Licensing And Web Site Hosting Agreement, 2/26/99

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 app ...