Common use of Promotion of Program and Card Plan; Non-Competition Clause in Contracts

Promotion of Program and Card Plan; Non-Competition. (a) Throughout the Term of this Agreement, Company shall use its reasonable efforts to market, promote, participate in and support the Plan as set forth in this Agreement. Company agrees that in consideration and as an inducement for Bank to make the Plan available to Company as outlined in this Agreement and the Operating Procedures, from the Effective Date and for as long as this Agreement is in existence, Company will not (nor will Company permit any Affiliate to do so on Company's behalf), without the prior written consent of Bank, contract or establish with any other credit card processor/provider or provide or process on its own behalf any "private label" or "co-brand" revolving credit or other credit card issuance or processing arrangement or programs similar in purpose to the Plan or to the services and transactions contemplated under this Agreement, except that if either party provides notice of termination pursuant to Section 9.1 of this Agreement or if Company terminates under Sections 9.3 or 9.5, Company may enter into a contract with another credit card processor/provider effective on or after termination of this Agreement (provided that an agreement for preliminary or planning services related thereto shall not violate this provision). (b) Notwithstanding the foregoing, nothing contained in this Agreement will be construed to prohibit or prevent Company from: (i) accepting any major general purpose credit card (including without limitation, American Express (and Optima) Card, MasterCard, Visa, or NOVUS), any form of general purpose debit card or fixed payment (installment) credit programs for Applicants declined by Bank, as a means of payment by Cardholders for purchase of Goods and Services; or (ii) accepting a proprietary credit card issued by Bank for an Affiliate; or (iii) entering into a contract with another credit card provider for a particular state after Bank has terminated (or given notice of such termination) the operation of the Plan in such state pursuant to Section 9.4. (c) Provided, further, that Company shall be entitled to negotiate with any third party with respect to the issuance of co-branded or affinity bank credit cards bearing a Xxxx or any of Company's other Name Rights and to accept any Bona Fide Offer by such third party if, prior to accepting such Bona Fide Offer, Company provides Bank with an opportunity to submit a competing offer and counteroffer (as outlined below) with respect to the issuance of co-branded or affinity bank credit cards bearing the Xxxx or Name Right, and Bank's competing offer and counteroffer is not deemed to be "Competitive." Bank's competing offer or counteroffer shall be deemed to be "Competitive" if it has terms which are either (i) at least as favorable to Company as such Bona Fide Offer or (ii) taken as a whole, are reasonably competitive in the reasonable judgment of Company to such Bona Fide Offer. A Competitive offer or counteroffer by Bank shall be accepted by Company in lieu of such Bona Fide Offer. Company will provide to Bank a copy of all materials (such as requests for proposals and the like) provided by Company to all third parties for the purposes of soliciting Bona Fide Offers, such materials to be provided to Bank at the same time Company provides them to the third parties. Bank will be given at least thirty (30) days (or such longer period of time as is given to the third parties) to submit a competing offer to Company. In addition, if Bank submits within the thirty (30) day (or longer) period a competing offer in response to a Bona Fide Offer or solicitation of a Bona Fide Offer, and that competing offer is not deemed to be Competitive, then prior to accepting the Bona Fide Offer Company will identify and quantify to Bank the key terms and assumptions (of Company and the third party) of the Bona Fide Offer (however, Company shall not be required to provide Bank with a copy of the actual Bona Fide Offer) and Bank will have fifteen (15) days after receipt of such key terms to submit a counteroffer to Company and Company will evaluate any counteroffer submitted by Bank within such fifteen (15) day period according to the Competitive standards set forth in clauses (i) and (ii) above and will accept Bank's offer in lieu of such Bona Fide Offer if the Competitive standards are met. For purposes of this Section 3.11, "Bona Fide Offer" means an offer to Company with respect to a program of at least two years' duration for the issuance of co-branded or affinity bank credit cards that is, in Company's reasonable judgment, generally competitive in light of marketplace conditions existing at the time (such marketplace conditions to include, without limitation, other offers with respect to co-branded or affinity bank credit cards being made to Company, its Affiliates and other retail or catalogue merchants).

Promotion of Program and Card Plan; Non-Competition. (a) Throughout the Term of this Agreement, Company Stage shall use its reasonable efforts to actively and consistently market, promote, participate in and support the Plan as set forth in this Agreement. Company Stage agrees that in consideration and as an inducement for Bank to make the Plan available to Company Stage as outlined in this Agreement and the Operating Procedures, from the Effective Plan Commencement Date and for as long as this Agreement is in existence, Company will not (neither Stage nor will Company permit any Affiliate to do so on Company's behalf)its Affiliates will, without the prior written consent of Bank, contract or establish with any other credit card processor/provider or provide or process on its own behalf any "private label" or "co-brand" revolving credit or other credit card issuance or processing arrangement or programs similar in purpose to the Plan or to the services and transactions contemplated under this Agreement, except that if either party provides notice of termination pursuant to Section 9.1 of this Agreement or if Company Stage terminates under Sections 9.3 or 9.5Section 9.3, Company Stage may enter into a contract with another credit card processor/provider effective on or after termination of this Agreement (provided that an agreement for preliminary or planning services related thereto shall not violate this provision). (b) Agreement. Notwithstanding the foregoing, nothing contained in this Agreement will be construed to prohibit or prevent Company Stage from: (i) accepting any major general purpose credit card (including without limitation, Discover, American Express (and Optima) Card, MasterCard, Visa, or NOVUS), any form of general purpose debit card or fixed payment (installment) credit programs for Applicants declined by Bank, as a means of payment by Cardholders for purchase of Goods and Services; or (ii) accepting a proprietary credit card issued by Bank for an Affiliate; or (iii) entering into a contract with another credit card provider for a particular state after Bank has terminated (or given notice of such termination) the operation of the Plan in such state pursuant to Section 9.4. ; or (ciii) Provided, furtheracquiring or merging with other retailers from time to time that have a private label credit card program or processing arrangement similar to the Plan; provided, that Company shall be entitled to negotiate with any third party with respect to the issuance of co-branded credit card for such program is not honored or affinity bank credit cards bearing a Xxxx promoted by Stage in its Bealls, Palais Royal or Stage stores or any of Company's other Name Rights and to accept any Bona Fide Offer stores, catalogs or the Internet operated by such third party if, prior to accepting such Bona Fide Offer, Company provides Bank with an opportunity to submit a competing offer and counteroffer (as outlined below) with respect to Stage after the issuance of co-branded or affinity bank credit cards bearing the Xxxx or Name Right, and Bank's competing offer and counteroffer is not deemed to be "Competitive." Bank's competing offer or counteroffer shall be deemed to be "Competitive" if it has terms Plan Commencement Date which are either (i) at least as favorable to Company as such Bona Fide Offer or (ii) taken as a whole, are reasonably competitive have been included in the reasonable judgment of Company to such Bona Fide OfferPlan. A Competitive offer or counteroffer by Bank shall be accepted by Company in lieu of such Bona Fide Offer. Company will provide to Bank a copy of all materials (such as requests for proposals and not, during the like) provided by Company to all third parties for the purposes of soliciting Bona Fide Offers, such materials to be provided to Bank at the same time Company provides them to the third parties. Bank will be given at least thirty (30) days (or such longer period of time as is given to the third parties) to submit a competing offer to Company. In addition, if Bank submits within the thirty (30) day (or longer) period a competing offer in response to a Bona Fide Offer or solicitation of a Bona Fide Offer, and that competing offer is not deemed to be Competitive, then prior to accepting the Bona Fide Offer Company will identify and quantify to Bank the key terms and assumptions (of Company and the third party) Term of the Bona Fide Offer (howeverAgreement, Company shall not be required to provide Bank with solicit the Cardholders for a copy of the actual Bona Fide Offer) and Bank will have fifteen (15) days after receipt of such key terms to submit a counteroffer to Company and Company will evaluate any counteroffer submitted by Bank within such fifteen (15) day period according to the Competitive standards set forth in clauses (i) and (ii) above and will accept Bank's offer in lieu of such Bona Fide Offer if the Competitive standards are met. For purposes of this Section 3.11, "Bona Fide Offer" means an offer to Company with respect to a program of at least two years' duration for the issuance of co-branded or affinity bank credit cards that is, in Company's reasonable judgment, generally competitive in light of marketplace conditions existing at the time (such marketplace conditions to include, without limitation, other offers with respect to co-branded or affinity bank credit cards being made to Company, its Affiliates and other retail or catalogue merchants)card product.

Promotion of Program and Card Plan; Non-Competition. (a) Throughout the Term of this Agreement, Company Samuxxx xxx Samuxxx' Xxores shall use its reasonable efforts to actively and consistently market, promote, participate in and support the Plan as set forth in this Agreement. Company agrees However, Samuxxx xxxll not be required to support or promote the Plan at stores which are subject to a pre-existing program with another lender which cannot be terminated or are stores which Bank does not include in the Plan pursuant to Section 3.11(b), nor in stores located in states terminated pursuant to Section 9.4. Samuxxx xxxees that in consideration and as an inducement for Bank to make the Plan available to Company as Samuxxx xx outlined in this Agreement and the Operating Procedures, from the Effective Date and for as long as this Agreement is in existence, Company will not (nor will Company permit any Affiliate to do so on Company's behalf)neither Samuxxx xxx its subsidiaries or affiliates will, without the prior written consent of Bank, contract or establish with any other credit card processor/provider or provide or process on its own behalf any "private label" or "co-brand" revolving credit or other credit card issuance or processing arrangement or programs similar in purpose to the Plan or to the services and transactions contemplated under this Agreement, except that if either party provides notice of termination pursuant to Section 9.1 of this Agreement or if Company terminates Samuxxx xxxminates under Sections 9.3 or 9.5Section 9.3, Company may Samuxxx xxx enter into a contract with another credit card processor/provider effective on or after termination of this Agreement (provided that an agreement for preliminary or planning services related thereto shall not violate this provision). (b) Agreement. Notwithstanding the foregoing, nothing contained in this Agreement will be construed to prohibit or prevent Company from: (i) Samuxxx xxxm accepting any major general purpose credit card (including without limitation, American Express (and Optima) Card, MasterCard, Visa, or NOVUS), any form of general purpose debit card or revolving and/or fixed payment (installment) credit programs for Applicants declined by Bank, as a means of payment by Cardholders Customers for purchase of Goods and Services; or (ii) accepting a proprietary credit card issued by Bank for an Affiliate; or (iii) entering into a contract with another credit card provider for a particular state after Bank has terminated (or given notice of such termination) the operation of the Plan in such state pursuant to Section 9.4. (cb) Provided, further, that Company shall be entitled to negotiate with any third party with respect to the issuance of co-branded or affinity bank credit cards bearing a Xxxx or any of Company's other Name Rights and to accept any Bona Fide Offer by such third party if, prior to accepting such Bona Fide Offer, Company provides Bank with an opportunity to submit a competing offer and counteroffer (as outlined below) with respect to the issuance of co-branded or affinity bank credit cards bearing the Xxxx or Name Right, and Bank's competing offer and counteroffer is not deemed to be "Competitive[INTENTIONALLY OMITTED FOR PURPOSES OF FILING WITH SEC]." Bank's competing offer or counteroffer shall be deemed to be "Competitive" if it has terms which are either (i) at least as favorable to Company as such Bona Fide Offer or (ii) taken as a whole, are reasonably competitive in the reasonable judgment of Company to such Bona Fide Offer. A Competitive offer or counteroffer by Bank shall be accepted by Company in lieu of such Bona Fide Offer. Company will provide to Bank a copy of all materials (such as requests for proposals and the like) provided by Company to all third parties for the purposes of soliciting Bona Fide Offers, such materials to be provided to Bank at the same time Company provides them to the third parties. Bank will be given at least thirty (30) days (or such longer period of time as is given to the third parties) to submit a competing offer to Company. In addition, if Bank submits within the thirty (30) day (or longer) period a competing offer in response to a Bona Fide Offer or solicitation of a Bona Fide Offer, and that competing offer is not deemed to be Competitive, then prior to accepting the Bona Fide Offer Company will identify and quantify to Bank the key terms and assumptions (of Company and the third party) of the Bona Fide Offer (however, Company shall not be required to provide Bank with a copy of the actual Bona Fide Offer) and Bank will have fifteen (15) days after receipt of such key terms to submit a counteroffer to Company and Company will evaluate any counteroffer submitted by Bank within such fifteen (15) day period according to the Competitive standards set forth in clauses (i) and (ii) above and will accept Bank's offer in lieu of such Bona Fide Offer if the Competitive standards are met. For purposes of this Section 3.11, "Bona Fide Offer" means an offer to Company with respect to a program of at least two years' duration for the issuance of co-branded or affinity bank credit cards that is, in Company's reasonable judgment, generally competitive in light of marketplace conditions existing at the time (such marketplace conditions to include, without limitation, other offers with respect to co-branded or affinity bank credit cards being made to Company, its Affiliates and other retail or catalogue merchants).

Promotion of Program and Card Plan; Non-Competition. (a) Throughout the Term of this Agreement, Company shall use its reasonable efforts to market, promote, participate in and support the Plan Except as set forth otherwise provided in this Agreement. Company Section 3.11, VS agrees that in consideration and as an inducement for Bank to make the Plan available to Company VS as outlined in this Agreement and the Operating Procedures, from the Effective Date and for as long as the Term of this Agreement is in existenceAgreement, Company VS will not (nor will Company VS permit any Affiliate to do so on Company's VS’s behalf), without the prior written consent of Bank, contract or establish with any other credit card processor/provider or provide or process on its own behalf any "“private label" ” or "“co-brand" ” revolving credit or other credit card issuance or processing arrangement or programs similar in purpose to the Plan or to the services and transactions contemplated under this AgreementAgreement in the United States, except Puerto Rico and other U.S. territories, provided that if either party provides notice of termination pursuant to Section 9.1 of this Agreement or if Company VS terminates under Sections 9.3 or 9.5, Company VS may enter into a contract with another “private label” or “co-brand” credit card processor/provider effective on or after termination of this Agreement (provided that an and any agreement for preliminary or planning services related thereto shall not violate this provision). (b) Notwithstanding the foregoing, nothing contained in this Agreement will be construed to prohibit or prevent Company VS from: (i) accepting any major general purpose credit card (including without limitation, American Express (and Optima) Card, MasterCard, Visa, or Discover/NOVUS), any form of general purpose debit card or fixed payment (installment) credit programs for Applicants declined by Bank, as a means of payment by Cardholders for purchase of Goods and and/or Services; or (ii) accepting a proprietary credit card issued by Bank for an Affiliate; or (iii) entering into a contract with another credit card provider for a particular state after Bank has terminated (or given notice of such termination) the operation of the Plan in such state pursuant to Section 9.4; (iv) entering into a contract with another credit card provider for the provision of a Second Look Plan described in Section 3.11(c); or (v) accepting any non-credit payment type including, but not limited to, Google Pay, Apple Pay, PayPal, Venmo or other similar payment technology; (vi) notwithstanding 3.11(a), Bank acknowledges that VS utilizes a provider other than Bank to offer a delay pay product with initial zero percent (0%) APR (the “Klarna Product”). VS shall position the Klarna product so as to make clear that it is offered by a third party other than VS or Bank and avoid Customer confusion with the Plan. VS will not permit the Klarna Product to be branded with VS Marks but may permit the use of VS Marks in the ordinary course of business to indicate to consumers that the Klarna product may be or is being used to purchase VS Goods and Services. (c) ProvidedSee Schedule 3.11, furtherSecond Look Plan. (d) VS shall have the right to pursue other alternatives, that Company shall be entitled to negotiate with any including from third party providers, should Bank be unable to meet the needs of VS with respect to mobile payments, e-commerce, international markets or related products, services or functionality for the issuance of co-branded or affinity bank credit cards bearing a Xxxx or any of Company's other Name Rights and to accept any Bona Fide Offer by such third party ifPlan; provided, prior to accepting such Bona Fide Offerhowever, Company provides Bank with an opportunity to submit a competing offer and counteroffer (as outlined below) with respect to the issuance of co-branded or affinity bank credit cards bearing the Xxxx or Name Right, and Bank's competing offer and counteroffer is not deemed to be "Competitive." Bank's competing offer or counteroffer shall be deemed to be "Competitive" if it has terms which are either (i) at least as favorable to Company as such Bona Fide Offer or (ii) taken as a whole, are reasonably competitive in the reasonable judgment of Company to such Bona Fide Offer. A Competitive offer or counteroffer by that Bank shall be accepted have a right to participate in any request for proposal sought by Company in lieu of VS to provide such Bona Fide Offer. Company will provide to Bank a copy of all materials (such as requests for proposals and the like) provided by Company to all third parties products, services or functionality for the purposes of soliciting Bona Fide Offers, such materials to be provided to Bank at the same time Company provides them to the third parties. Bank will be given at least thirty (30) days (or such longer period of time as is given to the third parties) to submit a competing offer to Company. In addition, Plan if Bank submits can offer such capabilities within the thirty (30) day (or longer) period a competing offer in response to a Bona Fide Offer or solicitation of a Bona Fide Offerindustry-competitive economics, technology and that competing offer is not deemed to be Competitive, then prior to accepting the Bona Fide Offer Company will identify and quantify to Bank the key terms and assumptions (of Company and the third party) of the Bona Fide Offer (however, Company shall not be required to provide Bank with a copy of the actual Bona Fide Offer) and Bank will have fifteen (15) days after receipt of such key terms to submit a counteroffer to Company and Company will evaluate any counteroffer submitted by Bank within such fifteen (15) day period according to the Competitive standards set forth in clauses (i) and (ii) above and will accept Bank's offer in lieu of such Bona Fide Offer if the Competitive standards are met. For purposes of this Section 3.11, "Bona Fide Offer" means an offer to Company with respect to a program of at least two years' duration for the issuance of co-branded or affinity bank credit cards that is, in Company's reasonable judgment, generally competitive in light of marketplace conditions existing at the time (such marketplace conditions to include, without limitation, other offers with respect to co-branded or affinity bank credit cards being made to Company, its Affiliates and other retail or catalogue merchants)delivery benchmarks.

Promotion of Program and Card Plan; Non-Competition. (a) Throughout the Term of this Agreement, Company shall use its reasonable efforts to market, promote, participate in and support the Plan Except as set forth otherwise provided in this Agreement. Company Section 3.11, VS agrees that in consideration and as an inducement for Bank to make the Plan available to Company VS as outlined in this Agreement and the Operating Procedures, from the Effective Date and for as long as the Term of this Agreement is in existenceAgreement, Company VS will not (nor will Company VS permit any Affiliate to do so on Company's VS’s behalf), without the prior written consent of Bank, contract or establish with any other credit card processor/provider or provide or process on its own behalf any "“private label" or "co-brand" ” revolving credit or other credit card issuance or processing arrangement or programs similar in purpose to the Plan or to the services and transactions contemplated under this AgreementAgreement in the United States, except Puerto Rico and other U.S. territories; provided, however, that VS may establish a co-branded program subject to Section 3.11(d), and provided that if either party provides notice of termination pursuant to Section 9.1 of this Agreement or if Company VS terminates under Sections 9.3 or 9.5, Company VS may enter into a contract with another “private label” credit card processor/provider effective on or after termination of this Agreement (provided that an and any agreement for preliminary or planning services related thereto shall not violate this provision). (b) Notwithstanding the foregoing, nothing contained in this Agreement will be construed to prohibit or prevent Company VS from: (i) accepting any major general purpose credit card (including without limitation, American Express (and Optima) Card, MasterCard, Visa, or Discover/NOVUS), any form of general purpose debit card or fixed payment (installment) credit programs for Applicants declined by Bank, as a means of payment by Cardholders for purchase of Goods and and/or Services; or (ii) accepting a proprietary credit card issued by Bank for an Affiliate; or (iii) entering into a contract with another credit card provider for a particular state after Bank has terminated (or given notice of such termination) the operation of the Plan in such state pursuant to Section 9.4; (iv) entering into a contract with another credit card provider for the provision of a Second Look Plan described in Section 3.11(c); or (v) accepting any non-credit payment type including, but not limited to, Google Pay, Apple Pay, etc. (c) ProvidedSee Schedule 3.11, furtherSecond Look Plan. (d) Through a competitive bidding process (“RFP”), that Company VS shall be entitled to negotiate with any third party with respect to the issuance of co-branded brand or affinity bank credit cards bearing a Xxxx or any of Company's VS’s other Name Rights and Rights, provided that VS permits Bank to accept any Bona Fide Offer by such third party if, prior to accepting such Bona Fide Offer, Company provides Bank with participate in an opportunity to submit a competing offer and counteroffer (as outlined below) with respect to RFP for the issuance of co-branded brand or affinity bank credit cards bearing cards. As part of such RFP, Bank will, upon VS’s request, but no more than once per RFP, provide VS, within [****] days after such request, with the Xxxx or Name RightPlan metrics set forth in Schedule 9.5, RFP Plan Metrics, with respect to any Co-Brand Pilot, in order to permit potential third parties (who have executed a non-disclosure agreement containing terms and Bank's competing offer and counteroffer is not deemed to be "Competitive." Bank's competing offer or counteroffer shall be deemed to be "Competitive" if it has terms which are either (i) at least as favorable to Company as such Bona Fide Offer or (ii) taken as a whole, are reasonably competitive conditions customary in the reasonable judgment of Company industry) to such Bona Fide Offervalue a portfolio in the marketplace. A Competitive offer or counteroffer by Bank shall be accepted by Company in lieu of such Bona Fide Offer. Company VS will provide to Bank a copy of all materials (such as requests for proposals and the like) provided by Company VS to all third parties for in the purposes of soliciting Bona Fide Offers, such materials to be provided to Bank RFP at the same time Company VS provides them to the third parties. Bank will be given at least thirty (30) days (or such longer period of time as is given to the third parties) to submit a competing offer to Company. In additionFurthermore, if Bank submits within and VS had previously launched a “pilot” co-brand credit product bearing a Xxxx or any of VS’s other Name Rights (“Co-Brand Pilot”) then upon VS accepting an offer from a third party (other than Bank) to issue co-brand or affinity bank cards, [****]. (e) Following the thirty (30) day (or longer) period a competing offer in response Execution Date, VS may request that the parties finalize plans to a Bona Fide Offer or solicitation pursue the potential mutual development of a Bona Fide Offer“pilot” co-brand credit product bearing a Xxxx or any of VS’s VS and Comenity Bank Private Label Credit Card Program Agreement Confidential and Proprietary other Name Rights. Before issuance, the parties will mutually agree on the terms, costs, timing, and that competing offer is not deemed to be Competitive, then prior to accepting the Bona Fide Offer Company will identify and quantify to Bank the key terms and assumptions (of Company and the third party) scope of the Bona Fide Offer (however, Company shall not be required to provide Bank with a copy of the actual Bona Fide Offer) and Bank will have fifteen (15) days after receipt of such key terms to submit a counteroffer to Company and Company will evaluate any counteroffer submitted by Bank within such fifteen (15) day period according to the Competitive standards set forth in clauses (i) and (ii) above and will accept Bank's offer in lieu of such Bona Fide Offer if the Competitive standards are met. For purposes of this Section 3.11, "Bona Fide Offer" means an offer to Company with respect to a program of at least two years' duration for the issuance of pilot co-branded brand credit product. (f) In the event VS enters into a co-brand or affinity bank credit cards card program with a third party pursuant to 3.11(d), VS agrees to use the Xxxx and/or Name Rights in a manner that is, in Company's reasonable judgment, generally competitive in light of marketplace conditions existing at differentiates their use with the time (such marketplace conditions to include, without limitation, other offers with respect to co-branded brand or affinity bank credit cards being made card from the use in connection with the Plan. For the avoidance of doubt, the addition of a card brand logo is sufficient for differentiation purposes. (g) VS shall have the right to Companypursue other alternatives, its Affiliates including from third party providers, should Bank be unable to meet the needs of VS with respect to mobile payments, e-commerce, international markets or related products, services or functionality for the Plan; provided, however, that Bank shall have a first right of refusal to provide such products, services or functionality if Bank can offer such capabilities within industry-competitive economics, technology and other retail or catalogue merchants)delivery benchmarks.