E-contracting: Application Service Provider Contract

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E-CONTRACTING
APPLICATION SERVICE PROVIDER CONTRACT


This License and Application Service Provider Agreement (the "ASP Agreement") is executed as of April 15, 2005 ("Execution Date") between FIRST AMERICAN CREDIT MANAGEMENT SOLUTIONS, INC., a Delaware corporation with its principal place of business at 8671 Robert Fulton Drive, Suite B Columbia, Maryland 21046 ("CMSI"), and DEALERTRACK, INC. a Delaware corporation, with its principal place of business at 1111 Marcus Avenue Suite M04, Lake Success, NY 11042 ("Licensee"). CMSI and Licensee are each a "Party" and together "Parties" to this ASP Agreement.


BACKGROUND


Licensee wishes to license CMSI's proprietary evaluate (R) software ("Program") to verify electronic contract transactions submitted to the DealerTrack System by DealerTrack Dealers and/or DealerTrack Lenders. CMSI will host the Program on the CMSI System in an ASP environment for the Term. At any time during the Term, Licensee may, upon notice to CMSI, exercise an option to use the Program on Licensee's own computer system, provided Licensee executes a Software License and Licensee Hosting Agreement in substantially the same form set out as Exhibit D to this ASP Agreement ("License Agreement").


THEREFORE, in consideration of the Terms and Conditions below and other valuable consideration, the sufficiency of which is acknowledged by the Parties, the Parties enter into this ASP Agreement as follows.


TERMS AND CONDITIONS


1. Definitions. In addition to the capitalized terms defined elsewhere in this ASP Agreement, the following definitions apply to these capitalized terms:


1.1 "Affiliate" of a Party, means another entity that controls, is
controlled by, or is under common control of the Party. For purposes of
this ASP Agreement, control of an entity means ownership, whether directly
or indirectly through the control of one or more intervening entities of
more than 50% of the entire ownership interest in the entity, control of
the entity's voting stock, or the right and power to direct the entity's
affairs.


1.2 "Billing Month" means the period of time between the twenty-fifth (25%)
day of one month through the twenty-fourth (24th) day of the immediately
successive month.


1.3 "Configuration Specifications Document" means the document, prepared by
CMSI and signed BY Licensee in accordance with Section 3.2 of this ASP
Agreement.


1.4 "Credit Application" means information submitted to the Program in
connection with a customer's request for a Credit Decision from a
DealerTrack Lender including but not limited to the Credit Application
document and the information contained therein.


1.5 "Credit Decision" means a preliminary or final assessment, analysis or
determination and information with respect to: (a) whether to make,
purchase or sell a Loan, (b) whether the making, purchasing or selling of a
Loan satisfies certain criteria, a policy or rule, or (c) the
credit-worthiness of an applicant for a Loan.


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1.6 "Contract Data" means information submitted to the Program generated
by, and necessary for, the completion of a retail installment sales
contract or a lease instrument including but not limited to all Federal
and state law disclosures.


1.7 "Data" means information transmitted in electronic form by Licensee, a
DealerTrack Dealer or a DealerTrack Lender through the Program, including,
without limitation, any credit applications, credit reports, electronic
contracts or information whether provided directly or indirectly. Licensee
and CMSI may from time to time, with written consent from the other, add
additional data fields to, or delete certain data fields from the Data
accessed through the Program. These fields will be included in the term
"Data."


1.8 "Data Center" means the area of the building or buildings at CMSI or
at a designated annex, where the CMSI System is physically located.


1.9 "DealerTrack" means the Licensee and its Affiliates.


1.10 "DealerTrack Dealer" means the dealers authorized by DealerTrack to
submit Electronic Contracts to DealerTrack Lenders via the DealerTrack
System.


1.11 "DealerTrack Lender" means the lenders authorized by DealerTrack to
use Verification for Electronic Contracts submitted by DealerTrack
Dealers.


1.12 "DealerTrack Lender Criterion" means the characteristics selected by
a DealerTrack Lender from DealerTrack's standard menu of options to be
used in Verification of an Electronic Contract.


1.13 "DealerTrack Rules Expressions" means any rule or calculation newly
created in the Program specifically for a DealerTrack Lender as part of
the DealerTrack Lender Criterion.


1.14 "DealerTrack System" means DealerTrack's web-based, multi-financing
source system that facilitates the transfer of Data from DealerTrack
Dealers to DealerTrack Lenders and the transfer of Data back to such
DealerTrack Dealers.


1.15 "Electronic Contract" means Contract Data electronically submitted by
a DealerTrack Dealer to a DealerTrack Lender.


1.16 "Equipment" means any hardware, router, mechanism, device, or
software used in connection with the Program, excluding the Program
itself.


1.17 "External Site" means Equipment sites or web sites used by or on
behalf of a Third Party to transmit data to, or receive data from, the
Program.


1.18 "Licensee Enhancements" means, subject to Section 2.3, any
modifications, enhancements or alterations to the Licensed Products made
by Licensee independently of CMSI. Licensee Enhancements do not include
any software code (or related documentation) that Licensee may develop in
order to create an interface or other means of retrieving data from the
Program and compiling reports or transmitting the data to other systems
that Licensee utilizes to operate its business, provided such software
code does not modify or alter the functionality of the Program and does
not modify or alter the Program's object code or Source Code.


1.19 "Licensed Products" means the Program and the Program Documentation,
as hereinafter defined.


1.20 "Loan" means a lease, loan, installment contract or other extension
of credit to a person or entity.


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1.21 "Network" means the Equipment operated by CMSI to run the Program and
to provide Licensee remote access to the Program.


1.22 "Program" means, in object code form only, the Program components,
modules and interfaces identified in Exhibit A.


1.23 "Program Documentation" means the Configuration Specifications
Document and any other written or electronic documentation provided by
CMSI to Licensee or its Affiliate for use in connection with the Program.


1.24 "Program Error" means a material failure of the Program to perform in
accordance with the Configuration Specifications Document because of a
failure in the Program, but does not include a failure caused by any
condition set forth in Exhibit B, Section 5.


1.25 "Service Level Agreement" means the Service Level Agreement and
Procedures which are provided by CMSI to Licensee and which may be updated
from time to time by mutual agreement of the Parties. The form of the
Service Level Agreement attached as Exhibit B is the Service Level
Agreement in effect as of the Execution Date.


1.26 "System" means all software, and all hardware, equipment, and
computers provided or used by a particular Party.


1.27 "Task Order" means a written request by Licensee or its Affiliate for
service, work, maintenance or other assistance from CMSI on a form
prescribed by CMSI. A Task Order may include requested services which will
be billed to Licensee at the professional services rates indicated in
Exhibit C for the type of service requested. Task Orders may cover
services not anticipated on the Execution Date and may not be included in
the pricing for this ASP Agreement in Exhibit C.


1.28 "Term" has the meaning provided in Section 8 of this ASP Agreement.


1.29 "Third Party" means a person or entity other than (a) CMSI, (b)
Licensee, (c) an Affiliate of CMSI, (d) an Affiliate of Licensee, or (e)
or an employee of (a) through (d).


1.30"Unscheduled Outage" means the inability of Licensee or its Affiliate
to access the Program because of a failure in the System or Data Center,
but not including: (a) scheduled downtime consistent with the Service
Level Agreement, or (b) the effect of any condition set forth in Exhibit
B, Section 5.


1.31 "Verification" means the process by which the evaluate Program
analyzes and compares Credit Application, Credit Decision and Contract
Data with each DealerTrack Lender's Criterion for the purpose of
determining, within that DealerTrack Lender's pre-selected tolerance
levels, the conformity of the Credit Application, Credit Decision and
Contract Data to that DealerTrack Lender's Criterion. For the purposes of
clarity, the analysis and comparison of Credit Application, Credit
Decision and Contract Data for spot delivery is considered part of
Verification.


2. License. Subject to all of the terms and conditions of this ASP Agreement, CMSI grants Licensee and its Affiliates, and Licensee accepts, a non-exclusive, non-transferable license, to use the Licensed Products during the Term. Each of the following subsections is a condition of this license:


2.1 Scope of Use. Licensee will solely use the Program in connection with
the business functionality identified in Exhibit A, Section 3. In
addition, Licensee and its Affiliates will not:


(a) Provide any Third Party access to or use of the Program other
than for Verification, or otherwise operate the Program in a service
bureau environment; or


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(b) Use the Program for Verification or similar analysis of any
Credit Application, any Credit Decision or any Contract Data, which
is not submitted by a DealerTrack Dealer to a DealerTrack Lender
before or at the time of submitting it to the Program.


(c) Use the Program: (i) outside of the United States of America or
Canada or to process Credit Applications for a financial institution
outside of the United States of America or Canada.


2.2 Program Database. Licensee may not modify the Program's database, or
add to, modify or delete any data in the Program's database, except
through use of the Program in accordance with the Program Documentation
and Configurations Specifications Document. Licensee will not authorize
its Affiliates to modify the Program's database, or add to, modify or
delete any data in the Program's database, except through use of the
Program in accordance with CMSI's written permission, directions,
specifications and requirements.


2.3 Ownership. Licensee acknowledges and agrees CMSI is the sole owner of
any and all right, title or interest of any kind, anywhere in the world,
whether now existing or created in the future, of any or all of the
Licensed Products, including without limitation any copyright, patent or
trade secret rights Licensee, on its behalf and on behalf of its
Affiliates, irrevocably assigns to CMSI, now and in the future, and
without need for further consideration or action, any and all right, title
or interest, including without limitation any copyright, patent or trade
secret rights, that may be conferred on or obtained by Licensee or its
Affiliate in any of the Licensed Products, except for the license granted
under this ASP Agreement provided however that this assignment expressly
excludes all Licensee Enhancements which the Parties acknowledge are the
sole and exclusive property of Licensee or its vendors as their interests
may appear. Upon CMSI's request and at CMSI's expense, Licensee and its
Affiliates will promptly execute, obtain all necessary documents and
signatures, and take all other actions necessary to effect or confirm this
assignment. Licensee will cause its employees, its Affiliates, and its
Affiliates' employees, to comply with this Section 2.3. CMSI will have no
right, title, or interest in any Data, which is Confidential Information
of Licensee, its Affiliates, any DealerTrack Lender or any DealerTrack
Dealer, as their interests may appear. CMSI will not retain Data for any
purpose other than to perform its obligations pursuant to this ASP
Agreement. The Parties further agree that Dealer Track Rule Expressions
will be deemed Confidential Information of DealerTrack and the DealerTrack
Lender unless: (1) the DealerTrack Rule Expression was already in CMSI's
library when submitted to CMSI by DealerTrack for configuration or
development; (2) a Third Party asks CMSI to develop a rule expression that
is similar to, or contains similar components as may be found in the
DealerTrack Rule Expression, in which event the rule expression as
developed by CMSI for the Third Party will not be restricted as to
disclosure or use by reason of the confidentiality of the DealerTrack Rule
Expression; or (3) if at Licensee's request, CMSI develops a rule
expression for Licensee that is used by Licensee for general use and
circulation among DealerTrack Lenders.


2.4 Proprietary Protections. Licensee will not, and will not permit its
employees, Affiliates or any Third Party to:


(a) Use or copy all or part of any of the Licensed Products except
in accordance with this ASP Agreement;


(b) Decompile, disassemble or reverse engineer all or part of the
Licensed Products, or create, access or use all or part of the
source code for the Program;


(c) Except as otherwise permitted by this Agreement, create any
derivative work from all or part of any of the Licensed Products, or
use all or part of the Licensed Products to create computer software
with functionality similar to any functionality of the Program; or


(d) Modify or delete any copyright, trademark or other rights notice
embedded in or affixed to any of the Licensed Products.


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2.5 Reservation of Rights; Affiliate Compliance. CMSI reserves all rights
not expressly granted in this ASP Agreement. Licensee may not use the
Program for, or disclose the Licensed Products to, any Affiliate, unless
the Affiliate agrees to and complies with this ASP Agreement. Licensee is
responsible and liable for damages for any failure by an employee or
Affiliate to comply with this ASP Agreement.


3. Implementation. The Parties will implement the Program through the Acceptance Date as follows:


3.1 Project Manager. No later than ten (10) calendar days after the
Execution Date, each Party will designate in writing to the other Party, a
"PROJECT MANAGER" to act as its representative for the implementation of
the Program. A Party's Project Manager must have an appropriate level of
expertise and the authority to act on the Party's behalf. A Party may
change its Project Manager with prompt written notice to the other Party's
Project Manager. DealerTrack hereby designates Charles Giglia as its
Project Manager.


3.2 Configuration Specifications. Licensee will select its configuration
of the Program from CMSI's standard Program configuration options. CMSI
will provide Licensee with a Configuration Specifications Document based
on Licensee's selections. Both Parties will execute the Configuration
Specifications Document. The signature of Licensee's Project Manager or of
an Officer of Licensee (an "AUTHORIZED PERSON") on the Configuration
Specifications Document confirms that the Configuration Specifications
Document accurately states Licensee's requested configuration. CMSI will
configure the Program in accordance with the Configuration Specifications
Document. An Authorized Person for each Party must sign any change to the
Configuration Specifications Document.


3.3 Environment, Access and Migration to Licensee Based Operation. CMSI
will host the Program at its Data Center in an ASP environment during the
Term, and Licensee will access the Program on the CMSI System, in
accordance with Exhibit B. At anytime during the Term, Licensee may
exercise an option to migrate the Program from the CMSI System to a
"Licensee Hosted" environment where the Program is operated on Licensee's
System provided Licensee complies with the following prerequisite
conditions:


(a) Licensee provides CMSI with prior written notice of its intent
to exercise the option to migrate the Program to Licensee's System;


(b) Licensee and CMSI mutually agree upon a time table for
implementing the migration; and


(c) Licensee executes a license agreement in substantially the same
form set out as Exhibit D to this ASP Agreement ("License
Agreement").


3.4 Interfaces. Any interface between the Program, and any External Site,
or between the Program and Licensee's Equipment, must comply with the
following:


(a) evaluate and Non-evaluate Interfaces. Exhibit A, Section 1
identifies the Program Components that CMSI is providing to Licensee
under this ASP Agreement. Licensee must use the Program, as
described in the Service Level Agreement, subject to the following:


(i) Interface Specifications. An interface must comply with
CMSI's interface specifications as provided to Licensee from
time to time, except as otherwise agreed to in writing by
CMSI. CMSI may require that any participating Affiliate or
Third Party execute an agreement satisfactory to CMSI
acknowledging and protecting CMSI's proprietary and
intellectual property rights. Licensee may not disclose CMSI's
interface specifications to any Affiliate or Third Party
absent CMSI's prior written consent. Licensee will cooperate,
and will do all things necessary to procure the cooperation of
any Affiliate or Third Party in the implementation of the
interface by CMSI. However, nothing contained herein prohibits
Licensee from disclosing to any Third Party


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Licensee's interface specifications used in operating the
Program. If Licensee requires additional interfaces not
contemplated or licensed by this Agreement, Licensee will
obtain an additional license for such interfaces and CMSI will
make such license available to Licensee on commercially
reasonable terms.


(ii) Additional Equipment. CMSI is not required to provide
Licensee with an interface that requires Equipment or a
telecommunication line not then used in connection with CMSI's
standard interface. If CMSI agrees in writing to additional
Equipment, then CMSI, in its reasonable discretion, will
determine whether CMSI or Licensee is responsible for
providing the Equipment. If Licensee provides the Equipment:


(a) CMSI assumes no responsibility or ...