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EXHIBIT 10.26
ABA NET BRANCH WEB SITE DEVELOPMENT AGREEMENT
This Affiliated Business Arrangement Net Branch Web Site Development
Agreement ("Agreement") is made this 1st day of March, 2000, by and between
BuildNet Financial Services, Inc., a North Carolina Corporation with its
principal place of business located at 4813 Emperor Boulevard, Suite 130,
Durham, North Carolina 27703 ("BuildNet") and mortgage.com, inc., a Florida
corporation, with its principal place of business located at 1643 N. Harrison
Parkway, Sunrise, FL 33323 ("MDC").
RECITALS
WHEREAS, MDC develops web sites for companies engaged in the mortgage
origination business(the "MDC Site") on the Internet (example located at
www.onlinecap.com) through which it or its clients offer residential mortgage
services and products ("MDC Products"); and
WHEREAS, MDC offers various programs which enable homebuilders to
participate in the revenues associated with mortgage loan origination services.
Such programs are generally known as Net Branch programs , but within the
mortgage finance industry are commonly known as Affiliated Business Arrangement
(as that term is defined in The Real Estate Settlement Procedures Act or RESPA)
Programs ("ABA Programs").
WHEREAS, BuildNet and MDC wish to establish a version of the MDC Site
(the "ABA Site") through which users of the ABA Site (defined as customers of
home builders or developers and hereafter known as "Consumers") would have the
opportunity to purchase residential permanent mortgage products offered by MDC
or the homebuilder.
AGREEMENT
NOW, THEREFORE, MDC and BuildNet agree as follows:
1. PROMOTION OF ABA, TERM, EXCLUSIVITY, PRICING, SITE DEVELOPMENT,
HOSTING, MAINTENANCE AND CUSTOMER SERVICE
1.1. ABA PROMOTION OF ABA PROGRAMS:
As more particularly set forth in Section 1.5, MDC grants to
BuildNet the exclusive right to promote and market the MDC ABA Programs
to homebuilders, as hereinafter defined, nationwide, for the term of
this Agreement. MDC agrees to (i) provide training with respect to the
content of the ABA Programs to BuildNet sales staff; (ii) maintain a
sales force to answer questions and generally be available for joint
sales calls with BuildNet sales staff during regular business hours.
MDC shall not unreasonably withhold approval of any homebuilder
presented to MDC by BuildNet to participate in the ABA Programs with
MDC.
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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1.2. BUILDNET PARTICIPATION
Nothing contained in this Agreement shall limit the right of
BuildNet to own one or more Net Branch Managers, (as that term is
defined in the attached Standard MDC Net Branch Agreement), engaged by
MDC pursuant to a Net Branch Agreement. A finalized Standard MDC Net
Branch Agreement shall be attached hereto as Exhibit A (the "Net Branch
Agreement") within sixty (60) days from the effective date of this
Agreement.
1.3. PROMOTION/MARKETING
BuildNet shall use commercially reasonable efforts to develop
and implement a sales staff to promote the MDC ABA Programs. BuildNet
shall provide a detailed budget and marketing plan, attached as
Schedule 1, (the "Schedule 1 Plan") outlining the commitment of
BuildNet to effectuate a national sales effort to promote the sale of
the ABA Programs. Notwithstanding the previous sentence, in the event
the Schedule 1 Plan is not completed before signing the Agreement, it
shall be provided to MDC for its written approval within sixty (60)
days of the effective date hereof; in the event the Schedule 1 Plan is
not approved by MDC, MDC shall give BuildNet thirty (30) days written
notice of disapproval setting forth in reasonable detail the reasons
for disapproval (the "MDC Objection"). In the event the Schedule 1 Plan
is not amended by BuildNet in conformity with the Objection, either
party shall have the right to terminate this Agreement upon thirty (30)
days written notice of the date of the MDC Objection. Moreover, at any
time during the Term, either party shall have the right to propose a
reasonable modification to the Schedule 1 Plan and such modification
may not be unreasonably denied by such other party. The Schedule 1 Plan
shall include, but not be limited to, the following
a. A marketing strategy overview; and
b. Completed marketing materials describing the three
ABA Program models for distribution to the sales
staff; and
c. Creation of a sales incentive program for the
BuildNet sales force; and
d. Scheduling of trade show exhibits for the year 2000;
and
e. Completed builder launch kit for each ABA Program
model; and
f. BuildNet sales staffing estimates.
1.4. TERM
The Term of this Agreement shall commence as of the date set
forth above and end on the last day of the twenty-fourth (24th)
calendar month following the month in which the ABA Site becomes active
(the "Deployment Date") subject to renewal as follows: The Term shall
automatically be extended for additional consecutive twelve month (12)
renewal periods (each a "Renewal Term") unless, (i) either party
provides written notice to the other party at least thirty (30) days
prior to expiration of the Term, or
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any renewal thereof, of its desire not to renew or (ii) at MDC's sole
discretion if BuildNet fails to meet such performance criteria as set
forth in Section 1.4(a), and 1.4(b) herein so long as MDC has not
contributed in any way to BuildNet's failure to meet said performance
criteria as further described in Section 1.4.3. Any reference herein to
the "Term" shall include each Renewal Term. This Agreement may be
terminated upon mutual agreement of the parties or upon a material
breach by either party not cured within the time set forth in Section
5.13 Notwithstanding termination of this Agreement by MDC for reasons
other than for breach of contract, BuildNet shall be entitled to
compensation at the rates provided herein (or in such Net Branch
Agreements that may be executed pursuant to this Agreement and which
may remain in place in spite of the termination of this Agreement) for
all transactions, as hereinafter defined, in process.
a. During the first twelve months from the Deployment
Date ("First Year"), BuildNet shall establish or have
a signed letter of intent (LOI) with a minimum of [*]
Net Branches between residential home builders and
MDC using the attached Net Branch Agreement or LOI.
In addition, MDC shall receive a minimum of [*], as
hereinafter defined, in the First Year from any
combination of Net Branches established by BuildNet
under the terms of this Agreement. For purposes of
this Agreement, the term [*].
b. During the thirteenth (13th) through the
twenty-fourth (24th) month from the Deployment Date
("Second Year"), BuildNet shall establish or have a
signed letter of intent (LOI) with a minimum of [*]
Net Branches between residential home builders and
MDC using the attached Net Branch Agreement or LOI.
In addition, MDC shall receive a minimum of [*] in
the Second Year from any combination of Net Branches
established by BuildNet under the terms of this
Agreement.
c. MDC recognizes that the commitments made in Sections
1.4(a) and 1.4(b), above are contingent upon not only
BuildNet's performance under this Agreement, but also
upon MDC's delivery of basic fulfillment products and
services including, but not limited to customer
services, web site accessibility, and competitive
products and pricing.
d. Should this Agreement be terminated, MDC agrees that
the obligations it has through any Net Branch
Agreement shall remain in full force and effect for
the term of said Net Branch Agreement. BuildNet shall
have, after any termination, the sole discretion to
select another provider of services similar to that
of MDC for any Net Branch Agreements entered into
hereunder. Upon implementation of such a provider,
MDC's obligations to any Net Branch shall cease other
than for outstanding loan and application
commitments.
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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MDC shall provide reasonable assistance in
transitioning Net Branches to the new provider.
1.5. EXCLUSIVITY AND NON COMPETE.
a. Except as to existing clients of MDC as set forth on
Exhibit B, BuildNet shall have the exclusive right to
market, advertise and promote MDC's ABA Programs and
MDC Products to Homebuilders, and, accordingly, for
the term hereof, BuildNet will not market, advertise,
promote or offer residential mortgage products of any
mortgage lenders, other than those of MDC, to
Homebuilders. Notwithstanding the foregoing, BuildNet
may market, promote and advertise General Electric's
mortgage products and services to any party including
Homebuilders. Notwithstanding the foregoing, MDC
clients listed on Exhibit B, who [*] in BuildNet
after execution of this Agreement will automatically
be removed from Exhibit B. Homebuilder is a natural
person or legal entity licensed by all applicable
federal, state and local government authority and
whose principal business is to construct new homes
for sale to the public in the United States.
b. In the event that a Homebuilder desires to purchase
from MDC any residential mortgage services offered by
MDC including but not limited to (i) mortgage banking
services such as originating, processing,
underwriting, closing, funding and selling loans, or
(ii) the development, marketing, sale and operating
of Web Sites for consumers to obtain residential
loans or (iii) the development, marketing, sale and
operation of private label web sites or (iv) net
branch operations, point of sale kiosks and rapid
response centers or any other internet technology
related services, which services are hereinafter
collectively referred to as "Other Services" and in
the event such Other Services are not available
through the (i) the ABA Programs or (ii) a program
jointly developed by BuildNet and MDC that in
BuildNet's reasonable sole discretion meets the
requirements of such Homebuilder, MDC may offer such
services to any such Homebuilder notwithstanding the
Exclusivity and Non Compete provisions set forth
above.
c. For the term of this Agreement, MDC shall not enter
into any agreements with any entity that is a
competitor of BuildNet, as hereinafter defined (the
"BuildNet Competitors"), to provide the ABA Programs
or MDC Products.. BuildNet shall provide to MDC an
initial list, which may be amended from time to time,
of all BuildNet Competitors and such list shall be
set forth on Exhibit C and made a part of this
Agreement. Notwithstanding the foregoing, MDC shall
use its best efforts to identify potential MDC
clients, not on the list in Exhibit C, who may also
be competitors of BuildNet and seek BuildNet approval
before entering into an agreement with said client to
provide the ABA Programs or MDC Products offered
hereunder. For purposes of this Agreement, the term "
BuildNet Competitor" shall mean (i) a Homebuilder
that offers mortgage services to its clients, other
than those excluded pursuant
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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to Section 1.5(a) and Exhibit B, or (ii) an entity
which offers back office administrative or
transaction processing software for Homebuilders with
the same or similar functionality as the proprietary
software of BuildNet which includes, but is not
limited to, purchase ordering, invoicing, scheduling
and job costing in connection with the construction
of homes, or (iii) any person or entity, which is not
a Homebuilder, which over the previous three fiscal
years has obtained more than 25% of its total
mortgage revenues through leads generated from
Homebuilders as demonstrated by audited or if
unavailable, unaudited financial statements.
d. Notwithstanding anything contained herein to the
contrary, nothing contained herein shall limit the
right of MDC to enter into any agreement to provide
any services or products, including the services and
products offered hereunder to any person or entity,
which is not a Homebuilder, which over the previous
three fiscal years has obtained no more than 25% of
its total mortgage revenues through leads generated
from Homebuilders as demonstrated by audited or if
unavailable, unaudited financial statements. In
addition, MDC shall have the right to enter into an
agreement with any party including a BuildNet
Competitor relating solely to the sale of debt or
equity securities of MDC.
1.6. MDC MORTGAGE PRODUCTS AND PRICING
MDC shall have the right to decide which residential mortgage
products it will offer to Net Branches , and has sole discretion to
approve or reject any credit applications it receives, and to determine
the criteria on which these decisions will be based. MDC shall set the
pricing and lender fees of the MDC Products on the ABA Site equal to
those offered to MDC retail loan originators working in similar
environments (e.g. located on the premises of a homebuilder or
Realtor). Such pricing may be adjusted in writing by mutual agreement
of the parties from time to time. Notwithstanding the foregoing, MDC
agrees to cooperate and confer as may be reasonably requested by
BuildNet regarding mortgage product selection.
1.7. MDC ABA SITE DEVELOPMENT, HOSTING AND MAINTENANCE
MDC shall create, host and maintain the ABA Site. The parties
agree that the information and data contained on the ABA Site pages
shall be physically located on a web server owned and/or operated by
MDC. MDC agrees to host and maintain the ABA Site pursuant to the
standards set forth in Exhibit D. MDC and BuildNet will confer and
mutually agree on ABA Site page design, provided that such pages shall
be consistent with the MDC Site design, navigation and look and feel.
MDC shall incorporate some or all of BuildNet Materials, as well as any
other text, graphics, animation, scripts or other materials deemed
necessary or desirable by both parties. BuildNet may request that MDC
modify the design of the ABA Site pages. MDC shall respond to such
reasonable requests to improve, change or alter the ABA Site and
provide time frames in which such requests will be completed. MDC shall
not unreasonably reject any such request by BuildNet to modify the
design of the ABA Site pages. Any additional customization of
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the ABA Site, pursuant to a written work order signed by BuildNet,
shall be billed to BuildNet by MDC at a rate of [*].
a. Site identification and workflow. The home page of
the ABA Site shall reference BuildNet or the
homebuilder as the provider of the site.
b. NET BRANCHES: During the application process,
Consumers will be notified on the site and in writing
that the lender for the ABA site is First Mortgage
Network, a trade name used by MDC to conduct its
mortgage business and the entity that has been
selected to provide application, processing,
underwriting and closing services for BuildNet
Consumers. Customer service and loan processing for
loan applications originated on the ABA Site shall be
conducted under the name of First Mortgage Network.
Phone calls fielded from the 800 number featured on
the ABA Site shall be answered "BuildNet Financial,
First Mortgage Network." Final closing documents,
including but not limited to the Note and Deed of
Trust, shall identify the lender as "mortgage.com,
inc. dba First Mortgage Network." Consumers will be
required to sign an Affiliated Business Arrangement
disclosure as mandated by the Real Estate Settlement
Procedures Act (RESPA) which indicates that the
homebuilder will receive a financial benefit as a
result of the Consumer using the Net Branch's
services to obtain a mortgage. MDC reserves the right
to modify the ABA Site identification and workflow
described in this paragraph as may be required from
time to time by state or federal licensing and
regulatory requirements.
1.8. MAINTENANCE
Information maintained on the ABA Site pages shall be updated
on a regular basis to reflect the changes in functionality exhibited on
the MDC Site. The ABA Site shall contain functionality to originate
prime credit loans (defined as conforming to either Fannie Mae/Freddie
MAC, underwriting guidelines or jumbo or portfolio loans to non-agency
guidelines), sub-prime credit loans (defined as not conforming to
Fannie Mae or Federal Home Loan Mortgage Corporation underwriting
guidelines) and home equity lines of credit. MDC shall update and
maintain the ABA Site for all non-routine material modifications,
including, but not limited to, upgrades, changes to underlying source
code, web server maintenance, and debugging. BuildNet shall have the
right to perform minor and routine weekly ABA Site maintenance. MDC
shall train BuildNet personnel to perform such maintenance and MDC
shall provide remote access to the ABA Site to allow BuildNet to
perform such services.
1.9. CUSTOMER SERVICE & TECHNICAL SUPPORT INQUIRIES.
All customer service or technical support inquiries shall be
directed to an email address and phone numbers specified by MDC, and
MDC shall respond to all associated first-line customer service and
technical support inquiries from Consumers. MDC shall provide such
technical support at service levels in accordance with its standard
policies and procedures, as set forth in Exhibit E, but shall provide
support not less than an
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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amount that is commercially reasonable and customary in the industry.
Both parties will assign content project managers to manage the
development and maintenance, which results from the execution of this
Agreement.
1.10. BUILDNET PERMISSIONS
BuildNet authorizes MDC to refer in MDC's advertising and
promotion to the fact that the ABA Site was developed and hosted by
MDC, provided that any such statement (a) does not include any
trademarks, service marks, design marks, symbols and/or other indicia
of origin of BuildNet other than the name of BuildNet except as
provided in the BuildNet Materials herein; and (b) does not disparage
BuildNet, its products, services or affiliates. Within sixty (60) days
from the date of this Agreement, MDC shall shall transfer the domain
name registration rights to the domain names, www.Bldnetfin.com and
www.Buildnetfin.com to BuildNet and such addresses shall then be
considered part of the BuildNet Materials. BuildNet hereby grants to
MDC, its affiliates and agents the nonexclusive, nontransferable,
non-assignable (except as provided in Section 5.1) right during the
Term to use (i.e., to copy, transmit, distribute, display and perform
both privately and publicly) BuildNet's name, the name of the BuildNet
web sites (including www.BuildnetFinancial.com,
www.BuildnetFinancial.org and www.BuildnetFinancial.net), and other
related textual and graphic material that are provided by BuildNet to
MDC for the express purpose of inclusion on any ABA Site. All use of
the BuildNet Materials hereunder shall inure to the benefit of BuildNet
and shall not create any rights, title or interest in them for MDC. No
other use of BuildNet's names, trademarks, services marks, design
marks, symbols and/or other indicia of origin will be made by MDC for
any purpose without the prior written approval of BuildNet. As between
MDC and BuildNet, BuildNet owns and shall continue to own, exclusively,
all right, title and interest (including, without limitation, all
rights provided under the law of copyright and trademark) in and to the
BuildNet Materials and all names, trademarks, service marks, URL
addresses, design marks, symbols and/or indicia of origin therein
throughout the world and in perpetuity, subject to the permissions
granted in this Agreement. MDC agrees that any use of the BuildNet
Materials, by MDC shall be subject to review and approval in advance by
BuildNet. BuildNet shall retain the right, in its sole discretion, to
demand immediate modification, revision or cessation of the use of
BuildNet Materials in the event that BuildNet determines that the
BuildNet Materials are being used improperly. Without limiting the
generality of the foregoing, MDC shall not use BuildNet Materials in a
manner that BuildNet determines to be inappropriate or unacceptable.
2. FEES
2.1. TRANSACTIONS
The fees payable to MDC by the Consumer for processing,
underwriting and closing a mortgage loan transaction shall total [*],
not including any third party fees, appraisal fees, or credit reporting
fees. In addition, the Net Branch shall pay BuildNet a management fee.
BuildNet shall then pay MDC a fee of [*] as a Membership Fee for the
technology services provided pursuant to the Net Branch
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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Agreements, (i) MDC shall be responsible for any salary and commissions
payable to Net Branch employees and (ii) the Net Branch Manager will
retain any origination fee that it negotiates with a Consumer as part
of its revenue, and the Net Branch Manager shall earn any Net Branch
profits as more particularly described in the Net Branch Agreement in
Exhibit A. Such fees may be amended from time to time as mutually
agreed to in writing by both parties.
2.2. ABA SITE DEVELOPMENT AND FEE
BuildNet agrees to pay MDC a fee of [*] for the development of
the ABA Site ("ABA Site Fee"). It is acknowledged by both parties that
BuildNet has already paid (50%) of the ABA Site Fee payable and due
hereunder. The ABA Site Fee shall cover the development of the initial
ABA Site. Upon notification of the completion of the initial ABA Site,
(as defined herein), the balance of the ABA Site Fee shall become due
and payable. Each ABA Site developed for a new Net Branch ("Subsequent
Sites") shall follow the same template as and be substantially similar
to the initial ABA Site. For the purpose of this section "completion"
shall mean development of the ABA Site by MDC which is sufficient for
the conduct of business contemplated under this Agreement. The fee
payable by BuildNet to MDC for evaluating and approving a new Net
Branch and developing a Subsequent Site for that entity shall be [*]
per site. Any material modifications requested in writing by BuildNet
other than name and logo shall be billed by MDC to BuildNet at a rate
of [*].
2.3. ABA SITE HOSTING FEE
BuildNet agrees that beginning with the first month following
the Deployment Date of the initial ABA Site, it shall pay MDC a web
site hosting fee ("Hosting Fee") in the sum of [*] for the Term hereof.
There shall be no hosting fee for any Subsequent Site developed under
the terms of this Agreement.
2.4. AUDITING
Either party shall have the right, at its expense, upon thirty
(30) business days written notice and during the other party's normal
business hours, to inspect and audit the site logs of the ABA Site or
the directly relevant books and records of the other party for the
purpose of verifying the performance, any reports, information or
payments due under this Agreement. Any such audit shall be conducted by
a firm of independent certified public accountants reasonably
acceptable to the other party. In the event any shortfall in payment to
either party is found which exceeds five percent (5%) of the total due
under this Agreement for the reporting period audited, the party
asserting such shortfall shall be reimbursed by the other party for the
reasonable costs incurred while conducting such audit. plus all amounts
then due plus interest at Prime.
2.5. REPORTING AND PAYMENTS
Within fifteen (15) days following the close of each calendar
month during the Term, each party shall pay the other all amounts due
for such previous month and shall
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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submit with payment a statement providing in reasonable detail the
basis for such payment. BuildNet shall report to MDC, on a regular
basis, regarding the progress of its online advertising campaign and
promotional efforts.
2.6. TRACKING
MDC shall track all visitors to the co-branded sites using the
unique URL associated with each site, as is currently done on all MDC
sites. Additional levels of tracking can be accomplished using "sender
codes", which are also currently in use on all MDC sites. MDC shall
cooperate reasonably with BuildNet to identify feasible, lawful,
available alternate means to identify users if the current methods used
for this purpose do not reliably identify and track the source of
consumer traffic to the sites. Notwithstanding the foregoing, MDC shall
separately track and report all electronic mail leads generated by the
BuildNet inquiry forms.
a. Within 30 days of execution of this Agreement, MDC
shall provide for review and approval a detailed
description of the tracking methodology and
technology used under this Section. If deficiencies
are found by BuildNet in the methodology and
technology, MDC shall make reasonable efforts to
correct the deficiencies and shall submit for
BuildNet's review the corrective measures taken.
b. BuildNet shall have the right to periodically review
on 15 days notice MDC's tracking methodology and
technology. This review shall take place no more
frequently than semi-annually or upon reasonable
belief that the tracking technology or methodology is
flawed or not functioning correctly.
c. MDC shall notify BuildNet of any change in the
tracking methodology or technology used under this
Section at least fifteen (15) business days before
such change is made. BuildNet shall have the right of
prior approval for any change that it reasonably
believes shall impair the obligations of tracking
under this Section.
3. CONFIDENTIAL INFORMATION
3.1. DEFINITION
As used herein, "Confidential Information" shall mean all oral
or written information, of whatever kind and in whatever form, relating
to past, present or future products, software, research, development,
inventions, processes, techniques, designs or other technical
information and date, and marketing plans (including such information
of third parties that a party hereto is obligated to hold as
confidential), provided that such information has been reasonably
identified as or could be reasonably considered to be proprietary or
confidential, that either party (a) may have received prior to the date
of this Agreement, whether directly from the other or indirectly from
third parties, or (b) may receive hereunder from the other. The terms
of this Agreement shall be deemed Confidential Information.
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3.2. OBLIGATION
Each party agrees that, with respect to its receipt of
Confidential Information of the other party it shall:
a. use the same care and discretion to prevent
disclosure of such Confidential Information as it
uses with similar Confidential Information of its own
that it does not desire to disclose but in no even
with less than a reasonable degree of care;
b. accept such Confidential Information and use such
Confidential Information only for the purposes
permitted hereunder; and
c. restrict disclosure of Confidential Information
solely to those of its employees and agents who have
a need to know and are obligated not to disclose such
Confidential Information to any third parties.
3.3. EXCEPTIONS
The restrictions of Section 3.2 shall not apply to information
that:
a. is or hereafter becomes part of the public domain
through no wrongful act, fault or negligence on the
part of the recipient;
b. the recipient can reasonably demonstrate, is already
in its possession and not subject to an existing
agreement of confidentiality;
c. is received from a third party without restriction
and without breach of this Agreement;
d. was independently developed by the recipient as
evidenced by its records; or
e. recipient is required to disclose pursuant to a valid
order of a court or other governmental body;
provided, however, that the recipient shall first
have given notice to the disclosing party and shall
give the disclosing party a reasonable opportunity of
at least 10 days to interpose an objection or obtain
a protective order requiring that the confidential
Information so disclosed be used only for the
purposes for which the order was issued.
3.4. RETURN
All notes, data, reference manuals, sketches, drawings,
memoranda, electronic media, records in any way incorporating or
reflecting any Confidential Information of the disclosing party and all
proprietary rights therein shall belong exclusivity to such disclosing
party and the recipient agrees to return all copies of such materials
to the disclosing party immediately upon request or upon termination or
expiration of this Agreement.
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3.5. CONSUMER CREDIT INFORMATION
MDC hereby agrees that all information, excluding Social
Security Numbers and credit reports, provided by Consumers who access a
mortgage.com web site or similar mortgage.com services either from (i)
a BuildNet owned or operated web site or (ii) a BuildNet software
product, shall be the sole and exclusive property of BuildNet (the
"BuildNet Consumer Information"). Without limiting the foregoing,
"BuildNet Consumer Information" shall include both completed
applications and incomplete applications and/or web site hit and use
information. MDC agrees that it shall not use the BuildNet Consumer
Information for any purpose, except as permitted in the limited license
granted by this Section, or disclose such information to any third
party. BuildNet agrees that it shall use the BuildNet Consumer
Information only for purposes that are consistent with the BuildNet
Privacy policy, as it may be amended from time to time in the sole
discretion of BuildNet. BuildNet hereby grants to MDC a limited license
to use the BuildNet Consumer Information for the sole purpose of
performing its services under this Agreement. MDC shall supply BuildNet
with the BuildNet Consumer Information on a monthly basis or more
frequently as agreed to between the parties. Both parties agree to
comply with all State and Federal laws governing the confidentiality of
consumer credit information and to maintain confidentiality of this
information. It is mutually agreed and understood that BuildNet under
this Agreement is not a lender or engaged in any way in lending
activities, and is solely promoting and advertising MDC's Products to
Consumers. MDC will comply with all applicable Federal and State laws,
including legal requirements for disclosures, notices and reporting.
4. LIABILITY
4.1. PRODUCT RESPONSIBILITY
MDC and BuildNet acknowledge that neither advocates or
endorses the purchase or the use of any of the products or services
offered by the other through their respective World Wide Web sites or
otherwise, nor do they guaranty the quality, fitness or results of any
such products or their compliance with any law or regulation.
4.2. REPRESENTATIONS AND WARRANTIES OF MDC
MDC represents and warrants that: (a) MDC has the right to
enter into this Agreement and to grant the rights and licenses granted
herein; (b) the ABA Site and the reproduction, distribution,
transmission, public performance and public display of the MDC Material
in connection with the ABA Site do not and will not (i) invade the
right of privacy or publicity of any third person, (ii) contain any
libelous, obscene, indecent or otherwise unlawful material, or (iii)
infringe any patent, copyright or trademark right in any jurisdiction,
or (iv) contravene any other rights of any third person; (c) MDC has
received no notice of such invasion, violation or infringement of
rights; except that the representations and warranties in subsections
(b) and (c) above shall not apply to User Content or Product
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Content. Instead, MDC agrees that it shall use commercially reasonable
efforts to monitor and edit such User Content and Product Content and
shall use commercially reasonable efforts to promptly remove any User
Content and Product Content from the ABA Site which fails to conform
with the warranties and representations in subjection (b) above. "User
Content" means content uploaded by parties other than MDC; "Product
Content" means content contained in products sold by parties other than
MDC. MDC shall provide commercially reasonable customer service to
consumers in connection with the BuildNet site, subject to the cure
provisions set forth in Section 5.13.
4.3. REPRESENTATIONS AND WARRANTIES OF BUILDNET
BuildNet represents and warrants that: (a) BuildNet has the
right to enter into this Agreement and to grant the rights and licenses
granted herein; (b) the use of BuildNet Materials as permitted herein
do not and will not (i) invade the right of privacy or publicity of any
third person, (ii) contain any libelous, obscene, indecent or otherwise
unlawful material, or (iii) infringe any patent, copyright or trademark
right in any jurisdiction; or (iv) contravene any other rights of any
third person; and (c) BuildNet has received no notice of such invasion,
violation or infringement of rights.
4.4. BREACH OF REPRESENTATION, WARRANTY OR COVENANT AND
INDEMNIFICATION
Each party to this Agreement shall defend, indemnify and hold
harmless the other party and each of its officers, directors, employees
and agents (each, an "Indemnitee") against and in respect of any loss,
debt, liability, damage, obligation, claim, demand, judgment or
settlement of any nature or kind, known or unknown, liquidated or
unliquidated, including without limitation all reasonable costs and
expenses incurred (legal, accounting or otherwise) (collectively
"Damages") arising out of, resulting from or based upon any claim,
action or proceeding by any third party alleging facts or circumstances
constituting a breach of the representations and warranties of this
Section 4 made by such indemnifying party (the "Indemnifying Party").
4.5. PROCEDURES FOR INDEMNIFICATION
Whenever a claim shall arise for indemnification under this
Section 4, the relevant Indemnities, as appropriate, shall promptly
notify the Indemnifying Party and request the Indemnifying Party to
defend the same. Failure to so notify the Indemnifying Party shall not
relieve the Indemnifying Party of any liability which the Indemnifying
Party might have, except to the extent that such failure prejudices the
Indemnifying Party's ability to defend such claim. The Indemnifying
Party shall have the right to defend against such liability or
assertion in which event the Indemnifying Party shall give written
notice to the relevant Indemnities of acceptance of the defense of such
claim and the identity of counsel selected by the Indemnifying Party.
Such notice of the relevant Indemnities shall give the Indemnifying
Party full authority to defend, adjust, compromise or settle such
action, suit, proceeding or demand with respect to which such notice
shall have been given, except to the extent that any compromise or
settlement shall affect any rights of any Indemnitee, which settlement
or compromise shall be subject to the prior approval of the Indemnitee.
With respect to any defense accepted by the Indemnifying Party, the
relevant Indemnities shall be entitled to participate with the
Indemnifying Party in such defense if the action or claim requests
equitable relief or other relief that could affect the
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rights of the Indemnity and also shall be entitled to employ separate
counsel for such defense at such Indemnities expense. In the event the
Indemnifying Party does not accept the defense of any indemnified claim
as provided above, the relevant Indemnities shall have the right to
employ counsel for such defense at the expense of the Indemnifying
Party. Each party agrees to cooperate and to cause its employees and
agents to cooperate with then other party in the defense of any such
action and the relevant records of each party shall be available to the
other party with respect to any such defense.
4.6. RISK ALLOCATION
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY
PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR
INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF
BUSINESS OR LOSS OF DATA - ARISING OUT OF THIS AGREEMENT (INCLUDING
WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER
TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR
ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW
OF THE POSSIBILITY THEREOF.
4.7. ACKNOWLEDGEMENT OF NO WARRANTY
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY WARRANTS
THAT THEIR RESPECTIVE WEB SITES OR THE ABA SITE WILL PERFORM IN THE
MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR OR DEFECT OR THAT ANY
REVENUE TO EITHER PARTY WILL RESULT FROM THE ACTIVITIES CONTEMPLATED BY
THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
RIGHTS NOT SPECIFICALLY ENUMERATED.
4.8. LIMITATION OF LIABILITY
Each party's liability to the other party for any and all
claims and damages incurred by such party relating to or arising out of
the subject matter of this Agreement, whether in contract, tort,
implied warranty, strict liability or other form of action, except for
claims for violations of a party's intellectual property rights, and
any right of indemnity provided herein, shall be limited to the greater
of (x) the amounts paid by MDC to BuildNet pursuant to this Agreement
for the preceding six (6) months or (y) one thousand dollars. BuildNet
and MDC each acknowledge that the provisions of this Agreement were
negotiated to reflect an informed, voluntary allocation between them of
all risks (both known and unknown) associated with the transactions
associated with this Agreement. The warranty disclaimers and
limitations in this Agreement are intended to limit the circumstances
of liability. The remedy limitations, and the limitations of
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liability, are separately intended to limit the forms of relief
available to the parties. The provisions of this Section 4.8 shall be
enforceable independent and severable from any other enforceable or
unenforceable provision of this Agreement.
5. MISCELLANEOUS PROVISIONS
5.1. ASSIGNMENT AND CHANGE IN CONTROL
Except as otherwise provided herein, neither MDC nor BuildNet
may assign this Agreement or any of its rights or delegate any of its
duties under this Agreement without prior written consent of the other,
which consent shall not be unreasonably withheld. . In the event of a
Change in Control of either party , the other party has the right to
terminate this Agreement upon thirty (30) days' notice from the date of
the Change of Control . A "CHANGE OF CONTROL" means any: (a) sale of
all or substantially all assets either party ; (b) merger,
reorganization or consolidation pursuant to which the stockholders or
successor of either party immediately prior to such merger,
reorganization or consolidation: (i) hold less than 50% of the voting
power of the surviving company following the merger, reorganization or
consolidation, or (ii) in the event that the securities of an
affiliated entity are issued to the stockholders in the transaction in
exchange for their shares, hold less than 50% of the voting power of
such affiliated entity.
5.2. COUNTERPARTS
This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which together shall be
deemed the same Agreement.
5.3. GOVERNING LAW
This Agreement, its interpretation, performance or any breach
thereof, shall be construed in accordance with, and all questions with
respect thereto shall be determined by, internal, substantive laws in
the State of North Carolina and the venue for any lawsuit, action or
arbitration under this Agreement shall be the courts of Wake County,
North Carolina. If either party employs attorneys to enforce any right
arising out of or relating to this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees, in
arbitration, litigation, or otherwise.
5.4. HEADINGS
Section headings are for convenience only and are not a part
of the Agreement.
5.5. INDEPENDENT CONTRACTORS
MDC and BuildNet are independent contractors under this
Agreement, and nothing herein shall be construed to create a
partnership, joint venture or agency relationship between MDC. Neither
party has the authority to enter into agreements of any kind on behalf
of the other party.
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5.6. INTEGRATION
This Agreement contains the entire understanding of the
parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements between
BuildNet and MDC concerning the subject matter, and cannot be amended
except by a writing signed by both parties.
5.7. NO RELIANCE
No party hereto has relied on any statement, representation or
promise of any other party or with any other officer, agent, employee
or attorney for the other party in executing this Agreement except as
expressly stated herein.
5.8. NOTICE
All notices, demands and other communications hereunder shall
be in writing or by written telecommunications, and shall be deemed to
have been duly given: (i) if mailed by certified mail, postage prepaid,
on the date five (5) days from the date of mailing, (ii) if delivered
by overnight courier, when received by the addressee or (iii) if sent
by confirmed telecommunication, one business day following receipt by
the addressee at the following address:
If to BuildNet:
Barry Drayson
Chairman
BuildNet Financial Services, Inc.
4813 Emperor Boulevard, Suite 103
Durham, NC 27703
With copy to:
Mike Atwood
President
BuildNet, Inc.
4813 Emperor Boulevard, Suite 103
Durham, NC 27703
If to MDC:
Mr. John Hogan
Senior Executive Vice President
mortgage.com, inc.
983 University Avenue, Building D
Los Gatos, CA 95032
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With copy to:
Mr. Michael Brenner
General Counsel
mortgage.com, inc.
8751 Broward Boulevard, 5th Floor
Plantation, FL 33324
or such other address as either party may specify by notice given in
writing.
5.9. PRESUMPTIONS
In resolving any dispute or construing any provision
hereunder, there shall be no presumptions made or inferences drawn (i)
because the attorneys for one of the parties drafted the agreement,
(ii) because of the drafting history of the agreement; or (iii) because
of the inclusion of a provision not contained in a prior draft, or the
deletion of a provision contained in a prior draft.
5.10. SEVERABILITY
In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or enforceable in any respect,
the remaining provisions shall remain in full force and effect.
5.11. SURVIVAL
The provisions of Section 3 and 4 shall survive termination or
expiration of this Agreement.
5.12. WAIVER
No waiver of any breach or any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach
of the same of any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized
representative of the waiving party.
5.13. RIGHT TO CURE
In the event either party desires to assert any remedies for
breach of this Agreement, the party desiring to assert such remedies
shall give the other party thirty (30) days written notice and an
opportunity to cure within ten (10) business days.
5.14. PUBLICITY
a. Other than the rights granted in this Section,
nothing in this Agreement shall be construed to grant
any right or license to BuildNet in or to any content
or other material supplied by MDC other than the
right to use the content or material in the
marketing, promotion and advertising of the ABA Site.
BuildNet agrees that it will not, without the prior
written consent of MDC in
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each instance: (i) use in advertising, publicity,
press release or otherwise the name of MDC, nor any
trade name, trademark, trade device, service mark,
symbol or any abbreviation, contraction or simulation
thereof owned by MDC; or (ii) represent, directly or
indirectly, that any product or any service provided
by BuildNet has been approved or endorsed by MDC.
Without in any way limiting the foregoing
restrictions, BuildNet may: (i) disclose the
existence of this Agreement for any purpose required
by law or for the purposes of financial reporting or
disclosure, including, without limitation, any
disclosure or reporting that may be reasonably
required to obtain equity financing; and (ii) list
MDC as a business partner of BuildNet on BuildNet's
internal and external customer lists.
b. Other than the rights granted in this Section or
elsewhere in the Agreement, nothing in this Agreement
shall be construed to grant any right or license to
MDC in or to any content or other material supplied
by BuildNet other than the right to use the content
or material in the marketing, promotion and
advertising of the ABA Site. MDC agrees that it will
not, without the prior written consent of BuildNet in
each instance: (i) use in advertising, publicity,
press release or otherwise the name of BuildNet, nor
any trade name, trademark, trade device, service
mark, symbol or any abbreviation, contraction or
simulation thereof owned by BuildNet; or (ii)
represent, directly or indirectly, that any product
or any service provided by BuildNet has been approved
or endorsed by BuildNet. Without in any way limiting
the foregoing restrictions, MDC may: (i) disclose the
existence of this Agreement for any purpose required
by law or for the purposes of financial reporting or
disclosure, including, without limitation, any
disclosure or reporting that may be reasonably
required to obtain equity financing; and (ii) list
BuildNet as a business partner of BuildNet on
BuildNet's internal and external customer lists.
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IN WITNESS WHEREOF, the parties hereto caused their duly authorized
officers to execute this Agreement as of the date set forth above.
BuildNet Financial Services, Inc.
By: /s/ Barry Drayson
------------------------------------
Name: Barry Drayson
Title: Chairman
mortgage.com, inc.
By: /s/ Michael Brenner
------------------------------------
Name: Michael Brenner
Title: Executive Vice President
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SCHEDULE 1 - BUILDNET MARKETING PLAN
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EXHIBIT A - NET BRANCH MANAGER AGREEMENT
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EXHIBIT B - MDC CLIENTS
[*]
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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EXHIBIT C - BUILDNET COMPETITORS
o [*]
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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EXHIBIT D - WEB SITE HOSTING & MAINTENANCE STANDARDS
The following terms, when used in this Exhibit, shall have the following
meanings:
"DOWN TIME" shall mean any time that any Web Site is not in a Fully Functional
State for any reason or cause other than: (i) any force majeure events; (ii) the
scheduled services outages set forth below in Section 2(a)(iv)(1) of this
EXHIBIT D; and (iii) causes which are the fault of the builder or BuildNet.
"FULLY FUNCTIONAL STATE" shall mean that the Web Sites are: (i) available for
access and use by the builder and/or Consumers.
"WEB SITE(S)" shall mean any Web Site created by MDC for a builder under the
terms of an executed Net Branch Agreement, Co-Branded Web Site Agreement or
Marketing Agreement.
MDC shall provide to BuildNet the following hosting services described below for
the Web Sites (the "Hosting Services"):
1. SUMMARY OF SERVICES
MDC shall procure, provide, install and manage MDC owned Windows NT(R)
web server(s) and all other equipment and telecommunications facilities
unless otherwise agreed upon by the parties, on behalf of BuildNet at
the MDC Service Center. This production server will house the Web
Sites. MDC shall maintain sufficient server capacity and Internet
connectivity throughout the Term to accommodate growth in user numbers
and overall traffic levels to the Web Sites. MDC shall host and operate
the Web Sites such that the users experience access times and time to
retrieve full web pages that are substantially similar to the access
times and time to retrieve full web pages by users visiting other sites
hosted by MDC including, without limitation, www.mortgage.com.
2. SERVICE MONITORING & MANAGEMENT
(a) MDC will perform continuous monitoring and management of each
Web Site to optimize availability of service. Included within
the scope of Service Monitoring & Management is the proactive
monitoring of the web servers and all service components of
the MDC's firewall for trouble on a 7 day by 24 hour basis,
and the expedient restoration of components when failures
occur within the time period set forth in "Service Outages"
below. MDC shall maintain redundancy in all key components
such that service outages are less likely to occur due to
individual component failures.
i. Permissible Down Time
1. In any month during the term of this
Agreement, the Web Sites shall be in a Fully
Functional State for no less than
ninety-ninety nine and
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one half percent (99.5%) of the time; and
shall experience no more than one half
percent (.5%) Down Time (the "Permissible
Down Time"). Permissible Down Time shall
include any scheduled maintenance.
2. If, during any given month of this
Agreement, the Web Sites fail to remain in a
Fully Functional State in accordance with
2.i.1, above, then BuildNet shall be
entitled and MDC shall remit to BuildNet the
greater of (i) the monthly hosting fee paid
by BuildNet for Web Site hosting divided by
the number of days in the month or (ii) the
monthly hosting fee broken down to an hourly
basis times the number of hours that the
system was down.
3. If the Web Sites remain down for three
consecutive twenty four (24) hour period or
five total twenty four (24) hour periods
(based upon the total number of hours of
down time) during any given month, then
BuildNet shall be entitled to consider MDC
in breach of its hosting requirements and
may seek termination of the Agreement.
ii. Service Hours
MDC's Service Center is staffed 24 hours a day, 7
days a week, to support BuildNet's needs and make all
notifications to BuildNet required pursuant to this Exhibit D.
Automated monitoring tools alert service personnel of problems
on a 7 day by 24-hour basis.
iii. Service Reliability
MDC protects all mission-critical equipment (e.g.,
routers, hubs, servers) in the MDC Service Center with
Uninterruptable Power Supplies (UPS) which are covered by a
service contract. Sufficient sparing levels are kept on-site
for all key equipment components. In addition, MDC has
implemented redundant servers for all key services, such as
routing, DNS and email gateways.
iv. Service Outages
1. Scheduled
MDC scheduled outages must be notified to
BuildNet at least 24 hours in advance, and
shall last no longer than one hour and shall
be scheduled between the hours of 1:00 a.m.
and 5:00 a.m., Eastern Time). MDC may
request extensions of scheduled down time
above one (1) hour and such approval by
BuildNet may not be unreasonably withheld.
2. Unscheduled
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Unscheduled outages are caused by loss of
connectivity to the Internet, or by failure
of a MDC service. In cases where a
destination is not available, or
unacceptable service is reported, MDC will
attempt to determine the source of the
problem and report its findings to BuildNet.
(b) MDC will monitor "heartbeat" signals of all servers, routers
and leased lines, and HTTP availability of the web server, by
proactive probing at 30-second intervals 24 hours a day using
HP Openview as well as HP ManageX or the equivalent. If a
facility does not respond to a ping-like stimulus, it is
immediately checked again. A second failure will trigger
automatically a page to MDC's Service Center and selected
engineers, as well as generating a log entry. The Service
Center monitors this service 24 hours a day.
(c) When the Customer Service Center receives a "down" signal, or
otherwise has knowledge of a failure in the production server
or the application hardware, MDC personnel will:
i. Confirm (or disconfirm) the outage by a direct check
of the facility;
ii. If confirmed, take such action as may restore the
service in one hour or less, or, if determined to be
a telephone company problem, open a trouble ticket
with the telephone company carrier;
iii. Notify the BuildNet Technical Administrator by
telephone or voicemail according to predefined
procedures that an outage has occurred, providing
such details as may be available, including the MDC
ticket number if appropriate and time of outage;
iv. Work the problems until resolution, escalating to
management or to engineering as required;
v. Notify the BuildNet Technical Administrator of final
resolution, along with any pertinent findings or
action taken, and requests concurrence to close the
ticket.
3. BACK UPS
a. Back-Up Administration provides for both the regular back-up
of standard file systems, and the timely restoral of data from
a BuildNet request due to a site failure.
i. Perform back-ups of file systems housed in the MDC
Service Center at One Paragon Drive, Suite 240,
Montvale, New Jersey;
ii. Perform weekly full back-ups;
iii. Perform daily incremental back-ups;
iv. Send back-up tapes to secured, off-site storage
facilities with a 30 day rotation of tapes;
v. Retain one back-up tape per month for one year ;
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vi. Fulfill restoral requests as directed by BuildNet due
to site failures. Restoral will be performed within
the interval of 2 to 4 hours dependent on the urgency
of the request, and the agreed upon location of the
desired tape.
vii. If the hosting server or location is expected to be
down for more than 24 hours, the MDC will immediately
transfer appropriate back-up data and re-establish
all hosting operations in an appropriately
functioning secondary server or location.
4. SECURITY
a. Monitoring
i. MDC will
1. Limit physical and electronic access to web
servers ;
2. Review security notifications and alerts
relevant to the hosting platform (e.g.,
vendor notifications of bugs, attacks,
patches), and apply as appropriate to
maintain the highest level of defense; and
b. Breaches
i. In the event of an attack or threatened or suspected
breach of security against the Web Sites, MDC will
take whatever reasonable steps that are necessary to
halt such action, including taking the affected Web
Sites down. Down time due to external attacks shall
not count against "permissible down time". MDC will
immediately contact BuildNet's authorized contact to
discuss what measure to take. However, if time is
critical, action may be required before the contact
can be reached. MDC's actions will include:
1. Confirm the threat;
2. Deny access from the source of the attack;
3. Investigate the extent of the damage, if
any;
4. Back-up the affected systems and those
suspected to be affected;
5. Strengthen defenses everywhere, not just the
suspected path that the attacker used;
6. Contact the ISP where the threat or attack
originated and/or law enforcement to work
with MDC's security team;
7. Contact builder and BuildNet to inform them
of the breach;
8. Produce an Incident Report within 24 hours
detailing MDC's findings and distribute the
report to the client(s) affected; and
9. Re-instate the denial of access after a set
time period, but continue to monitor traffic
from that source until risk of further
attacks is deemed to be minimized.
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ii. BuildNet shall have the right to audit MDC security
procedures and actions taken as a result of a breach
of security. Such audit shall include review and
post-mortem analysis of MDC security precautions
taken as a result of the breach and on-site review if
necessary. BuildNet shall bear the costs associated
with any such security audit, except for routine
copying and postage as necessary for MDC to provide
the Incident Report and accompanying data on the
breach to BuildNet.
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EXHIBIT E - CUSTOMER SERVICE STANDARD
The professionals at mortgage.com firmly believe in making you, our customer, a
top priority. As a valued customer, you have certain rights. Showing our respect
for your rights in all we do, mortgage.com ensures:
At mortgage.com, you can always count on your personal
mortgage consultant for fast, friendly service. You have the
right to receive a prompt response to your inquiry within 4
hours of your initial contact. You can also expect same-day
credit approvals ... simply submit your application to us by
5:00 PM no matter where you are in the country!
You have the right to privacy and confidentiality. When you
complete your loan application, your personal information is
protected using the latest encryption technology.
We respect your time. Provided that you allow us to use one
of our preferred service providers, we can guarantee your
right to close on or before your desired closing date, as
agreed to at the time you applied. Just be sure to return all
required documentation to us in a timely manner.
You have the right to expect that your closing costs will not
exceed those disclosed to you in your Good Faith Estimate,
again, provided that you select one of our preferred service
providers. PLEASE NOTE: THIS does not apply to prepaid
amounts for taxes, insurance, and mortgage insurance.
Should mortgage.com's personal consultants fall to meet any of these
commitments, as outlined above, we will send you a check for $300.00 once you
close with us.
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