Terms and Conditions

WHEREAS, TurboPass has developed and offers to its customers the automated verification of assets and deposits solution more particularly described on Exhibit “A” attached hereto and by this reference made a part hereof (the “TurboPass Services”), which will provide Client with electronic verification of buyers’ financial account information (collectively, “Data”); and

 

WHEREAS, Client desires to utilize the TurboPass Services, and TurboPass desires to provide the TurboPass Services to Client, all in accordance with the terms and conditions set forth in this Agreement;

NOW THEREFORE, in consideration of the mutual covenants and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Term; Termination.

 

(a) The term of this Agreement shall commence on the date hereof and shall continue for a period of three (1) year (the “Initial Term”) unless terminated sooner in accordance with this Section 1. Thereafter, this Agreement shall automatically renew for successive one (1) year period (each a “Renewal Term” and, together with the Initial Term, the “Term”) unless either Party provides the other Party with written notice of their desire to terminate this Agreement at least thirty (30) days prior to the expiration of the Initial Term or applicable Renewal Term.

(b) Either Party may terminate this Agreement at any time and for any reason or no reason by providing the other Party at least thirty (30) days’ written notice of the Effective Date of such termination.

(c) In the event either party breaches this Agreement and fails to cure such breach within ten (10) days of receiving written notice of such breach, the notifying party thereafter may terminate this Agreement at any time by providing written notice of such termination to the other party. In the case of Client terminating under this clause, such termination shall waive all penalties, termination fees or liquidated damages.

 

2. TurboPass Services.

(a) During the Term of this Agreement, TurboPass shall provide Client with full use of the TurboPass Services subject to the terms and conditions of this Agreement. Client acknowledges and agrees that the TurboPass Services do not include any technical services or support other than as set forth in this Agreement. (b) TurboPass and Client acknowledge and agree that, from time to time, TurboPass may develop and offer additional services to its customers. In the event Client desires to utilize any such additional services of TurboPass, TurboPass and Client shall enter into an amendment to this Agreement, including, but not limited to, an amendment to Exhibit “A,” in order to set forth the terms and conditions on which TurboPass will provide Client with such additional services.

 

(b) TurboPass and Client acknowledge and agree that Client may request that TurboPass perform certain custom development work in order to tailor the TurboPass Services to Client’s requirements. In the event Client requests such custom development work, TurboPass shall provide Client with a statement of work describing the work to be performed and the terms and conditions under which TurboPass is willing to perform the same. Client must accept the statement of work by executing and returning the same to TurboPass prior to TurboPass commencing any custom development work.

3. Customer Support. During the Term of this Agreement, TurboPass shall provide Client with the customer support described on Exhibit “B” attached hereto and by this reference made a part hereof (“Customer Support”). TurboPass will provide the Customer Support in accordance with the service levels set forth in Exhibit “B” attached hereto.

 

4. Service Fees.

(a) During the Term of this Agreement, Client shall pay TurboPass the undisputed amounts set forth in Exhibit “C” attached hereto and by this reference made a part hereof in consideration for the TurboPass Services. TurboPass will provide Client with monthly invoices with respect to amounts owed by Client to TurboPass throughout the Term of this Agreement. Client shall provide a payment method to be used immediately upon monthly billing. Any amounts not paid by Client to TurboPass in a timely manner shall accrue interest at a rate of one and one-half percent (1.5%) per month beginning on the date such amounts are due and payable and continuing until such time as such amounts are paid in full.

(b) Client shall reimburse TurboPass for any and all expenses TurboPass may incur, including reasonable attorney fees, in collecting any past due amounts under this Agreement.

(c) Client shall pay any applicable sales, use or other similar taxes for the TurboPass Services provided by TurboPass pursuant to this Agreement, exclusive of taxes based on TurboPass’ net income.

 

5. Data Quality; Data Security.

(a) Client acknowledges and agrees that the ability of TurboPass to provide accurate Data to Client in connection with the TurboPass Services is dependent upon the receipt by TurboPass of accurate Data from TurboPass’ Data provider(s). In light of the foregoing, Client expressly acknowledges and agrees that TurboPass shall have no liability under this Agreement arising out of inaccurate information provided to Client as part of the TurboPass Services.

 

(b) Client acknowledges and agrees that Client shall be responsible to taking the following actions in connection with Client’s use of the TurboPass Services:

i. Ensure that only Authorized Users (as defined below) can order or access the TurboPass Services;

 

ii. Ensure that Authorized Users do not order Data for personal reasons or provide Data to any third party except as permitted by this Agreement;

 

iii. Inform Authorized Users that unauthorized access to Data may subject such Authorized Users to civil and/or criminal liability;

iv. Take all commercially reasonable measures necessary to prevent unauthorized ordering of or access to the TurboPass Services or to Data obtained through the TurboPass Services by any person other than an Authorized User accessing the TurboPass Services for permissible purposes; Not use non-company owned assets such as personal computer hard drives or portable and/or removable data storage equipment or media (including but not limited to laptops, zip drives, tapes, disks, CDs and DVDs) to store Data;

v. Not access the TurboPass Services via any unsecured wireless hand-held communication device, including, but not limited to, web enabled cell phones, personal digital assistants, or mobile data terminals; and

vi. Not ship hardware or software between Client’s locations or to third parties without deleting all user ID’s or passwords with respect to the TurboPass Services.

(c) For purposes of this Agreement, an “Authorized User” is an employee of Client that Client has authorized to order or access the TurboPass Services and that is trained on Client’s obligations under this Agreement with respect to: (i) the ordering and use of the TurboPass Services; (ii) the Data received by Client in connection with the TurboPass Services; and (iii) Client’s legal responsibilities with respect to the access and use of the Data.

(d) TurboPass shall, to the extent permitted by law, promptly notify Client of any actual or reasonably suspected unauthorized disclosure of NPI by TurboPass or its agents of which TurboPass becomes aware (a “Security Breach”). Further, TurboPass shall, to the extent permitted by law, notify Client within 30 days of any actual or reasonably suspected unauthorized access to TurboPass’ systems that did not include NPI

 

6. Intellectual Property.

(a) TurboPass and Client acknowledge and agree that TurboPass is the sole owner of: (i) the names, marks, logos, slogans, designs, and images by which TurboPass and the TurboPass Services are known and identified (collectively, the “Marks”); and (ii) the TurboPass Services themselves, including, without limitation, the automated asset verification software, and the reports, report formats, and images used in the automated asset verification software (the “Software,” and, together with the Marks, the “ TurboPass Intellectual Property”). Client hereby acknowledges and agrees that the TurboPass Intellectual Property is and shall remain the sole and exclusive property of TurboPass and agrees that Client has not, by reason of this Agreement or otherwise, acquired any right, title, or interest in or to the TurboPass Intellectual Property other than as set forth in this Agreement. Client acknowledges and agrees that Client shall make no claim of ownership regarding the TurboPass Intellectual Property. This Section 6(a) shall survive the termination of this Agreement.

(b) During the Term of this Agreement, TurboPass hereby grants Client a nonexclusive, nontransferable, limited right to use the Software in connection with the TurboPass Services. Client shall have no right to reproduce, copy, alter, modify, or create derivative works from the Software.

 

(c) TurboPass will defend and indemnify, at its own expense, any third-party claim, suit or proceeding brought against Client to the extent it is based upon a claim that the technology or TurboPass Services to which Client has access under this Agreement, when used in accordance with the terms and conditions of this Agreement, infringe any United States patent, copyright or trade secret of any third party. The foregoing indemnity obligation is subject to Client (i) promptly notifying TurboPass in writing of any such claim or action, and (ii) providing TurboPass with full information and assistance in connection therewith. TurboPass will pay all damages, costs and expenses finally awarded to third parties against Client in any claim covered by the foregoing indemnity, provided Client has complied with the terms of this Section, and excluding in connection with a compromise or settlement of such claim made without TurboPass’ prior written consent. TurboPass will have the exclusive right to settle or compromise any such claim or action. If any technology or TurboPass Service is, or in TurboPass’ opinion might be, held to infringe as set forth above, TurboPass will, at its option, replace or modify such technology or TurboPass Service so as to avoid infringement, or procure the right for Client to continue to use such Technology or TurboPass Service. If neither of such alternatives is, in TurboPass’ opinion, commercially reasonable, TurboPass may immediately discontinue providing access to such technology or TurboPass Service, and TurboPass, as its sole liability, will refund the prorated portion of the fees paid for the TurboPass Services by Client for the remaining portion of any subscription period. TurboPass will have no liability for any claim of infringement to the extent such claim arises as a result of Client’s use of the technology or TurboPass Services in combination with any items not supplied by TurboPass, any modification of the technology or TurboPass Services by Client or third parties, or the unauthorized use of any of the technology or TurboPass Services by Client or its Participants. The foregoing states the entire liability of TurboPass to Client and Client’s sole remedy concerning infringement of patent, copyright, trade secret or other intellectual property rights.

 

7. Indemnity and Limitation of Liability.

(a) To the fullest extent permitted by law, Client agrees to indemnify and hold harmless TurboPass, its parent company, subsidiaries, and affiliates, and each of their respective officers, directors, shareholders, members, managers, and employees (collectively, the “TurboPass Indemnitees”) from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties, including, without limitation, related attorney and consultant fees and expenses (collectively, “Losses”), incurred by the TurboPass Indemnitees, or any of them, as a result of any third party claim resulting from or arising out of this Agreement; provided, however, that the foregoing indemnification obligation shall not apply to the extent that such Losses result from the gross negligence or willful misconduct of the TurboPass Indemnitees.

(b) To the fullest extent permitted by law, TurboPass agrees to indemnify and hold harmless Client, its parent company, subsidiaries, and affiliates, and each of their respective officers, directors, shareholders, members, managers, and employees (collectively, the “Client Indemnitees”) from and against any and all Losses, incurred by the Client Indemnitees, or any of them, as a result of any Third-Party claim resulting from or arising out of or related to TurboPass’ performance, or lack of performance, under and pursuant to this Agreement; provided, however, that the foregoing indemnification obligation shall not apply to the extent that such Losses result from the gross negligence or willful misconduct of the Client Indemnitees

(c) EXCEPT FOR TURBPASS’ OBLIGATIONS IN SECTIONS 6(C), 7(A), 8 AND 10, TURBPASS SHALL NOT BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOSS OF GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE TURBOPASS SERVICES (OR ANY DUTY OF COMMON LAW, AND WHETHER OR NOT OCCASIONED BY THE NEGLIGENCE OF A PARTY OR ITS AFFILIATES), REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

(d) Except as otherwise stated in this Agreement, the aggregate liability of TurboPass under this Agreement for damages (monetary or otherwise) under any circumstances for claims of any type or character arising from or related to the TurboPass Services will be limited in each instance to the amount of the actual direct damages incurred by Client; provided, however, in all events TurboPass’ aggregate liability hereunder will not exceed an amount equal to the aggregate amount of the fees paid by the Client to TurboPass during the six (6) months immediately preceding the damage claim in question.

 

(e) This Section 7 shall survive the termination of this Agreement.

8. Confidentiality. TurboPass and Client acknowledge and agree that, in the course of the Parties’ performance of their obligations under this Agreement, each Party may disclose to the other Party or its Representatives (as defined below) certain Confidential Information (as defined below). Based on the foregoing, TurboPass and Client further acknowledge and agree as follows:

(a) Each Party and its Representatives shall strictly preserve the confidentiality of all Confidential Information provided by the other Party at all times and in all respects. Each Party hereby agrees that it and its Representatives shall use the Confidential Information solely in connection with the performance of this Agreement (the “Approved Purposes”). Each Party further agrees that it and its Representatives will not, directly or indirectly, publish, disseminate, divulge, disclose or use the Confidential Information in any manner whatsoever other than for the Approved Purposes; provided, however, that:

i. Confidential Information may be disclosed to the Parties’ Representatives who need to know such Confidential Information for the Approved Purposes, who are provided with a copy of this Agreement, and who are directed by the Parties in writing to treat such Confidential Information strictly in accordance with this Agreement;

 

ii. the disclosing Party may make any disclosure of Confidential Information to which the other Party gives its prior written consent; and (iii) the disclosing Party may make any disclosure of Confidential Information required by applicable law, regulation or legal process provided that the disclosing Party makes such disclosure in accordance with Section 8(c) of this Agreement.

(b) Recipient acknowledges that, pursuant to this Agreement, it will receive or have access to certain non-public personal information, records, files or documents of individuals (“Nonpublic Personal Information”). Recipient will maintain all such Nonpublic Personal Information in accordance with the Gramm-Leach-Bliley Act, Title V, Subtitle A, 15 U.S.C. §6801 et seq. and all other applicable federal and state privacy laws and implementing regulations (collectively, the “Privacy Laws”), whether or not Recipient is subject to such Privacy Laws, and will not reproduce, disseminate, utilize or take any other action in connection with the Nonpublic Personal Information except as permitted by the Privacy Laws and as reasonably necessary to perform its obligations under this Agreement. Recipient further agrees to implement and maintain appropriate measures designed to:

i. ensure the security and confidentiality of Nonpublic Personal Information;

 

ii. protect against any anticipated threats or hazards to the security or integrity of Nonpublic Personal Information; and (iii) protect against unauthorized access to or use of Nonpublic Personal Information.

(c) In the event that a Party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information, then the disclosing Party shall provide the other Party with prompt notice of any such request or requirement so that that Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver from the other Party, the disclosing Party or any of its Representatives are nonetheless, in the written opinion of the disclosing Party’s outside legal counsel, legally compelled to disclose the Confidential Information to any tribunal, then the disclosing Party or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the Confidential Information which such counsel advises is legally required to be disclosed, provided that the disclosing Party exercises its reasonable efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such tribunal.

 

(d) At any time upon the request of the disclosing Party for any reason: (i) the receiving Party shall, at the option of the disclosing Party, either promptly deliver to the disclosing Party or promptly destroy (with written confirmation thereof provided to the disclosing Party) all written Confidential Information (and all copies thereof and extracts therefrom) furnished to the receiving Party or its Representatives by or on behalf of the disclosing Party ; and (ii) all other Confidential Information prepared by the receiving Party shall be destroyed (with written confirmation thereof provided by the receiving Party to the disclosing Party) and no copy thereof shall be retained by the receiving Party.

(e) Each Party acknowledges that a breach of this Section 8 by either Party will result in irreparable and continuing damage and, therefore, in addition to any other remedy which may be afforded by law, in the event of any breach or threatened breach of this Section 8 by either Party, the affected Party shall be entitled to seek specific performance by injunction or any other equitable remedies of any court of competent jurisdiction. If such an injunction is obtained by the affected Party, then the breaching Party further agrees to pay all costs incurred by the affected Party in seeking and obtaining such injunction, including but not limited to attorney fees and court costs. The rights, remedies and benefits herein expressly specified are cumulative and not exclusive of any rights, remedies or benefits which the affected Party may otherwise have.

 

(f) For purposes of this Section 8, the following capitalized terms shall have the following meanings:

i. “Confidential Information” means any information, whether oral, written, or electronic, regarding the business of the Parties, some of which information may constitute trade secrets, including, without limitation, the Parties’ methods, manner, and techniques of providing automated asset verification services, any software applications, computer programs (including, but not limited to, source code and object code for such programs), and executable code used in connection with providing automated asset verification services, marketing techniques, financial and pricing data, demographic data, customers and customer lists, active prospects, vendor and vendor lists, sales representative and distributor lists, names and expertise of employees and consultants, know how, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information. Confidential Information also shall include all notes, analyses, compilations, studies, interpretations or other documents prepared by either Party or its Representatives which contain, reflect or are based upon, in whole or in part, Confidential Information furnished to the receiving Party or its Representatives and which are not available to the general public or which are marked “Confidential,” as well as all information provided by either Party or its Representatives to the receiving Party or its Representatives prior to the date of this Agreement, including, but not limited to, any and all information previously provided to the receiving Party by the disclosing Party during the negotiation of this Agreement. Confidential Information also shall include nonpublic personal information (“NPI”) about a consumer of the Client. Furthermore, TurboPass agrees that is shall handle NPI in compliance with the requirements of the Gramm-Leach-Bliley Act and the regulations contained therein. Notwithstanding the foregoing paragraphs, Confidential Information shall not include information that:

(A) is or becomes generally available to the public other than as a result of a breach of this Agreement by Client;

(B) was within the Client’s possession prior to its being furnished to Client by or on behalf of TurboPass, provided that the source of such information was not bound by a confidentiality agreement with TurboPass or other contractual, legal or fiduciary obligation of confidentiality to TurboPass or any other party with respect to such information;

(C) is or becomes available to Client on a non-confidential basis from a source other than TurboPass or any of its Representatives, provided that such source was not bound by a confidentiality agreement with TurboPass or other contractual, legal or fiduciary obligation of confidentiality to TurboPass; or

(D) is independently developed by Client without use of any Confidential Information.

ii. “Representatives” means a party’s affiliates and each of their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).

(g) This Section 8 shall survive the expiration or termination of this Agreement. Client’s obligations with respect to Confidential Information shall terminate on the date that is three (3) years after the date on which this Agreement expires or terminates; provided, however, that Client’s obligations with respect to Confidential Information that constitutes trade secrets of TurboPass shall never terminate.

9. Disclaimer of Warranties. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, CLIENT ACKNOWLEDGES THAT TURBOPASS MAKES NO WARRANTY, REPRESENTATION OR UNDERTAKING TO CLIENT WITH RESPECT TO THE TURBOPASS SERVICES AND THAT THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR PROVIDED BY LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR BUSINESS USAGE. THIS SECTION 9 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

10. Compliance with Laws. Client shall be responsible for ensuring that the Data provided as part of the TurboPass Services is used in accordance with all applicable laws, including, without limitation, the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et. seq.) and the implementing regulations issued thereunder. TurboPass shall be responsible for ensuring that NPI provided as part of the TurboPass Services is used in accordance with all applicable laws, including, without limitation, the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et. seq.) and the implementing regulations issued thereunder. Client represents and warrants to TurboPass that it will request and use the TurboPass Services strictly in accordance with the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq., and all laws with respect to the collection, distribution, or use of any information on consumers, including any applicable state consumer reporting laws (as may be amended from time to time, the “FCRA”), and comply with all requirements of the FCRA applicable to it, including any restrictions related to medical information. Further, Client certifies to TurboPass that it will not request or use the TurboPass Services for purposes prohibited by law. Without limiting the foregoing, Client certifies that Client will request and use the TurboPass Services solely in connection with a single transaction with the consumer, which data Client has been determined is relevant to effect or process the subject transaction; and only with respect to a transaction involving the consumer as to whom such information is sought. If the consumer makes a timely request of Client, Client may share the contents of the TurboPass Services with the consumer as long as it does so without charge and only after authenticating the consumer’s identity, consistent with any applicable TurboPass policy. TurboPass shall provide Client its contact information and the applicable transaction or report number (or similar reference) in writing, which Client shall include in all adverse action notices, as applicable. Client acknowledges it has received a copy of the “Notice to Users of Consumer Reports: Obligations Under the FCRA” (“Notice”) from TurboPass at TurboPass’ website www.turbopasspoi.com/noticetousers. Copies of the Notice are also available directly from the CFPB at www.consumerfinance.gov. Client represents and warrants that it will comply with all requirements under the Fair Credit Reporting Act and all applicable state laws in ordering and using the TurboPass Services, and Client is solely responsible for its compliance. Client is responsible for monitoring the CFPB website for changes.

11. Permissible Purpose Certification. Client certifies that it will order TurboPass Services solely for one or more of the following purpose(s) and for no other purpose:

1. in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer

2. in connection with a business transaction that is initiated by the consumer

3. to review an account to determine whether the consumer continues to meet the terms of the account

12. Miscellaneous Terms and Conditions.

(a) Governing Law. The laws of the State of Texas shall control the interpretation and enforcement of this Agreement, without regard to conflicts of law principles.

(b) Venue & Jurisdiction. Except for injunctive relief sought by TurboPass, which may be brought in a court of competent jurisdiction in any state of the United States of America or in any foreign country where Client conducts business or has a place of business, all claims, disputes or controversies whatsoever arising out of or related to this Agreement in any way, shall be commenced, filed and litigated before a court of competent jurisdiction in Travis County, Texas, or, if the federal court has exclusive jurisdiction in any such claim, dispute or controversy, it shall be commenced, filed and litigated in the U.S. District Court for the Western District of Texas, Austin Division. Client hereby submits to the personal jurisdiction of the state and federal courts as herein provided, and any courts of appeal therefrom, and waives any objection (on the grounds of lack of jurisdiction, or forum non convenience, or otherwise) to the exercise of jurisdiction over it and by any such courts.

(c) Notices. All notices shall be in writing and shall be effective upon personal delivery to a Party, or one business day after delivery to a nationally recognized overnight courier service, or three business days after mailing by certified mail, return receipt requested, postage prepaid. Notices shall be delivered to the Party at the address set forth in the signature block or at such other address as a Party may direct.

(d) Amendments. This Agreement may be amended only in a writing signed by duly authorized officers of both Parties.

(e) Assignment. Client may not assign this Agreement without the prior written consent of TurboPass. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties.

(f) Entire Agreement. This Agreement, including all exhibits and attachments hereto incorporated by reference, constitutes the entire agreement of the Parties with respect to the subject matter hereof. All prior representations, covenants, proposals and understandings, whether written or oral are superseded and merged herein.

(g) Interpretation. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended to explain, modify or place any construction or limitation upon any of the provisions of this Agreement. No provision of this Agreement shall be construed for or against any person because such person, its affiliate or their counsel drafted or did not draft such provision. The illegality or unenforceability of any term or provision of this Agreement, or any portion of any such term or provision, shall not affect the legality or enforceability of any other provision or portion of this Agreement.

(h) Survival. Any provision of this Agreement that expressly survives the termination of this Agreement and any and all other provisions of this Agreement that by their nature must survive the termination of this Agreement in order to be effective shall survive the termination of this Agreement.

(i) No Third-Party Beneficiaries. The Parties agree that this Agreement is for the benefit of the Parties hereto and is not intended to confer any rights or benefits on any third party, including any employee of either Party hereto, and that there are no third-party beneficiaries as to this Agreement or any part or specific provision of this Agreement.

(j) Waiver. The failure of a Party to insist on strict compliance with the terms and conditions of this Agreement shall not constitute a waiver of any right, nor shall such failure prevent a Party from asserting a subsequent act or omission as a violation of this Agreement. A Party’s waiver of any breach of any covenant or condition of this Agreement is not a waiver of a breach of any other covenant or condition, nor is it a waiver of a subsequent breach of the same covenant or condition, the breach of which was previously waived.

(k) Independent Contractors. Client, TurboPass and their respective employees and agents shall at all times be independent contractors with respect to the other and nothing herein shall be deemed to cause this Agreement to create an employment, partnership, joint venture or other relationship between the Parties. Neither Party shall have any authority to bind the other to any matter or undertaking.

(l) Relationship of the Parties. This Agreement is not intended to create the relationship of principal and agent, or employer and employee and under no circumstances will either party be considered to be the partner, agent or employee of the other, and neither shall act or attempt to act, or represent itself, directly or by implication, as such.

(m) Force Majeure. Neither Party, nor its respective suppliers, shall be liable for any delay or failure in its performance under this Agreement (other than for payment obligations hereunder) if and to the extent that such delay or failure is caused by events beyond the reasonable control of such person including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, computer downtime, software defects, material or component shortages, supplier failures, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delay, fire, earthquakes, flood, epidemics, riots or strikes.

(n) Counterparts. This Agreement may be executed in one or more counterparts and by facsimile, e-mail .pdf, and any other electronic form of communication. Each such counterpart will be deemed an original, and all counterparts, taken together, shall constitute one and the same instrument.

(o) Vendor Due Diligence and Audit Materials. Client will have access, at no additional cost, to audit reports, attestations, and other detailed information regarding TurboPass’, its affiliate’s, and subcontractor’s internal systems testing and procedures, TurboPass’ information security and data privacy controls combined with other such materials as may be required for “assessing and managing risks associated with third-party relationships” (e.g. OCC Bulletin 2013-29, et. al.), collectively “Due Diligence Materials”. Due Diligence Materials evidence TurboPass’ compliance with all relevant industry and regulatory standards and include recent independent audits (such as SSAE 16’s and audited financial statements), third party attestations and certifications (such as AT101’s and PCI AOC’s), and detailed information and testing results regarding physical, technical and administrative controls utilized by the Service or the TurboPass and include the security of Client’s Confidential Information or NPI. If requested by Client, TurboPass shall cause any of its subcontractors affiliated with delivery of TurboPass Service to provide appropriate Due Diligence Materials.

(p) Client Audit. Client agrees that TurboPass will have the right to audit Client’s and any of its agent’s compliance with the terms of the Agreement, including its access, receipt and use of the TurboPass Services. Client will be responsible for assuring full cooperation with TurboPass in connection with such audits and will provide TurboPass or obtain for TurboPass access to such properties, records and personnel as TurboPass may reasonably require for such purpose.

(q) Subcontractors. TurboPass shall cause any of its subcontractors affiliated with delivery of TurboPass Service to comply with this Agreement.

Exhibit “A”

TurboPass Services TurboPass shall provide Client with the Automated Verification of Assets and Deposits service owned by TurboPass as requested by Client. The TurboPass Services are a fully-automated verification of assets and deposits solution that provides electronic verification of a buyer’s financial account statements pulled directly from such buyer’s financial institutions(s). The TurboPass Services may be ordered by a representative of Client only when a buyer has provided consent to Client during the application process. A buyer provides additional electronic consent to Client to access buyer’s financial accounts by accepting the electronic invitation from Client and by providing account access information to Client within the TurboPass Services. The TurboPass Services will compare the financial account information submitted by a buyer in an application against the information obtained by accessing such buyer’s financial accounts. TurboPass shall obtain financial account information from financial institutions, at the request of Client and as authorized by the buyer, using private and proprietary technology which provides bank transaction and balance information associated with the financial account. The information provided to TurboPass by the buyer’s financial institution is then made available to Client as an asset verification results report listing bank account details and computed analysis.

Exhibit “B”

Customer Support

TurboPass shall be responsible for the following support actions:

• Account Provisioning

○ Creating new verifier companies and hierarchies

○ Verifier User Management

○ Create / Update / Delete / Support

• Order Management

○ Deliver primary support to verifiers via e-mail support regarding:

 Order Placement

 Order Status

 Financial Institution Support

 Email Address Changes

 Order Deletion and Reset

• Buyer Support

○ Deliver primary support to buyers via email and telephone support channels regarding

 Login Issues

 Financial Institution Support

 System Operation

TurboPass will supply assistance during regular support hours (“Regular Support Hours”), which for purposes of this Agreement shall be between 9am-5pm Central Standard Time, Monday-Friday. Company will not schedule agents on New Year’s Eve, New Year’s Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas Eve and Christmas Day. This assistance will consist of TurboPass using its best efforts to provide:

• Error analysis and correction – if correction can be made in real time.

• TurboPass shall, if, as and when it deems necessary, provide Client with updates for the TurboPass System reflecting improvements made to the TurboPass System.

• If the Client suspects that a defect exists in the TurboPass System, Client shall notify TurboPass in writing of its suspicions. This notification shall comprehensively describe the nature of the suspected defect and provide details of the circumstances of its occurrence. Upon receipt of the Client notice, TurboPass shall use its best efforts to confirm the existence of the defect. If TurboPass confirms the existence of the defect, TurboPass shall correct it as part of its obligations under this Agreement.

Exhibit “C”

 

Starter

$299 PER MONTH MINIMUM

Includes:

20 TurboPass Reports/ TurboPass Orders

 $9 per Additional Report

Full Reporting Dashboard 

 

Professional

$399 PER MONTH MINIMUM

Includes:

40 TurboPass Reports/ TurboPass Orders

 $8.75 per Additional Report

Full Reporting Dashboard 

 

Enterprise

$499 PER MONTH MINIMUM

Includes:

60 TurboPass Reports/ TurboPass Orders

 $8 per Additional Report

Full Reporting Dashboard 

 

III. TurboPass Order. For purposes of this Agreement, the term “TurboPass Order” means a single, successfully completed TurboPass Service order, access order or a completed refresh order for unlimited accounts and unlimited financial institutions. 

IV. Marketing Activities. Client hereby agrees to the issuance of a joint press release with TurboPass regarding the business relationship between TurboPass and Client and the TurboPass service.

V. Invoicing Information. For purposes of this Agreement, the submitted information will be used to invoice and bill Company on a monthly basis.