This Data Contribution Agreement (the “Agreement”) is entered into effective as of the date of the Experian Addendum to the Atlas Services Order Form (“Addendum”) by and between Experian Information Solutions, Inc., acting through its Business Information Solutions Division, a corporation organized and existing under the laws of the State of Ohio and having a place of business at 475 Anton Boulevard, Costa Mesa, CA. 92626 (“Experian”), StreetShares, Inc. (“StreetShares”), a corporation organized and existing under the laws of the State of Delaware, and Client identified on the Addendum (“Contributor”).
This Agreement, while in effect governs the contribution of Data, as defined below, from Contributor to Experian for Experian’s commercial information database and for the Small Business Credit Share database as described in Exhibit A attached hereto. Experian does not agree to be bound to any terms which conflict with or differ from those set forth herein regarding the contribution of Data. For good and valuable consideration and intending to be legally bound, Contributor, StreetShares, and Experian hereby agree as follows:
This Small Business Credit Share Terms and Data Contribution Agreement (the “Agreement”) is Exhibit A to the Data Contribution Agreement by and between the Contributor named below ( the “Member”), Experian and StreetShares.
WHEREAS, Experian has developed a financial data-sharing program called the Small Business Credit Share Repository (“SBCS”) consisting of identifying, demographic and credit experiences data elements as reported by Contributor and other Small Business Credit Share contributor firms. For purposes of this Exhibit, Contributor shall be defined as a “Member” and all Small Credit Share contributors shall be known as “members” respectively.
WHEREAS, Member, StreetShares and Experian have also entered into one or more other business credit agreements, including the agreement between StreetShares and Member concerning terms and conditions under which StreetShares provides business credit software Services to Member (the “End User/Customer Agreement”) and the Data Contribution Agreement (“Data Contribution Agreement”) under which Member contributes Member’s business credit data to Experian (collectively the “Other Agreements”).
WHEREAS, Member and Experian acknowledge that the spirit and intent of this program is to improve the quality and quantity of commercial credit information available for the business credit granting industry.
WHEREAS, Member and Experian agree that the definition of “Small Business Credit Granting” is very subjective and varies tremendously, therefore, to encourage maximum participation, this program is open to any firm that extends commercial credit and any commercial or business portfolio within such institution. Each member is required, to the extent possible, to submit the data defined as their “Small Business” loan, lease, credit card or other commercial portfolios.
NOW, THEREFORE, Experian and Member hereby agree to be legally bound as follows:
Warranty and Disclaimers.
To the best of Member’s knowledge, Member warrants to Experian that Member Data is current, accurate, and complete. Member will use reasonable care in collecting and providing the Member Data directly or indirectly to Experian; the Member Data will be fit for loading onto Experian’s system and will contain the minimum standard and unique data elements specified in Appendix B. Member will have sufficient means to comply with the amount of Member Data to be provided to Experian. To the best of Member’s knowledge, Member warrants to Experian that Member has the full legal right to provide the Member Data to Experian for Experian’s use under the terms of this Exhibit, and that no such use by Experian will infringe any patent, copyright, or other right of any third person. Member will use best efforts to ensure that that the media on which the Member Data is delivered will be free from defects in materials and workmanship. If Member submits its Member Data to Experian on media, then Member will replace any defective media without charge within ten (10) business days after Experian notifies Member of a defect. The foregoing warranties will survive the expiration, termination, or cancellation of this Exhibit.
Limitation of Liability. Member acknowledges that Experian maintains several databases updated on a periodic basis, and that Experian does not undertake a separate investigation for each inquiry or request for SBCS Reports made by Member. Member agrees that it is responsible for determining that the SBCS Reports are in accordance with Experian’s obligations under this Agreement. If Member reasonably determines that the SBCS Reports do not meet Experian’s obligations under this Agreement, Member shall so notify Experian in writing within ten days after receipt of the SBCS Reports in question. Member’s failure to so notify Experian shall mean that Member accepts the SBCS Reports as is. If Member so notifies Experian within ten days after receipt of the SBCS Reports, then, unless Experian reasonably disputes Member’s claim, Experian shall re-perform the SBCS Reports in question. EXPERIAN’S REPERFORMANCE OF THE SBCS REPORTS SHALL CONSTITUTE MEMBER’S SOLE REMEDY AND EXPERIAN’S MAXIMUM LIABILITY UNDER THIS AGREEMENT. IF NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON EXPERIAN, THEN MEMBER AGREES THAT EXPERIAN’S TOTAL LIABILITY FOR ANY OR ALL OF MEMBER’S LOSSES OR INJURIES FROM EXPERIAN’S ACTS OR OMISSIONS UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE AMOUNT PAID BY MEMBER TO STREETSHARES UNDER THIS AGREEMENT FOR THE PARTICULAR SBCS REPORTS WHICH ARE THE SUBJECT OF THE ALLEGED BREACH DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED BREACH BY EXPERIAN. MEMBER COVENANTS THAT IT WILL NOT SUE EXPERIAN FOR ANY AMOUNT GREATER THAN SUCH AMOUNT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.
See Appendices A, B, and C attached to your Experian Addendum to Atlas Services Order Form.