Exhibit (10)(h)
AMENDMENT TO RESELLER SERVICES AGREEMENT
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FOR RESALES TO CONSUMERS
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This Amendment To Reseller Services Agreement For Resales To Consumers (the
"Amendment") is entered into effective as of November __, 1997, by and between
the undersigned FAC and the Information Solutions Division of Experian
Information Solutions, Inc.
A. WHEREAS, the parties have entered into a Reseller Services Agreement
(the "Agreement"), which prohibits FAC from selling Experian Services (and the
information contained therein) to consumers; and
B. WHEREAS, the parties wish to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, and intending to be legally bound, Experian and FAC
hereby agree as follows:
1. License. Section 4.2.5 of the Agreement is hereby amended such that
FAC is permitted and granted a nonexclusive, nontransferable, limited license to
resell, on the terms and conditions set forth in this Amendment, Services
obtained by FAC from Experian under the Agreement directly to the Consumer(s)
about whom the information in the Services relate (each such Consumer, the
"Inquiring Consumer").
2. Method of Delivery. FAC may only provide the Services (i) by hand
delivery to an Inquiring Consumer who is requesting his or her consumer credit
information in person at FAC's place of business or (ii) by United States mail
service or nationally recognized overnight delivery service to the then most
current address in the Experian Services for such Inquiring Consumer (or most
reliable address otherwise available from Experian or one of the other two
national consumer reporting agencies for the Inquiring Consumer). FAC is
specifically prohibited from providing the Services (a) to a person other than
the Inquiring Consumer; (b) other than to the address for the Inquiring Consumer
obtained as provided in this Amendment; or (c) by facsimile transmission,
Internet transmission or other method not expressly permitted in this Agreement
or previously approved in writing by Experian. FAC agrees to maintain trained
personnel at each of its places of business authorized to resell directly to
Consumers, and to have one or more toll free telephone numbers and lines
dedicated to supporting resales to Consumers as may be necessary to assure
prompt and proficient service levels. FAC's personnel must at a minimum meet
the training requirements established by Experian.
3. Authorization of Consumer. FAC agrees that it shall only request
Services for resale directly to an Inquiring Consumer after FAC has obtained
from the Inquiring Consumer written instructions, signed by the Inquiring
Consumer, authorizing FAC to request and receive from Experian that Consumer's
credit information for resale to the Inquiring Consumer. FAC agrees to maintain
originally executed copies of such written instructions for a minimum of two (2)
years.
4. Verification of Consumer Identity. FAC agrees to verify the identity
of the Inquiring Consumer prior to reselling or otherwise providing the Services
to such Inquiring Consumer. FAC agrees that it will follow at a minimum those
procedures for verifying identification set forth in Experian's policies and
procedures, as such are amended from time to time (or as is previously approved
in writing by Experian), including but not limited to purchasing the Experian
FACS+ Service with each inquiry.
5. Fees. For each response from Experian to a request for Services to be
resold by FAC to an Inquiring Consumer, FAC will pay to Experian the fees set
forth on the pricing schedule attached to the Agreement or to this Amendment, as
applicable. Each FAC who engages in transactions with Consumers other than or
in addition to face-to-face transactions agrees to purchase from, and to pay
Experian for, at least Two Thousand Five Hundred Dollars ($2,500.00) per month
for Services to be resold to Consumers. Payments to Experian hereunder shall be
made pursuant to the terms of Article 3 of the Agreement.
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6. Restriction on Use. FAC will fully and accurately convey the Services
(and the information therein) to the Inquiring Consumer, and will do so as
quickly as reasonably possible, but in no event later than three (3) business
days after receipt of the Services from Experian. FAC will maintain, display
and furnish the Services (and the information therein) separate and distinct
from all information and services not provided by Experian unless FAC has
obtained Experian's prior written approval. FAC will not copy any of the
Services (or the information therein) provided to FAC by Experian for resale to
an Inquiring Consumer and, once the Services are provided to the Inquiring
Consumer, FAC will not retain the Services (or information therein) in any
manner or form except to the extent necessary to, and for the sole purpose of,
demonstrating compliance with legal requirements. FAC agrees and certifies that
it will not reuse or use in whole or in part for any other purpose, the Services
provided to it for resale to an Inquiring Consumer.
7. Referral of Consumer Disputes and Questions. FAC will fully comply
with the provisions of Section 4.2.5 of the Agreement related to referral of
Consumer disputes and questions.
8. Disclosures to Consumers. FAC will implement adequate safeguards and
measures to assure Consumers' privacy with respect to the Services and to inform
Consumers of their rights under the FCRA and companion state and local laws and
regulations. FAC will provide notice(s) to Consumers to the extent and in the
manner required by Experian, for example to comply with state and federal
deceptive trade practices acts or similar laws and regulations. Specifically,
FAC will provide a notice to each Inquiring Consumer, simultaneously with
providing the Services to the Inquiring Consumer, that sets forth in prominent,
bold-faced type the following:
8.1 The FCRA allows the Consumer to obtain a copy of his or her credit
report from any consumer credit reporting agency for a reasonable charge;
8.2 If the Consumer has been rejected for credit in the past thirty
(30) days as a result of his or her consumer credit report, the Consumer is
entitled to receive a disclosure of the nature and substance of all information
in his or her file directly from the consumer credit reporting agency free of
charge;
8.3 The FCRA permits Consumers to dispute inaccurate information in
their credit file. Accurate information cannot be changed;
8.4 Experian's policy is to make available to Consumers one
complimentary copy of the consumer credit report per year upon request of the
Consumer;
8.5 The Consumer does not have to purchase the Services or other
information or services from FAC to dispute inaccurate information in the
Consumer's Experian file or to receive a copy of the Consumer's Experian
consumer credit report;
8.6 Experian's National Consumer Assistance Center provides
proprietary consumer disclosure in the form of a "consumer friendly" report that
is different from the report provided by FAC as part of the Services. The
proprietary "consumer friendly" report must be obtained by the Inquiring
Consumer directly from Experian.
8.7 Consumer's residing in the States of Massachusetts, Maryland and
Vermont may receive a free copy of their consumer credit report once per year
and residents of the State of Georgia may receive two copies per year.
9. Form of Advertising. In addition to the requirements on advertising
set forth in Section 4.3.7 of the Agreement, FAC will not use scare tactics or
play upon the fears of Consumers, whether in its advertising materials or
otherwise, in an effort to directly or indirectly sell the Services or other
goods or services offered by FAC.
10. Advertising Approval. Notwithstanding the requirements in Section
4.3.7 of the Agreement, FAC will actually submit to Experian for Experian's
prior written approval, written copies of all of FAC's
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advertising, promotional, and marketing materials, pamphlets, brochures and
similar disclosures, and any changes thereto, related to Experian Inc., its
successors or assigns, the Services, other services provided by Experian, the
consumer reporting industry, direct marketing industry or other industries in
which Experian, its successors and assigns do business, or that mention Experian
by name. Experian may approve or disapprove of any submission, in whole or in
part, in its sole and absolute discretion. If Experian disapproves of a
submission, FAC will not continue to resubmit the submission without changes
designed to address the causes of Experian's disapproval. FAC will not
disseminate, communicate or otherwise disclose any advertising, promotional, and
marketing materials, pamphlets, brochures and similar disclosures until it has
obtained Experian's prior written approval. FAC agrees to comply with any
additional advertising policies or related guidelines requested of it by
Experian.
11. Information Suppression. Experian will have the right to block or
otherwise prevent the display or disclosure of information, including but not
limited to Experian account numbers, subcodes and social security numbers, and
to otherwise change the format of Services provided to FAC for resale to
Consumers.
12. Policies and Procedures. FAC agrees to comply with all Experian
policies and procedures as announced by Experian from time to time related to
the sale of Services directly to Consumers, even if such policies and procedures
are in addition to legal requirements and/or Experian policies and procedures
applicable to the sale of Services to other persons.
13. Training and Certification. FAC may only resell Services to Inquiring
Consumers if FAC meets the applicable requirements of the Agreement, including
all training and certification requirements. FAC understands that Experian may
require training and certification of FAC in addition to that required of FAC
under the Agreement and agrees to obtain all such training and certifications
prior to reselling or otherwise providing Services to Consumers. FAC agrees
that Experian may change such training and certification at any time, and FAC
agrees to obtain such additional training and certification as soon as
reasonably possible after request by Experian.
14. Amendment Termination. Notwithstanding any other term in this
Amendment, (a) either party may terminate this Amendment by providing thirty
(30) days advance written notice to the other; and (b) Experian may unilaterally
terminate this Amendment immediately, or take any lesser action Experian
believes is appropriate, including but not limited to blocking FAC's access to
the Services and/or charging FAC a fee for auditing FAC to ensure compliance, if
Experian believes in its sole judgment that FAC has failed to comply with any of
its obligations hereunder or under the Agreement. In the event of such
termination, FAC will cease selling or otherwise providing Services to
Consumers. Failure to cease such activities shall be a breach of the Agreement
permitting Experian to terminate the Agreement in whole or in part pursuant to
Section 7.2 thereof. In addition, this Amendment will automatically terminate
without additional action upon termination of the Agreement.
15. Miscellaneous. All terms and conditions of the Agreement not
specifically addressed in this Amendment shall remain unchanged and in full
force and effect. In the event of any express conflict or inconsistency between
the provisions of this Amendment and the provisions of the Agreement, the
provisions of this Amendment will govern and control; provided, however, that
the provisions of this Amendment will be so construed to give effect to the
applicable provisions of the Agreement to the fullest extent possible. All
terms not defined herein beginning with an initial capital letter will have the
meaning set forth in the Agreement (or an Appendix thereto).
16. Entire Agreement. This Amendment sets forth the entire understanding
of the parties with respect to the subject matter hereof and supersedes all
prior agreements (except the Agreement to the extent indicated in Section 15
above), letters, covenants, arrangements, communications, representations,
whether oral or written, by any representative of either party.
[Signatures follow]
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IN WITNESS WHEREOF, each of FAC and Experian has caused this Amendment to
be executed by its respective duly authorized officer as of the date first
written above.
First American CREDCO Experian Information Solutions, Inc.
By and Through Its
Information Solutions Division
By: /s/ Parker S. Kennedy By: /s/ D.V. Skilling
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Signature Signature
Name: Parker S. Kennedy Name: D. Van Skilling
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