BorrowerCheck™ for Dealers with IEValidate™ – Standard Terms and Conditions

These standard terms and conditions (“Standard Terms”) are attached to, and form an integral part of, the License and Usage Agreement (“Agreement”) between the dealership listed on the signed Agreement (“Dealership”) and PointPredictive, Inc. (“Company”).

1. BORROWERCHECK™ FOR DEALERS WITH IEVALIDATE™ (“BORROWERCHECK”)

BorrowerCheck is a service that allows Authorized Users to enter a potential customer’s identity details (Name, Address, Social Security Number, Phone, and Date of Birth) and receive a report of red flag indicators from the Point Predictive Consumer Risk Data Repository (“Data Repository”) and selected third-party data sources highlighting any issues or concerns related to the potential customer’s identity for further investigation. If information about the potential customer’s stated employer or stated income is provided, the red flag indicators from the Data Repository will also include information related to those aspects of the potential customer as well as an assessment of the borrower’s most likely annual income from the Company’s IEValidate service. BorrowerCheck is provided to Dealership exclusively through Dealership’s use of the RouteOne dealer desktop. All data provided by Dealership to the BorrowerCheck service is “Borrower Data”.

2. COMMERCIAL DETAILS

The Agreement begins on the Effective Date and continues for the period listed in the Subscription Details section of the Agreement until terminated by either party, for convenience, at the end of any initial subscription period or any subsequent renewal period (as defined in the Subscription Details), by providing a minimum of thirty (30) days prior written notice (the “Term”). Any payment that is more than thirty (30) days late may result in suspension of the BorrowerCheck service to Dealership. Either party may terminate the Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party files a petition in bankruptcy or any other proceeding is undertaken and not promptly dismissed relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Company may terminate the Agreement for cause if Dealership is not approved by Company’s third party data providers at the beginning of the initial subscription period or if Dealership’s approval is ever rescinded by Company’s third-party data providers.

3. DEALERSHIP OBLIGATIONS

“Authorized Location” is the Dealership address provided in the Dealership Details section of the Agreement, after approval by Company’s third-party data providers. “Authorized Users” are those Route One dealer desktop users enabled for BorrowerCheck access by Dealership for the Authorized Location.

Dealership shall: (i) be responsible for its compliance, and the compliance of all Authorized Users with the Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of Borrower Data and of the means by which it acquired Borrower Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the BorrowerCheck service and notify Company promptly of any such unauthorized access or use; and (iv) use the BorrowerCheck service only in accordance with the Agreement and applicable laws and government regulations.

The third-party data providers whose data may be used to create the BorrowerCheck Results have established certain additional requirements that apply to all BorrowerCheck customers. Dealership agrees to comply with all of the additional requirements set forth in Exhibit A hereto continuously throughout the Term.

4. COMPANY OBLIGATIONS

For each Borrower Data record provided to the BorrowerCheck service, Company will return various red flag indicators and a preformatted report to the RouteOne dealer desktop (“BorrowerCheck Results”). The BorrowerCheck Results are Confidential Information of Company.

5. LICENSE AND RESTRICTIONS

Company grants Dealership a royalty-free, non-exclusive, limited license to use the BorrowerCheck Results throughout the Term for the purpose of triggering or avoiding additional verification activities as part of Dealership’s mitigation strategies to prevent fraud and misrepresentation on active or potential consumer applications for loans or other similar services. Dealership acknowledges and agrees that the BorrowerCheck Results are not “consumer reports” (as such term is defined in the Fair Credit Reporting Act) and may not be used to support or justify any “adverse action” (as such term is defined in the Fair Credit Reporting Act) against any consumer.

Dealership shall not: (i) make the BorrowerCheck Results available to any third party; (ii) sell, resell, rent or lease the BorrowerCheck Results; (iii) create derivative works based on the BorrowerCheck Results; (iv) remove any Company titles, trademark symbols, copyright symbols and restrictive legends from the BorrowerCheck Results; (v) bypass or disable any protections that may be put in place to provide security for BorrowerCheck or to protect against unlicensed use of BorrowerCheck; (vi) allow anyone besides Authorized Users to access or use BorrowerCheck; (vii) use the BorrowerCheck Results for marketing or solicitations of any kind or for direct-to-consumer sales; or (viii) maintain a database or table of BorrowerCheck Results for the purpose of avoiding a future billable BorrowerCheck request.

6. CONFIDENTIALITY

a) Each party agrees that the other party has disclosed or may disclose information relating to the disclosing party’s business including, without limitation, software, names and expertise of employees and contractors, know-how, trade secrets, processes, ideas, inventions (whether patentable or not), financial information, proposals, pricing information, the Agreement, customer lists, product development plans, forecasts, strategies and other technical, business, financial or customer information which to the extent disclosed to the receiving party is hereinafter referred to as “Confidential Information” of the disclosing party. Except to the extent necessary to perform its obligations under the Agreement, the receiving party will hold in confidence and not use or disclose any Confidential Information. Prior to permitting access to the Confidential Information, the receiving party will have discussed with its employees and consultants, sufficient to enable it to comply with all the provisions of the Agreement. The receiving party shall be responsible for breach by the receiving party’s representatives of the obligations set forth herein.

b) The receiving party shall not be obligated under this Section 6 with respect to information the receiving party can document:

c) Each party acknowledges that its breach of this Section 6 may cause irreparable injury to the other for which monetary damages are not an adequate remedy. Accordingly, a party will be entitled to seek injunctions and other equitable remedies in the event of a breach or threatened breach by the other party.

a) Each party represents and warrants that it: (i) has the legal power to enter into the Agreement; and (ii) will comply with all applicable laws and government regulations.

b) EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

a) Company shall defend Dealership against any claim, demand, suit, or proceeding (“Claim”) made or brought against Dealership by a third party: (i) alleging that the use of BorrowerCheck for its intended purpose infringes or misappropriates the intellectual property rights of a third party; (ii) based on the gross negligence, or willful misconduct of Company, or (iii) based on a breach by Company of its confidentiality obligations under the Agreement. Company shall indemnify Dealership for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Dealership in connection with any such Claim.

b) Dealership shall defend Company against any Claim made or brought against Company by a third party: (i) alleging that the Borrower Data infringes or misappropriates the intellectual property rights of a third party; (ii) relating to or arising in connection with Dealership’s use of BorrowerCheck in violation of the Agreement or applicable law, or (iii) based on the gross negligence or willful misconduct of Dealership. Dealership shall indemnify Company for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Company in connection with any such Claim.

c) The indemnity obligations under this Section 8 are subject to the indemnifying party being promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and having the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise. The indemnifying party will not be responsible for any settlement it does not approve in writing.

d) The indemnity obligations set forth above state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any Claim described in this Section 8.

OTHER THAN DAMAGES ASSOCIATED WITH A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 6 OF THESE STANDARD TERMS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO THIRD PARTIES FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS, PAYMENT OBLIGATIONS, LIABILITY FOR BODILY INJURY OF A PERSON, AND DAMAGES RELATING TO A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 6 OF THESE STANDARD TERMS, A PARTY’S TOTAL LIABILITY UNDER THE AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY DEALERSHIP TO COMPANY IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM OR $1,000,000, WHICHEVER IS LESS. ANY ACTION IN CONNECTION WITH THE AGREEMENT MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER SUCH PARTY BECOMES AWARE OF SUCH CAUSE OF ACTION.

a) Dealership grants Company and its licensors the perpetual right to include the Borrower Data in its Data Repository processes including, without limitation, creating models, variables, derivatives and reports based in whole or in part on Borrower Data. Company agrees that: (i) any personally identifiable information derived using Borrower Data and retained within the Data Repository will be encrypted and (ii) Dealership or Dealership’s consumer customers shall not be referenced as the source of any Data Repository information.

b) Company shall have a royalty-free, non-exclusive, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into BorrowerCheck any suggestions, enhancement requests, recommendations or other feedback provided by Dealership during the Term and to include Dealership’s name and logo in its marketing materials related to the provision of BorrowerCheck through RouteOne.

c) Dealership acknowledges and agrees that it is solely and completely responsible for any actions or decisions based on, in whole or in part, the contents of any BorrowerCheck Results.

d) All information provided to Company by Dealership under the Agreement will be held in confidence by Company throughout the Term and will not be disclosed to any third party (excluding the third party data providers necessary to allow Company to produce the BorrowerCheck Results) without Dealership’s express written permission.  Upon request by Dealership associated with the termination of the Agreement, Company will securely delete all Borrower Data in its systems or otherwise in its possession or under its control within ninety (90) days of such request. Company will provide a destruction certificate to the Dealership upon request.  For clarity, the license granted in subsection (a) above survives any destruction request under this subsection (d).

e) All information provided to Dealership by Company under the Agreement be held in confidence by Dealership throughout the Term and will not be disclosed to any third party without Company’s express written permission.

Exhibit A – Additional Dealership Requirements and Representations

1.  Restrictions on Permitted Use.

a) Dealership represents, warrants, and covenants to Company that it is (and will remain throughout the Term of the Agreement) in the business of, among other things, providing auto lending services to consumers in the United States and will use and store BorrowerCheck Results solely within the United States.

b) Dealership certifies that it is not an adoption search firm, pawn shop, private detective, detective agency, investigative company, alumni organization, bail bondsman, attorney or law firm, credit or financial counseling firm, credit repair clinic, condominium or homeowners association, convenience store, country club, news agency or journalist, diet center, dating service, foreign company or agency of foreign government, future services (i.e. health clubs, continuity clubs) company, genealogical research firm, for profit credit counseling firm, gun shop, hair salon, internet people locator service, judgment recovery entity, law enforcement agency, loan modification company, marketing company, massage service company, non-governmental agency associated with the collection of child support, restaurant, monthly subscription/club service, tattoo service, third party repossession/towing/impound service, video store, weapons dealer, unclaimed funds location service, or skip trace service for the general public. Dealership also certifies that it will not resell the BorrowerCheck Results or seek to obtain BorrowerCheck Results for personal or non-business use.

c) Dealership will use the BorrowerCheck outputs solely for purposes of requiring (or avoiding) additional verification of consumer-provided information as part of Dealership’s fraud and risk mitigation strategies permitted under the Gramm-Leach-Bliley Act and not for any “permissible purpose” under the Fair Credit Reporting Act.

d) Dealership agrees that when accessing and using BorrowerCheck under the Agreement: (i) Authorized Users will only enter data into BorrowerCheck that is data related to Dealership’s potential  customers, (ii) Dealership and each Authorized User will not copy, use or retain the BorrowerCheck Results for any purpose other than for the specific purpose specified herein, (iii) Authorized Users will only use Dealership-authorized computers and devices when accessing BorrowerCheck, and (iv) the failure to abide by these requirements may result in civil or criminal penalties to Dealership or Authorized Users individually.

e) Dealership acknowledges that it will require Authorized Users to access and use BorrowerCheck under terms and conditions no less restrictive than Dealership’s own policies and procedures, including acceptable use and information security policies, governing the access and use of personally identifiable information, and highly confidential information.

f) Dealership will not alter the BorrowerCheck Results and will use the BorrowerCheck Results only as authorized in the Agreement. Dealership waives all claims to any ownership right to the BorrowerCheck Results (including any data contained therein provided under license from a third party). Dealership agrees not to disassemble, decompile, manipulate, or reverse engineer the BorrowerCheck Results. Dealership will not further resell the BorrowerCheck Results.  Dealership shall maintain due diligence and information security procedures, which meet or exceed standard industry practice, to safeguard and secure the BorrowerCheck Results.

g) The BorrowerCheck Results may contain nonpublic personal information such as name, address, and Social Security number or information derived therefrom. Dealership shall comply with Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (the “GLB Act”) and the implementing regulations and will not use or disclose any nonpublic personal information (“Information”) contained in the BorrowerCheck Results except in accordance with the GLB Act. Dealership represents that it has established and maintains appropriate measures designed to ensure the security and confidentiality of the Information, to protect against any anticipated threats or hazards to the security or integrity of the Information and to protect against unauthorized access to or use of such Information.

h) Company’s third-party data providers are intended third party beneficiaries of this Exhibit A and may enforce the provisions of this Exhibit A directly as if they were a party hereto.

2. Audit.  Company and/or a Company representative shall have the right to audit Dealership no more than once in any twelve-month period to verify Dealership’s compliance with data workflows, the use case(s) and storage of BorrowerCheck Results.  If Dealership refuses to cooperate with an audit request or if Dealership is found to be in breach of its obligations under the Agreement pursuant to an audit, Company may, in addition to any other remedies available to it, immediately suspend Dealership’s access to BorrowerCheck, notwithstanding anything in the Agreement to the contrary.  In the event that the audit request initiates with a third-party data provider, in addition to Company’s annual audit right specified above, Dealership agrees to work with Company in good faith to supply such information requested by such third-party data provider, including, without limitation, requested documentation, within the timeframe required by such third-party data provider.