EXHIBIT 10.2
AMENDED AND RESTATED MARKETING SERVICES AGREEMENT
THIS AMENDED AND RESTATED MARKETING SERVICES AGREEMENT (the "Agreement")
is made as of this 1st day of January 1996, by and between SPS PAYMENT SYSTEMS,
INC. (formerly known as Sears Payment Systems, Inc.), a Delaware corporation
with its principal place of business at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 ("SPS") and NOVUS CREDIT SERVICES INC. (formerly known as Sears
Consumer Financial Corporation), a Delaware corporation with its principal
place of business at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("NCSI").
WITNESSETH
WHEREAS, SPS and NCSI entered into a Marketing Services Agreement dated
as of January 1, 1992, as amended (the "Prior Agreement"); and
WHEREAS, SPS and NCSI wish to amend and restate the Prior Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, SPS and NCSI agree as
follows:
1. Services. SPS agrees to provide, in accordance with applicable
federal and state laws, rules and regulations, the services ("Services")
described in Exhibit A attached to and incorporated in this Agreement.
2. Prices and Payment. SPS' fees and charges for the Services are set
forth in Exhibit B. SPS' fees and charges may be changed by agreement of the
parties, as confirmed in writing from time to time. SPS shall xxxx NCSI for
such Services as set forth in Exhibit B.
3. Term. This Agreement shall be effective as of the date first written
above, and shall remain in effect for as long as (i) the Services Agreement
between NCSI's subsidiary, MountainWest Financial Corporation ("MountainWest"),
and SPS, dated as of November 1, 1990, as amended (the "MountainWest Services
Agreement"), remains in effect or (ii) SPS continues to otherwise provide
MountainWest services substantially similar to those described in the
MountainWest Services Agreement.
4. Representations and Warranties; Covenants.
(a) Both parties represent and warrant that they are free as of the
date hereof of any contractual obligation or legal disability that would
prevent either from entering into this Agreement.
(b) NCSI covenants that it shall use its best efforts to cause
MountainWest to sell to SPS, from time to time and at SPS' election, any of the
Portfolios under such terms and conditions as are mutually acceptable to SPS
and MountainWest, provided that the purchase price of any such Portfolio shall
be equal to its fair market value at the time of purchase.
5. Liability and Indemnification.
(a) SPS shall indemnify and hold NCSI harmless from and against any
and all claims, actions, proceedings, judgments, expenses, damages and
liabilities, including court costs and reasonable attorney's fees, arising in
connection with the Services to be provided hereunder, due to SPS' negligence.
(b) NCSI shall indemnify and hold SPS harmless from and against any
and all claims, actions, proceedings, judgments, expenses, damages and
liabilities, including court costs and reasonable attorney's fees, arising in
connection with the Services to be provided hereunder, due to NCSI's
negligence.
(c) NCSI and SPS agree that each will comply with all applicable
federal, state, county and local laws, ordinances, codes, rules and regulations
in the performance of their obligations under this Agreement. NCSI and SPS
further agree to hold each other harmless from and against any and all claims,
actions, proceedings, expenses, judgments, damages and liabilities, including
court costs and reasonable attorney's fees that may be sustained by reason of
the respective failure of NCSI or SPS or their employees, agents or
subcontractors to comply with such law, ordinances, codes, rules and
regulations. NCSI and SPS agree that each will fully cooperate with the
other's efforts to comply with applicable federal and state regulations,
including but not limited to the regulations of the Federal Deposit Insurance
Corporation relating to disaster planning.
(d) Notwithstanding anything contained herein to the contrary,
neither party shall be liable to the other for consequential or incidental
damages.
6. Confidentiality.
(a) Confidential Information. In performing its obligations
pursuant to this Agreement, each party may have access to and receive
disclosure of certain confidential information about the other party, including
but not limited to: such party's marketing philosophy and objectives,
competitive advantages and disadvantages, customer names and addresses,
financial results, technological developments, or other information of the
business or affairs of each party, its parent company, its affiliated and
subsidiary companies, or its customers, and a variety of other information and
material which that party considers confidential and/or proprietary
(hereinafter referred to as "Confidential Information").
(b) Nondisclosure. Both parties agree that during the term of this
Agreement and thereafter a party receiving Confidential Information from the
other party may not use or disclose such Confidential Information to any third
party, except (i) as may be necessary to perform obligations pursuant to this
Agreement, (ii) as required by law, and (iii) as may be agreed to in writing by
both parties.
(c) Ownership. All Confidential Information furnished by the
parties to each other in connection with this Agreement is the exclusive
property of the furnishing party, and at the request of that party, the other
party shall return to the furnishing party all such information and copies of
such information.
(d) Protection. Without the prior written consent of the other
party, neither party shall disclose, furnish, or use in any way whatsoever, and
each party shall take measures to prevent its agents, employees and
subcontractors from using, any Confidential Information to which it becomes
privy, except as may be necessary for that party to perform its obligations
pursuant to this Agreement and except as may be agreed upon in writing by both
parties.
(e) Exclusions. Confidential Information shall not include
information: (i) which is known to the receiving party prior to commencing any
discussions with the other party on the subject matter of this Agreement, or
(ii) which is or becomes known to the public generally through no fault or
action of the receiving party; or (iii) is lawfully revealed to the receiving
party; or (iv) is developed by the receiving party as a result of its own
internal efforts and not as a direct or indirect result of the disclosure of
information by the other party.
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(f) Survival. The provisions of this Section 6 shall survive the
termination of this Agreement.
7. Force Majeure. Each party will be excused from performance hereunder
when and to the extent that it is prevented from performance by forces beyond
its control, including but not limited to acts of war, strike, fire, explosion,
sabotage, accident or casualty.
8. Notices. Any notice required to be given hereunder by either party
to the other shall be given in writing by personal delivery or certified mail,
return receipt requested, and shall be effective when received. Every such
notice shall be addressed, if to SPS, to:
SPS PAYMENT SYSTEMS, INC.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
and, if to NCSI, to:
NOVUS CREDIT SERVICES INC.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President, Administration
10. General Conditions.
(a) The validity, construction and performance of this Agreement
shall be governed by the laws of the State of Illinois.
(b) All provisions of this Agreement shall extend to and be binding
upon the parties and their respective successors and assigns. This Agreement
can be modified only in writing and may not be assigned by either party without
the prior written consent of the other party, which consent will not be
unreasonably withheld.
(c) Each paragraph and provision of this Agreement is severable from
the entire Agreement, and if one provision thereof is declared invalid, the
remaining provisions shall nevertheless remain in effect.
(d) This Agreement (including any exhibits) amends and restates the
Prior Agreement and following the date hereof constitutes the entire
understanding of the parties with respect to the Services to be performed
hereunder, and any representation or statement not contained in this Agreement
shall not be binding upon either party as a warranty or otherwise. This
Agreement may not be amended, changed, modified or altered except in writing,
signed by both parties. This Agreement supersedes all previous agreements,
including without limitation the Prior Agreement, and negotiations, whether
written or oral, respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
SPS PAYMENT SYSTEMS, INC. NOVUS CREDIT SERVICES INC.
By:/s/ Xxxxxx X. Xxxxxxxxx By:/s/ Xxxxxx Xxxx
Title: President Title: SVP Planning and Administration
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