1. The undersigned (“Subscriber” or “Client”), desiring to receive various information services (the Services), as available from Equifax Information Services LLC (“Equifax”) and Blue Book Services. (“Company”), agrees that all services will be received through Company subject to the following terms and conditions (“Agreement”).
2. License. Subscriber agrees that it will order Services only in connection with legitimate business transactions and pursuant to the Usage Guidelines as outlined below. Subscriber may reproduce or store the information obtained hereunder solely for its own uses in accordance with this Agreement, and will hold all information licensed under this Agreement in strict confidence and will not reproduce, reveal or make it accessible in whole or in part, in any manner whatsoever, to any others unless required by law. Subscriber may not provide a copy of the report to an applicant or customer. Client will refer the applicant or customer to Company whenever the applicant or customer disputes information from the Services. Under this Agreement, Subscriber shall only be allowed access up to 500 reports based on the Services during any calendar year. If Client desires more access to the Services, it must contribute Subscriber Data to Equifax.
3. Compliance with Laws. Subscriber will comply with all applicable federal and state laws and all applicable regulations promulgated under any of them regarding the access and use of the Services.
4. Territory. Subscriber may access, use and store the Services (for purposes of this Section 5 and Section 6 below, “Services” shall include without limitation all information and data provided or obtained through use of the Services) only at or from locations within the territorial boundaries of the United States, and the United States territories of Puerto Rico, Guam and the Virgin Islands (the “Permitted Territory”).
Subscriber may not access, use or store the Services at or from, or send the Services to, any location outside of the Permitted Territory without first obtaining Equifax’s written permission.
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6. Service Providers. Subscriber may not allow a third party service provider (hereafter “Service Provider”) to access, use, or store the Services on its behalf without first obtaining Equifax’s written permission and without the Service Provider first entering into a Client Service Provider Information Use and Nondisclosure Agreement with Equifax. The territorial provisions in Section I.5 are fully applicable to Client’s Service Provider; accordingly, the Service Provider may not access, use or store the Services on behalf of Client from or in, or send the Services to, any location outside of the Permitted Territory, unless Client and the Service Provider have first obtained Equifax’s written permission.
7. Disclaimer, Indemnification and Limitation of Liability. Subscriber recognizes that every business decision represents an assumption of risk and that neither Equifax nor Company, in furnishing information or Services to Subscriber, underwrites or assumes Subscriber’s risk in any manner. NEITHER COMPANY NOR EQUIFAX WARRANTS THE SERVICES AS BEING ACCURATE OR ERROR-FREE. NEITHER COMPANY NOR EQUIFAX GUARANTEES OR WARRANTS THE CORRECTNESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY INFORMATION OR SERVICES PROVIDED TO SUBSCRIBER. NEITHER COMPANY , EQUIFAX , NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, LICENSORS OR AFFILIATED COMPANIES (“AFFILIATED PERSONS AND ENTITIES”) WILL BE LIABLE TO SUBSCRIBER FOR ANY LOSS OR INJURY ARISING OUT OF, OR CAUSED IN WHOLE OR IN PART BY, THEIR ACTS OR OMISSIONS, EVEN IF NEGLIGENT, IN PROCURING ANY INFORMATION OR IN PROVIDING SERVICES. SUBSCRIBER WILL INDEMNIFY AND HOLD HARMLESS EQUIFAX AND ITS AFFILIATED PERSONS AND ENTITIES FROM AND AGAINST ANY DIRECT AND ACTUAL LOSS, COST, LIABILITY AND EXPENSE (INCLUDING REASONABLE ATTORNEY FEES) RESULTING FROM SUBSCRIBER’S BREACH OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER COMPANY NOR EQUIFAX, NOR ANY OF THEIR AFFILIATED PERSONS AND ENTITIES, WILL BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING LOST PROFITS.
8. Restriction on Use of Services. Services may not be used for marketing purposes of any kind.
9. SBFE Third Party Data Usage Guidelines:
A. Sharing of SBFE Data. Subject to the terms and conditions set forth in this Exhibit, Subscriber shall be permitted to have access, through the facilities of Company, to portfolio data maintained by the Small Business Financial Exchange, Inc. (“SBFE Data”) for SBFE members.
B. Restrictions on Subscriber’s Use of Data. All data obtained by Client pursuant to this Agreement, including SBFE Data and any information from Services (collectively “Data”), is only to be used by a Client’s responsible commercial financial personnel in connection with decisions to extend credit to the Client’s business applicants; to review an existing account or credit relationship with Client’s business customers or otherwise manage risk associated with such customers; to prevent fraud associated with business accounts; or to locate former or delinquent business customers. Prior to using Data in connection with a credit decision in connection with a business applicant, Client shall confirm that the applicant is or would qualify as a business customer, and is not a consumer applying for a financial product or service from the Client that is to be used primarily for personal, family, or household purposes. Data is not to be used to evaluate applications for accounts intended to be used primarily for personal, family or household purposes; to identify the risk of consumer accounts; to locate former or delinquent holders of accounts intended to be used primarily for personal, family or household purposes; or to prevent fraud with respect to accounts intended to be used primarily for personal, family or household purposes; or to market products or services of any kind.
C. SBFE Member Sharing of Client Data. SBFE members shall be permitted to have access, through the facilities of Equifax, to portfolio data contributed by Client (“Client Data”), but only to the extent that such data is submitted in accordance with the restrictions set forth below, and to the further extent that Client has fulfilled the compliance obligations set forth below.
D. Client Compliance with Input Standards. With respect to any Client Data that is to be shared with SBFE and its members, Client shall: (a) take commercially reasonable measures to ensure that such data is complete and current (and to correct promptly any errors as they are discovered); (b) not include in such data any “nonpublic personal information” as defined in the Gramm-Leach-Bliley Act, 15 U.S.C. Section 6801, et seq. and its implementing regulations (unless and insofar as permitted in accordance with the opt out provisions of, or exceptions contained in those regulations); and (c) comply with all applicable requirements of U.S. laws or regulations and its privacy policies in its reporting of such data.
E. Data Subject to Sharing. The following types of information may be included in Client Data that may be shared with SBFE and its members:
a. Information relating to the performance of business accounts;
b. Information obtained from business reporting or commercial credit agencies (e.g., Dun & Bradstreet) if so permitted by Client’s contract with such entities; and
c. Information related to individuals who are personal guarantors, co-signers, sole proprietors or general partners of companies maintaining business accounts, but only in connection with those individuals’ obligations relating to such business accounts.
The following types of information may not be included in the Client Data that may be shared with SBFE and its members:
a. Information related to the performance of accounts to be intended to be used primarily for personal, family or household purposes;
b. Consumer report information obtained from consumer reporting agencies (e.g., Equifax, Experian, Trans Union), whether obtained for use in connection with business accounts or otherwise;
c. Information related to individuals who are not personal guarantors, co-signors, sole proprietors or general partners of companies maintaining business accounts, except for name and title of officers, directors and key employees; and
d. Information related to individuals who are personal guarantors, co-signors, sole proprietors or general partners of companies maintaining business accounts, except in connection with those individuals’ performance of their obligations relating to such business accounts.
F. Assignment. The obligations set forth herein may not be assigned by Client without written consent, not to be unreasonably withheld, by SBFE.
G. Third-Party Benefits. Client agrees that SBFE and its members are intended to be third-party beneficiaries of this Agreement, and that the commitments made by Client run in favor of SBFE and its members and are fully enforceable against Client by SBFE and its members. Nothing herein may be construed as giving any person other than SBFE and its members, and their respective successors and permitted assigns, any rights hereunder.
H. Pricing. Client’s access to the SBFE Data is part of a mutual data exchange, and therefore there are no additional fees assessed for Client’s access to SBFE Data when accessed in conjunction with Services hereunder.
I. Resolution of Disputes. The parties, excluding the Company, will resolve all disputes arising in connection with these Usage Guidelines as follows:
i. The parties will utilize their best efforts to resolve any controversy, claim or dispute arising out of or relating to these Guidelines by good-faith negotiation, to be commenced by written notice from either party describing the dispute and requesting a meeting. Such meeting will take place at a mutually agreeable time and place within ten (10) days of the previously described written notice.
ii. If the dispute has not been resolved within twenty (20) days of such meeting, any party to the dispute may then seek to mediate the dispute by written notice of a request to mediate. Such mediation will proceed promptly in accordance with the Center for Public Resources Procedure for Mediation of Business Disputes.
iii. If the dispute has not been resolved within sixty (60) days of the commencement of mediation or if one of the parties fails to participate in mediation, then any party to the dispute may initiate binding arbitration, and any dispute or claim arising in connection with these Guidelines, or the breach, validity or enforceability of any provision of these Guidelines that is not resolved pursuant to the procedures specified above, will be resolved by final and binding arbitration conducted in accordance with and subject to the Center for Public Resources Rules for Non-Administered Arbitration of Business Disputes by an arbitrator selected by the parties to the dispute. The Arbitration will be held in New York, New York, or such other place as the parties agree. The arbitrator will allow such discovery as is appropriate, consistent with the goal of accomplishing a fair, speedy, and cost-effective resolution of the dispute. Discovery will be completed, and the arbitration hearing will commence, within forty-five (45) days after appointment of the arbitrator, and the arbitration hearing will conclude within thirty (30) days after it commences. The arbitrator will make every effort to enforce these deadlines, but may extend the time periods for good cause shown. The arbitrator will render a written decision, including an explanation of the basis for the decision. The arbitrator may award monetary damages or direct the taking, or the refraining from taking, any action, or both, and will order that the prevailing party(ies) be reimbursed by the other party(ies) for reasonable legal fees, including attorney’s fees, and other expenses incurred by the prevailing party(ies) in connection with the arbitration proceeding.
iv. All discussions and statement, whether oral or written, and all documents prepared or produced in connection with any mediation or arbitration proceedings under this Section are confidential information and will be treated as compromise and settlement negotiations under the Federal Rules of Evidence or any similar state rules of evidence; however, neither party shall be entitled to disclose such confidential information in order to seek court enforcement of this Section.
v. All applicable statutes of limitation and defense based on the passage of time will be tolled during the procedures specified in this Section.
vi. The procedures specified in this Section will be the sole and exclusive procedures for the resolution of disputes between the parties arising out of or relating to these SBFE Usage Guidelines; however, any party may seek preliminary injunctive relief if in its judgment such action is necessary to avoid irreparable harm.
DATE OF LAST MODIFICATION: JUNE 29, 2009