Exhibit 10.5 (ii)
MARKETING AGREEMENT
Bank of America NA
This Agreement, made as of December 3, 1996, is between Bank of America
NA, a national banking association and Bank of America NW, N.A., a national
banking association (collectively the "Bank"), and XX Xxxxxxxx Services, Inc., a
Delaware corporation ("BAMSI").
Recitals
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A. The Bank is in the business of marketing, offering, issuing and
servicing consumer, business, corporate and purchasing credit cards bearing the
Visa(R) or MasterCard(R) brand which the Bank develops, which are transferred to
the Bank or which an Association (defined below) develops and the Bank offers
("Bank Products").
B. BAMSI is in the business of marketing, offering and providing
merchant authorization and processing services for credit card, charge card,
debit card and ATM card transactions, and check verification and recovery
services, and other merchant services which BAMSI develops, which are
transferred to BAMSI or which an Association (defined below) develops and BAMSI
offers ("BAMSI Services").
C. The parties desire that BAMSI and the Bank cooperate and work
together in joint marketing opportunities, account-acquisition channels and
related services and support.
D. The parties intend to conduct their relationships under this
Agreement on an arm's length basis.
E. Bank of America NT&SA ("BofA") and Bank of America NW, N.A.
("BANW"), each a subsidiary of BAC, a Delaware corporation, currently own 100%
of the outstanding common stock of BAMSI and have entered into certain
agreements with BAMSI as of the date shown above: (1) transferring BofA's U.S.
domestic Merchant Services businesses and BANW's Merchant Services business to
BAMSI as of the date shown above; and (2) covering the contemplated transfer of
Bank of America's Philippines, Taiwan and Thailand Merchant Services businesses
to BAMSI upon receipt of certain government approvals. BAMSI is currently
considering an initial public offering of shares of its Class A common stock,
$0.01 par value per share. BANW and BofA intend for BANW into merge into BofA,
effective January 1, 1997.
F. Concurrently with the execution and delivery of this Agreement,
BAMSI has entered into, as of the date shown above: (1) a Non-Competition and
Corporate Opportunities
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Allocation Agreement between BAMSI and BAC (the "Corporate Opportunities
Agreement"), (2) a Sponsorship and Processing Service Agreement between BAMSI
and BofA and Seafirst (the "Sponsorship and Processing Agreement"), (3) a
Processing Service Agreement between BAMSI and certain other BAC affiliates, and
(4) a Trademark License Agreement between BAMSI and BAC.
NOW, THEREFORE, for valuable consideration, the parties hereby agree as
follows:
Agreement
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1. Marketing and Promotions.
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(a) BAMSI Services.
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(1) During the term of this Agreement, the Bank and BAMSI will
cooperate and work together to market, promote and sell Merchant Services that
are provided by BAMSI or are transferred to BAMSI ("BAMSI Services") to existing
and prospective Merchant Services customers (collectively "Customers") according
to standards or requirements which the parties may establish from time to time
by mutual agreement. Except as provided in the Corporate Opportunities
Agreement, during the term of this Agreement, the Bank will not promote or offer
Merchant Services other than BAMSI Services. BAMSI Services which the Bank will
promote will include, among other things, authorization and processing services
for credit cards, charge cards, ATM cards and debit cards, check verification
and recovery services, and other Merchant Services products or services which
BAMSI develops or which an Association (defined below) develops and BAMSI
offers.
(2) To the extent legally permissible, the Bank will give BAMSI access
to the Bank's solicitation and distribution channels and resources which
include, without limitation, direct mail, statement inserts, telemarketing,
Internet and other on-line media and cross-sell databases. If, through
expansion, merger, acquisition or other means, the Bank acquires or adds new
credit card portfolios, business partners, clients or sales forces, the Bank
will give BAMSI access to any new or additional solicitation and distribution
channels available through the Bank's new portfolios, business partners, clients
or sales forces.
(b) Bank Products.
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(1) During the term of this Agreement, the Bank and BAMSI will
cooperate and work together to market and promote Bank Products to Customers.
Bank Products will include,
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without limitation, consumer credit, business, corporate and purchasing cards.
Except as provided in the Corporate Opportunities Agreement, BAMSI will not
promote banking products and services other than Bank Products and will market
and promote Bank Services according to standards or requirements which the
parties may establish from time to time by mutual agreement.
(2) To the extent legally permissible, BAMSI will give the Bank access
to BAMSI's retail and commercial solicitation and distribution channels and
resources which include, without limitation, direct mail, statement inserts,
telemarketing, Internet and other on-line media and cross-sell databases. If,
through expansion, merger, acquisition or other means, BAMSI acquires or adds
new businesses, offices or sales forces, BAMSI will give the Bank access to any
new or additional solicitation and distribution channels available through
BAMSI's new businesses, offices or sales forces.
2. Sales Training and Support.
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(a) To facilitate the Bank's promotion of BAMSI Services, BAMSI, at
BAMSI's expense, may from time to time and as product changes warrant: (1)
supply the Bank with sales and promotional information and literature and
related materials in any appropriate medium to inform the Bank of BAMSI
Services, and (2) provide training and related support services for the Bank's
personnel. To facilitate BAMSI's promotion of Bank Services, the Bank, at the
Bank's expense, may from time to time and as product changes warrant: (1) supply
BAMSI with sales and promotional information and literature and related
materials in any appropriate medium to inform BAMSI of Bank Products, and (2)
provide training and related support services for BAMSI's personnel.
(b) The Bank and BAMSI will coordinate and cooperate with each other to
conduct joint promotions, including joint and contemporaneous sales calls to
Customers, to complement the features and benefits of each other's products and
services.
3. Information Access.
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To the extent legally permissible, each party to this Agreement will
give the other party access to any account and related information on each
Customer to enable the other party to solicit the Customer for BAMSI Services
or Bank Products, as applicable. Each party will maintain the confidentiality
of all such information in accordance with Section 8 below.
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4. Compensation.
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(a) On a Customer-by-Customer or project-by-project basis, the parties
will mutually agree on the compensation each party will receive for marketing
services under this Agreement. For each Customer or project, the parties will
enter into an amendment to this Agreement which, by reference, will become a
part of this Agreement and which will describe the marketing services to be
performed and the compensation to be paid. Compensation under this Agreement
will be based on market-competitive pricing terms.
(b) Reports. As part of the compensation under this Agreement, each
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party will furnish the other party with MIS reports on Customers' account
information and transaction data, to the extent legally permissible and
operationally feasible.
(c) Payment. Unless the parties agree to use BAC's intercompany
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accounting system, each party will pay the other party by electronic transfer or
by check for the other party's services within 30 days following receipt of the
other party's itemized invoice.
5. Marks.
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(a) The Bank hereby authorizes BAMSI, in accordance with the Trademark
License Agreement, to use the Bank's trademarks, tradenames and service marks
(the "Bank's Marks") to market and promote Bank Products or BAMSI Services. The
Bank's Marks include, without limitation, Bank of America(R) and
BankAmericard(R).
(b) BAMSI hereby authorizes the Bank, in accordance with the Trademark
License Agreement, to use BAMSI's trademarks, tradenames and service marks
("BAMSI's Marks") to market and promote BAMSI Services or Bank Services.
BAMSI's Marks include, without limitation, XX Xxxxxxxx Services and PayLink/TM/.
6. Term; Termination.
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(a) The term of this Agreement will start as of the date first shown
above and continue without interruption for 5 years. After the initial 5-year
term, the term will automatically renew for 1-year terms unless either party
gives at least 6 months' advance written notice of termination. However, the
Bank may terminate this Agreement at any time upon 6 months' advance written
notice if BAC and its affiliates (other than BAMSI) beneficially own shares
representing less than a majority of the voting power of the outstanding common
stock of BAMSI.
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(b) If a party materially fails to perform an obligation under this
Agreement, the other party may give written notice describing the failure to
perform, and if the failure is not corrected within 30 days, the notifying party
may terminate the Agreement immediately and will have the right to all available
remedies.
7. Independent Contractor.
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(a) Each party, in performing services under this Agreement, will be an
independent contractor of the other party, with exclusive control over its own
employees and agents who perform the terms under this Agreement.
(b) Each party is solely responsible for determining the terms and
conditions of employment between itself and its employees and agents, including,
without limitation, hiring, termination, hours of work, rates and payment of
compensation, and for the payment, reporting, collection and withholding of
taxes and similar contributions.
8. Confidentiality.
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(a) BAMSI will treat as strictly confidential and as the Bank's
exclusive proprietary property all documents and information concerning the
Bank's marketing plans, marketing data, pricing, customer names or account
numbers, and related material which BAMSI receives in connection with this
Agreement (collectively the "Bank Information"). Except as authorized by the
Bank in a signed writing, BAMSI will not sell or disclose Bank Information,
directly or indirectly, to a third party. BAMSI will ensure that any agent
which BAMSI employs or retains to work with Bank Information will adhere to this
restriction of non-disclosure. This section does not apply to Bank Information
placed in the public domain other than by virtue of BAMSI's wrongful act or
omission.
(b) The Bank will treat as strictly confidential and as BAMSI's
exclusive proprietary property all documents and information concerning BAMSI's
marketing plans, marketing data, pricing, customer names or account numbers, and
related material which the Bank receives in connection with this Agreement
(collectively "BAMSI Information"). Except as authorized by BAMSI in a signed
writing, the Bank will not sell or disclose BAMSI Information, directly or
indirectly, to a third party. The Bank will ensure that any agent which the
Bank employs or retains to work with BAMSI Information will adhere to this
restriction of non-disclosure. This section does not apply to BAMSI Information
placed in the public domain other than by virtue of the Bank's wrongful act or
omission.
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(c) If either party receives a subpoena or other legal process which
specifically seeks to discover Information created by or belonging to the other
party or which constitutes the other party's proprietary property, the party
served with the subpoena or process will notify the other party immediately and
will cooperate at the other party's expense to contest the subpoena or process
if that is the desire of the other party.
(d) Each party will provide a secure environment to protect the
Information of the other party, and will take reasonable precautions to prevent
its disclosure, loss or damage.
(e) Upon expiration or termination of this Agreement, each party will
return or destroy within 5 business days all written Information and marketing
materials in its possession relating to the other party or the other party's
products and services through a mutually agreeable method.
(f) This Section 8 will survive expiration or termination of this
Agreement.
9. Indemnification.
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(a) By the Bank. The Bank will defend, indemnify and hold BAMSI and
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each of its officers, directors, employees and agents harmless from and against
each liability, claim, demand, cost, damage, loss and cause of action
(collectively "Claim") arising from the Bank's failure to perform its
obligations under this Agreement, except in the case of BAMSI's gross negligence
or willful misconduct.
(b) By BAMSI. BAMSI will defend, indemnify and hold the Bank and each
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of its officers, directors, employees and agents harmless from and against each
Claim arising from BAMSI's failure to perform its obligations under this
Agreement, except in the case of the Bank's gross negligence or willful
misconduct.
(c) Notice. Either party seeking indemnification under this Agreement
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will give prompt written notice to the other party of any Claim for which
indemnification is sought.
(d) Taxes. Each party will indemnify, reimburse and hold the other
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party harmless from and for any applicable sales or use taxes arising from the
indemnifying party's performance of the terms of this Agreement.
(e) This Section 9 will survive expiration or termination of this
Agreement.
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10. Supervision and Regulation.
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(a) The Bank is an insured institution subject to regulation and
supervision by the Office of the Comptroller of the Currency (OCC), and BAMSI is
a subsidiary of the Bank. Some of the services under this Agreement constitute
bank services under 12 U.S.C. (S)1867(c). To the extent required by law or
regulation, the parties will advise the OCC of the existence of this Agreement
and will cooperate with any examination which the OCC may wish to conduct in
connection with this Agreement or in connection with BAMSI's ongoing operations.
(b) This Section 10 will survive expiration or termination of this
Agreement.
11. Arbitration.
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(a) Any dispute or controversy between the parties will be resolved by
arbitration conducted in San Francisco, California, under the auspices, and in
accordance with the Commercial Rules, of the American Arbitration Association,
and in accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice-of-law provision in this Agreement.
(b) This Section 11 will survive termination of this Agreement.
12. Notices.
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Each notice under this Agreement will be in writing and signed and will
be deemed effective when one party delivers it in person or transmits it
electronically, or 3 days after the notice is mailed by registered or certified
mail, to the designated representative of the other party at the applicable
address below.
To the Bank:
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Bank of America NA #5060
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: President and CEO
w/copy to:
Bank of America
General Counsel #3017
000 Xxxxxxxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxxxxxxx, XX 00000
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To BAMSI:
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XX Xxxxxxxx Services, Inc. #0000
Xxx Xxxxx Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel #3710
13. Assignment. Neither party may assign this Agreement without the
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written consent of the other party. Upon consent, this Agreement will be
binding on and inure to the benefit of the parties' respective successors and
assigns.
14. Governing Law.
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The laws of the State of California will govern this Agreement, and any
provisions on conflict of laws will have no effect.
15. Third-Party Beneficiaries.
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Except as expressly provided in this Agreement, the parties to this
Agreement intend that this Agreement will not benefit or create any right or
cause of action in or on behalf of any person other than the parties to this
Agreement.
16. Entire Agreement.
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This Agreement, including the attached Appendices, sets forth the entire
agreement between the parties relating to the subject matter of this Agreement,
superseding all prior written or oral understandings. This Agreement may not be
amended or modified without a writing signed by both parties.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
first date shown above.
BANK OF AMERICA NA XX XXXXXXXX SERVICES, INC.
By __________________________ By ___________________________
Xxxxx X. Xxxxx Xxxxxx X. Xxxxxxx
Chairman President & Chief Executive Officer
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