, and shall have no liability for the truth or completeness of any
data so transmitted.
4. SUPPORT SERVICES. For a period of not less than ____ months,
TrueLink will make available to Client the services of at least one programmer
identified by TrueLink and reasonably acceptable to Client to provide such
Support Services as Client may reasonably request to TrueLink in writing for
purposes of permitting Client to use the Interface in accordance with the
License granted under Section 2 hereof and the other terms and conditions of
this Agreement.
5. COMPENSATION.
a. Client will pay TrueLink's fees for requested Hosting
Services and Support Services pursuant to the schedule of charges set forth on
Exhibits "A" and "B" attached hereto, (but not less than $____ per month for the
Hosting Services and $____ per month for Support Services). For any other
services agreed to between the parties, Client will pay TrueLink fees which will
be determined by the parties and will vary depending on the services utilized.
TrueLink will provide Client with an invoice for the requested Hosting Services
and Support Services and any other agreed-upon services on a monthly basis.
Invoices will be paid within 15 days of receipt.
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6. DOCUMENTATION AND DISPUTES. Client will be provided upon request
with documentation supporting the amount charged (other than the minimum monthly
fees listed in Section 4) and will be entitled to contest any charge (other than
the minimum monthly fees listed in Section 4), provided that Client timely pays
all contested amounts. TrueLink agrees that the costs for any Hosting Services
will not increase for a period of one year from the date of this Agreement and
that rates charged for Hosting Services will not exceed that charged by TrueLink
to any other party.
7. UNSOLICITED COMMERCIAL E-MAIL.
Client shall not engage in the practice commonly known as
"spamming" pursuant to the rights granted hereunder. This includes but is not
limited to, the following: posting an article or advertisement to more than ten
(10) news groups, forums, e-mail mailings lists or other similar groups or
lists; or sending unsolicited mass e-mailings to more than twenty-five (25)
e-mail users, if such unsolicited e-mailings provoke complaint.
8. COVENANTS AND WARRANTIES OF CLIENT
a. Compliance with Laws. Client will comply in all material
respects with applicable state and federal consumer credit reporting, privacy
and similar laws in connection with its use of the Interface.
b. Notification. Client shall not represent that loan
underwriting decisions related to loans originated by using the Interface are in
any way made by TrueLink in communicating all loan approvals or denials in
accordance with the foregoing.
c. Limitation on Access. Client will use reasonable
commercial efforts consistent with the protection of Client Proprietary
Information to restrict access to the Interface to its officers, employees, and
agents as may be approved by Client.
d. Use of Credit Data during the term of this Agreement.
Client hereby grants to TrueLink the nonexclusive worldwide right and license to
use, distribute, disseminate, license, resell, exploit, upload, display, copy
and store Credit Data subject to the limitations set forth in and in accordance
with the Non-Competition Agreement.
e. Representations of Client. Client represents and
warrants: (a) Client is the owner, valid licensee, or authorized user of the
Client Content, (b) to Client's actual knowledge the use of the Client Content
shall not infringe the copyright, trade secret, trademark or other proprietary
or intellectual property right of any third party, or constitute a definition,
invasion of privacy, or violation of any right of publicity or other third party
right, (c) the Client Content complies in all material respects with applicable
federal and state laws regarding posting or transmitting data which is
threatening, obscene, indecent, defamatory or in violation of report control
was, and (d) to Client's actual knowledge Client Content shall be free at the
time provided to TrueLink from viruses, worms, Trojan horses, and any other
malicious code.
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f. Spamming. TrueLink reserves the right at any time to
implement technical mechanisms to prevent Client engaging in illegal or obscene
activity or in "spamming," TrueLink reserves all legal and equitable rights in
enforcing this policy.
9. TRUELINK WARRANTIES. TrueLink represents and warrants that the
Interface and all related software (i) is designed to be used before, on and
after January l, 2000; (ii) will operate before, on and after January 1, 2000,
in the processing of dates, including without limitation calculating, comparing,
indexing and sequencing; and (iii) will successfully transition from December
31, 1999, to January 1, 2000, without human intervention. At Client's request,
TrueLink will provide sufficient evidence to demonstrate adequate testing of the
Interface and all related software to meet the foregoing requirements. Client
will provide reasonable access to TrueLink make any repairs necessary to comply
with this section and make any upgrades specified by TrueLink to so comply, all
at TrueLink's sole cost and expense, to the extent such upgrades were not
previously requested by Client pursuant to previously requested Hosting Services
or Support Services as set forth herein.
10. CONFIDENTIALITY.
a. Client acknowledges its responsibility to preserve the
confidentiality of certain technology, information, and documentation embedded
in the Interface and agrees to respect the confidential nature of the Interface.
Notwithstanding anything to the contrary contained in this Agreement, it is
understood and agreed that Client's confidentiality obligations relating to any
System and any data, documentation, or other output from such System shall
include those specified in any agreements between Client and the licensor of the
System.
b. TrueLink acknowledges its responsibilities to preserve
the confidentiality of all results of the Support Services, Client's
Intellectual Property, and subject to Section 8(d) herein Client Confidential
Information.
c. The parties hereto recognize that certain of the
information and documentation previously provided or that may in the future be
provided by a party to the other related to the matters covered by this
Agreement includes privileged, confidential and proprietary information
belonging to such party (a party's "Proprietary Information") which, if
disclosed, could result in substantial and irreparable harm to such party. For
information and documentation to qualify as a party's Proprietary Information,
such information must either be marked "Confidential" or otherwise identified in
writing as confidential at or prior to the time of its delivery to the other
hereunder. Notwithstanding the foregoing, the following matters will
automatically be deemed TrueLink Proprietary Information, whether or not
specifically marked or designated as such: (i) any implementation information or
user's guides for the Interface, (ii) any advance releases of TrueLink
promotional material, (iii) information concerning TrueLink's business plans and
strategies, and (iv) TrueLink's customer list. Notwithstanding the foregoing,
the following matters will be automatically deemed Client Proprietary
Information: Client's Intellectual Property, all results of the Hosting and
Support Services, including any information or materials of any type or nature,
tangible or intangible, disclosed by Client as a result of the TrueLink's
relationship with Client relating to the business, products or technology or
potential business, products or technology of Client, business plans, financial
information, borrower and loan data technical specifications, design concepts,
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technical information, customer lists, pricing information, marketing plans and
other similar information pertaining to Client. Each agrees to treat all of the
other Proprietary Information and all materials as strictly confidential, except
to the extent otherwise agreed by the other in writing. Except to the extent
otherwise agreed by both parties in writing, party further agrees to treat all
of the other Proprietary Information and all materials which it prepares using
or based on the other's Proprietary information or any portion thereof (the
"Derivative Documentation") as strictly confidential, including, without
limitation, any notes made and all reports prepared in connection with this
Agreement.
d. Notwithstanding the foregoing, the restrictions on
disclosure and other obligations set forth above with respect to Proprietary
Information or Derivative Documentation shall not apply when, and to the extent
that such Proprietary Information or Derivative Documentation: (i) is or becomes
generally available to the public through no fault of the receiving party; (ii)
was previously known to the receiving party free of any obligation to keep it
confidential; (iii) is subsequently disclosed to the receiving party by a third
party who may transfer and disclose such information without restriction and
free of any obligation to keep it confidential; (iv) is independently developed
by the receiving party or a third party without reference to or any use of the
disclosing party's proprietary information; or (v) is required to be disclosed
by the receiving party as a matter of law, provided that the receiving party
uses all reasonable efforts to provide the disclosing party with at least ten
days' prior notice of such disclosure.
11. STANDARD OF CARE. TrueLink shall perform the Hosting and Support
Services and any other agreed-upon services for Client with the same degree of
care, skill and prudence customarily exercised by it for its own operations.
12. INDEMNITY.
a. Client shall indemnify and hold TrueLink, its
affiliates, directors, officers, employees, agents and licensors harmless from
and against all claims, actions, expenses, losses, and liabilities, including
reasonable attorneys' fees, arising from or relating to the following: (i) any
claim arising out of any breach by Client of this Agreement, (ii) any claim or
demand resulting from any act or omission by Client or any customer of Client
granted access to the Interface by Client which constitutes a breach of or
default by TrueLink under any System Agreement or Credit Repository Agreement,
which breach or default has either not been cured or cannot be cured within the
applicable cure period and the consequences of which is that TrueLink will lose
material rights it has pursuant to said Agreements or a violation of any state
or federal law, rule or regulation (iii) any claim arising out of or relating to
the Web Site or Client Content (including, but not limited to, any claim
resulting from any content posted to the Web Site by Client or Client's
employees, agent or any customer of Client granted access to the Interface by
Client), without regard to any knowledge limitation or qualification that may be
contained in this Agreement, and (iv) injury or damage to person or property
caused by a product, service, or information, whether or not defective, that is
sold, distributed or transmitted from the Web Site.
b. TrueLink shall indemnify and hold Client harmless, its
affiliates, directors, officers, employees, agents and licensors harmless from
and against all claims, actions, expenses, losses, and liabilities, including
reasonable attorneys' fees, arising from or relating to any
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claim arising out of any breach by TrueLink of this Agreement or any failure by
TrueLink in the performance of any of its obligations or agreements hereunder.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRUELINK DISCLAIMS ANY
AND ALL EXPENSES WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES OF MERCHANTABILITY OR FOR ANY MATTER RELATING TO THE ACCURACY
OR COMPLETENESS, OR TIMING OF TRANSMISSION OF ANY DATA SUBMITTED THROUGH THE
INTERFACE OR TO OR FROM THE WEB SITE.
IN NO EVENT SHALL TRUELINK'S LIABILITY FOR ANY MATTER ARISING UNDER OR
RELATED TO SECTION 3, 4, 7 AND 11 THIS AGREEMENT (OTHER THAN DUE TO A BREACH
RESULTING FROM TRUELINK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) EXCEED THE
TOTAL COMPENSATION PAID FOR HOSTING AND SUPPORT SERVICES OVER THE IMMEDIATELY
PRECEDING 12 MONTHS PERIOD.
13. TERM OF AGREEMENT. This Agreement will take effect on
the Effective Date and remain in effect for a period of 1 year; provided, that
Sections 2 and 3 level shall terminate promptly upon (a) any action or omission
by Client or any of its customers which constitutes a breach of or default by
TrueLink under any System Agreement or Credit Repository Agreement, which breach
or default has either not been cured or cannot be cured within the applicable
cure period and the consequences of which is that TrueLink will lose material
rights it had pursuant to said Agreements or (b) any violations or breach by
Client of Sections 8a - 8c. This Agreement shall renew automatically thereafter
for successive one year periods until terminated pursuant to Section 12 herein
or unless either Client or TrueLink deliver to the other written notice of
intent not to renew no later than thirty (30) days prior to the end of said
year. If Client decides to discontinue its Hosting Service, Client is
responsible for arranging for a new name server within 30 days. In case of
discontinued Service, Client shall retain full ownership of all domains
associated with Client and Client Content. If Client decides to discontinue
Hosting Service, Client is responsible for arranging for a new hosting
environment within 60 days.
14. TERMINATION. Subject to Section 4 hereof, TrueLink will
continue to provide the requested Hosting Services and Support Services until
the last day of the month following the month in which Client provides TrueLink
with a written notice of its election to terminate this Agreement.
15. ASSIGNMENT OR TRANSFER. Neither party shall assign or
transfer any of its rights under this Agreement without the prior written
approval of the other party, except no such approval shall be required for an
assignment to a financially responsible affiliate.
16. MODIFICATIONS. This Agreement may be amended at any time
and from time to time, but any amendment must be in writing and signed by the
party to be charged.
17. WAIVER. No waiver of any provision of this Agreement
will be valid unless it is in writing and signed by the party against whom it is
sought to be enforced. No waiver at any time of any provision of this Agreement
will be deemed a waiver of any other provision of this
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Agreement at that time or a waiver of that or any other provision of this
Agreement at any other time.
18. UNDEFINED TERMS. Terms that are not specifically defined
in this Agreement are used as set forth in the California Uniform Commercial
Code.
19. POWER AND AUTHORITY. Each party represents to the other
that it has all necessary power and authority to enter into and perform its
obligations under this Agreement. The individuals executing this Agreement on
behalf of each party represent that they have authority to do so.
20. NOTICES. All notices required or permitted to be sent
under this Agreement shall be in writing and shall be sent to the parties at the
addresses set forth in the preamble of this Agreement, or to such other
addresses and to such other individuals of which either party may notify the
other in a notice which complies with the provisions of this subsection. All
notices will be deemed given (i) when delivered by hand, (ii) one (l) day after
delivery to a reputable overnight carrier, or (iii) three (3) days after
placement in first-class mail, postage prepaid, return receipt requested.
21. CUMULATIVE RIGHTS. The rights and remedies of the
parties hereunder are cumulative and are in addition to, and not in lieu of, all
rights and remedies available at law and in equity.
22. CAPTIONS. The captions in this Agreement are included
for convenience of reference only and will not be construed to define or limit
any of the provisions contained herein.
23. JOINT DRAFTING AND NEUTRAL CONSTRUCTION. This Agreement
is a negotiated document and shall be deemed to have been drafted jointly by the
Parties, and no rule of construction or interpretation shall apply against any
particular party based on a contention that the Agreement was drafted by one of
the Parties including, but not limited to California Civil Code section 1654,
the provisions of which are hereby waived. This Agreement shall be construed and
interpreted in a neutral manner.
24. VALIDITY OF AGREEMENT. If any term, provision, covenant,
or condition of this Agreement is held by a court of competent jurisdiction to
be invalid or unenforceable, the rest of the Agreement shall remain in full
force and effect and shall in no way be affected or invalidated. The provisions
of Sections 1 and 5 through 30 this Agreement will survive the expiration or
termination of this Agreement.
25. ENTIRE AGREEMENT. This Agreement, including all
Exhibits, contains the entire agreement of the Parties relating to the rights
granted and obligations assumed herein. Any oral representations or
modifications concerning this instrument shall be of no force or effect unless
contained in a subsequent written modification signed by the party to be
charged.
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26. APPLICABLE LAW. This Agreement shall be governed,
construed and interpreted in accordance with the laws of the State of California
(without respect to principles of conflicts of law).
27. VENUE. Any and all disputes between the parties that
cannot be settled by mutual agreement shall be resolved solely and exclusively
in the state or federal courts located within San Luis Obispo County,
California, and each party consents to the jurisdiction of such courts and
irrevocably waives any objections thereto, including without limitation, on the
basis of improper venue or forum non conveniens.
28. ATTORNEY FEES AND COSTS. In any action brought under
this Agreement, the prevailing party shall be entitled to recover its actual
costs and attorney fees pursuant to California Civil Code section 1717 and all
other litigation costs, including expert witness fees, and all actual attorney
fees and litigation costs incurred in connection with the enforcement of a
judgment arising from such action or proceeding. The provisions of the preceding
sentence shall be severable from the provisions of this Agreement and shall
survive the entry of any such judgment.
29. NO PARTNERSHIP OR JOINT VENTURE. The parties hereto
understand and agree that TrueLink is furnishing its services and the Interface
to Client on its own behalf and not on behalf of the System providers. Client
understands and agrees that authorization to use the System must be obtained
from the System providers. In no event will TrueLink offer the Systems without
such authorization from the System providers. Nothing contained herein will be
construed to create any association, partnership, joint venture or any agency
relationship between the parties hereto.
30. FORCE MAJEURE. TrueLink will be excused from delays in
performing or from failing to perform its obligations under this Agreement to
the extent the delays or failures result from causes beyond the reasonable
control or TrueLink. However, to be excused from delay or failure to perform,
TrueLink must act diligently to remedy the cause of the delay or failure.
Dated: TRUELINK, INC.
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By
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Title:
Dated: MORTGAGE LOGIC.COM, INC.
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By
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Title:
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Exhibit "A"
Charges for Hosting Services
[To be agreed to by and between TrueLink and Client prior to the Closing]
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Exhibit "B"
Charges for Support Services
[To be agreed to by and between TrueLink and client prior to the Closing]
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