EXHIBIT 10.1
M ASTER L ICENSE A GREEMENT
This Master License Agreement is
entered into between First American CoreLogic, Inc., a Delaware
corporation (“FACL”) and First Advantage Credco, LLC, a
Delaware limited liability company, DBA First American Credco
(“Customer”) (collectively, the “Parties,”
or individually, a “Party”). This Master License
Agreement is effective upon execution by FACL (“Effective
Date”).
For good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
Parties agree as follows:
Unless the context of a provision
herein otherwise requires, words importing the singular shall
include the plural and vice-versa. The words “include,”
“includes” or “including” shall mean
include without limitation, includes without limitation or
including without limitation. As used in this Agreement, the
following terms have particular meanings as defined
below.
1.1 “Agreement”
means this Master License Agreement, together with all related
statements of work (each a “SOW”), exhibits, orders and
amendments.
1.2 “Confidential
Information” means (i) information disclosed by a
Party relating to the Services, product development strategy and
activity, marketing strategy, corporate assessments and strategic
plans, either present or future; pricing, financial and statistical
information, accounting information, identity of and information
regarding the Parties to this Agreement, suppliers, employees,
investors, or customers; software, source code, systems, processes,
designs, schematics, methods, techniques, algorithms, formulae,
inventions, discoveries, policies, guidelines, procedures,
practices, disputes or litigation; (ii) other confidential,
proprietary or trade secret information disclosed by that Party
that is identified in writing as such at the time of its
disclosure; (iii) all other confidential, proprietary or trade
secret information disclosed by that Party; (iv) information
relating to that Party’s employees, contractors or customers,
such as social security number verification which, if released,
would cause an unlawful or actionable invasion of privacy; and
(v) any compilation or summary of information or data that is
itself Confidential Information.
1.3 “End User”
means an individual or entity determined by Customer to have a
legitimate business need to use Customer’s products, whom
Customer has approved as a qualified recipient of Customer’s
products, and, if applicable, who has permission to access
Customer’s system on a restricted basis using an assigned
password or other security mechanism to access Customer’s
products.
1.4 “Permitted
Affiliate” means an entity that is controlled by,
controls, or is under common control with Customer and to which
Customer is authorized to provide the Services in the Permitted
Applications listed in a particular SOW.
1.5 “Permitted
Applications” means the authorized use of the Services
and restrictions on use of the Services set forth in the applicable
SOW and this Agreement.
1.6 “Services”
means the software applications, models, analytics, and any
applicable user manuals and any other services provided by FACL to
Customer as specified in each statement of work.
This Agreement contains terms and
conditions applicable to all statements of work
(“SOW”). Each SOW sets forth the specific Services,
delivery methods, Fees, Permitted Applications and any other terms
applicable to the specific Services provided under such SOW. If
changes to this Agreement are desired, a written amendment signed
by both Parties is required. If a SOW requires the recurring of
individual ordering of Services, an order for that particular SOW
is required.
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3.1 License Grant. Subject to
the terms and conditions of this Agreement, FACL grants to Customer
a non-exclusive, non-transferable, limited license under
FACL’s intellectual property rights in the Services to use
the Services set forth in each SOW solely for the Permitted
Applications for each of the Services. There are no implied
licenses under this Agreement, and any rights not expressly granted
to Customer are reserved by FACL for its own use and
benefit.
3.2 License Restrictions .
Customer agrees, represents, and warrants to FACL, both during and
after the Term of this Agreement, as follows:
(a) Customer shall not use the
Services for purposes other than the Permitted Applications in the
applicable SOW and shall ensure compliance with such terms by its
End Users and Permitted Affiliates, if applicable.
(b) Unless expressly authorized in
an applicable SOW: (i) the Services are for Customer’s
and its employees’ sole use; (ii) with the exception of
Permitted Affiliates designated in any applicable SOW, Customer
shall not share the Services with any third party, including any
third parties involved in any joint venture or joint marketing
arrangements with Customer; and (iii) Customer shall not use
or store the Services outside the United States.
(c) Unless expressly authorized in
an applicable SOW, Customer shall not (and shall contractually
require that its End Users and Permitted Affiliates do not):
(i) disclose, use, disseminate, reproduce or publish any
portion of the Services in any manner or permit the same;
(ii) process or combine any portion of the Services or permit
any portion of the Services to be processed or combined with other
data or software from any other source; (iii) allow access to
the Services through any terminals located outside of
Customer’s operations or facilities; or (iv) use the
Services or the results of the Services to create derivative
products.
(d) Customer shall not (and shall
contractually require that its End Users and Permitted Affiliates
do not) use the Services in any way that: (i) infringes any
third party’s copyright, patent, trademark, trade secret or
other intellectual property or proprietary rights or rights of
publicity or privacy; (ii) violates any law, statute,
ordinance or regulation (including laws and regulations governing
unfair competition, anti-discrimination and false advertising); or
(iii) is defamatory, trade libelous, unlawfully threatening or
unlawfully harassing. Customer shall abide by all prevailing
federal, state, and local laws and regulations of any kind
governing fair information practices and consumers’ rights to
privacy, including any applicable non-solicitation laws and
regulations.
(e) Customer shall obtain any
necessary licenses, certificates, permits, approvals or other
authorizations required by federal, state or local statute, law or
regulation applicable to Customer’s use of the
Services.
(f) Customer shall not (and shall
contractually require that its End Users and Permitted Affiliates
do not) disassemble, decompile, manipulate or reverse engineer
FACL’s proprietary information or any portion of the
Services. Customer shall take all necessary steps to prevent
unauthorized use or disclosure or disassembly, decompiling,
manipulation or reverse engineering of FACL’s proprietary
information or any portion of the Services.
(g) Customer shall not (and shall
contractually require that its End Users and Permitted Affiliates
do not) sell, license, publish, display, copy, distribute, or
otherwise make available FACL’s proprietary information in
any form or by any means, except as expressly permitted by this
Agreement or applicable SOW, including without limitation the
transfer to a third party or, if not expressly prohibited by this
Agreement, as allowed under the fair use provision of the Copyright
Act, 17 U.S.C. § 107.
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4.1 Fees. In consideration of
the license granted to Customer, Customer shall pay FACL the fees
set forth in each SOW (“Fees”) within 30 days of
FACL’s date of invoice unless provided differently in the
applicable SOW. At the end of each FACL billing cycle, FACL may
invoice Customer for all Fees incurred by Customer during such
billing cycle.
4.2 Taxes. Fees are exclusive
of sales, use, ad valorem, personal property, and other taxes,
which are the responsibility of Customer. FACL shall charge
Customer applicable sales tax. Customer shall file all other taxes.
If applicable, Customer shall provide FACL with a resale or
exemption certificate in order to notify FACL how to appropriately
invoice Customer for taxes.
5.1 Report. If applicable to
the fee structure set forth in the applicable SOW, within 15 days
after the end of each calendar month, Customer shall provide FACL
with a usage or royalty report that sets forth a detailed and
accurate statement of the usage and gross revenue earned with
respect to that month, together with payment.
5.2 Compliance Audits. FACL
may, at its own expense, select an independent auditor to audit
Customer for the purpose of ensuring Customer’s compliance
with the terms and conditions of this Agreement, after providing
Customer with reasonable notice. Customer shall promptly provide
FACL and its auditors with access to the files and records
requested for the audit. If the audit indicates there is a material
breach in Customer’s compliance with this Agreement, FACL
shall provide Customer with written notice of such material breach.
If Customer does not cure the breach within 10 days of the date of
the written notice from FACL, FACL may terminate this Agreement. If
Customer does not cooperate with FACL’s reasonable request to
audit for compliance within 30 days of the date of the notice, FACL
may immediately terminate this Agreement. If FACL conducts a
compliance audit, Customer shall notify FACL in writing of the
identity of persons assigned usernames and passwords to use the
Services, and all changes, deletions or additions to the identity
of persons assigned usernames and passwords.
6.1 Term and Termination. The
term of this Master License Agreement commences on the Effective
Date and shall continue until all SOWs are terminated. The term of
each SOW shall be specified in each such SOW. This Agreement may
not be terminated without cause during the term. If either Party
breaches any provision of this Agreement (including any provision
of any SOW), the non-breaching Party may, upon providing written
notice of such breach, terminate this Agreement (including all
SOWs) or the particular SOW that directly relates to such breach,
if the breach is not cured within 30 days following such notice,
unless a shorter cure period is otherwise set forth herein or in
the applicable SOW. If Customer breaches this Agreement after
receiving two prior breach notices within the term of this
Agreement, FACL may automatically terminate this Agreement without
providing further notice.
6.2 Effects of Termination.
Upon termination of this Agreement, all license rights granted by
FACL to Customer terminate and Customer shall pay FACL in full for
all Services accessed or delivered.
6.3 Return or Destruction of
Materials. Within 15 days of termination of a SOW by either
Party, Customer shall: (i) return all Services, the results
thereof and all copies of the same to FACL at the address set forth
on the signature page of this Agreement or as specified by FACL and
certify by an officer of Customer that Customer has returned all
Services, the results thereof and all copies of the same; or
(ii) destroy all Services, the results thereof and all copies
of the same and certify by an officer of Customer that such
Services, the results thereof and all copies of the same have been
destroyed. If such Services, the results thereof and all copies of
the same are not returned or destroyed in accordance with the
above, Customer shall provide FACL or its designee access to
Customer’s premises for the retrieval of all such materials,
and Customer shall pay the actual costs as reasonably incurred by
FACL to retrieve such materials. Customer shall continue paying
FACL fees ordinarily and reasonably charged by FACL for the
Services after the termination of this Agreement, until such time
as Customer returns to FACL or destroys such materials.
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7.1. Obligation. Neither
Party shall use, disseminate, reproduce or permit to be used,
disseminated or reproduced, or in any way disclose the other
Party’s Confidential Information to any person or entity
except as required by law or as specifically permitted in this
Agreement. Absent prior written consent of the other Party, each
Party shall disclose Confidential Information only to those of its
employees and independent contractors who have previously agreed to
be bound by the terms and conditions of this Agreement and its
in-house and outside legal counsel who need to know such
information. Each Party shall treat all Confidential Information
disclosed to it in connection with this Agreement as strictly
confidential using commercially reasonable measures at least equal
to those used by such Party with respect to its own Confidential
Information.
7.2 Exceptions. The
restrictions on use and disclosure of Confidential Information set
forth in Section 7.1 shall not apply to any particular
Confidential Information when and to the extent that the
Confidential Information: (i) is or becomes generally
available to the public through no fault of the receiving Party (or
anyone acting on its behalf); (ii) was previously rightfully
kno
