EXHIBIT 10.3
AGREEMENT
THIS AGREEMENT is made and entered into as of the 29day of April 2001,
by and between Intersections Inc.(INTERSECTIONS), a Delaware
corporation with its principal place of business located at 00000 Xxxxx
Xxxxx, Xxxxxxxxx, XX 00000, and Discover Financial Services., a
Delaware corporation, with its principal place of business located at
0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000 ("DFS").
WHEREAS, INTERSECTIONS is in the business of providing consumer credit
fraud prevention, detection, monitoring and notification products and certain
administrative services related thereto;
WHEREAS, DFS is a credit card servicer;
WHEREAS, INTERSECTIONS desires to offer its services to selected
persons who have a credit card serviced by DFS ("Cardmembers");
WHEREAS, DFS wishes to have INTERSECTIONS make its consumer credit
monitoring and notification product and related administrative services
available to its Cardmembers; and
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending to be
legally bound hereby agree as follows:
1. The Product. The product to be offered by INTERSECTIONS is
described in Exhibit A ("Product") attached to and made a part of this
Agreement. Any changes to the Product, including Product price, must be agreed
to in writing by the parties.
2. Services. The services to be provided by INTERSECTIONS in
connection with the Product are described in Exhibit B ("Services") attached to
and made a part of this Agreement. Any changes of the Services must be agreed to
in writing by the parties. INTERSECTIONS will comply with the procedures and
meet the service standards set forth in Exhibit C attached to and made a part of
this Agreement. In addition, INTERSECTIONS will prepare and submit to DFS the
reports set forth in Exhibit D, and the business and growth plans set forth in
Exhibit F attached to and made a part of this Agreement.
3. Compensation. INTERSECTIONS agrees to pay compensation to DFS
for sales of the Product in the amount and manner described in Exhibit E
attached to and made a part of this Agreement.
4. Term and Termination.
a. Term. This Agreement shall commence on May 1, 2001,
and continue for a period of thirty-six (36) months unless terminated earlier in
accordance with this Paragraph. The prior agreement between INTERSECTIONS and
DFS commenced on May 1, 1998 and ended April 30, 2001. This Agreement shall
automatically renew for successive 12 month terms ("Renewal Terms") unless
either party gives written notice of its intent not to renew at least sixty (60)
days prior to the last day of the then current term.
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b. Termination. This Agreement will terminate upon sixty
(60) days written notice by either party, or sooner if required by law, in the
event of the adoption of legislation or other such authority which (i)
necessitates the discontinuance or substantial curtailment of the solicitation
or sale of the Product, or (ii) has the effect of materially reducing the
compensation specified in this Agreement earned by either party in connection
with the Product, provided that the parties use their best efforts to remedy the
circumstances giving rise to the right to terminate this Agreement. At any time,
either party may terminate this Agreement effective immediately upon notice to
the other party if the other party (i) commences any proceeding relating to its
reorganization, dissolution or liquidation; (ii) discontinues its business,
becomes insolvent or fails to pay obligations as they become due; or (iii)
breaches any material provision of this Agreement and fails to cure such breach
within fifteen (15) days of receipt of notice of breach or such longer period of
time as agreed to by the parties.
In addition, either party may terminate this Agreement without cause upon one
hundred eighty (180) days' prior written notice.
C. Effect of Termination. In the event of a termination,
INTERSECTIONS will continue to provide the Product and Services to Cardmembers
and DFS shall continue to xxxx cardmembers until the number of Cardmembers
purchasing the Product falls below 500. The quality of the Product and
compliance with the Service Standards shall be maintained as if this Agreement
had not been terminated.
During the term of this Agreement, DFS will cooperate
with INTERSECTIONS to encourage individuals who have purchased the Product to
continue purchasing the Product, and will not allow the solicitation of credit
monitoring and notification products substantially similar to the Product
offered under this Agreement to any individual who has purchased the Product and
except further as INTERSECTIONS may agree in writing.
For the period of three (3) years following the
termination of this Agreement, DFS shall not allow the solicitation by solo
mail, inserts, outbound telemarketing, e-mail, newsletters, or through inbound
customer relations calls, of any individual who have purchased the Product for a
credit monitoring and notification product substantially similar to the Product.
DFS shall not target by direct solo mail, inserts, outbound telemarketing,
e-mail, newsletters or through inbound customer relations calls, Cardmember(s)
who have purchased the Product for a replacement of Product except after the end
of the three (3) year period.
5. Enhancement and Special Feature Ownership.
a. INTERSECTIONS. The parties agree that INTERSECTIONS owns all
rights in connection with the Product and any enhancement or special feature
added to the Product. Notwithstanding the foregoing, DFS will own all rights in
connection with any enhancements or special features added to the Product at
DFS's request ("DFS Enhancements"). "). Any suggestion or concept already
developed or under development by INTERSECTIONS at the time requested by DFS
shall not be considered a DFS enhancement for the purposes of this Agreement.
INTERSECTIONS agrees that all work in connection with any DFS Enhancements under
this Agreement constitute "work-for-hire" as that term is defined in Section 101
of the Copyright Act, 17 U.S.C. Section 1 01, and is the sole and exclusive
property of DFS. All right, title and interest in copyrights, trade secrets,
trademarks, service marks, patents and other intellectual property derived in
any DFS Enhancement, to the extent they are available, are the sole and
exclusive property of DFS, free from any claim or retention of rights thereto on
the part of INTERSECTIONS. In the event that the aforementioned rights are found
not to be a 'work-for-hire" or otherwise cannot be conferred to DFS
automatically, INTERSECTIONS acknowledges that this Agreement constitutes an
assignment of such rights in any DFS Enhancement and agrees to execute whatever
documentation necessary to formalize such assignment to DFS.
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b. Contractor. Subject to DFS's prior approval, INTERSECTIONS may
retain contractors to perform work in connection with the Product and
Services. INTERSECTIONS will ensure that all DFS Enhancement created,
prepared, or produced by an INTERSECTIONS contractor will become the
sole property of DFS. INTERSECTIONS will require that each contractor
agree to convey all right, title and interest in copyrights, trade
secret, trademarks, service marks, patents and other intellectual
property derived in any DFS Enhancement before the contractor begins to
perform such work. If, despite INTERSECTIONS's best efforts, a
contractor is unwilling to agree to convey all of these rights in any
DFS Enhancement, INTERSECTIONS will immediately notify DFS, which will
then determine whether to authorize INTERSECTIONS to retain the
contractor under revised terms.
6 Product Differentiation. INTERSECTIONS will not use
any DFS Enhancement for any purpose except as provided hereunder
without the written consent of DFS.
7. Product Name. The name of the Product shall be
ProfileProtect. DFS shall be the owner of such name. DFS grants
INTERSECTIONS a license to use such name during the term of this
Agreement. In the event of a termination of this Agreement, DFS grants
INTERSECTIONS a license to use such name for the purpose of providing
the Product and Services in accordance with Paragraph 5 to Cardmembers
who continue to purchase the Product.
8. Review of Promotional Materials. All advertising and
promotional materials used in connection with the Product, including,
but not limited to, fulfillment kits, brochures, newsletters, inserts,
telemarketing scripts, customer correspondence and form letters, must
be approved by both parties, such approval or disapproval not to be
unreasonably withheld. Each party will notify the other in writing of
its approval of a submitted item within ten (10) business days of
receipt. Specific reasons must be given for disapproval. In the event
the reviewing party has not notified the submitting party of its
approval or disapproval within the ten (10) day period, the submitting
party will notify the reviewing party in writing of that fact. Upon
receipt of such notice, the reviewing party will have until the end of
the next business day to either approve or disapprove the item. If the
reviewing party has not responded by the end of the next business day,
the item will be deemed approved. If the submitting party resubmits an
item for review incorporating changes requested by the reviewing party,
the reviewing party will notify the submitting party of its approval or
disapproval within five (5) business days of receipt of the
resubmission.
9. Use of DFS Work Product or Name. INTERSECTIONS will not use and will
keep its employees, agents and subcontractors, if any, from using the name of
DFS or its parent, subsidiaries or affiliates, or any name, logo, copyright,
service xxxx or trademark owned or licensed by DFS, its parent, subsidiaries or
affiliates, in any manner whatsoever that is not otherwise authorized by the
terms of this Agreement without the prior written consent of DFS. In addition,
INTERSECTIONS will not use any work product produced exclusively hereunder for
any purpose whatsoever including advertisements, client lists or submissions in
competitions without the prior written approval of DFS.
10. Customer List. DFS shall engage an agent to develop targeted
contact lists based on DISCOVER Cardmembers to market the
Product. INTERSECTIONS will have input into agent's selection
criteria subject to DFS's approval.
INTERSECTIONS agrees that DFS has the right to market the Product using
customer lists that are not based on DISCOVER Cardmembers. Should DFS exercise
this right, both parties shall mutually agree as to the functions to be
performed by each party and each party's compensation.
INTERSECTIONS recognizes that the customer relationship and the above
lists are the property of DFS. INTERSECTIONS shall return or destroy all such
lists on termination of this Agreement and shall treat such information as
confidential in accordance with Paragraph 12.
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11. Confidentiality. In the course of performance under this Agreement,
INTERSECTIONS may have access to or receive disclosure of information considered
confidential and proprietary by DFS, including, but not limited to, Cardmember
names, addresses, and telephone numbers, and DFS may have access to or receive
disclosure of information considered confidential and proprietary by
INTERSECTIONS, including, but not limited to software systems and credit records
(hereinafter referred to in each case as "Confidential Information").
Confidential Information shall not include information in the public domain,
information known to the other party prior to this Agreement and information
lawfully obtained from a third party by the other party, but shall include
confidential and proprietary information of affiliates of each party.
Each party agrees that Confidential Information will be used solely in
connection with the performance of this Agreement and will not (except as
required by law) be disclosed without the approval of the other party to any
third party or to any of such party's affiliates, directors, officers or
employees except those with a "need to know". Any such disclosure to a third
party shall be made only upon receipt of a confidentiality agreement approved by
DFS from such third party which is substantially as comprehensive in terms as
those contained herein. INTERSECTIONS agrees to obtain a Confidentiality
Agreement from DMS, its subcontractor, prior to commencement of this Agreement.
Each party shall retain exclusive ownership of its Confidential Information with
the right to demand return of Confidential Information from the other party at
any time.
Specifically, INTERSECTIONS agrees that it will reveal such
Confidential Information only to those of its employees who are engaged in
providing the Product and Services hereunder. At no time will any Confidential
Information be left unattended in an unlocked area. All work in progress
containing Confidential Information shall be kept in a secured area at
INTERSECTIONS's facility with access limited to those employees designated to
work on the Product, except during the time of the initial processing of
materials containing Confidential Information in the mail receiving area. Any
time an employee working with Confidential Information leaves the work area
during the work day, he or she will place the Confidential Information under
lock and key. All work in progress containing Confidential Information shall be
placed in a high security locked area each night. All completed work containing
Confidential Information shall be stored in a high security locked area.
INTERSECTIONS further warrants and represents that it will not compile,
organize, access, create lists of or otherwise use such Confidential Information
other than as authorized hereunder and that it will not contact any Cardmember
to market, sell or otherwise promote the use or purchase of any other goods or
services of INTERSECTIONS or any third party without prior written consent.
Each party agrees that is shall comply with the provisions of any
privacy laws and regulations requiring confidential treatment of personal
information under such laws and regulations, including, without limitation, the
Xxxxx-Xxxxx-Xxxxxx Act, and any other federal and state privacy laws. In
addition, each party will maintain appropriate measures to safeguard all
Cardmember information. Such measures will, at a minimum, be designed to meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information as issued and interpreted by the federal
Deposit Insurance Corporation (as C.F.R. 308 and 364).
Each party recognizes the irreparable harm which would be caused the
other party if Confidential Information were used or disclosed in violation of
this Paragraph, and each party shall use at least the same degree of care in
protecting the other party's Confidential Information as it uses in protecting
its own Confidential Information.
Upon request, all Confidential Information of either party that is in
the possession of the other party shall be returned upon termination of this
Agreement.
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12. Notice. Any notice, request, demand, or other communication
required or permitted hereunder will be in writing, postage prepaid, addressed
to the party to be notified. All communications will be deemed given when
received. The respective addresses for the parties for the purpose of such
communications are:
If to DFS: Discover Financial Services
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Vice President and Controller
With a copy to: Senior Vice President - Discover Enterprises
If to INTERSECTIONS: Intersections Inc.
00000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Either party may change its mailing address by written notice to the
other party in accordance with this section.
13. Independent Contractors. Except as specifically provided
herein, INTERSECTIONS will perform all Services hereunder as
an independent contractor, and nothing contained herein will
be deemed to create any association, partnership, joint
venture or relationship of principal and agent or employer and
employee between the parties hereto, or to provide either
party with the right, power or authority, whether express or
implied, to create any such duty or obligation on behalf of
the other party. INTERSECTIONS will be solely responsible for
compensating its employees and subcontractors, if any, which
perform or provide work or work products hereunder.
14. Indemnification.
a. DFS will indemnify and hold harmless INTERSECTIONS
and its officers, directors, affiliates, employees, agents and
representatives, against any and all liabilities, judgments,
damages, claims, demands, costs, expenses (including
reasonable attorneys' fees) or losses ("Claims"), arising in
connection with the Product or Services to be provided
hereunder, from DFS's negligence, willful misconduct, breach
of warranty or failure to perform in accordance with the terms
of this Agreement.
b. INTERSECTIONS will indemnify and hold harmless DFS
and its officers, directors, affiliates, employees, agents and
representatives, against any and all Claims arising in
connection with the Product and Services to be provided
hereunder from Company's negligence, willful misconduct,
breach of warranty or failure to perform in accordance with
the terms of this Agreement.
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c. Notice and Rights under Indemnification. The party
seeking indemnification must (i) notify the party from whom indemnification is
sought of the Claim; (ii) not have engaged in negligent or willful misconduct in
connection with the Claim; (iii) provide the party from whom indemnification is
sought with all information reasonably accessible to it for such party to defend
the Claim; and (iv) cooperate with the party from whom indemnification is sought
in regard to its defense or settlement of the Claim. The party seeking such
indemnification shall have the right, at its own expense, to participate in the
defense of the Claim for which it is indemnified and which has been assumed by
this obligation or indemnity hereunder; however, it shall have no right to
control the defense, consent to judgment, or agree to settle any such Claim
without the prior written consent of the party from whom such indemnification is
sought.
15. Fraud Prevention. INTERSECTIONS agrees to take all actions
necessary to prevent fraud in connection with the Product
and Services provided hereunder including, but not limited
to, misuse of credit bureau information, Cardmember
information and/or account numbers by its employees.
INTERSECTIONS agrees to be held strictly liable for any
fraud committed or facilitated by its employees.
INTERSECTIONS shall immediately inform DFS of any evidence
of fraud by Cardmembers it may become aware of and shall
cooperate with DFS in resolving such matters.
16. Representations and Warranties.
a. Agreement. Each party represents and warrants that it
is free as of the effective date of this Agreement of any contractual obligation
or legal disability that would prevent it from entering into and performing
under the terms of this Agreement.
b. Product/Services. INTERSECTIONS represents and
warrants that it has the right to provide the Product and Services to DFS
under the provisions of this Agreement. INTERSECTIONS further represents
and warrants that it will comply with all statutory requirements and
applicable rules, regulations and guidelines issued by any federal or
state agency having jurisdiction over the Product or Services.
C. Work Product. INTERSECTIONS represents and warrants
that all work product produced for DFS under this Agreement is original or
that rights in the work product, necessary to DFS's purposes, have been
obtained. INTERSECTIONS further represents and warrants that none of its
work product will infringe any statutory or common law copyright or, other
personal or property interest of any third party.
17.Accounting and Audit. Each party will keep accurate and
complete books and records relating to the Products sold under this
Agreement. Subject to the confidentiality requirements set forth in
Paragraph 12 above, each party (or such auditors as either party may
select) shall have the right to examine the books and records of the other
party as they specifically relate to the business transacted under this
Agreement. Either party may conduct an audit during the term of this
Agreement and for a period of five (5) years following its termination,
upon reasonable prior written notice to the other party; provided that no
party shall be subject to such an audit more than once during a twelve
(12) month period. Each such audit shall be conducted in the presence of a
duly authorized representative of the party being audited at a time
mutually agreeable to both parties. No documents, machine-readable data or
other information in any format shall be copied or reproduced by the
auditing party (or its selected auditors) without (i) first being reviewed
by the audited party's authorized representatives), and obtaining the
audited party's written consent for any such copying or reproduction. The
party conducting the audit shall bear all out-of-pocket costs and expenses
relating or attributable to each such audit. The results of any audit
requested by either party shall be made
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available to the audited party free of charge within ten (10) days
after such results are made known to the auditing party.
18. Severability. If any provision of this Agreement, or the
application thereof to any person or circumstance, is held invalid, such
invalidity will not affect any other provision which can be given effect without
the invalid provision or application, and to this end the provisions hereof will
be severable.
19. Waiver. No delay or omission by DFS or INTERSECTIONS in
exercising any right, remedy or power hereunder will operate as a waiver of such
right, remedy or power or of any other right, remedy or power. No waiver of any
right, remedy or power on one occasion by DFS will be construed as a waiver of,
or a bar to, the exercise of such right, remedy or power on any other occasion.
All such rights, remedies and powers of DFS, not only hereunder but also under
any other agreement of DFS with INTERSECTIONS, are cumulative, and not
alternative or exclusive, and may be exercised by DFS at such time or times and
in such order of preference as DFS may deem advisable.
20. Insurance. INTERSECTIONS will maintain adequate insurance from
a qualified and licensed insurer in good financial standing throughout the term
of this Agreement, as specified in Exhibit G. At DFS's option and upon its
request, INTERSECTIONS will name DFS as an additional insured. The insurance
shall be primary over any other insurance covering DFS and shall remain in
effect continuously for the term of this Agreement and for such longer period.
As is necessary to support INTERSECTIONS's indemnity obligations under this
Agreement. Also upon written request, INTERSECTIONS shall promptly provide
certificate(s) from its insurers indicating the amount of insurance coverage,
the nature of such coverage and the expiration date of each applicable policy.
The certificate(s) will state that companies affording coverage will provide DFS
with at least thirty (30) days' written notice of any cancellation or
non-renewal of any coverage. The certificate will be in a form which DFS can
verify provides continuing insurance coverage through the term of this
Agreement.
21. Force Maieure. If for any reason, such as strikes, boycotts,
war, acts of God, labor troubles, riots, delays of commercial carriers,
restraints of public authority, or for any other reason, similar or dissimilar,
beyond its control, either party is unable to perform its respective obligations
in connection with this Agreement, such non-performance will not be considered a
breach of this Agreement. Upon the occurrence of such event, the party so
affected, upon giving prompt written notice to the other party, shall be excused
from such performance to the extent of such prevention, interference or
restriction, provided that the party so affected shall take all reasonable steps
to avoid or remove such causes of nonperformance and shall continue performance
hereunder with dispatch whenever such causes are removed.
22. Compliance With Laws. In the performance of its obligations
under this Agreement, INTERSECTIONS agrees to comply and to cause its agents and
subcontractors, if any, to comply with all applicable federal, state laws,
codes, rules and regulations, including but not limited to (a) equal opportunity
and nondiscrimination in employment; (b) the employment of the disabled; and (c)
the employment of veterans. INTERSECTIONS also agrees to procure permits and
certificates where required.
23. Improper Payments. Both parties agree that, in connection with
the performance of its obligations under this Agreement, it will not make any
payments to, or confer or offer to confer any benefits upon, any employee, agent
or fiduciary of DFS or of any third party, including, without limitation, any
government, agency or instrumentality thereof, with the intent to influence the
conduct of such employee, agency or fiduciary in relation to the business or
affairs of DFS or of another party in connection with this Agreement.
24. Governing Law. The validity, interpretation and performance of
this Agreement shall be governed by and construed in accordance with the laws of
the State of Illinois.
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25. Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other, except that DFS may assign the
Agreement to its parent, any subsidiary or affiliate of DFS, or any successor in
interest of DFS, without the consent of INTERSECTIONS.
26. Change in Ownership.
a. DFS shall have the right to terminate this Agreement
with sixty (60) days written notice to INTERSECTIONS in the event of a Change in
Control of INTERSECTIONS. A "Change in Control" of INTERSECTIONS means:
(i) A change in control of INTERSECTIONS means
the consummation of any transaction after which Loeb Holding Corporation or
controlled affiliates thereof, do not own or have control, either directly or
through one or more controlled subsidiaries, of voting 51% of the combined
voting power of outstanding voting securities.
(ii) The consummation of the sale, transfer or
other disposition of all or substantially all of the assets of INTERSECTIONS,
unless such sale, transfer or other disposition is to the parent or a subsidiary
of INTERSECTIONS and all of INTERSECTIONS' rights and obligations under this
Agreement are assigned to that party in accordance with this Agreement.
27. Entire Agreement: Amendment. This Agreement constitutes the
entire agreement between the parties with respect to the Product and Services.
Any prior agreements, representations, statements, negotiations or undertakings
dealing with these Product and Services or the subject matter of this Agreement
are superseded hereby. This Agreement may be amended or modified only by a
writing signed by both parties to this Agreement.
28. Headings. The paragraph headings used in this Agreement are
for the convenience of the parties only and will not define or limit the
substance of any paragraph. Reference herein, unless otherwise specified, to a
paragraph, subparagraph, clause or subclause is a reference to such paragraph,
subparagraph, clause or subclause of this Agreement.
IN WITNESS WHEREOF, the parties, by their undersigned representatives,
hereby execute this Agreement.
INTERSECTIONS INC. DISCOVER SERVICES, INC.
Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx
Chairman Senior Vice President and
Date: General Manager
Date:
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