CONFIDENTIAL TREATMENT REQUESTED BY M2DIRECT, INC.
Exhibit 10.4
AGREEMENT REGARDING DATA-RELATED MATTERS
This Agreement regarding Data-related Matters (the "Agreement"), is made
and entered into this 16th day of April, 1999, by and between M2Direct, Inc., a
Georgia corporation ("M2Direct") and Control Group, Ltd. ("Control"), a Delaware
corporation and a wholly owned subsidiary of M2Direct, on one hand; and The
Provident Bank, an Ohio corporation ("Provident"), on the other hand.
Recitals:
(1) Control and Provident entered into that certain Service Agreement dated
as of June 30, 1997 (the "Service Agreement"), under which Control has provided
certain direct marketing services to Provident, including services generally
referred to by Control and Provident as Flights IV and V.
(2) Although Provident and M2Direct/Control intend to continue doing
business together, they desire to make certain arrangements that will apply if
their business relationship terminates.
For and in consideration of the recitals stated above, the terms,
conditions, representations, warranties and undertakings of the parties
described in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which the parties hereby acknowledge, the parties
agree as follows:
ARTICLE 1
CERTAIN DATA-RELATED MATTERS
(A) M2Direct hereby grants to Provident a non-exclusive license to use all
Provident-specific algorithms/models housed at M2Direct. M2Direct further
agrees to assist Provident in translating such models into SAS, C, or Assembler
programming code when Provident requests. For such programming assistance
Provident shall pay M2Direct its costs, as documented to the reasonable
satisfaction of Provident, plus ***%.
(B) If at any time in the future the relationship between M2Direct and
Provident ends, M2Direct shall grant to Provident access to the Master File
Database of Performance Data, a division of Trans Union, for a period of three
years, to the extent permitted under the terms of the database agreement between
Control and Trans Union. For this access Provident shall pay M2Direct its costs
(including associated data processing charges), as documented to the reasonable
satisfaction of Provident, plus ***%. During the three-year period M2Direct
shall periodically deliver lists extracted from the Master File Database in the
format requested by Provident, and with requested data sets, to the extent that
it is reasonably practicable for M2Direct to do so.
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*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
CONFIDENTIAL TREATMENT REQUESTED BY M2DIRECT, INC.
ARTICLE 2
MISCELLANEOUS
2.1 Time of the Essence. Time is of the essence of this Agreement.
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2.2 Governing Law. This Agreement shall be interpreted, construed, and
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enforced in accordance with the laws of the State of Ohio.
2.3 Counterparts. This Agreement may be executed simultaneously in
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several counterparts, each of which shall be deemed an original; but all of
which together shall constitute one document.
2.4 Succession and Assignment. This Agreement shall be binding upon and
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inure to the benefit of the parties named herein and their respective successors
and permitted assigns. No party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder without the prior written
approval of M2Direct and Provident.
2.5 Entire Agreement. This Agreement contains the entire agreement of the
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parties hereto with respect to the transactions covered hereby and there are no
representations, warranties, agreements, undertakings or conditions, express or
implied, except as set forth herein.
2.6 Amendment and Waiver. This Agreement may not be amended,
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supplemented, or otherwise modified except by an instrument in writing signed by
each of the parties hereto. No waiver by any party hereto of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or affect
in any way any rights arising by virtue of any prior or subsequent such
occurrence.
2.7 Severability. Every provision of this Agreement is intended to be
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severable, and if any term or provision is determined to be illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity of the remainder of this Agreement.
2.8 Construction. The parties to this Agreement have participated jointly
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in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement. Any reference to any federal, state
or local statute or law shall be deemed to also refer to the rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
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CONFIDENTIAL TREATMENT REQUESTED BY M2DIRECT, INC.
The undersigned have signed this Agreement as of the date stated above.
Provident Bank M2Direct, Inc.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxx
Title: Senior Vice President Title: President/CEO
Control Group, Ltd.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
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