DATABASE ACCESS AGREEMENT
THIS AGREEMENT is made as of this 31st day of October, 1996, by and
between Metris Direct, Inc. ("Metris"), a corporation duly organized under
the laws of the State of Minnesota, with offices at 000 Xxxxx Xxxxxxx 000,
Xxxxx 0000, Xx. Xxxxx Xxxx, Xxxxxxxxx 00000 and Fingerhut Corporation
("Fingerhut"), a corporation duly organized under the laws of the State of
Minnesota with offices at 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000.
WITNESSETH:
WHEREAS, Fingerhut (itself or through subsidiaries or affiliates) owns a
customer database and maintains such database on its systems; and
WHEREAS, Metris is in the business of providing financial service
products and services; and
WHEREAS, Fingerhut desires to license to Metris exclusive access to its
customer database to market financial service products (as defined herein);
NOW, THEREFORE in consideration of the mutual promises set forth and
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged by the parties, the parties agree as follows:
I. LICENSE USAGE
Section 1.1 GRANT OF LICENSE. During the term of this Agreement,
including renewals, and subject to the terms and conditions hereof, Fingerhut
hereby grants to Metris and its subsidiaries the exclusive license to use the
customer lists, models and other information related thereto described in
Exhibit A attached hereto and incorporated herein by reference (hereinafter
the "Customer Database") for the sole purpose of marketing financial service
products identified in Exhibit B attached hereto and incorporated herein by
reference ("Financial Service Products") of Metris, its subsidiaries and
unaffiliated third parties. Such license includes the right to access the
computer systems which maintain the Customer Database; the right to perform
file selection, segmentation and modeling of the Customer Database; the right
to develop marketing lists using the Customer Database or segments thereof
for use on behalf of itself, subsidiaries, and unaffiliated third parties;
the right to append third party demographic data for aggregate analysis and
other rights which the parties may mutually agree to in writing from time to
time. Such license does not include the right to access a consumer name and
credit report (as defined under applicable laws and regulations) to determine
such consumer's eligibility for credit or insurance. Fingerhut reserves for
itself, its affiliates and subsidiaries, and its licensees, the right to use
the Customer Database, including the right to license the use of the Customer
Database to unaffiliated third parties; except in no event shall Fingerhut
for itself, its affiliates and subsidiaries or its licensed third parties
have the right to use the Customer Database to offer Financial Service
Products. Fingerhut and Metris confirm that Fingerhut may continue to
license use of the Customer Database (specifically the Fingerhut Customer
file) to the unaffiliated third parties for the services identified in
Exhibit D,
attached hereto and incorporated herein by reference, on the terms and
conditions as set forth in such Exhibit D.
Section 1.2 DELIVERY OF INFORMATION. At Metris' request, Fingerhut
will provide or provide access to, on a timely basis in accordance with
Fingerhut's standard internal practices, the Customer Database or any subset
thereof, in a format as the parties may, in good faith, agree from time to
time. Fingerhut and Metris will cooperate in good faith to ensure that
Metris' written production and solicitation deadlines are met. Throughout
the term of this Agreement, Fingerhut shall update the Customer Database with
all additions, deletions and other amendments to the Customer Database
("Updates") made or developed by Fingerhut in the ordinary course of its
business, including, without limitation, the addition of the name and other
information related thereto of all persons which may, from time to time, come
within the definition of the Customer Database set forth in Exhibit A, and
such Updates shall thereafter become part of the Customer Database for
purposes of this Agreement.
During the term of this Agreement, Fingerhut agrees to maintain a
backup, archival or disaster recovery copy ("Back-up Copy") of the Customer
Database. Metris shall have the right to access such Back-up Copy in the
event of (i) Fingerhut's Bankruptcy (as defined herein), (ii) failure of
Fingerhut's main computer system, and (iii) the expiration of the cure period
as defined in Section 5.1 following an Event of Default by Fingerhut.
Section 1.3 LIMITS OF DISCLOSURE. Nothing in this Agreement shall
require Fingerhut to disclose to Metris (i) confidential information received
by Fingerhut from third parties, including without limitation, customer lists
from third party sources, which confidential information Fingerhut is
precluded by written agreement from disclosing to others, or (ii) information
which Fingerhut, in its reasonable interpretation, is precluded from
disclosing under any applicable law, regulation or other industry practices
related to consumer privacy.
Section 1.4 OWNERSHIP OF BEHAVIORAL MODELS. Fingerhut agrees that
any behavioral models or similar credit scoring algorithms which are
developed by Metris or developed by Fingerhut expressly for or on behalf of
Metris from the Customer Database ("Behavioral Models") shall be owned,
unencumbered, by Metris; Fingerhut, further agrees, that Metris has the sole
right to use of such Behavioral Models for Financial Service Products during
the term of this Agreement, including any renewals, and Metris retains sole
ownership of such Behavioral Models upon termination of this Agreement.
II. COMPENSATION
Section 2.1 COMPENSATION. Metris agrees to pay Fingerhut (in
immediately available funds) in accordance with the terms and conditions set
forth in Exhibit C, attached hereto and incorporated herein by reference.
Payment of the Database License Fee shall be made by the fifteenth of the
first month within each calendar year during the Initial Term or subsequent
Renewal Term. Payment of the Solicitation Fee and the Suppress File Fee
shall be made not later than the thirtieth business day of each month
following the end of a calendar quarter for all amounts due and
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owing for the immediately preceding calendar quarter. Fingerhut and Metris
agree that upon mutual written consent, Exhibit C may be amended from time to
time.
III. OWNERSHIP AND REPRESENTATIONS AND WARRANTIES
Section 3.1 OWNERSHIP OF INFORMATION. Fingerhut represents and
warrants that (i) it is the owner of the entire right, title and interest to
and in the Customer Database, subject to any licenses that have previously
been granted, (ii) it is under no legal impediment that would prevent its
entering into this Agreement or granting to Metris the licenses described
herein, (iii) the licenses granted hereby and Metris' use of the Customer
Database as described herein, will not infringe upon the rights of any third
party or violate any existing license, agreement, arrangement or
understanding of Fingerhut or any subsidiary or affiliate of Fingerhut with
any third party, (iv) it has no knowledge of any infringement of the rights
granted to Metris pursuant to Section 1.1 above, and (v) it has not granted
any rights to any third party that conflict with the rights granted to Metris
pursuant to Section 1.1 above (except those identified in Exhibit D).
Section 3.2 NO SALE OR ASSIGNMENT. Except as otherwise provided
herein, nothing in this Agreement shall be construed as a sale, assignment or
other complete transfer of any title to, or ownership of the Customer
Database, including any and all trade secrets, copyrights and proprietary
rights and interests in and to the Customer Database. Fingerhut shall retain
all right, title and interest in and to all trade secrets, copyrights and
other proprietary rights and interests in and to the Customer Database,
subject only to the license granted under this Agreement.
Section 3.3 METRIS AUTHORITY. Metris hereby represents and warrants,
as of the date of this Agreement, as follows:
(a) Metris is a duly organized corporation, validly existing, and
in good standing under the laws of the State of Delaware. Prior to
its use of the Customer Database, Metris will be duly qualified or
licensed to do business necessary and will be in good standing in
each jurisdiction in which its business or the exercise of its
rights, powers or authority under this Agreement renders such
qualification necessary.
(b) Metris has the requisite corporate power and authority to enter
into, and to carry out its obligations under this Agreement.
(c) The execution and delivery Metris of this Agreement and the
consummation by Metris of the transactions contemplated hereby have
been duly authorized prior to the date of this Agreement by all
necessary corporate action on its part.
(d) This Agreement has been duly executed and delivered by Metris
and constitutes a valid and binding obligation of Metris enforceable
against Metris in accordance with its terms.
(e) Metris is not subject to, or obligated under any provision of
(i) its articles of incorporation, (ii) any agreement, arrangement
or understanding, (iii) any license,
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franchise or permit, or (iv) any law, regulation, order, judgment or
decree that would be breached or violated, or in respect of which a
right of termination or acceleration or any encumbrance on any of
its assets would be created by the execution, delivery and
performance of this Agreement by Metris, or the consummation by
Metris of the transactions contemplated by this Agreement.
(f) No authorization, consent or approval of, waiver or
exemption by, or filing or registration with any public body, court,
third party or authority is necessary on the part of Metris for the
consummation by Metris of the transactions contemplated by this
Agreement.
Section 3.4 FINGERHUT AUTHORITY. Fingerhut hereby represents and
warrants, as of the date of this Agreement, as follows:
(a) Fingerhut is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Minnesota, and is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which its business or the exercise of its rights,
powers or authority under this Agreement renders such qualification
necessary.
(b) Fingerhut has the requisite corporate power and authority to enter
into, and to carryout its obligations under this Agreement.
(c) The execution and delivery by Fingerhut of this Agreement and the
consummation by Fingerhut of the transactions contemplated hereby have
been duly authorized prior to the date of this Agreement by all
necessary corporate action on its part.
(d) This Agreement has been duly executed and delivered by Fingerhut and
constitutes a valid and binding obligation of Fingerhut enforceable
against Fingerhut in accordance with its terms.
(e) Fingerhut is not subject to, or obligated under any
provision of (i) its articles of incorporation or bylaws, (ii) any
agreement, arrangement or understanding, (iii) any license,
franchise or permit, or (iv) any law, regulation, order, judgment or
decree that would be breached or violated, or in respect of which a
right of termination or acceleration or any encumbrance on any of
its assets would be created by the execution, delivery and
performance of this Agreement by Fingerhut, or the consummation by
Fingerhut of the transactions contemplated by this Agreement.
(f) No authorization, consent or approval of, waiver or exemption
by, or filing or registration with any public body, court, third
party or authority is necessary on the part of Fingerhut for the
consummation by Fingerhut of the transactions contemplated by this
Agreement.
IV. CONFIDENTIALITY
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Section 4.1 CONFIDENTIALITY OF CUSTOMER DATABASE. All Customer
Database disclosed hereunder is confidential and proprietary to Fingerhut.
Metris, its subsidiaries, affiliates, officers, directors, employees, agents,
consultants and contractors shall not use any of the Customer Database and
the Behavioral Models for any purpose other than as expressly permitted
hereunder. Metris shall not disclose or provide any of such Customer
Database and the Behavioral Models to any third party, except as provided in
Sections 1.1, 4.2 and 4.3 below, and shall take all reasonable measures to
limit any such disclosure by its affiliates, subsidiaries, officers,
directors, employees, agents, contractors or consultants to a need to know
basis during the term of this Agreement. Metris agrees it will not provide
Customer Database and Behavioral Models that are proprietary to Fingerhut to
a third party without a written agreement that prohibits, among other things,
such third party from using or disclosing the information hereunder except as
permitted pursuant to this Agreement.
Section 4.2 OTHER CONFIDENTIAL INFORMATION. This Agreement and the
transactions contemplated hereby will be kept in confidence by such other
party, including its subsidiaries, affiliates, in accordance with its
policies for maintaining the confidence of its own information of similar
content. The term "Confidential Information" shall mean and include (i) the
Customer Database, (ii) all trade secrets and other confidential business
information learned in the course of performance by either party of its
obligations hereunder, and (iii) any information or data which is disclosed
by a party to the other party under or in contemplation of this Agreement.
Notwithstanding the foregoing, the term Confidential
Information shall not include information which (i) is already known to such
other party when received, (ii) thereafter becomes generally obtainable by a
party other than as a result of an unauthorized disclosure by the party
taking advantage of this clause, or (iii) is required by law, regulation or
court order to be disclosed by such party, provided that in the case of this
clause prior notice of such disclosure has been given to the party which
furnished such information, when legally permissible, and that such other
party which is required to make the disclosure uses its best efforts to
provide sufficient notice to permit the party which furnished such
information to take legal action to prevent the disclosure.
Section 4.3 REQUIRED OR REQUESTED INFORMATION. If Metris is required
to disclose any information contained in the Customer Database to any
regulatory or governmental agency, department or other regulatory entity or
court of law, Metris may not disclose such information without the prior
written approval of Fingerhut, and gives all available information and
assistance to enable Fingerhut to take the measures (consistent with
requirements of applicable laws and regulations) that, in its sole
discretion, it deems appropriate or necessary to protect the Customer
Database from disclosure. Sections 4.1 and 4.2 shall survive any termination
of this Agreement for five (5) years.
Metris or Fingerhut shall not be obligated to disclose to the
other any information which is required by applicable law to be kept
confidential or is otherwise prohibited from disclosure by applicable federal
or state laws and regulations or would cause either party, in its reasonable
interpretation, to be deemed a credit reporting agency as defined under
applicable state or federal law.
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V. EVENTS OF DEFAULT AND REMEDIES
Section 5.1 EVENT OF DEFAULT. An "Event of Default" shall be deemed
to occur upon the occurrence of any of the following:
(a) A material breach of a representation, agreement, covenant
or other obligation of any of the parties to this Agreement (any
such breach is herein referred to as a "Material Breach"); provided,
however, that no Event of Default shall be deemed to have occurred
unless and until a non-breaching party provides the breaching party
with written notice of such Material Breach, describing in
reasonable detail the nature of such Material Breach, and (i) the
breaching party shall have had an opportunity to cure such Material
Breach (which is capable of being cured) within sixty (60) days
after such notice (unless such Material Breach is with respect to a
monetary matter, the cure of which requires only the payment of a
specified amount of money pursuant to the terms of this Agreement,
in which case the breaching party shall have an opportunity to cure
within five (5) business days after such notice), (ii) the breaching
party does not cure such Material Breach within the applicable time
period, or, if such Material Breach, other than a Material Breach
relating to a monetary matter, cannot reasonably be cured within
sixty days, but is curable, the breaching party does not; (x)
undertake to cure such Material Breach within such sixty day period
and (y) after such sixty day period, diligently and continuously use
all reasonable efforts to cure, and (iii) the notifying party
thereafter declares an Event of Default. In respect of clause (ii)
of this Section 5.1(a), such extended cure period shall continue so
long as the parties hereto reasonably agree that the actions being
taken by the breaching party are reasonably expected to cure such
Material Breach.
(b) If, at any time within twelve (12) months following the
expiration of any cure period provided in Section 5.1(a) above,
there shall occur a Material Breach (the "Second Material Breach")
and such Second Material Breach is of the same nature as the
Material Breach (the "First Material Breach") by the breaching party
that gave rise to such cure period, then an Event of Default shall
be deemed to have occurred upon the delivery of notice of such
Second Material Breach to the breaching party by the notifying party
referred to in Section 5.1(a) and upon such notifying party
declaring an Event of Default.
(c) If there shall occur a "Bankruptcy," as hereinafter defined, of
either Party, the non-Bankruptcy party may declare an Event of
Default. For purposes of this Agreement, the term "Bankruptcy"
shall mean (i) the entry of a decree or order for relief by a court
of competent jurisdiction in any involuntary case under any
bankruptcy, insolvency or similar law now or hereafter in effect and
such decree or order shall not be vacated, set aside or stayed
within ninety (90) days after its entry, (ii) the entry of a decree
or order appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar agent for any substantial part of
the assets or
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property of such party and such decree or order shall not be
vacated, set aside or stayed within ninety (90) days after its
entry, (iii) the ordering of the winding up or liquidation of the
affairs of a party and such order shall not be vacated, set aside or
stayed within one hundred twenty (120) days after its entry, (iv)
the filing of a petition in any such involuntary bankruptcy case,
which petition remains undismissed for a period of ninety (90) days
or which is not dismissed or suspended pursuant to Section 305 of
Title 11 of the United States Code (or any corresponding provision
of any future United States Bankruptcy law), (v) the commencement of
a voluntary case under any bankruptcy, insolvency or similar law now
or hereafter in effect, (vi) the consent to the entry of an order
for relief in an involuntary case under any such law or to the
appointment of or taking possession of any substantial part of the
assets or property by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar agent, or (vii) the making of any
general assignment for the benefit of creditors.
Section 5.2 REMEDIES. Each of the parties hereto shall be liable to
the other for damages arising out of or in connection with any breach of
this Agreement, subject to the duty of the non-breaching party to take all
reasonable actions in order to mitigate such damages. The parties agree that
in no event shall any party to this Agreement be liable to the other for
punitive, indirect, special or consequential damages arising out of a breach
of this Agreement. It is understood and agreed to by the parties that
monetary damages may not be a sufficient remedy for breach with respect to
their respective obligations under this Agreement. Accordingly, the
non-breaching party shall, to the extent permitted by law or equity, be
entitled to seek specific performance and injunctive or other equitable
relief as a remedy for any breach of, or Event of Default under this
Agreement. The remedies described in this Section 5.2 shall not be deemed to
be the exclusive remedies for any breach of, or Event of Default, under this
Agreement, but shall be in addition to all other remedies available to the
parties at law or equity, subject to the limitations with respect to damages
set forth above in this Section 5.2.
VI. INDEMNIFICATION
Section 6.1 INDEMNIFICATION BY FINGERHUT. Fingerhut shall indemnify,
hold harmless and defend Metris, its officers, directors, partners,
employees, agent or permitted assigns of Metris from and against any and all
losses, claims, damages, liabilities, whether joint or several, expenses
(including legal fees and expenses), judgments, fines and other amounts paid
in settlement, incurred or suffered by any such person(s) in connection with
any threatened, pending or completed claim, demand, action, suit or
proceeding (whether civil, criminal, administrative or investigative, and
whether formal or informal) by an unaffiliated third party arising out of or
in connection with any breach or alleged breach of this Agreement by
Fingerhut; including without limitation any claim or allegation that (i) any
Customer Database provided to Metris constitutes an infringement of any
copyright, (ii) the Customer Database provided to Metris contains, embodies
or incorporates any trade secret or proprietary information of any third
party. In the event the Customer Database is held to infringe and its use is
enjoined, the sole obligation of Fingerhut (and the exclusive remedy of
Metris) shall be as provided pursuant to Sections 6.1 and 6.3.
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Section 6.2 INDEMNIFICATION BY METRIS. Metris shall indemnify, hold
harmless and defend Fingerhut, and each person that is a stockholder,
officer, director, partner, employee or agent of Fingerhut, from and against
any and all losses, claims, damages, liabilities, whether joint or several,
expenses (including legal fees and expenses), judgments, fines and other
amounts paid in settlement incurred or suffered by any such person(s) in
connection with any threatened, pending or completed claim, demand, action,
suit or proceeding (whether civil, criminal, administrative or investigative,
and whether formal or informal) by an unaffiliated third party arising out of
or in connection with any breach or alleged breach of this Agreement by
Metris.
Section 6.3 RIGHTS UPON INDEMNIFICATION. The rights of the parties
hereto to be indemnified pursuant to this Agreement shall be governed by the
following:
(a) Within a reasonable time (not to exceed 30 days from receipt) after
receipt by an indemnified party of notice of any claim or the
commencement of any action which may result in a claim for
indemnification pursuant to Sections 6.1 or 6.2, an indemnified
party will notify in writing the indemnifying party thereof within
a reasonable time thereafter; the omission to so notify any
indemnifying party will relieve it of any liability for
indemnification thereunder as to the particular item for which
indemnification may then be sought (except to the extent that the
failure to give notice shall not have been prejudicial to such
indemnifying party), but not from any other liability which it may
have to any indemnified party.
(b) An indemnified party shall have the right (i) to employ separate
counsel chosen by it in any action as to which indemnification may
be sought under any provision of this Agreement and to participate
in the defense thereof, or (ii) to the extent that it may wish,
jointly with any other indemnified party, to assume the defense of
any such action with counsel reasonably satisfactory to the
indemnifying party, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless; (x) the
indemnifying party has agreed in writing to pay such fees and
expenses, (y) the indemnifying party has failed to employ counsel
and assume the defense thereof without reservation and employ
counsel within a reasonable period of time after being given the
notice required above, and as a consequence thereof, the
indemnified party is required to employ separate counsel to protect
its rights, or (z) the named parties to any such action (including
any impleaded parties) include both such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by its counsel that representation of such indemnified
party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been
proposed) due to actual or potential conflict of interest between
them. It is understood, however, that the indemnifying party
shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction,
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate
counsel (in addition to any local counsel) at any time for all such
indemnified parties having actual or potential differing interests
with the indemnifying party.
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(c) The indemnifying party shall not be liable for any settlement of
any such action effected without its written consent, which consent
shall not be unreasonably withheld, but if settled with such
written consent, or if there be a final judgment against any
indemnified party in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified parties to the
extent provided above from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(d) The indemnification obligations set forth in Sections 6.1, 6.2 and 6.3
shall survive the termination this Agreement.
VII. TERM AND TERMINATION
Section 7.1 TERM AND TERMINATION. This Agreement shall take effect
upon the date first written above, and shall remain in effect for seven (7)
years ("Initial Term"). Thereafter, this Agreement will automatically renew
for one term of three (3) years ("Renewal Term") unless either Party provides
written notice to the other, not less than twelve (12) months prior to the
end of the Initial Term or Renewal Term, of its intent to terminate this
Agreement. Either Party may terminate this Agreement reserving all other
remedies and rights hereunder in whole or in part and otherwise available in
law or equity, upon the occurrence of an Event of Default, as defined herein.
Upon the occurrence of an Event of Default, the non-defaulting Party may
terminate this Agreement by giving notice of its intent to terminate. Such
written notice shall describe the Event of Default. Fingerhut shall have the
right to terminate this Agreement by written notice to Metris upon the
occurrence of a Change of Control (as defined below) with respect to Metris.
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning or Rule 13d-5 of the Securities Exchange Act of
1934 as in effect on the date hereof) other than Fingerhut shall own directly
or indirectly, beneficially or of record, shares representing more than 25%
of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of Metris; (b) a majority of the seats (other than
vacant seats) on the board of directors of Metris shall at any time be
occupied by persons who were neither (i) nominated by Fingerhut, or by the
board of directors of Metris, nor (ii) appointed by directors so nominated;
or (c) any person or group other than Fingerhut shall otherwise directly or
indirectly have the power to exercise a controlling influence over the
management or policies of Metris.
VIII. MISCELLANEOUS PROVISIONS
Section 8.1 ADDITIONAL ACTIONS AND DOCUMENTS. Each of the parties
hereto agrees to take or cause to be taken such further actions, to execute,
acknowledge, deliver and file or cause to be executed, acknowledged, delivered
and filed such further documents and instruments, and to use all reasonable
efforts to obtain such consents, as may be necessary or as may be reasonably
requested in order to fully effectuate the purposes, terms and conditions of
this Agreement.
Section 8.2 NOTICE. All notices, demands, requests or other
communications which may be or are required to be given pursuant to this
Agreement shall be in writing and shall be personally
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delivered, mailed by first class, registered or certified mail, postage
prepaid, or sent by electronic or facsimile transmission, addressed as
follows:
(a) If to Metris:
Metris Companies Inc.
Interchange Building
000 Xxxxx Xxxxxxx 000, Xxxxx 0000
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
(b) If to Fingerhut:
Fingerhut Corporation
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President
With a copy to the General Counsel
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request or communication which shall be delivered,
mailed or transmitted in the manner described above shall be deemed sufficiently
given, served, sent or received for all purposes at such time as it is delivered
to the addressee or at such time as delivery is refused by the addressee upon
presentation.
Section 8.3 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if one or more of the provisions of this Agreement is
subsequently declared invalid or unenforceable, such invalidity or
unenforceability shall not in any way affect the validity or enforceability of
the remaining provisions of this Agreement (unless those provisions which are
invalidated or unenforceable are clearly material and inseparable from such
other provisions). In the event of such declaration of invalidity or
unenforceability, this Agreement, as so modified, shall be applied and construed
so as to reflect substantially the intent of the parties and achieve the same
economic effect as originally intended by the terms hereof. In the event that
the scope of any provision to this Agreement is deemed unenforceable by a court
of competent jurisdiction, the parties agree to the reduction of the scope of
such provision as such court shall deem reasonably necessary to make such
provision enforceable under the circumstances.
Section 8.4 SURVIVAL. It is the express intention and agreement of the
parties hereto that all covenants, agreements, statements, representations,
warranties and indemnities made in this Agreement shall survive the execution
and delivery of this Agreement.
Section 8.5 WAIVERS. Neither the waiver by any party hereto of a breach
of or a default under any of the provisions of this Agreement, nor the failure
of any party hereto, on one or more
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occasions, to enforce any of the provisions of this Agreement or to exercise
any right, remedy or privilege hereunder shall thereafter be construed as a
waiver of any such provisions, rights, remedies or privileges hereunder. Any
of the terms, covenants, representations, warranties, or conditions hereof
may be waived only by a written instrument executed by the party waiving
compliance.
Section 8.6 EXERCISE OF RIGHTS. No failure or delay on the part of any
party hereto in exercising any right, power or privilege hereunder and no course
of dealing among the parties hereto shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein expressly provided
are cumulative and not exclusive of any other rights or remedies which any party
hereto would otherwise have at law or in equity or otherwise.
Section 8.7 BINDING EFFECT. Subject to any provisions hereof
restricting assignment, this Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective successors and permitted
assigns.
Section 8.8 ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties hereto with respect to the matters contained herein,
and supersedes all prior oral or written agreements, commitments or
understandings with respect to the matters provided for herein.
Section 8.9 PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the Person may require.
Section 8.10 HEADINGS. Section headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
Section 8.11 GOVERNING LAW. This Agreement, the rights and obligations
of the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the internal laws of the State of
Minnesota without giving effect to the principles of conflicts of laws thereof.
Section 8.12 EXECUTION IN COUNTERPARTS. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required; and it
shall not be necessary that the signatures of, or on behalf of, each party, or
that the signatures of all Persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signatures of the Persons required to bind any party,
appear on one or more of the counterparts. All counterparts shall collectively
constitute a single agreement. It shall not be necessary in making proof of
this Agreement to produce or account for more than the number of counterparts
containing the respective signatures of, or on behalf of all of the parties
hereto.
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Section 8.13 ASSIGNMENT. No party to this Agreement shall have the right
to assign or otherwise transfer its rights or obligations under this Agreement,
except with the prior written consent of the other; notwithstanding, either
party may assign or otherwise transfer its rights or obligations under this
Agreement to a subsidiary or affiliate upon notice to the other. Regardless of
the party to whom an assignment is made pursuant to this Section 8.13, the
assignee shall, as a condition to such assignment, by written undertaking
satisfactory to the other, represent and warrant that the assignment was made in
accordance with all applicable laws and regulations and assume and agree to be
bound by the terms, provisions and conditions of this Agreement to the same
extent as the assignor; provided, however, that no such assignment shall relieve
the assignor of its obligations (which shall be primary and which may be
discharged in whole or in part by the assignee) under this Agreement, to the
extent applicable. Any unauthorized assignment and any assignment made in
contravention of this Section 8.13 shall be null and void.
Section 8.14 NO AGENCY. This Agreement shall not be deemed expressly or
by implication to create an agency, employee, or servant relationship between or
among any of the parties hereto, or any affiliates of the parties hereto for any
purpose whatsoever.
Section 8.15 FORCE MAJEURE. No party shall be liable for any failure of
or delay in the performance of this Agreement for the period that such failure
or delay is due to acts of God, public enemy, war, strikes or labor disputes, or
any other cause beyond the parties' reasonable control; it being understood that
lack of financial resources is not to be deemed a cause beyond a party's
control. Each party shall notify the other parties promptly of the occurrence
of any such cause and carry out this Agreement as promptly as practicable after
such cause is terminated; provided, however, that the existence of any such
cause shall not extend the term of this Agreement.
Section 8.16 TIME. Time is to be considered of the essence for the
purposes of this Agreement.
Section 8.17 AMENDMENT AND MODIFICATION. This Agreement may only be
amended or modified by a subsequent written agreement by and among the parties
hereto.
Section 8.18 ADHERENCE TO APPLICABLE LAW. In connection with the
performance of their respective obligations and the exercise of their respective
rights hereunder, each of the parties hereto agrees, on behalf of itself and its
subsidiaries or affiliates, to comply in all material respects with all
applicable state, federal and local laws and regulations.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set forth above.
FINGERHUT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Its: General Counsel
--------------------------
METRIS DIRECT, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Its: President
--------------------------
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EXHIBIT A
CUSTOMER DATABASE
Customer Database includes information solely of Fingerhut's which relates to
its transactions or experiences with all of its customers (including all past
and current customers [name, address, telephone and account numbers] as well as
prospective customers). The Customer Database does not include any information
of third parties which Fingerhut does not have by contract or otherwise the
right to provide to Metris. The Customer Database also includes but is not
limited to, as updated from time to time, the following:
- Credit or behavioral data (including but not limited to customer payment
histories, behavior scores, fraud, deceased, bad debt and other collection
data),
- All existing or developed models (including algorithms and documentation)
that derive credit scores related to such datas;
- Demographic (including promotional database) data and models;
- Attitudinal data (such as order level purchasing preferences); and
- Psychographic data (including customer surveys).
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EXHIBIT B
FINANCIAL SERVICE PRODUCTS
Insurance Products* Brokerage Services (real estate, financial,
insurance)
Warranty or Extended Service Plans Auto Lending/Leasing
Tax Preparation Services Equity Loans, Mortgages
Deposit Products Bank Credit Cards
Investment Services Secured Bank Cards
(Annuities, Mutual Funds, CDs) Prepaid Cards
Car Buying Services Smart Cards
Debit Cards
Consumer Loans (other than closed end Co Branded Cards, Credit Card Registration
installment or revolving credit loans to Private label cards (that are in competition with
Fingerhut customers for the exclusive the Fingerhut private label card)
purchase of merchandise) Auto Clubs
Credit Enhancement Products
Affinity Bank Credit Cards
Travel Services
Student Loans Mobile Home Financing
Mail Grams
Travelers Checks, Money Orders
*except for any Insurance products offered within the closed-end installment
loan coupon book or credit insurance which is directly tied to a revolving
credit balance owed directly to Fingerhut or its wholly owned subsidiaries or
the wholly owned subsidiaries of its parent.
Fingerhut confirms that it will endorse the Physician Mutual Insurance (PMI)
product until such time as Metris no longer offers the PMI product. In the
event Metris requests Fingerhut's endorsement of other Financial Service
Products, the parties agree to cooperate in good faith to develop a mutually
agreed Fingerhut endorsed product.
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EXHIBIT C
COMPENSATION
Metris shall pay Fingerhut a non-refundable Database License Fee as set forth
below:
1996 $500,000
1997 $1,000,000
1998 $1,500,000
1999 $2,000,000
2000 $2,000,000
2001 $2,000,000
2002 $2,000,000
In addition to the Database License Fee, Metris shall pay Fingerhut a
Solicitation Fee and Suppress File Fee as set forth below:
Solicitation Fee: $0.01 per consumer name mailed from the Customer Database
solely for solicitation by Metris on behalf of unaffiliated
third parties to sell Financial Services Products as set
forth in Exhibit B.
Suppress File Fee: $.47 for each consumer name obtained from a third party that
is matched to the Fingerhut suppress file solely for
purposes of elimination from a solicitation.
The above fees terminate upon termination of this agreement.
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EXHIBIT D
MAILER
Providian
U. S. Credit
AIG Marketing
Colonial Exchange
Mutual of Omaha
Gerber Life
Credential Services
Signature Group
Classified Insurance
Response Marketing
Globe Life
20th Century Insurance
CUC International
AMOCO
AARP
DeVry Inc.
Independence Director
ICS Cleveland Institute
Fingerhut and Metris agree that Fingerhut may continue to license the use of the
Customer Database to the above identified companies until December 31, 1996.
Thereafter, Fingerhut shall either (a) assign its contract with such company to
Metris or (b) terminate its agreement with such company effective January 1,
1997.
Until December 31, 1996, Fingerhut agrees to pay to Metris 20% of revenues it
receives from the above named companies to license use of the Customer
Database.
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