Force Majeure. If collection efforts are not fully successful within twelve months of initiation, BILLING AGRENT shall reimburse TransUnion in full for any balance due to TransUnion for Services rendered. Subscriber may also request that TransUnion provide FICO Scores that utilize archived, depersonalized, consumer report information (Archive Scores) and TransUnion agrees to perform such processing as reasonably practicable. The underwriting agreement filed as Exhibit 1.1 to this registration statement will provide for indemnification by the underwriters of us and our officers and directors for certain liabilities arising under the Securities Act or otherwise. We have adopted an amended and restated certificate of incorporation, which will become effective immediately prior to the completion of this offering, and which will contain provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. TransUnion may provide score reason codes to Subscriber, which are designed to indicate the principal factors that contributed to the TransUnion Score, and may be disclosed to consumers as the reasons for taking adverse action, as required by the Equal Credit Opportunity Act (ECOA) and its implementing Regulation (Reg. TransUnion offers a suite of reference services from sources other than its Consumer Reporting Database. BILLING AGENT represents and warrants: (1) that it has the experience and ability to perform the services and its obligations as set forth in this Agreement; (2) that it will perform the services in a professional and competent manner; (3) that it has the power to enter into and perform this Agreement; and (4) that its performance of this Agreement shall not violate any federal, state, and/or municipal laws or regulations. *** Certain information, as identified by [***], has been excluded from this agreement because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. The stock’s first trade on the Nasdaq was for $26.00 at 12:44 p.m. All TransUnion Scores provided hereunder will be held in strict confidence and may never be sold, licensed, copied, reused, or reproduced, and may never be disclosed, revealed or made accessible, in whole or in part, to any Person, except: (i) to those employees of Subscriber with a need to know and in the course of their employment; (ii) to those third party processing agents and other contractors of Subscriber who have a need to know in connection with Subscribers use of the TransUnion Scores as permitted hereunder and who have executed a written agreement that limits the use of the TransUnion Scores by the third party only to the use permitted to Subscriber and contains the prohibitions set forth herein regarding model development, model calibration, reverse engineering and confidentiality; (iii) when accompanied by the corresponding reason codes, to the consumer who is the subject of the score, when in connection with an adverse action notice; (iv) to governmental regulatory agencies; (v) to ratings agencies, dealers, investors and other third parties for the purpose of evaluating assets or investments (e.g., securities) containing or based on obligations of the consumers to which the Scores apply (e.g., mortgages, student loans, auto loans, credit cards), provided that (a) Subscriber may disclose Scores only in aggregated formats (e.g., averages and comparative groupings) that do not reveal individual Scores, (b) Subscriber shall not provide any information that would enable a recipient to identify the individuals to whom the Scores apply, and (c) Subscriber shall enter into an agreement with each recipient that limits the use of the Scores to evaluation of such assets or investments; or, (vi) as required by law. This Agreement consists of the general terms and conditions set forth in the body of this Agreement (General Terms), Exhibit A (Affiliates) and Exhibit B (Fair Isaac Scores). At this point, with the AI theme so slippery, one begins to wonder about other aspects of … Subscriber Certifications. Both Subscriber and TransUnion shall submit to the other party for written approval, prior to use, distribution, or disclosure, any material including, but not limited to, all advertising, promotion, or publicity in which any trade name, trademark, service mark, and/or logo (hereinafter collectively referred to as the Marks) of the other party are used (the Materials). NOW, THEREFORE, in consideration of the promises and mutual covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, TransUnion and Subscriber hereby agree as follows: Scope of Agreement. TransUnion has the capability to offer certain. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the stock certificates issued in these transactions. Further, we have entered into indemnification agreements with each of our directors and executive officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. This Exhibit for Fair Isaac Scores is entered into pursuant to the terms of that certain TransUnion Master Agreement for Consumer Reporting and Ancillary Services entered between TransUnion and Subscriber. Moreover, no party shall, by virtue of this Agreement, have any right or power to create any obligation, express or implied, on behalf of any other party. BILLING AGENT shall preserve such records for a period of at least. Subscriber represents and warrants that: (i) it has the authority to enter into and perform under this Agreement; (ii) it has the right to give to TransUnion the rights set forth in this Agreement; and, (iii) it has the right to provide any and all information including, but not limited to, data obtained from third parties, to TransUnion, and to allow TransUnion to provide the same to TransUnions subcontractors, for use in performance of the Services. If Subscriber desires to receive CRD Reference Services, Subscriber hereby certifies that the specific purpose(s) for which the CRD Reference Services will be requested, obtained and used by Subscriber is one or more of the following uses as described in, and as may be interpreted from time to time, by competent legislative, regulatory or judicial authority, and as being encompassed by Section (6802)(e) of the Gramm-Leach-Bliley Act, Title V, Subtitle A, Financial Privacy (15 U.S.C. This Exhibit governs the use by Subscriber of credit risk scores or insurance risk scores of Fair Isaac Corporation (Fair Isaac) (FICO Scores) Subscriber receives from TransUnion. The parties to this Agreement are independent contractors. Subscriber shall not request, obtain or use such CRD Reference Services for any other purpose. 5. One Time Use. For purposes of this Agreement, the term Reference Services shall be deemed to include both. Form of Amended and Restated Certificate of Incorporation of the registrant, to be in effect upon completion of this offering. ITEM 15. Force Majeure. Nothing stated herein will be construed to limit any other remedies available to TransUnion under this Agreement including, but not limited to suspension and/or termination. Third Amended and Restated Loan Sale Agreement, dated January 1, 2019, between Upstart Network, Inc. and Cross River Bank, amended as of November 25, 2020. By signing this Agreement, Subscriber acknowledges receipt of a copy of the Consumer Financial Protection Bureaus Notice to Users of Consumer Reports: Obligations of Users Under the FCRA and a copy of the Consumer Financial Protection Bureaus Notices to Furnishers of Information: Obligations of Furnishers Under the FCRA. Subscriber shall fully cooperate with TransUnion in mitigating any damages due to any misappropriation or unauthorized use or disclosure of any. Opinion of Wilson Sonsini Goodrich & Rosati, P.C. FOR ANY BREACH OF THIS WARRANTY, SUBSCRIBERS SOLE AND EXCLUSIVE REMEDY, AND FAIR ISAACS AND TRANSUNIONS ENTIRE LIABILITY, SHALL BE RECALCULATION OF THE FICO SCORES THAT FORMED THE BASIS OF SUCH BREACH. FAIR ISAAC AND TRANSUNION HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND OTHER WARRANTIES THAT MIGHT BE IMPLIED FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE. 10.11# Amended and Restated Revolving Credit and Security Agreement, dated May 22, 2020, between Upstart … AMENDED AND RESTATED BILLING AGENT AGREEMENT. Such accommodation shall include, but not be limited to. The following table sets forth all expenses to be paid by us, other than underwriting discounts and commissions, upon completion of this offering. At present, we are not aware of any pending litigation or proceeding involving any person who is or was one of our directors, officers, employees or other agents or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, for which indemnification is sought, and we are not aware of any threatened litigation that may result in claims for indemnification. Data provided by TransUnion as part of Services may include information obtained from the Death Master File (DMF) made available by the US Department of Commerce National Technical Information Service and subject to regulations found at 15 CFR Part 1110. (Note: Upstart Holdings said its IPO was priced at $20 – the low end of its $20-to-$22 range – on 12 million shares, the same number of shares cited in the prospectus.) In July 2017, we issued a warrant to purchase a total of 31,554 shares of common stock to one accredited investor at an exercise price of $1.35 per share. Indemnification for Intellectual Property Infringement. Second Amended and Restated Promotion Agreement, dated November 6, 2020, between Upstart Network, Inc. and Credit Karma Offers, Inc. Amended and Restated Billing Agent Agreement, dated November 25, 2020, between Upstart Network, Inc. and Trans Union LLC. In the event Subscriber obtains any fraud prevention services from TransUnion in conjunction with Consumer Report Information or as a stand-alone service, Subscriber shall not use the fraud prevention services, in whole or in part, as a factor in establishing an individuals creditworthiness or eligibility for credit, insurance, employment, or for any other purposes under the FCRA. The selling stockholders identified in this prospectus are offering an … Upstart is offering 9,000,000 shares of its common … TransUnion, for each individual instant credit decision transaction requested by Subscriber, shall exercise reasonable efforts to retain, on behalf of Subscriber, the Previous Instant Credit Decision which was originally delivered to Subscriber for a period of thirty-five (35) days from such instant credit decision transaction. 6. Subscriber shall comply with all applicable laws including, with respect to DMF data, 15 CFR Part 1110. THIS AGREEMENT SHALL NOT BE BINDING ON EITHER PARTY UNTIL SIGNED BY TRANSUNION. This Agreement shall commence upon the Effective Date and shall remain in effect for a period of one (1) year (the Initial Term); provided, however, after the Initial Term, this Agreement shall automatically renew for subsequent one (1) year periods (each, a Renewal Term, and collectively with the Initial Term, the Term). IN NO EVENT SHALL SUBSCRIBER, TRANSUNION OR FAIR ISAAC BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES INCURRED BY ANY PARTY AND ARISING OUT OF THE PERFORMANCE OF THIS EXHIBIT, INCLUDING BUT NOT LIMITED TO LOSS OF GOOD WILL AND LOST PROFITS OR REVENUE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE. Upstart said in its prospectus that its revenue nearly tripled to $164 million between 2017 and 2019. This Amended and Restated TransUnion Master Agreement for Consumer Reporting and Ancillary Services (Agreement) is made and entered as of this ______ date of _11/25/2020_, 2020 (the Effective Date), by and between Trans Union LLC, with its principal place of business at 555 West Adams, Chicago, Illinois 60661 (TransUnion), and Upstart Network, Inc., with its principal place of business at 2950 South Delaware Avenue, #300, San Mateo, CA 94403 (Subscriber). Subscriber agrees to pay the fees and charges for Services provided to Subscriber under this Agreement. Upstart is offering 9,000,000 shares … The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. Section 2721 et seq.) The foregoing notwithstanding, without limiting any other remedies to which it may be entitled, TransUnion reserves the right to immediately terminate this Agreement if TransUnion, in good faith, determines that: (1) BILLING AGENT violated any portion of this Agreement or that the requirements of any law have not been met; (2) as a result of changes in laws, regulations or regulatory or judicial action, TransUnion, in good faith believes that the requirements of any law or regulation will not be met; (3) BILLING AGENT commits, pleads guilty or nolo contendere to, or is convicted of, an act or offense involving moral turpitude or commits any willful or dishonest act that could injure TransUnion in any material respect; and/or (4) BILLING AGENT attempts to assign (without prior written approval), or subcontract or transfer this Agreement including, without limitation, any and/or all of its rights and obligations. 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