Joint Marketing Agreement

Exhibit 10.2

***CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.

JOINT MARKETING AGREEMENT

This Joint Marketing Agreement (“Agreement”) is effective as of the 11th day of May 2009 (“Effective Date”), by and between NationalCreditReport.com, L.L.C. (“NCRC”), with its principal place of business at 1690 South Congress Ave, Suite 200 Delray Beach, FL 33445 and First Advantage Membership Services, Inc. (“FAMS”) with its principle place of business at 12395 First American Way, Poway, CA 92064. In consideration of the mutual agreements of the parties herein and the benefits each expects to derive hereunder, the parties agree as follows:

MARKETING, FAMS REPORTS, AND RELATED MATTERS

1.1 FAMS Reports and Marketing Activities . NCRC will market FAMS’s consumer reports, credit reporting monitoring services and credit scores (together, “FAMS Reports”) as part of NCRC’s products and services (the “Services”) directly to consumers who are the subjects of such reports (“Consumer Users”). The FAMS Reports will be provided directly by First Advantage Credco (“Credco”), and an affiliate of FAMS that is a consumer reporting agency. If NCRC’s web site is used as a mechanism for placing orders for FAMS Reports, NCRC agrees to comply with the requirements set forth in Exhibit A-1, attached hereto and incorporated herein by reference. NCRC may not market or place orders for, FAMS Reports through any third party website unless FAMS first agrees in writing in each specific case.

NCRC will market the FAMS Reports pursuant to methods agreed upon in writing by NCRC and FAMS. NCRC will provide FAMS the opportunity to review and approve all marketing materials in connection with FAMS Reports proposed to be used by NCRC (including all material changes to materials previously approved by FAMS) at least three (3) business days prior to use, publication, or release, and will make any changes requested by FAMS. FAMS will not unreasonably withhold approval. NCRC shall bear all marketing costs and expenses of all marketing of FAMS Reports.

1.2 Format of FAMS Reports . FAMS Reports will be provided in an HTML format. NCRC agrees to publish the Credit Report Acceptance of Terms (Exhibit A-2) on their web site related to the ordering of FAMS Reports.

1.3 Restriction on Use of FAMS Reports . FAMS Reports will be provided to Consumer Users solely for their personal use. Consumer Users must give written instructions for FAMS/CREDCO to provide FAMS Reports as part of NCRC’s products and services they have ordered (“Consumer User Instructions”). If the Consumer User Instructions are given in electronic format, the electronic authorization must (a) comply with the requirements set forth in Exhibit A-3, attached hereto, and incorporated herein by reference, be in a form that (b) be capable of being retained for later reference, (c) clearly evidence Consumers User’s instructions to obtain the FAMS Report, and (d) comply with all applicable federal and state laws and regulations. NCRC shall retain copies of all Consumer User Instructions for at least five (5) years, and FAMS, at its own expense, shall have the right, during normal business hours and with reasonable prior written notice, to audit and make copies of such instructions. Within seven (7) business days after receipt of FAMS’s written request, NCRC shall promptly provide FAMS samples of the Consumer User Instructions or specific Consumer User Instructions, as specified by FAMS. Prior to destroying any Consumer User Instructions, NCRC shall notify FAMS of its intent to take such action and, if requested by FAMS, shall deliver such instructions to FAMS, at FAMS’s expense. NCRC agrees to (a) implement sufficient procedures and controls to assure that FAMS Reports are ordered only by the subject of the report and to take reasonable steps to detect and prevent fraud in connection with such orders, (b) accurately provide FAMS with the Consumer User identifying information as received by NCRC, and (c) assure the accuracy of such identifying information.

1.4 Compliance . NCRC agrees to adhere to the requirements mandated by the national credit repositories (Experian, Equifax and Trans Union, hereinafter referred to as the “Repository(s)”) including any new requirements that are mandated by the Repositories, in connection with the FAMS Reports. NCRC also agrees to adhere to all applicable regulatory requirements. NCRC agrees to respond to any written objection pertaining to NCRC controllable issues from any Repository relating, but not limited to the marketing, publication, release, use or sale of FAMS Reports. NCRC shall make such response directly to FAMS and NCRC will, in good faith, make every reasonable effort to assist FAMS to get the objecting Repository to agree to waive the objection, or NCRC will change what is objected to in order to comply with Repository requirements. If NCRC is unable to change what is objected by the Repository(s), then this Agreement will terminate immediately. In no event will FAMS have any obligation to provide any FAMS Reports if FAMS determines, under advice of independent counsel and having given NCRC a reasonable notice to cure (not to exceed thirty (30) days), that providing such report may cause FAMS or CREDCO to violate the Fair Credit Reporting Act or any other applicable law or require FAMS or CREDCO to violate any of their agreements with the Repositories.

1.5 Site Availability . FAMS shall maintain its own system that accesses FAMS Reports for delivery to Consumer Users. This system processes FAMS Report orders and delivers them to the Consumer User. NCRC shall be responsible for displaying the FAMS Reports for Consumers Users as defined in Exhibit A-2. NCRC shall be solely responsible for maintaining its systems, interface and web site in order for NCRC to comply with the provisions of this Agreement. FAMS shall maintain its system such that it is available 24/7/365. FAMS may schedule up to 8 hours of maintenance per month. For planned maintenance events that exceed 8 hours, notice will be sent to NCRC with one weeks advance notice. FAMS and NCRC will provide to each other technical support contacts defined as personnel available 24/7 to correct any site availability issues.

(a)  Business Continuity .

1. FAMS shall maintain and adequately support a business continuity program that ensures the operational levels set forth and, in the event of an interruption, the recovery of all functions necessary to meet FAMS’s obligations under this Agreement, in accordance with the business continuity standards. Such business continuity program must be in place on the Effective Date.

2. FAMS shall provide a summary of such business continuity program to NCRC within two (2) business days of the Effective Date and upon request. NCRC shall have the right to require FAMS, at least once every six (6) months during the Term, to meet with NCRC to review, or to assess in writing, the continuing adequacy of the business continuity plan and FAMS’s compliance with the terms of this agreement.

(b)  Incident Response and Reporting .

1. No later than 24 business hours after detection, FAMS will notify NCRC of any actual or potential security intrusion or violation that will or could affect NCRC Confidential Information, including without limitation, customer data and financial data. This notification includes any complaint or report FAMS receives from a third party (such as NCRC’s customers), but excludes a detailed description of FAMS’s development, review and testing procedures. In FAMS’s notification, it will report on the nature of the incident, estimated impact on NCRC and investigative action taken or planned. Incidents include, without limitation, violations or potential violations of a federal or state law, including, without limitation, the Bank Secrecy Act.

2. FAMS shall provide NCRC with an incident status report every 2 hours or within a timeframe mutually agreed upon by the parties until both parties agree that a status report is no longer necessary.

3. Within three (3) business days after the initial incident report, FAMS will provide NCRC with a written updated report that summarizes the results of the investigative action and corrective/remedial action taken.

4. Upon completion of the investigation, FAMS will provide NCRC with a final written report that gives a full accounting of the extent of the security intrusion or security violation, including, without limitation, a description of NCRC Confidential Information disclosed, destroyed, compromised, or altered; specific corrective/remedial action taken.

5. NCRC reserves the right to disconnect the FAMS service if unauthorized access is discovered. FAMS reserves reciprocal rights. This does not however, relieve FAMS of its commitment to deliver on its service obligations which may be unaffected by this loss in connection. Such unaffected service requirements will have to be met by alternate methods of servicing until the inappropriate access can be investigated and resolved to the satisfaction of NCRC.

1.6 Customer Service . FAMS shall maintain a customer service center staffed with trained personnel sufficient to handle phone, e-mail and mailed customer inquiries (“FAMS Customer Services”). Subject to the provisions set forth in Exhibit C, FAMS agrees to maintain such staffing to meet the service level standards set forth in Exhibit B.

1.7 Manner of Providing FAMS Reports . FAMS will provide FAMS Reports for inclusion in the Services as follows: NCRC shall transmit Consumer User orders obtained by it for FAMS Reports by providing FAMS with an electronically readable transmitted file specifying the number of Repositories to be used in the FAMS Report, the type of FAMS Report and the number of each type, and the individual Consumer Users’ respective names, addresses (current address is required and previous address, if available), dates of birth, social security numbers, and other agreed upon identifying information (together, “Identification Information”).

1.8 Authentication . FAMS shall provide Experian’s L3 (“L3”) authentication process or other process to authenticate a Consumer User’s identity. If such authentication fails, FAMS shall attempt to manually authenticate Consumer User’s via telephone. Consumer Users who cannot be authenticated will not be able to receive FAMS Reports. FAMS will deliver the required FAMS Reports on Consumer Users who have been authenticated.

1.9 Fulfillment Procedures . As set forth in section 1.8 above, NCRC will get FAMS Reports that fail online authentication via a post back to a specified NCRC URL. NCRC may send a FAMS Report directly to the Consumer User by First Class US mail (“exception fulfillment”) where a Consumer User claims that he or she did not receive such Report, where orders for such report are not delivered online due to consumer request for delivery via the mail. NCRC will incur the costs of buying the FAMS Report, printing it, and mailing it to the Consumer User.

1.10 Billing and Volume . Not later than 15 business days after the end of each calendar month, FAMS shall provide NCRC a monthly cumulative report detailing billing and volume and will note core Ids (client provided unique identification numbers for each FAMS Report request) on the invoices. Additional reporting frequencies may be delivered at NCRC’s request as mutually agreed upon by FAMS Client Relations team.

1.11 Related Matters . NCRC shall pay to FAMS a per FAMS Report fee as specified in Exhibit “C,” attached hereto, and incorporated herein by reference, to support the costs of dedicated inbound toll free telephone lines provided by FAMS for service to Consumer Users for calls related to FAMS Reports ordered and delivered under this Agreement. NCRC shall disclose to Consumer Users in such manner and form as agreed upon in writing by the parties that (a) CREDCO is the consumer reporting agency that is providing the CREDCO Credit Reports to the Consumer Users, (b) under the Fair Credit Reporting Act, as amended (“FCRA”) and applicable state laws, Consumer Users may have the right to obtain a copy of their credit files at the Bureaus without charge as defined by the FCRA or for a nominal charge. To the extent required under applicable law, FAMS will participate in the reinvestigation process to the extent required by applicable law for Consumer User disputes regarding information in their FAMS Report, and, where applicable, provide disclosures to Consumer Users. Periodically, FAMS may, together with one or more Repositories or separately, on seven (7) days’ prior written notice to NCRC, at its own expense, conduct reasonable on-site audits during normal business hours of NCRC in order to monitor its compliance with the terms of this Agreement. FAMS shall take commercially reasonable steps necessary to avoid any material disruption to NCRC’s business during the audit. Notwithstanding anything in the foregoing to the contrary, the scope of the audit shall exclude technical and competitive business plans, forecasts, and other business or technical related information, including trade secrets, belonging to NCRC, as well as any other information that is not strictly necessary for FAMS to determine NCRC’ compliance with the terms of this Agreement.

1.12 Representations, Warranties, and Covenants . Each party represents, warrants, and covenants to the other party that throughout the term of this Agreement, its performance shall comply with all relevant federal, state, and local laws and regulations applicable to such party, including, but not limited to, the FCRA and applicable state laws. Without limiting the generality of the foregoing, each party agrees that during the term of this Agreement, it will use all “nonpublic personal information” it obtains on Consumer Users in connection with this Agreement solely to perform its respective duties and obligations under this Agreement, it will not use any such information contrary to the requirements of the Gramm-Leach-Bliley Act and the regulations of the Federal Trade Commission there under (together, “G-L-B Act”), and it will otherwise comply with all applicable requirements under the G-L-B-Act in connection with such information and the Consumer Users to whom such information relates. NCRC and FAMS agree to comply with the foregoing.

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TERM and TERMINATION

2.1 Term . The initial term of this Agreement shall be for a two year term commencing on the Effective Date. Thereafter, this Agreement shall automatically renew for successive one-year terms unless either party gives the other party written notice of its intent to terminate this Agreement at least sixty (60) days prior to the expiration of the then current term, in which event, this Agreement shall terminate at the end of such term. In addition, FAMS can terminate this Agreement, without penalty, effective upon written notice to NCRC if NCRC does not pay FAMS a *** in FAMS Charges (defined below) for FAMS Reports (Credit Reports and monitoring). FAMS may also terminate this Agreement immediately, without penalty, if required to do so by any Repository; FAMS will provide NCRC as much advance notice as possible.

2.2 Termination for Cause . Either party may terminate this Agreement prior to the end of the then current term in the event that the other party has materially breached a representation, warranty, covenant, or other agreement hereunder and has not cured such breach within thirty (30) days after its receipt of written notification by the other party of the breach and its intent to terminate. In addition, FAMS may terminate this Agreement effective on seven (7) days prior written notice to NCRC, in the event NCRC has breached any of its obligations with respect to the use of FAMS Reports and the protection of the privacy of such information and NCRC has not cured such breach within such seven (7) day period. Termination of this Agreement for cause shall not impair any other rights or remedies available to the terminating party with respect to the breach that gave rise to such termination.

2.3 Effect of Termination . At the termination of this Agreement, FAMS will have no further obligation to provide any new FAMS Reports.

***CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.

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PAYMENT FOR FAMS REPORTS; COLLECTIONS

3.1 FAMS Charges; Collections . FAMS shall be entitled to receive from NCRC the amounts set forth in Exhibit “C” (“FAMS Charges”). NCRC’s obligation to pay the FAMS Charges is absolute and unconditional, and is payable irrespective of the prices paid by Consumer Users for FAMS Reports or actual collections by NCRC. NCRC shall be solely responsible, for collecting payment for the FAMS Reports from Consumer Users, and NCRC shall bear the sole risk of nonpayment. NCRC shall indemnify, defend, and hold harmless FAMS from any losses, costs, expenses (including, without limitation, reasonable attorney fees, costs of litigation, and costs of enforcing judgment), liabilities, penalties, claims, and damages (together, “Damages”) incurred by FAMS in connection with NCRC’s collection activities.

3.2 Payment Terms . NCRC agrees that it will remit the FAMS Charges to FAMS within 30 days after receipt of the invoice for the FAMS Charges.

3 . 3 Effect of Price Changes . If, during the term of this Agreement, FAMS’s cost of providing FAMS Reports increases as a result of increased fees from any or all of the Repositories, or the imposition of new state/federal requirements that increase FAMS’s cost of selling FAMS Reports to Consumer Users in such states, FAMS may increase the FAMS Charges set forth in Exhibit “C”, to cover the Repository(s) price increase plus an amount to maintain FAMS’s existing profit margin percentage on consumer reports. FAMS shall provide NCRC with as much notice as practicable under the circumstances of any such price increase, and the price increase will be effective after thirty (30) days written notice to NCRC. In the event FAMS imposes such increase, NCRC may terminate this Agreement, without penalty, by written notice to FAMS at any time prior to the effective date of the increase.

3.4 Sales Tax . The prices set forth in Exhibit C do not include sales, use, or excise taxes, or any other taxes or fees assessed by any state or local authority in connection with the sale of FAMS Reports to Consumer Users (collectively, “Sales Taxes”), and Sales Taxes shall be charged separately. If applicable, NCRC shall disclose to Consumer Users that Sales Taxes will be charged and the amount thereof. NCRC shall be solely responsible for collecting, as FAMS’s agent, all Sales Taxes due in connection with sales of FAMS Reports to Consumer Users and remitting, when due, to the appropriate governmental authorities, all such Sales Taxes. NCRC agrees to provide FAMS with evidence of all Sales Tax payments to governmental authorities concurrently with payment, and will permit FAMS to audit its books and records on reasonable notice to verify that all required Sales Taxes have been properly paid. NCRC shall indemnify, defend, and hold harmless FAMS for any and all such Sales Taxes and any Damages incurred by FAMS in connection with NCRC’s failure to properly collect and deliver to the appropriate government authorities on a timely basis all required Sales Taxes.

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CONFIDENTIAL AND OTHER PROTECTED INFORMATION

4.1 Each party acknowledges that the other party owns all rights to “Confidential Information” that may be disclosed from time to time by the owning party (“Disclosing Party”) to the other party (“Receiving Party”). “Confidential Information” means all trade secrets and other nonpublic proprietary information that the Disclosing Party has identified to the Receiving Party as such prior to disclosure or promptly thereafter if such disclosure is oral. The Receiving Party agrees to use the Disclosing Party’s Confidential Information only to perform its obligations under this Agreement, and to use the same level of diligence and care that a prudent business would use to protect its own confidential and proprietary information in order to prevent unauthorized use, dissemination, or disclosure of the Disclosing Party’s Confidential Information. Each party will take reasonable steps to assure that its employees and agents comply with the foregoing requirements. The parties acknowledge that any breach of this Section 4 by one party could cause irreparable harm to the other party, and each party hereby consents to entry of an injunction or other equitable relief, without the necessity of posting bond or proving damages, in the event of any such threatened or actual breach by it in addition to monetary damages and any other available remedies. Confidential Information of the Disclosing Party does not include any information that is (a) already known to the Receiving Party prior to its receipt of such information, (b) is developed independently, or legitimately obtained from a third party, by the Receiving Party, or (c) is required by law or court order to be disclosed; provided , however , if the Receiving Party is the party subject to such court order or other legal obligation, it will provide the Disclosing party with prior notice to enable the Disclosing party to contest such order or obligation or seek appropriate protective remedies. Except as otherwise required by law, the parties agree to treat as Confidential Information the terms of this Agreement (including all exhibits and amendments), provided , however , that FAMS may provide a copy of this Agreement to any Repository, if so requested. In addition, NCRC recognizes that FAMS has devoted significant resources to developing the format of the FAMS Reports and agrees that such format is the proprietary information and a valuable commercial asset of FAMS. Accordingly, NCRC agrees that, except pursuant to this Agreement, it will not directly or indirectly use, or permit any third party with a marketing relationship with NCRC to provide consumer reports to NCRC customers in such format or any format that is intentionally designed to be substantially similar and is likely to be confused with such format.

4.2 Consumer Data . Except as permitted under this Agreement, each party agrees not to disclose any “Consumer Data” (defined below) to anyone except its employees and agents with a need to know in order to enable that party to perform its duties and obligations under this Agreement. Each party agrees to use diligent efforts, and at least the same degree of care it uses to protect its own confidential information, to prevent unauthorized use or disclosure of the Consumer Data and to require all agents to agree in writing to comply with such requirements. Each party will promptly provide the other party with copies of such agreements upon request. “Consumer Data” is defined as all information or data, in whatever form, provided by or through either party to the other in connection with this Agreement concerning or relating to any Consumer User, including, without limitation, names, addresses, telephone numbers, other identifying information, and information relating to personal characteristics, preferences, or credit history from the repositories. In order to comply with the laws that regulate the Consumer Data, each party agrees to institute the following systems, procedures, and controls (together, “Security Procedures”):

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DISCLAIMERS AND LIMITATION ON LIABILITIES

5.1 ALL FAMS REPORTS AND ALL OTHER PRODUCTS AND SERVICES PROVIDED BY FAMS (FAMS REPORTS AND ALL OTHER PRODUCTS AND SERVICES PROVIDED BY FAMS, TOGETHER REFERRED TO AS “FAMS SERVICE(S)”) UNDER THIS AGREEMENT ARE PROVIDED “AS IS.” NEITHER FAMS NOR ANY OF ITS AFFILIATES (INCLUDING, BUT NOT LIMITED TO CREDCO) MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY FAMS SERVICE INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY FAMS SERVICE (OR ANY INFORMATION CONTAINED THEREIN). NO WARRANTIES WILL BE CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE, AND FAMS EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. IN ADDITION, NEITHER FAMS, NOR ANY OF ITS AFFILIATES WARRANT THAT THE FAMS SERVICES (OR ANY INFORMATION THEREIN) WILL BE FREE FROM ERRORS, WILL MEET NCRC’S OR CONSUMER USER’S NEEDS, OR WILL BE PROVIDED ON AN UNINTERRUPTED BASIS SUBJECT TO THE BOUNDARIES OF THIS AGREEMENT. In no event will FAMS or any of its affiliates have any liability to NCRC, any Consumer User, or any third party, for incidental, special, consequential, or any other similar Damages resulting from the invalidity, inaccuracy, or incompleteness of the information contained in any FAMS Report or any delay in providing such report, even if specifically advised of the possibility of such Damages. FAMS’s maximum liability in connection with any FAMS Report shall not exceed the amount of the FAMS Charge received by FAMS with respect to such report. Neither party shall have any liability to the other party in connection with any delay, interruption, or failure in performance hereunder resulting from any cause if such cause is beyond the reasonable control of the failing party including, with respect to FAMS, the unavailability of consumer information from any Repository for any reason. For the purposes of this Section 5, the term “FAMS” also includes the Repositories.

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INDEMNIFICATION

The parties mutually agree to indemnify, defend, and hold harmless, one another, its respective affiliates, and the respective officers, directors, employees, agents, and suppliers and other third party contractors of one another from and against any and all actions, lawsuits, investigations, proceedings, costs, expenses (including, without limitation, attorney fees and court costs), damage or claim (collectively, “Claims”) in any way connected with (1) any breach of this Agreement by either parties employees, agents, or independent contractors, and (2) any Claim by any Consumer User or any other third party, except to the extent directly caused by gross negligence.

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SECURITY BREACH

In the event of any actual or suspected security breach that NCRC either suffers or learns of that either compromises or is likely to compromise FAMS data (including, but not limited to FAMS Reports, or any information contained therein) (e.g., physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a PC (laptop or desktop), loss-theft of printed materials, etc.) (collectively, a “Security Breach”), NCRC will promptly notify FAMS security personnel within one (1) business day of the discovery of such Security Breach and will immediately coordinate with FAMS security personnel to investigate and remedy the Securi