EXHIBIT 10.2
PRIVATE LABEL CREDIT PROGRAM AGREEMENT
This Private Label Credit Program Agreement is made as of the 26th day of
April, 2005, by and between XXXXX CORPORATION, a Delaware corporation with its
principal offices at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Xxxxx") and World
Financial Capital Bank, a Utah industrial bank with its principal offices at
0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxx Xxxx Xxxx, XX 00000 ("Bank").
WITNESSETH:
WHEREAS, Bank has established programs to extend private label credit to
qualified customers for the purchase of goods;
WHEREAS, Xxxxx is engaged, among other activities, in selling merchandise
through catalog, retail stores, the internet and other direct marketing means;
WHEREAS, concurrently with the execution of this Agreement, Bank and Xxxxx
are entering into a Purchase, Sale and Servicing Transfer Agreement (the
"Purchase Agreement") pursuant to which Bank shall purchase Xxxxx'x Customer
Credit Business (as hereinafter defined), including certain accounts and
associated receivables ("Purchased Accounts"); and
WHEREAS, it is a condition precedent to the obligations of Xxxxx under the
Purchase Agreement that Xxxxx and Bank enter into this Agreement;
NOW, THEREFORE, in consideration of the terms, conditions and mutual
covenants contained herein, and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Xxxxx and Bank agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 Generally. The following terms shall have the following meanings when
used in this Agreement:
- "Account" means a private label credit open end credit account
established in favor of an Accountholder, pursuant to which such
Accountholder may finance the purchase of Goods from Xxxxx Channels and
Enhancement Products, all subject to the terms of an Account Agreement. The
term Account includes Purchased Accounts.
- "Account Agreement" means the account agreement between Bank and an
Accountholder governing the use of an Account, together with any
amendments, modifications or supplements which now or hereafter may be made
to such Account Agreement (and any replacement of such agreement).
- "Account Application" means the private label credit application which
must be completed and submitted by individuals who wish to become
Accountholders.
- "Account Documentation" means, with respect to Accounts, all Account
Applications, Credit Cards, and Billing Statements relating to such
Accounts.
- "Account List" means any list in electronic form that identifies or
provides a means of differentiating Accountholders, including any such
electronic listing that includes the names, addresses, email addresses (as
available), and telephone numbers of Accountholders.
- "Accountants" has the meaning set forth in Section 10.2 hereof.
- "Accountholder" means any Person who has been issued an Account by Bank
and includes any authorized user(s).
- "Accountholder Data" means all personally identifiable information about
an Accountholder received by Bank in connection with the Accountholder's
application for or use of a Private Label Credit Card or Account, but does
not include any information collected independently by Xxxxx through or in
the course of its business.
- "Accountholder Indebtedness" means all amounts charged and owing to Bank
by Accountholders with respect to Accounts (including finance charges, NSF
fees, late charges, pay-by-phone fees and any other fees and charges),
whether or not billed, less the amount of any credit balances owing by Bank
to Accountholders, including any credits associated with returns of Goods
and similar credits and adjustments, whether or not billed.
- "Affiliate" means, with respect to any Person, each Person that controls,
is controlled by, or is under common control with, such Person.
- "Agreement" means this Program Agreement, together with all of its
schedules and exhibits, and, if modified, altered, supplemented, amended
and/or restated, as the same may be so modified, altered, supplemented,
amended and/or restated from time to time.
- "Applicable Law" means all federal, state and local laws, statutes,
regulations, written regulatory guidance, orders or directives, as may be
amended and in effect from time to time during the Term of this Agreement,
including, but not limited to: (i) the Truth in Lending Act and Regulation
Z; (ii) the Equal Credit Opportunity Act and Regulation B; (iii) the Fair
Credit Reporting Act; (iv) the Xxxxx-Xxxxx-Xxxxxx Act and its implementing
regulations ("GLBA"); and (vi) the PATRIOT Act and its implementing
regulations.
- "Approval Rate Threshold" means the approval rates set forth in Schedule
3.4.
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- "Automated Telephone Application" shall mean an application procedure
designed to open Accounts at the point of sale or order entry, in which an
application for credit is processed without a paper application being
completed by an Applicant, but instead, the Applicant's information is
keyed into the telephone.
- "Bank" has the meaning set forth on page 1.
- "Bank Event of Default" means the occurrence of any one of the events
listed in Section 12.2 hereof or an Event of Default of Bank.
- "Bank Licensed Marks" means the trademarks, trade names, service marks,
logos and other proprietary designations of Bank listed on Schedule B and
licensed to Xxxxx under Section 8.2 hereof.
- "Bankruptcy Code" means Title 11 of the United States Code, as amended,
or any other applicable state or federal bankruptcy, insolvency, moratorium
or other similar law and all laws relating thereto.
- "Bank's Parent" means Alliance Data Systems Corporation.
- "Bank's Privacy Policy" shall mean the privacy policy to be provided by
Bank to Accountholders in connection with the Program, in the form
consistent with the terms of this Agreement and Applicable Law.
- "Batch Prescreen Application" shall mean a process where Bank's offer of
credit is made to certain customers prequalified by Bank, in a batch mode
within a catalog environment. This process will be used in conjunction with
the mailing of catalogues to qualified prospective Accountholders and will
be integrated with the phone order processing system which will contain an
indicator identifying qualified prospects.
- "Billing Cycle" means the interval of time between regular periodic
Billing Dates for an Account.
- "Billing Date" means, for any Account, the last day of a Billing Cycle as
of when the Account is billed.
- "Billing Statement" means a summary of Account credit and debit
transactions for a Billing Cycle including a descriptive statement (as
provided by Xxxxx to Bank) covering purchases of Goods and a statement with
only past-due account information.
- "Xxxxx Channels" means all retail establishments owned or operated by
Xxxxx in the United States and all mail order, catalog (including Inserts),
electronic mail outlets (including websites operated by Xxxxx) and other
direct access media (not used for initiating Accounts or submitting Account
transactions to the Bank)within the United States that are owned or
operated by Xxxxx.
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- "Xxxxx Event of Default" means the occurrence of any one of the events
listed in Section 12.3 hereof or an Event of Default of Xxxxx.
- "Xxxxx Licensed Marks" means the trademarks, trade names, service marks,
logos and other proprietary designations of Xxxxx listed on Schedule A and
licensed to Bank by Xxxxx under Section 8.1 hereof.
- "Business Day" means any day, other than a Saturday, Sunday or legal or
banking holiday, on which Xxxxx and Bank both are open for business.
- "Change in Control" means any acquisition of Control of Xxxxx by an
entity other than an Affiliate of Xxxxx, or acquisition of Control of Bank
by an entity other than an Affiliate of Bank, as the case may be.
- "Charge Transaction Data" means the transaction information with regard
to each purchase of Goods by an Accountholder on credit and each return of
Goods for credit in the form of electronic information as more particularly
set forth in the Operating Procedures.
- "Co-Branded Credit Card" means a credit card that bears a Xxxxx Licensed
Xxxx and the trademarks, tradenames, service marks, logos and other
proprietary designations of VISA U.S.A., Inc., MasterCard International
Inc., American Express, Discover or any other payment system that is
generally accepted by sellers in the general purpose department store
business.
- "Competing Program" has the meaning set forth in Section 2.5(a) hereof.
- "Confidential Information" has the meaning set forth in Section 11.1
hereof.
- "Continuity Products" means goods that are offered by or through Xxxxx
Channels to Qualified Xxxxx Customers in a series.
- "Control" of a Person means the possession, directly or indirectly, of
the power to direct or cause the direction of its management or policies,
whether through the ownership of voting securities, by contract or
otherwise.
- "Customer Credit Business" means the Business, as that term is defined in
the Purchase Agreement.
- "Disclosing Party" has the meaning set forth in Section 11.1 hereof.
- "Enhancement Products" means the Account enhancement products listed in
Schedule 4.7, or such other products as shall be approved by the Operating
Committee from time to time.
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- "Event of Default" means the occurrence of any one of the events listed
in Section 12.1 hereof.
- "Fair Market Value" has the meaning set forth in Section 14.3 hereof.
- "Federal Funds Rate" means the offered rate as reported in The Wall
Street Journal in the "Money Rates" section for reserves traded among
commercial banks for overnight use in amounts of one million dollars or
more, as published in the most recent Friday edition prior to any required
payment or settlement date in which such offered rate is reported, and if
such rate is not so reported in any Friday edition of The Wall Street
Journal during the thirty day period preceding such required payment or
settlement date, such offered rate as reported in another publication
reasonably acceptable to the parties.
- "Forms" has the meaning set forth in Section 3.3(c) hereof.
- "GAAP" means generally accepted accounting principles, consistently
applied.
- "Goods" means the products sold by or through Xxxxx Channels, primarily
for personal, family, or household purposes.
- "Governmental Authority" means any federal, state or local domestic,
foreign or supranational governmental, regulatory or self-regulatory
authority, agency, court, tribunal, commission or other governmental,
regulatory or self-regulatory entity.
- "Indemnified Party" has the meaning set forth in Section 15.3 hereof.
- "Indemnifying Party" has the meaning set forth in Section 15.3 hereof.
- "Indemnity Cap" has the meaning set forth on Schedule 15.
- "Indemnity Deductible" has the meaning set forth on Schedule 15.
- "Initial Term" has the meaning set forth in Section 13.1 hereof.
- "Inserts" has the meaning set forth in Section 4.8 hereof.
- "Instant Credit Application" shall mean an in store or catalog
application procedure designed to open Accounts at point of sale or order
entry whereby an application for credit is communicated to Bank either
verbally at point of sale or systemically during the catalog order entry
process according to Bank's Operating Procedures.
- "Intellectual Property" means, on a worldwide basis, other than with
respect to Xxxxx Licensed Marks or Bank Licensed Marks, any and all: (i)
rights associated with works of authorship, including copyrights, moral
rights and mask-works; (ii) trade names, trade marks and service marks and
the goodwill associated therewith; (iii) trade secret rights; (iv) patents,
inventions, designs, processes, procedures, codes algorithms, methods and
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other industrial property rights; (v) other intellectual and industrial
property rights of every kind and nature, however designated, whether
arising by operation of law, contract, license or otherwise; and (vi)
applications, registrations, renewals, extensions, continuations, divisions
or reissues thereof now or hereafter in force (including any rights in any
of the foregoing).
- "Internet Instant Credit" shall mean an Internet application procedure
designed to open Accounts during an Internet transaction whereby an Account
Application is completed on the Program Website according to the Operating
Procedures. The Account Application is then screened against the Bank's
established credit criteria. The Bank's credit disposition response is then
returned to the Internet session.
- "Internet Online Prescreen" shall mean a process where a prescreened
offer for an Account is made to customers meeting the Bank's credit
criteria in a real-time preapproved process according to the Operating
Procedures. The process utilizes the customer's shipping information or
Xxxxx'x internal customer records. The customer records are pre-screened by
a credit bureau using the Bank's established criteria to determine if an
offer is appropriate. Customer records passing the bank's pre-screening
criteria are returned to the Internet session where a pre-approved offer to
open an Account is made.
- "Internet Services" has the meaning set forth in Section 3.8(a).
- "Knowledge" means the actual knowledge of the executive officers of the
organization who have managerial responsibility for the Program.
- "Loyalty Program" means any program developed by Xxxxx to build
incremental customer purchases by offering rewards for future purchases of
Goods.
- "Marketing Commitment" shall have the meaning set forth in Schedule
4.1(a).
- "Marketing Funds" shall have the meaning set forth in Schedule 4.1(a).
- "Marketing Plan" means the document that outlines the objectives,
strategies and tactics of new account solicitation, usage and awareness
programs for the applicable planning period.
- "Material Change" shall have the meaning set forth in Section 3.4(b).
- "Monthly Settlement Sheet" has the meaning set forth in Section 7.2
hereof.
- "Net Credit Sales" means, for any Program Year, an amount calculated by
Bank as follows: an amount equal to (a) gross credit sales (except gross
credit sales related to special credit programs such as deferred credit
programs) on Accounts during each Program Year including taxes and
shipping, minus (b) the sum of credits paid by Xxxxx to Bank for returned
Goods and other credits related to the price of Goods (such as
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concessions, discounts and adjustments) with respect to such Accounts
during such Program Year.
- "Net Proceeds" has the meaning set forth in Section 6.4(b).
- "New Xxxx" has the meaning set forth in Sections 8.1(b) and 8.2(b)
hereof.
- "Nominated Purchaser" has the meaning set forth in Section 14.2(a).
- "On-Line Prescreen Application" or "On-Line Prescreen" shall mean a
process where a pre-screened offer of credit is made to customers meeting
Bank's credit criteria in a real-time pre-approved process according to the
Operating Procedures. The process utilizes traditional order entry data
elements to build customer records. The customer records are pre-screened
by a credit bureau using Bank's established criteria to determine if an
offer of credit is appropriate. Customer records passing the Bank's
pre-screening credit criteria are returned to the point of order entry
where the pre-approved offer to open an Account is made. Records not
passing the credit criteria are not returned and no offer is made.
- "Operating Committee" shall mean the committee established pursuant to
Section 4.2 hereof.
- "Operating Procedures" shall mean Bank's instructions and procedures as
written by Bank and provided to Xxxxx to be followed by Xxxxx in connection
with the Program, as set forth on Schedule 3.1(a), as amended from time to
time in accordance with Section 16.5 hereof.
- "Person" means and includes any individual, partnership, joint venture,
corporation, company, bank, trust, unincorporated organization, government
or any department, agency or instrumentality thereof.
- "POS" means point of sale.
- "Prime Rate" shall mean a "Prime Rate" of interest as published in the
"Money Rates" section of The Wall Street Journal.
- "Private Label Credit Card" or "Credit Card" means a credit card which
may be issued by Bank in its discretion to an Accountholder in connection
with the Program, in each case which bears a Xxxxx Licensed Xxxx.
- "Program" means the private label credit program established by Bank and
made available to Accountholders for the purchase of Goods through Xxxxx
Channels, including, without limitation, the extension of credit, xxxxxxxx,
collections, customer service,
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accounting between the parties and all other aspects of the customized
credit plan specified in this Agreement and the Schedules hereto and in
Account Agreements.
- "Program Assets" means the Accounts, Purchase Documentation,
Accountholder List, and Accountholder Indebtedness.
- "Program Commencement Date" shall mean the date on which Bank commences
operation of the Program. Bank shall be deemed to have commenced operation
of the Program on the earlier of the date on which Bank begins to issue new
Accounts, the date on which Bank notifies Xxxxx in writing that Bank has
commenced operation of the Program, or the date on which Bank purchases the
Purchased Accounts.
- "Program Purchase Date" has the meaning set forth in Section 14.2(c).
- "Program Website" has the meaning set forth in Section 3.8(a).
- "Program Year" shall mean each full twelve calendar month period
following the Program Commencement Date, except that, if the Program
Commencement Date falls on a date other than the first day of a calendar
month, the first Program Year will include the days of such calendar month
after the Program Commencement Date and the next full twelve calendar
months.
- "Purchase Agreement" has the meaning set forth on page 1 hereof.
- "Purchase Documentation" means, with respect to Accounts to be purchased
by Xxxxx pursuant to Section 14.2, the form of all current Account
Documentation, the current Account balance information, the current Account
repayment terms, and the current Account status information.
- "Purchased Accounts" has the meaning set forth on page 1 hereof.
- "Qualified Xxxxx Customer" shall mean current, potential or future
customers of Xxxxx that may be available for Accounts under the Program.
- "Qualified Xxxxx Customer List" means the list of Qualified Xxxxx
Customers provided from time to time by Xxxxx to Bank for purposes of
soliciting such Persons for the Program in accordance with a Marketing
Plan.
- "Receiving Party" has the meaning set forth in Section 11.1 hereof.
- "Renewal Term" has the meaning set forth in Section 13.1 hereof.
- "Risk Management Policies" has the meaning set forth in Section 3.4(a)
hereof.
- "SLS" means each individual performance service level standard set forth
at Schedule 5.2.
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- "Solicitation Materials" means catalogues and other documentation,
materials, artwork, copy, trademarks (excluding Xxxxx Licensed Marks and
Bank Licensed Marks), copyrights and any protectible items, in any format
or media (including television and radio), used to promote or identify the
Program to Accountholders and potential Accountholders, including, without
limitation, direct mail solicitation materials, Internet and coupons.
- "Supported Accounts" has the meaning set forth in Section 3.5 hereof.
- "Term" means the Initial Term and each Renewal Term.
- "Termination Period" means the period beginning with the date of any
notice of termination pursuant to Article 13 and ending on the Program
Purchase Date, if Xxxxx or its designee purchases the Program Assets or
upon notice that Xxxxx will not purchase the Program Assets if it
determines not to do so.
- "Trademark Style Guide" means any rules governing the manner of usage of
trademarks, tradenames, service marks, logos and other proprietary
designations.
- "Transaction" means any purchase of Goods through a Xxxxx Channel using
an Account.
- "Value Proposition" means promotional card event discounts, and any other
card-related features or benefits as may be approved by the Operating
Committee from time to time, which may be funded using Marketing Funds
and/or by Xxxxx.
1.2 Miscellaneous. As used herein,
(a) all references to the plural number shall include the singular
number (and vice versa),
(b) all references to "herein," "hereunder," "hereinabove" or like
words shall refer to this Agreement as a whole and not to any particular
section, subsection or clause contained in this Agreement, and
(c) all references to "include," "includes" or "including" shall be
deemed to be followed by the words "without limitation."
ARTICLE 2
ESTABLISHMENT OF THE PROGRAM
2.1 Generally. Pursuant to the terms and conditions of this Agreement,
Xxxxx and Bank shall establish and participate in the Program commencing on the
Program Commencement Date.
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2.2 Credit Program.
(a) Beginning as of the Program Commencement Date, Bank shall offer
Accounts to Qualified Xxxxx Customers in accordance with this Agreement and the
Account Agreement.
(b) Qualified applicants desiring to use the Program shall be granted
an Account by Bank with a credit line in an amount to be determined by Bank in
its discretion for each individual applicant. Subject to Section 3.6 and
Applicable Law, Bank shall determine the terms and conditions of the Account to
be contained in an Account Agreement.
(c) Applicants who wish to apply for an Account under the Program must
submit a completed application on a form or in an electronic format approved by
Bank, and Bank shall grant or deny the request for credit based solely upon
Bank's credit criteria. With respect to applicants who wish to apply for an
Account in a Xxxxx retail establishment, Xxxxx shall provide a copy of the
Account Agreement to the applicant to be retained for the applicant's records.
The application shall be submitted to Bank by the applicant or submitted by
Xxxxx on behalf of the applicant, as required in the Operating Procedures. If
Bank grants the request for an Account, Bank will establish an credit limit for
such Account in an amount determined by Bank. Xxxxx reserves the right to
continue to develop and market its programs for Continuity Products.
(d) Bank shall make available to Xxxxx and Xxxxx shall utilize Batch
Prescreen Application, Instant Credit Application, Automated Telephone
Application, On-Line Prescreen Application and mail-in application procedures.
(e) Xxxxx agrees that it will protect and keep confidential the
information on such applications and shall not disclose the information to
anyone other than authorized representatives of Bank or Xxxxx, or the applicant.
2.3 Value Proposition. Bank shall offer to Accountholders any Value
Proposition.
2.4 Conversion of Purchased Accounts. On the Program Commencement Date,
Bank will commence, subject to the requirements of Applicable Law, to convert
the Purchased Accounts to the terms and conditions specified in Schedule 2.4
hereto. After the Program Commencement Date, Bank shall prepare and send a
change in terms notice as required by Applicable Law with respect to Purchased
Accounts.
2.5 Exclusivity.
(a) General. Except as otherwise provided in this Section 2.5, during
the Term of this Agreement (excluding the Termination Period), Xxxxx, on behalf
of itself and its Affiliates, agrees not to enter into or be a party to an
agreement or arrangement, or act as a partner of a bank or credit card issuer,
relating to a program for private label credit or co-brand credit bearing a
Xxxxx Licensed Xxxx or other xxxx using the Xxxxx name in the United States or
any other credit programs similar in purpose to the Program (such a program, a
"Competing Program"). In addition, Xxxxx, on behalf of itself and its
Affiliates, shall not itself or themselves operate or
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participate in a Competing Program. Bank shall have exclusive rights with
respect to the Program.
(b) Second-Look Credit Card Program. Notwithstanding Section 2.5(a),
Xxxxx shall have the right at any time during the Term of this Agreement, itself
or through a third party, to establish an unadvertised program for issuing
credit cards, including private label credit cards using Xxxxx Licensed Marks,
to customers whose applications have been declined by Bank, provided that Xxxxx
shall ensure that if Xxxxx Licensed Marks are used in connection with such
program, they are used in a manner which clearly differentiates them from the
use of Xxxxx Licensed Marks in the Program. Xxxxx shall have the right to
include references to such credit cards in any materials listing approved forms
of payment, and to provide applications and brochures for such program to
customers whose Account applications have been declined by Bank, provided,
however, that if any of such materials contain a reference to the Program, Xxxxx
shall first seek the approval of Bank, which approval shall not unreasonably be
withheld, conditioned or delayed.
(c) Retail Portfolio Acquisition. Notwithstanding Section 2.5(a),
Bank's sole rights with respect to credit card portfolios acquired by Xxxxx or
its Affiliates are set forth in Section 2.6 below.
(d) Private Label Marketing Launch Funds. Bank will provide the amount
set forth in Schedule 4.1(a) in connection with the marketing launch of the
Purchased Accounts thereof.
(e) Other Products. For clarity, other than the products set forth in
Section 2.5(a), this Agreement does not restrict in any way Xxxxx rights with
respect to other payment products, including debit cards, gift cards or stored
value cards which do not compete with the Program.
2.6 Retail Portfolio Acquisition.
(a) In the event that Xxxxx purchases another retailer, or any stores
or other channels thereof, that directly or through a third party has a
proprietary or co-branded credit card portfolio, Bank agrees to participate in
the evaluation of a potential purchase of some or all of the credit card
business of such retailer in the following manner.
(i) Retailer that Operates a Credit Card Business. In connection
with Xxxxx'x purchase of any portion of the retail operations of a retailer that
directly or through an Affiliate provides a proprietary or co-branded credit
card, Bank agrees to review with Xxxxx and evaluate the due diligence materials
to consider a potential joint bid with Xxxxx to acquire the related credit card
business offered for sale by such retailer in connection with Xxxxx'x
acquisition of the retailer, or any of its stores or other channels on terms
mutually satisfactory to both Bank and Xxxxx. If Bank determines not to acquire
such credit card portfolio, or terms mutually satisfactory to Xxxxx and Bank are
not reached, Xxxxx shall have the right to purchase and operate such retailer's
credit card business itself or to engage a third party to do so, provided,
however, that Xxxxx shall differentiate such business from the Program and Xxxxx
Channels shall not accept
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such credit card business. If Xxxxx, directly or with a third party, acquires
the credit card business of another retailer pursuant to this provision and this
Agreement otherwise continues in effect, the provisions of Section 2.5 shall not
apply to such acquired credit card business or to the associated acquired retail
operations, including any growth thereof.
(ii) Retailer that has a Credit Card with another Issuer. In
connection with Xxxxx'x purchase of any portion of the retail operations of a
retailer that has a proprietary or co-branded credit card through a third-party
issuer, Bank agrees that it shall review with Xxxxx and evaluate the due
diligence materials to consider a potential purchase of the retailer's credit
card portfolio from such third party issuer associated with the retail assets
being acquired. In the event that Bank does not bid or is unsuccessful in its
bid for the credit card portfolio, Xxxxx may offer the credit card program of
such third party issuer until the expiration or other termination of the
agreement governing such program, and Bank may then at its option negotiate in
good faith for the purchase of the credit card portfolio at that time. In the
event that Bank does not acquire the credit card portfolio associated with the
retail assets acquired by Xxxxx, Xxxxx shall have the right to purchase and
operate such retailer's credit card business itself or to engage a third party
to do so, provided, however, that Xxxxx shall differentiate such business from
the Program and Xxxxx Channels shall not accept such credit card business. If
Xxxxx, directly or with a third party, acquires the credit card business of
another retailer pursuant to this provision, Section 2.5 shall not apply to such
acquired credit card business or to the associated acquired retail operations,
including any growth thereof.
(iii) Retailer that has a Proprietary or Co-Branded Credit Card
with Bank. In connection with Xxxxx'x purchase of a retailer that has a
proprietary or co-branded credit card portfolio operated by Bank, Bank agrees to
discuss integrating such credit card portfolio with the Program.
(b) Conversion of Purchased Accounts. If Bank acquires any credit card
portfolio pursuant to Section 2.6(a)(i) or (ii), or operates a credit card
portfolio as set forth in Section 2.6(a)(iii), Bank shall integrate such credit
card portfolio with the Program, provided the integration is on terms mutually
acceptable to Bank and Xxxxx.
ARTICLE 3
ADMINISTRATION OF THE PROGRAM
3.1 Operation of the Program.
(a) Except as modified by agreement of the parties or the Operating
Committee from time to time, the Operating Procedures for the Program shall be
as set forth on Schedule 3.1. The parties shall cooperate to review and revise
the Operating Procedures as appropriate prior to and following the Program
Commencement Date. Notwithstanding the foregoing, Bank may amend the Operating
Procedures as necessary to comply with Applicable Law and may make such other
amendments consistent with amendments made to all operating procedures for all
private label credit programs operated by the Bank and all other like-kind
programs operated or controlled by Bank Parent ("Technical Amendments"). Xxxxx
shall observe and comply with the Operating Procedures and such other reasonable
procedures. Xxxxx shall use its best efforts to
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ensure that Xxxxx'x employees are trained regarding the Operating Procedures and
shall use its best efforts to ensure their compliance with them. If amendments
are made to comply with Applicable Law, a copy of all such amendments shall be
provided to Xxxxx as soon as practicable. For Technical Amendments, a copy of
the amendment shall be provided to Xxxxx at least thirty (30) days prior to its
effective date.
(b) Bank shall provide, either directly or indirectly, the services,
materials and personnel necessary to operate the Program in accordance herewith
and in accordance with the Operating Procedures and any Marketing Plan agreed to
by the parties from time to time.
(c) Xxxxx shall participate in the Program in accordance herewith and
in accordance with the Operating Procedures and any Marketing Plan agreed to by
the parties from time to time. Xxxxx shall prominently advertise and actively
promote the Program wherever customers can purchase Goods.
(d) In the event of any conflict between the Operating Procedures and
this Agreement, the Agreement shall control.
3.2 Ownership of Accounts.
(a) Except to the extent of Xxxxx'x and its Affiliates' interest in
Xxxxx Licensed Marks and Xxxxx'x option to purchase the Program Assets under
Section 14.2, and except as otherwise set forth in this Agreement, from and
after the Program Commencement Date Bank shall be the sole and exclusive owner
of all Accounts and Program Assets and shall have all rights, powers, and
privileges with respect thereto as such owner, including, without limitation,
the right, power and privilege to review periodically the creditworthiness of
Accountholders to determine the credit limits or finance charge rates to be made
available to individual Accountholders and whether to suspend or terminate the
credit privileges of any Accountholder. All purchases of Goods in connection
with the Accounts and the Accountholder Indebtedness shall create the
relationship of debtor and creditor between the Accountholder and Bank,
respectively. Xxxxx acknowledges and agrees that (i) it has no right, title or
interest (except for its interest in Xxxxx Licensed Marks and its option to
purchase the Program Assets under Section 14.2) in or to, any of the Accounts or
Program Assets or any proceeds of the foregoing, and (ii) Bank extends credit
directly to Accountholders.
(b) Except as expressly provided herein, Bank shall be entitled to (i)
receive all payments made by Accountholders on Accounts, (ii) retain for its
account all Accountholder Indebtedness and such other fees and income authorized
by the Account Agreements and collected by Bank with respect to the Accounts and
Accountholder Indebtedness, and (iii) retain for its account Bank's share of
income from selling credit card Enhancement Products in accordance with Schedule
4.11.
(c) Bank shall fund all Accountholder Indebtedness on the Accounts.
(d) Bank shall have the exclusive right to effect collection of
Accountholder Indebtedness, except with respect to Accountholder Indebtedness
charged back to Xxxxx as
13
provided in Section 6.5, and shall notify Accountholders to make payment
directly to it in accordance with its instructions; provided, however, that Bank
at its option may make all collections for its account using a Program name
which includes the name of Xxxxx and, if Bank so elects, the name of Bank, and
may direct all checks to be made payable to "Xxxxx" or, with Xxxxx'x prior
approval, another name combined with the name Xxxxx. Xxxxx grants to Bank a
limited power of attorney (coupled with an interest) to sign and endorse Xxxxx'x
name upon any form of payment that may have been issued in Xxxxx name in respect
of any Account.
3.3 Branding of Accounts/Credit Cards/Account Documentation/Solicitation
Collateral Materials.
(a) Subject to finalization of any Marketing Plan and the review by
the Operating Committee, Bank shall be responsible for, and bear the cost of,
design (provided it meets Bank's established standard specifications),
development and delivery (other than the development and delivery at Xxxxx
Channels for which Xxxxx shall bear the cost) of Account Documentation.
(b) Xxxxx Licensed Marks shall appear prominently on the face of any
Private Label Credit Cards. The Private Label Credit Cards shall not bear Bank
Licensed Marks; provided, however, Bank's name will appear on the back of the
Card in order to identify Bank as the credit provider under the Program,
together with any other disclosures required by Applicable Law or deemed
necessary by Bank.
(c) Bank shall design, with Xxxxx'x review, the Account Agreement,
Account application, Credit Card, card mailer and Billing Statement to be used
under the Program, subject to and in compliance with the requirements of
Applicable Law. The degree to which Xxxxx'x tradenames, trademarks, servicemarks
or logos appear on Account applications, card mailers, Credit Cards, Billing
Statements, letters, and other documents and forms (collectively, "Forms") is a
matter to be determined by Bank after consultation and coordination with Xxxxx
(as provided in Schedule 4.2), and in accordance with Applicable Law. Only one
design shall be used for each Form. If Xxxxx requests any changes to Forms which
result in any Form being obsolete, Xxxxx shall reimburse Bank for the cost of
any unused obsolete Forms.
3.4 Risk Management/Credit Standards.
(a) Bank shall be solely responsible for developing and implementing
risk management policies, procedures and practices for the Program in accordance
with this Agreement, including policies, procedures and practices for credit and
Account openings, transaction authorization, collections, credit line
management, over-limit decisions, Account closures, payment crediting and
charge-offs (collectively, "Risk Management Policies").
(b) The decision to extend credit to any applicant under the Program
shall be Bank's decision. Bank will work in good faith with Xxxxx to develop
business strategies with respect to the issuance of Accounts which are intended
to maximize the potential of the Program, and which are mutually beneficial to
Xxxxx and Bank in accordance with Schedule 4.2. Based on Bank's discussions with
Xxxxx and due diligence regarding the Purchased Accounts, Bank confirms that it
is Bank's intent to generate approval rates similar to those experienced by
Xxxxx
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in its operation of its private label credit program (assuming a similar credit
risk distribution of applications as was experienced in the Purchased Accounts
population during the six months prior to the Program Commencement Date) during
the first eighteen (18) months of the Term. With respect to the Purchased
Accounts, Bank shall transfer at the Program Commencement Date the then existing
credit lines for such Purchased Accounts, and thereafter Bank shall use its
proprietary Account management system to make periodic adjustments to credit
lines of Accounts consistent with Bank's established credit line management
procedures. Any change to underwriting criteria which Bank reasonably believes
will constitute a Material Change (as defined below) with respect to Accounts
and credit line assignments shall be discussed in the Operating Committee before
implementation. However, Bank shall determine all credit underwriting policies
and procedures, as subject to Applicable Law and safety and soundness
considerations, subject to written notice at least 30 days prior to the
effective date of the change to the extent reasonably practicable. In the event
of a Material Change, Xxxxx shall have the right to terminate the Agreement in
accordance with 13.2(e). For purposes of this Agreement, "Material Change" shall
mean (i) with respect to new Accounts, after three months following a change in
underwriting or credit criteria there occurs a decrease of the approval rates of
new Accounts by more than ten percent (10.00%), assuming a consistent risk
distribution as that experienced for the three months prior to the change, and
(ii) with respect to credit line assignments, after three months following such
a change there occurs a decrease equal to or greater than (a) twenty percent
(20%) of the existing average credit line assignment for credit lines of less
than one thousand dollars and (b) ten percent (10%) of the existing average
credit line assignment for credit lines of one thousand dollars or more. Xxxxx
may from time to time request Bank to consider offering certain types of special
credit programs. Bank shall reasonably consider Xxxxx'x requests and negotiate
with Xxxxx in good faith. However, Bank shall, in its sole discretion, subject
to Applicable Law and safety and soundness considerations, determine whether or
not to offer any of such programs. In the event Bank agrees to any special
credit program, Xxxxx and Bank shall mutually agree upon any special terms and
fees associated with the program.
(c) Bank and Xxxxx shall perform all necessary security functions to
minimize fraud in the Program due to lost, stolen or counterfeit cards and
fraudulent applications. Xxxxx agrees and acknowledges that it shall cooperate
with Bank in such functions. All fraud losses other than fraud of Xxxxx,
employees or agents, shall be at Bank's expense.
3.5 Intentionally Omitted.
3.6 Changes to Rates and Fees of Accounts. Subject to Applicable Law and
the terms and conditions set forth in the Account Agreement, Bank shall
initially charge each Accountholder the rates and fees set forth in Schedule
2.2. Bank may make any changes in the terms and fees of the Account Agreement at
any time as required by Applicable Law or on an individual Account by Account
basis in connection with its servicing of the Accounts. With respect to any
other changes in terms affecting the rates and/or fees charged by Bank as set
forth in Schedule 2.2 Bank will, prior to making any changes, review and discuss
such changes with Xxxxx in order to maximize the potential of the Program and
mutually benefit Xxxxx and the Bank.
15
3.7 Loyalty Program. At Xxxxx'x request, Bank will provide Xxxxx with
system functionality tied to the Accounts to support the Loyalty Program at no
additional charge, to the extent the Loyalty Program is consistent with Bank's
existing or future functionality offered to other Bank clients and is
facilitated using monthly billing statements to active Accounts and does not
include stand-alone mailings. Provided, however, that Bank will support
stand-alone Accountholder mailings and zero-balance statements in conjunction
with the Loyalty Program at Xxxxx'x expense or as part of the Marketing Funds.
Bank will, at Xxxxx'x request, upon the terms, conditions and fees mutually
agreed upon in writing by the parties, provide back office servicing and
administration support for any Loyalty Program. A Loyalty Program will provide
for loyalty point accumulation, tracking, lookup/reporting, and redemption where
coupon is part of the Billing Statement, at no additional charge to Xxxxx,
consistent with Bank's existing or future functionality offered to other Bank
clients. Xxxxx is the owner of each and every Loyalty Program and will be
responsible for determining and funding the reward related to such Loyalty
Program and for ensuring that such Loyalty Program complies with all Applicable
Law.
3.8 Internet Services.
(a) Accountholder Website. Subject to Xxxxx'x prior written approval
of the Program Website and any changes thereto, Bank shall develop and maintain
at Bank's cost a Xxxxx-branded website for Accountholders and potential
Accountholders, with the look and feel consistent with the Xxxxx website
("Program Website"). The Program Website shall contain or otherwise be
associated with only such material and links as shall be agreed by the Operating
Committee from time to time. Xxxxx will provide such links on (i) its home page,
(ii) its check-out pages, and (iii) such other pages as the Operating Committee
shall determine from time to time. The Program Website shall also include links
back to the Xxxxx website, on the Program Website home page and such other pages
as the Operating Committee shall determine from time to time. The Program
Website shall include the following functions, and such other functions as may
be approved by the Operating Committee from time to time (the Program Website
and such functionality, collectively, the "Internet Services"):
(i) Applications. The Program Website shall permit potential
Accountholders to access an Account Application, and to complete and submit the
Account Application online;
(ii) Accountholder Customer Service. The Program Website shall
permit Accountholders to (A) view the Accountholder's Account information and
Billing Statements; and (B) make payments on the Accountholder's Account via
automated clearing house transfer or other payment mechanism approved by the
Operating Committee.
(iii) Preapproved Account Acceptance. The Program Website shall
allow Qualified Xxxxx Customers to access an Account acceptance screen process,
provide the needed information, access the appropriate disclosures, and accept
an outstanding prescreen Account offer from Bank.
(iv) Internet Online Prescreen. Bank shall make available
Internet Online Prescreen services, subject to the following:
16
Concerning Internet On-Line Prescreen, Bank will bear 100% of the
Internet On-Line Prescreen credit bureau expense during the first Program Year
and thereafter Bank shall bear such expense provided that Xxxxx'x Internet
business' annual aggregate acceptance rate is at least equal to the "Target
Acceptance Rate." The Target Acceptance Rate shall be 12% for Program Year 2;
17% for Program Year 3 and 22% for Program Year 4; and 25% for Program Year 5
and thereafter. If the aggregate acceptance rate of Xxxxx'x Internet business is
less than the Target Acceptance Rate for any given Program year, Xxxxx will
compensate Bank for the shortfall in performance according to this formula:
Target Acceptance Rate - Actual Acceptance Rate $0.25 x the actual number of
----------------------------------------------- X credit bureau reports
Target Acceptance Rate obtained by Bank
(to be adjusted on a
percentage basis tied to
percentage changes in actual
total bureau costs to Bank)
This formula applies regardless of the approval rate. Bank may offset such
amount against the Net Proceeds owed to Xxxxx.
Notwithstanding the foregoing, if in any Program Year the Target
Acceptance Rate for that period is not achieved, but in the subsequent Program
Year the Target Acceptance Rate applicable to such period is exceeded, Bank
promptly will reimburse Xxxxx in an amount equal to such performance overage up
to but not in excess of the amount paid by Xxxxx to Bank by reason of Xxxxx'x
failure to achieve the Target Acceptance Rate in the prior Program Year.
If the aggregate acceptance rate of Xxxxx'x Internet business is less than
10% at the end of Program Year 2, then Bank shall have the right to terminate
Internet On-Line Prescreen.
(b) Performance Standards. Bank represents and warrants that, to
integrate and maintain the webpage and to ensure access to the Program Website
and reduce technical errors, its software providing the link will function, and
continue to function, in a sound technical manner. Xxxxx branding style
(including color, font and type size), marketing content and marketing design
format of the Program Website shall be subject to approval by the Operating
Committee; provided, however, (a) Bank shall not need the Operating Committee's
approval for changes to any of its trademarks or service marks, or with respect
to any requirement of Applicable Law; and (b) if at any time Bank, exercising
its reasonable business judgment, believes any change to the marketing content
or marketing design format is necessary, Bank may make such change upon receipt
of approval from the Operating Committee, which approval shall not be
unreasonably withheld. Bank shall appropriately monitor the Program Website to
ensure it is functioning properly. Xxxxx represents and warrants that, to
integrate and maintain the link, and to ensure access to the Program Website and
reduce technical errors, it will use its best efforts to ensure that its
software providing the link will function, and continue to function, in a sound
technical manner. Xxxxx shall appropriately monitor the link to ensure it is
functioning properly. In the event Bank changes or otherwise modifies the
website address for the Program
17
Website, Xxxxx will either update or modify the link as reasonably requested by
Bank. In providing the link, Xxxxx shall make it clear and conspicuous that the
customer is leaving Xxxxx'x website and is being directed to the Program Website
for the exclusive purpose of accessing the Program Website. Xxxxx agrees that,
in connection with the link, it will only use Bank's name, or any logo,
statements, or any other information that is related to Bank, only in accordance
with this Agreement, or as approved in advance and in writing by Bank.
(c) Customer Privacy. Bank shall ensure that the Bank's Privacy Policy
is clearly and prominently posted on the pages of the Program Website.
(d) Internet Services Representations and Warranties. Each party
represents and warrants to the other with respect to its Internet site used to
support the Program as of the Program Commencement Date and during the Term of
this Agreement that:
(i) Such party has the license, right or privilege to use the
hardware, software and content acquired from third parties for use in its
respective Internet website, and that it is the owner (or licensee) of all
hardware, software and content used in its respective Internet website and that
neither the website as a whole, nor any part thereof, infringes upon or violates
any patent, copyright, trade secret, trademark, invention, proprietary
information, nondisclosure or other rights of any third party.
3.9 Sales Taxes. Xxxxx will pay when due any sales taxes relating to the
sale of Goods. Bank shall notify Xxxxx of any amounts written-off on Accounts by
Bank, identified by Account, and shall provide reasonable aggregate report
information and such other reasonable assistance as may be requested by Xxxxx
(provided Xxxxx reimburses Bank for any additional expenses) in order to enable
Xxxxx to recover any sales tax charged to any Account that has been written-off
by Bank.
3.10 Catalog On-Line Prescreen. Concerning catalog On-Line Prescreen, Bank
will bear 100% of the On-Line Prescreen credit bureau expense during the first
Program Year and thereafter Bank shall bear such expense provided that Xxxxx'x
catalog business' annual aggregate telephone acceptance rate is at least equal
to the "Target Acceptance Rate." The Target Acceptance Rate shall be 12% for
Program Year 2; 17% for Program Year 3 and 22% for Program Year 4; and 25% for
Program Year 5 and thereafter. If the aggregate acceptance rate of Xxxxx'x
catalog business is less than the Target Acceptance Rate for any given Program
year, Xxxxx will compensate Bank for the shortfall in performance according to
this formula:
Target Acceptance Rate - Actual Acceptance Rate $0.25 x the actual number of
----------------------------------------------- X credit bureau reports
Target Acceptance Rate obtained by Bank
(to be adjusted on a
percentage basis tied to
percentage changes in actual
total bureau costs to Bank)
18
This formula applies regardless of the approval rate. Bank may offset such
amount against the Net Proceeds owed to Xxxxx.
Notwithstanding the foregoing, if in any Program Year the Target Acceptance
Rate for that period is not achieved, but in the subsequent Program Year the
Target Acceptance Rate applicable to such period is exceeded, Bank promptly will
reimburse Xxxxx in an amount equal to such performance overage up to but not in
excess of the amount paid by Xxxxx to Bank by reason of Xxxxx'x failure to
achieve the Target Acceptance Rate in the prior Program Year.
If the aggregate acceptance rate of Xxxxx'x catalog business is less than
10% at the end of Program Year 2, then (1) Xxxxx may, at its sole option, using
the above formula, reimburse Bank in an amount equal to the shortfall or (2) if
Xxxxx elects not to make such reimbursement payment to Bank, Bank shall have the
right to terminate catalog On-Line Prescreen.
ARTICLE 4
MARKETING OF THE PROGRAM
4.1 Marketing Commitment.
(a) On the Program Commencement Date, Bank hereby agrees to contribute
Marketing Funds equal to the Marketing Commitment set forth in Schedule 4.1(a),
for purposes of funding marketing activities for the Program, as further
provided herein and therein.
(b) The Marketing Commitment shall cover (all or a portion of) Xxxxx'x
costs related to marketing the Program through such promotions and initiatives
as may be established by the Operating Committee from time to time, including
the items specified in Schedule 4.1(a). With the understanding that the purpose
of the Marketing Fund is to develop, test and implement programs and initiatives
with the ability to enhance and grow the Program, Bank agrees not to
unreasonably withhold its approval for funding programs and initiatives which
are aligned with this objective.
(c) If the Marketing Funds are not used in the Program Year they will
roll over to the first six months of the next Program Year, but shall not have
any cash value. Xxxxx shall pay all marketing and promotion expenses directly as
they are incurred, and shall send Bank an invoice for the aggregate amount of
the expenditures agreed upon by the Operating Committee together with copies of
paid invoices or other supporting documentation reasonably satisfactory to Bank
for such expenses and Bank shall reimburse Xxxxx until Bank's maximum
contribution amount for the applicable Program Year has been met. If Bank is
notified of the termination of this Agreement by Xxxxx pursuant to Section 13.2,
then Bank shall have the right to cease the availability of the Marketing Funds
contributed by Bank for any future marketing or promotions; provided, however,
if the Term is renewed by Xxxxx prior to the end of the Term, then Bank shall
continue to contribute any unused Marketing Funds for such Program Year on a
retroactive basis.
4.2 Establishment of an Operating Committee. Xxxxx and Bank shall establish
the Operating Committee as set forth in Schedule 4.2, consisting of six (6)
members, three (3) to be
19
appointed by Xxxxx and three to be appointed by Bank. Each party may substitute
committee members upon three (3) Business Days' notice to the other party.
4.3 Marketing Plans.
(a) Within 30 days after the Program Commencement Date, the Operating
Committee shall approve a Marketing Plan for the balance of calendar year 2005
and for calendar year 2006. On or before sixty (60) days prior to the end of
calendar year 2006, the Operating Committee shall approve a Marketing Plan for
the next calendar year.
(b) At least once per calendar year, the Operating Committee shall
consider features and other aspects of other private label credit card programs
in order to identify marketplace developments for possible inclusion in the
Program to ensure that the Program remains competitive with other private label
credit card programs. The Operating Committee shall determine the appropriate
persons and means to develop any plan with respect to the implementation of such
change and shall decide whether to approve such plan and whether to test or
launch any such Program changes for Accountholders or potential Accountholders.
(c) Each Marketing Plan shall outline all programs, to the extent
established and mutually agreed upon by Xxxxx and Bank, and shall include to the
extent feasible at least the following information for each program:
(i) description of offer(s);
(ii) description of target audience;
(iii) planned budget, specifying Bank's share and Xxxxx'x share,
if any; and
(iv) target implementation dates (e.g., mailing dates and
delivery dates).
(d) Each Marketing Plan shall address development of Solicitation
Materials and Account Documentation; new account acquisition strategies,
including direct mailing and "take-one" acquisitions; activation, retention and
usage; statement design and messaging; advertising of the Program; and such
other marketing matters as the parties shall agree to.
(e) Each Marketing Plan shall specify which party is responsible for
each Marketing Plan item and shall contain a budget specifying the parties'
respective financial responsibilities.
(f) Any Marketing Plan may be modified or supplemented by the parties
from time to time upon mutual agreement, provided such modifications or
supplements, as the case may be, are approved by the Operating Committee. Xxxxx
shall retain the right to market Continuity Programs to Accountholders and Bank
agrees to accept payments for Continuity Products from Accountholders, which
will be submitted as Charge Transaction Data by Xxxxx subject to the terms of
this Agreement.
20
(g) All marketing initiatives developed under this Agreement shall
contain unique marketing source codes to facilitate post-marketing research and
analysis.
4.4 Communications with Accountholders.
(a) Xxxxx Inserts. Xxxxx shall have the exclusive right to communicate
with Accountholders for marketing purposes, except for Enhancement Products, any
message required by Bank or other communications approved by the Operating
Committee, through use of inserts, fillers and bangtails (collectively,
"Inserts"), including Inserts selectively targeted for particular classes of
Accountholders, in any and all Billing Statements, subject to such production
requirements as contained in the Operating Procedures and Applicable Law. Xxxxx
shall be responsible for the content of, and the cost of preparing and printing,
any Inserts not required by Applicable Law or approved by the Operating
Committee. Any Xxxxx inserts that reference Bank or the Program must be approved
by Bank as to content, in Bank's reasonable discretion. All Inserts shall
conform to Bank's customary production standards and requirements, including
size and weight requirements as set forth in the Operating Procedures. If the
insertion of Inserts in particular Billing Statements would increase the postage
costs for such Billing Statement, Xxxxx agrees to either pay for the incremental
postage cost or prioritize the use of Inserts to avoid postage cost over-runs.
Notwithstanding the foregoing, (i) any message required by Bank, or (ii)
collection messages for Accountholders, or (iii) approved Enhancement Products'
inserts shall take precedence over any Xxxxx Inserts.
(b) Billing Statement Messages. Xxxxx shall have the exclusive right
to use Billing Statement messages in each Billing Cycle to communicate with
Accountholders, except for Enhancement Products, any message required by Bank or
communications approved by the Operating Committee, subject to such production
requirements as contained in the Operating Procedures and Applicable Law. Any
Xxxxx messages that reference Bank or the Program must be approved by Bank as to
content, in Bank's reasonable discretion. Xxxxx shall be responsible for the
content of any such messages not required by Applicable Law or approved by the
Operating Committee. Notwithstanding the foregoing, (i) any message required by
Bank, or (ii) collection and/or customer service messages, or (iii) approved
Enhancement Products shall take precedence over any Xxxxx messages.
4.5 Customer Information.
(a) All sharing, use and disclosure of information regarding
Accountholders and Qualified Xxxxx Customers shall be subject to the provisions
of Sections 4.9, 4.10, and 4.11. The parties acknowledge that each party may
independently from the other obtain and use the same or similar information as
may be contained in Accountholder Data and the Qualified Xxxxx Customer List and
that each such separate data residing with a party will therefore be considered
separate information owned by such party subject to the specific provisions
applicable to that data hereunder.
(b) Xxxxx and Bank will each establish and maintain appropriate
administrative, technical and physical safeguards to protect the security,
confidentiality and integrity of the Accountholder Data and the Qualified Xxxxx
Customer List. These safeguards will be designed to
21
protect the security, confidentiality and integrity of the Accountholder Data
and the Qualified Xxxxx Customer List, ensure against any anticipated threats or
hazards to its security and integrity, and protect against unauthorized access
to or use of such information or associated records which could result in
substantial harm or inconvenience to any Accountholder or applicant. Xxxxx and
Bank will each ensure that any third party to whom it transfers or discloses
Accountholder Data or the Qualified Xxxxx Customer List signs a written contract
with the transferor in which such third party agrees to substantively the same
privacy and security provisions as those in this Agreement. Information
transferred by one party on behalf or at the direction of the other will be
considered information transferred by the party requesting or directing the
transfer. Each party shall use the same degree of care in protecting
Accountholder Data and the Qualified Xxxxx Customer List against unauthorized
disclosure as it accords to its own confidential customer information, but in no
event less than a reasonable standard of care. Xxxxx shall promptly notify Bank
in the event it believes or has reason to believe that a security breach or
unauthorized intrusion has occurred with respect to Accountholder Data.
4.6 Qualified Xxxxx Customer List.
(a) Subject to compliance with Applicable Law, Xxxxx'x privacy policy,
the Marketing Plan and such criteria (including format) as may be mutually
agreed from time to time, Xxxxx shall make available to Bank, free of any
charge, the Qualified Xxxxx Customer List in electronic form. As between Xxxxx
and Bank, the Qualified Xxxxx Customer List will be owned exclusively by Xxxxx.
Bank acknowledges and agrees that it has no proprietary interest in the
Qualified Xxxxx Customer List.
(b) Bank shall not use, or permit to be used, directly or indirectly,
the Qualified Xxxxx Customer List, except as provided in this Section 4.6. Bank
may use the Qualified Xxxxx Customer List in compliance with Applicable Law
solely for purposes of soliciting customers listed in the Qualified Xxxxx
Customer List for Private Label Credit Cards, as required by Applicable Law or
as otherwise agreed by the Operating Committee in advance in writing.
(c) Bank shall not disclose, or permit to be disclosed, the Qualified
Xxxxx Customer List, except as provided in this Section 4.6. Bank may disclose
the Qualified Xxxxx Customer List in compliance with Applicable Law solely:
(i) to its subcontractors in connection with a permitted use of
such Qualified Xxxxx Customer List under this Section 4.6, provided that each
such subcontractor agrees to be bound by this Section 4.6, or a comparable
contractual commitment with the same effect;
(ii) to its Affiliates and its Affiliates' employees, agents,
attorneys and accountants with a need to know such Qualified Xxxxx Customer List
in connection with a permitted use of such Qualified Xxxxx Customer List under
this Section 4.6; provided that (A) any such Person is bound by terms
substantially similar to this Section as a condition of employment, of access to
Qualified Xxxxx Customer List or by professional obligations imposing comparable
terms; and (B) Bank shall be responsible for the compliance of each such Person
with the terms of this Section; or
22
(iii) to any Governmental Authority with authority over Bank (A)
in connection with an examination of Bank; or (B) pursuant to a specific
requirement to provide such Qualified Xxxxx Customer List by such Governmental
Authority or pursuant to compulsory legal process; provided that Bank seeks the
full protection of confidential treatment for any disclosed Qualified Xxxxx
Customer List to the extent available under Applicable Law governing such
disclosure, and with respect to clause (B), to the extent permitted by
Applicable Law, Bank (1) provides at least ten (10) Business Days' prior notice
of such proposed disclosure to Xxxxx if reasonably possible under the
circumstances, and (2) seeks to redact Qualified Xxxxx Customer List to the
fullest extent possible under Applicable Law governing such disclosure.
(d) Upon the termination of this Agreement, Bank's rights to use and
disclose the Qualified Xxxxx Customer List shall terminate. Promptly following
such termination, Bank shall return or destroy all Qualified Xxxxx Customer
Lists and shall certify such return or destruction to Xxxxx upon request.
4.7 Accountholder Data.
(a) As between Bank and Xxxxx, Accountholder Data shall be the
property of and exclusively owned by Bank. Xxxxx acknowledges and agrees that it
has no proprietary interest in the Accountholder Data.
(b) Bank's privacy policy applicable to the Accountholder Data is the
Bank's Privacy Policy.
(c) Bank shall not be entitled to sell, rent or otherwise disclose any
information relating to the Accountholders to any third party to be used for the
purpose of marketing of products or services to such Accountholders other than
to market Enhancement Products as permitted by this Agreement. Bank shall have
the right to market the Enhancement Products in accordance with the provisions
of Schedule 4.7.
(d) Xxxxx shall not use, or permit to be used, Accountholder Data,
except as provided in this Section 4.7. Xxxxx may use the Accountholder Data in
compliance with Applicable Law and the Bank's Privacy Policy solely (i) for
purposes of promoting the Program or promoting products and services available
for purchase on an Account at or through any Xxxxx Channel, (ii) as otherwise
necessary to carry out its obligations under this Agreement, and (iii) as
required by Applicable Law.
(e) Bank shall provide to Xxxxx free of charge on a monthly basis
master file reports initially containing the information set forth on Schedule
4.7(e) for Xxxxx to the extent such information is available to Bank, and any
other information agreed to by Bank and Xxxxx (collectively, the "Master File
Information"), to the extent permitted by Applicable Law, which Xxxxx may use
solely in connection with maintaining and servicing the Accounts and for the
purpose of marketing Goods to the Accountholders, as permitted by Applicable
Law; provided, however, that Xxxxx may disclose such information to Xxxxx'x
third party service provider in connection with Xxxxx'x permitted use of such
information under this Agreement, so long as (i)
23
such third party service provider is prohibited from using such information for
any purpose other than providing the services to Xxxxx, (ii) such third party
provider enters into a written agreement with the Xxxxx regarding the security
and confidentiality of Accountholder information, and (iii) the terms and
conditions of such agreement that address security and confidentiality of
Accountholder information are reasonably acceptable to Bank.
(f) Xxxxx shall not disclose, or permit to be disclosed, the
Accountholder Data, except as provided in this Section 4.7. Xxxxx may only use
the Accountholder Data in compliance with Applicable Law and the Bank's Privacy
Policy solely:
(i) to its subcontractors in connection with a permitted use of
such Accountholder Data under this Section 4.7, provided that each such
subcontractor agrees to be bound by this Section 4.7, or a comparable
contractual commitment with the same effect;
(ii) to its Affiliates and its Affiliates' employees, agents,
attorneys and accountants with a need to know such Accountholder Data in
connection with a permitted use of such Accountholder Data under this Section;
provided that (A) any such Person is bound by terms substantially similar to
this Section as a condition of employment or of access to Accountholder Data or
by professional obligations imposing comparable terms; and (B) Xxxxx shall be
responsible for the compliance of each such Person with the terms of this
Section; or
(iii) to any Governmental Authority with authority over Xxxxx (A)
in connection with an examination of Xxxxx; or (B) pursuant to a specific
requirement to provide for such Accountholder Data by such Governmental
Authority or pursuant to compulsory legal process; provided that Xxxxx seeks the
full protection of confidential treatment for any disclosed Accountholder Data
to the extent available under Applicable Law governing such disclosure, and with
respect to clause (B), to the extent permitted by Applicable Law, Xxxxx (1)
provides at least 10 Business Days' prior notice of such proposed disclosure to
Bank if reasonably possible under the circumstances and (2) seeks to redact
Accountholder Data to the fullest extent possible under Applicable Law governing
such disclosure.
(g) With respect to use and disclosure of Accountholder Data following
the termination of this Agreement:
(i) The rights and obligations of Xxxxx under this Section 4.7
shall continue through any Termination Period.
(ii) If Xxxxx exercises its rights under Section 14.2, Bank shall
transfer its right, title and interest in the purchased Accountholder Data to
Xxxxx or its Nominated Purchaser as part of such transaction, and Bank's right
to use and disclose the purchased Accountholder Data shall terminate upon the
termination of the Termination Period.
(iii) If Xxxxx provides notice that it will not exercise its
rights under Section 14.2, upon termination of the Termination Period, Xxxxx'x
right to use and disclose the Accountholder Data shall terminate upon the
termination of the Termination Period.
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4.8 Liability for Materials Developed and Used in Connection with the
Program. Bank shall be responsible for ensuring that all Account Documentation,
Account Agreements, and Credit Card designs comply with Applicable Law and the
Operating Procedures, provided that Bank has produced or approved such
materials, documents or designs. Notwithstanding the foregoing, each party shall
be solely responsible for ensuring that its respective solicitation materials,
Inserts and statement messages comply with Applicable Law.
ARTICLE 5
OPERATING STANDARDS
5.1 Reports. Bank shall provide to the Operating Committee and to Xxxxx the
reports specified in Schedule 5.1 and such other reports as are mutually agreed
to by the parties from time to time in accordance with the requirements and time
frames set forth in Schedule 5.1.
5.2 Servicing. Bank shall service all Accounts under the Program in
accordance with the terms and conditions of this Agreement, including the
service level standards set forth in Schedule 5.2, as they may be amended from
time to time by the Operating Committee. Without limiting the generality of the
foregoing, Bank shall be solely responsible for Account Application processing,
customer service, statementing, payment processing, transaction authorization
and processing, Loyalty Program servicing, collections and risk management.
5.3 Customer Service.
(a) Bank shall be solely responsible for customer service for the
Program in accordance with this Agreement, including the service level standards
set forth in Schedule 5.2 as attached hereto, including, but not limited to,
with respect to processing Accountholder telephone and mail inquiries and
disputes related to the Account.
(b) As of the Program Commencement Date, Bank shall establish and
maintain a separate toll-free customer service telephone number for the Program,
which toll-free number and all related charges shall be at Bank's sole expense.
(c) Customer service shall be provided by a dedicated group with
overflow calls going to Bank's servicer's regular customer service unit. If the
overflow calls for any two (2) consecutive months exceed ten percent (10%) of
total calls for the month, Bank shall increase the number of the dedicated
group. The foregoing notwithstanding, to the extent such group is not fully
utilized for activities related to the Program, Bank's servicer may utilize the
dedicated group in connection with other activities for its other customers.
There shall be no offshore call center established or utilized by Bank, pursuant
to this Agreement, without Xxxxx'x prior approval.
(d) Commencing within fourteen (14) days following the Program
Commencement Date, Bank shall provide IVR customer service, in English and
Spanish, 365 days per year, 24 hours per day, except for downtime due to
scheduled maintenance and updates.
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(e) Customer service shall be Xxxxx branded to the extent legally
permissible. Notwithstanding the foregoing, Bank shall have the right in its
sole discretion to take whatever steps and make such disclosures it believes are
necessary to ensure that at all times Bank is considered the creditor on the
Accounts.
(f) If Bank receives an Accountholder complaint regarding the quality
or delivery of Goods, Bank shall refer such complaint to Xxxxx in accordance
with the Operating Procedures.
5.4 Customer Service Standards.
(a) Subject to the following sentence, Xxxxx and Bank will jointly
observe inbound/outbound telephone customer service contacts that Bank has with
Accountholders. A Bank representative will accompany the Xxxxx representative
during the observations.
(b) Customer service observations may be conducted by Xxxxx monthly
during each Program Year, with reasonable prior notice to Bank on any day and at
any time during the servicer's Business Day, provided that such observations
shall not unreasonably interfere with Bank's normal business operations and that
Xxxxx complies with Bank's and its servicer's security policies and procedures.
5.5 Non-Performance of Service Level Standards.
(a) Bank shall report to Xxxxx monthly, by the fourteenth (14th) day
of the following month, in a mutually agreed format, Bank's performance under
and as to whether or to what extent Bank is in compliance with each of the SLSs
set forth at Schedule 5.2. If Bank fails to meet any SLS, Bank shall (i) report
to Xxxxx, together with such monthly reports, the reasons for the SLS
failure(s); and (ii) promptly take any action necessary to correct and prevent
recurrence of such failure(s).
(b) The provisions of this Section 5.5 shall apply beginning ninety
(90) days after the Program Commencement Date with respect to operations assumed
by Bank as of the Program Commencement Date, and ninety (90) days after the
effective date of other operations implemented by Bank thereafter with respect
to any such other operations.
5.6 Access. Xxxxx authorizes Bank to monitor the administration and
promotion of the Program through mystery shopping and by other reasonable means
and the results of such monitoring shall be reviewed with the Operating
Committee.
5.7 Disaster Recovery. Bank will maintain in effect during the Term a
disaster recovery and business continuity plan that complies with Applicable
Law. Bank will provide Xxxxx access to review such plan or a summary thereof
upon request. Bank will test such plan annually and will promptly implement such
plan upon the occurrence of a disaster or business interruption.
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ARTICLE 6
MERCHANT SERVICES
6.1 Transmittal and Authorization of Charge Transaction Data.
(a) Xxxxx will honor the Accounts for Transactions. Xxxxx will
transmit Charge Transaction Data for authorization of Transactions to Bank as
provided in the Operating Procedures.
(b) Bank shall authorize or decline Transactions in batch or on a real
time basis as mutually agreed by the parties.
6.2 POS Terminals. Xxxxx shall maintain POS terminals capable of processing
(a) bankcard transactions and (b) Account transactions and applications as
handled as of the Program Commencement Date.
6.3 Settlement Procedures.
(a) Xxxxx shall electronically transmit all Charge Transaction Data
from Xxxxx to Bank in a format acceptable to Bank. Upon receipt, Bank shall use
commercially reasonable efforts to promptly verify and process such Charge
Transaction Data, and in the time frames specified herein, Bank will remit to
Xxxxx an amount equal to the Net Proceeds indicated by such Charge Transaction
Data for the credit sales day(s) for which such remittance is made. In the event
Bank discovers any discrepancies in the amount of Charge Transaction Data
submitted by Xxxxx or paid by Bank to Xxxxx, Bank shall notify Xxxxx in detail
of the discrepancy, and credit Xxxxx, or offset against amounts owed to Xxxxx,
as the case may be, in a subsequent daily settlement. Bank will transfer funds
via Automated Clearing House ("ACH") to an account designated in writing by
Xxxxx to Bank (the "Xxxxx Deposit Account"). If Charge Transaction Data is
received by Bank's processing center before 12 noon Eastern time on a Business
Day, Bank will initiate such ACH transfer by 12 noon Eastern time on the next
Business Day thereafter. In the event that the Charge Transaction Data is
received after 12 noon Eastern time on a Business Day, then Bank will initiate
such transfer no later than 12 noon Eastern time on the second Business Day
thereafter. Bank shall remit funds to one (1) Xxxxx designated account. The term
"initiate" shall mean that Bank shall transmit an ACH file to Bank's financial
institution for settlement on the next Business Day. All Charge Transaction Data
is subject to review and acceptance by Bank. In the event of a computational or
similar error of an accounting or record keeping nature with respect to such
Charge Transaction Data, Bank may credit to the Xxxxx Deposit Account or offset
against the Net Proceeds (as the case may be) the proper amount as corrected. If
the Net Proceeds are insufficient, Xxxxx shall remit the proper amount to Bank
immediately upon written demand. Upon any such correction Bank shall give prompt
notice thereof to Xxxxx.
(b) "Net Proceeds" shall be an amount equal to: the sum of the total
of charges identified in such Charge Transaction Data, in each case adjusted for
the reconciliation of recent Charge Transaction Data, less the sum of (i) the
total amount of any charges or credits included in such Charge Transaction Data,
and (ii) any amounts charged back to Xxxxx pursuant to Section
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6.5, and Xxxxx shall be responsible for allocating such remittances among all
Xxxxx Channels as appropriate and Bank shall have no responsibility or liability
in connection therewith (it being agreed that Bank has no obligation to accept
Charge Transaction Data directly from, or make remittances to, any person other
than Xxxxx).
(c) Bank shall pay and reimburse Xxxxx in the amounts and in the
manner for the compensation and fees set forth in Schedule 7.3 the amount of any
fees, or other amounts owed by Xxxxx to Bank under this Agreement, including
without limitation amounts due to Bank for supported Accounts or for any other
special credit plans or promotional plan programs approved by Bank.
6.4 Bank Right to Chargeback. Bank shall have the right to charge back to
Xxxxx pursuant to Schedule 6.5 (a) the amount of any Accountholder Indebtedness,
including any amounts incurred prior to the Program Commencement Date with
respect to Purchased Accounts and (b) amounts paid by Bank to Xxxxx under
paragraph 1 of Schedule 7.3.
6.5 Exercise of Chargeback. If Bank exercises its right of chargeback
pursuant to Schedule 6.5, Bank may set off all amounts charged back against any
sums due Xxxxx under this Agreement, or Bank may demand payment from Xxxxx for
the full amount of such chargeback. In the event of a chargeback pursuant to
this Article 6 and Schedule 6.5, upon payment in full of the related amount by
Xxxxx, Bank shall immediately assign to Xxxxx, without any representation,
warranty or recourse, (i) all right to payments of amounts charged back in
connection with such Accountholder charge, and (ii) any security interest
granted by Xxxxx under Section 16.1. Bank shall fully cooperate in any effort by
Xxxxx to collect the chargeback amount, including by executing and delivering
any document necessary as evidence of assignment of such rights.
6.6 Covenants of Xxxxx. Xxxxx makes the following covenants to Bank, each
and all of which shall survive the execution and delivery of this Agreement:
(a) Forms and Materials. Xxxxx shall use only forms, scripts and
materials, including in electronic format, provided or approved by Bank in a
timely manner (including through the Operating Committee) when taking any action
with regard to the Program.
(b) Special Agreements or Conditions. Xxxxx will not charge any credit
card surcharge, application, processing or other Program related fee to
Accountholders.
ARTICLE 7
COSTS AND EXPENSES
7.1 Bank Responsibility for Program Operation. Except as otherwise
specified in any Marketing Plan or any other provision of this Agreement, Bank
shall be responsible for the costs of operating the Program.
7.2 Resolution. Any disputes regarding the amounts owed under this
Agreement shall be resolved in accordance with Section 10.2.
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7.3 Fees. Bank shall pay and reimburse Xxxxx in the amounts and in the
manner set forth in Schedule 7.3.
7.4 Postage. Any increase(s) in the cost of mailing Billing Statements,
form letters or new Credit Cards due to an increase in the first class pre-sort
cost of postage from the United States Postal Service which increase occurs on
or after the Program Commencement Date shall be borne one-half by Bank and
one-half by Xxxxx. Adjustments will be made for any subsequent decreases in the
cost of postage. Bank will use commercially reasonable efforts to obtain the
best available bulk rate discount based on Bank's volume.
ARTICLE 8
LICENSING OF TRADEMARKS; INTELLECTUAL PROPERTY
8.1 Xxxxx Licensed Marks.
(a) Grant of License to Use Xxxxx Licensed Marks. Xxxxx hereby grants
to Bank a non-exclusive, royalty-free, non-transferable revocable right and
license to use Xxxxx Licensed Marks in the United States in connection with the
creation, establishment, marketing and administration of, and the provision of
services related to, the Program, all pursuant to, and in accordance with, this
Agreement and any applicable Trademark Style Guide. Those services shall
include, without limitation, the solicitation of Accountholders and potential
Accountholders, acceptance of Account Applications, the issuance and reissuance
of Credit Cards, the provision of accounting services to Accountholders, the
provision of Billing Statements and other correspondence relating to Accounts to
Accountholders, the extension of credit to Accountholders, and the advertisement
or promotion of the Program. Xxxxx grants this license to allow Bank to perform
its obligations under this Agreement. Except in connection with the sale or
servicing of the Accounts, Bank may not sublicense Xxxxx Licensed Marks for any
other reason without Xxxxx'x prior written approval. Bank shall ensure that any
subcontractor or third party that Bank uses to reproduce Xxxxx Licensed Marks
shall agree to comply with all of the standards specified herein and the
limitations on the use of Xxxxx Licensed Marks contained in this Section.
(b) New Marks. If Xxxxx adopts a trademark, trade name, service xxxx,
logo or other proprietary xxxx which Xxxxx uses in connection with the Program
(a "New Xxxx"), Xxxxx may, in its discretion, add such New Xxxx to Xxxxx
Licensed Marks and license its use hereunder.
(c) Termination of License. After termination of this Agreement, the
license granted in this section shall terminate thirty (30) days after the Bank
no longer owns any Accounts or Accountholder Indebtedness. Upon termination of
this Agreement, all rights to use Xxxxx Licensed Marks shall, with no further
action required by any party, immediately terminate and Bank shall: (i)
discontinue immediately all use of Xxxxx Licensed Marks, and any colorable
imitation thereof; and (ii) at Bank's option, with written notice to Xxxxx,
delete Xxxxx Licensed Marks from or destroy all unused Credit Cards, Account
Applications, Purchase Documentation, periodic statements, materials, displays,
advertising and sales literature and any other items bearing any of Xxxxx
Licensed Marks.
29
(d) Ownership of Xxxxx Licensed Marks. Bank acknowledges that (i)
Xxxxx Licensed Marks, all rights therein, and the goodwill associated therewith,
are, and shall remain at all times, the exclusive property of Xxxxx Holdings,
Inc. ("Xxxxx Holdings") and are licensed by Xxxxx Holdings to Xxxxx, (ii) Bank
shall take no action which will adversely affect Xxxxx'x interests in or Xxxxx
Holding's title in and to Xxxxx Licensed Marks, or the goodwill associated with
Xxxxx Licensed Marks (it being understood that the collection of Accounts,
adverse action letters, and changes in terms of Accounts do not adversely affect
goodwill, if done in accordance with prudent and reasonable commercial practices
and the terms of this Agreement), and (iii) any and all goodwill arising from
Bank's use of Xxxxx Licensed Marks shall inure to the benefit of Xxxxx and Xxxxx
Holdings. Nothing herein shall give Bank any proprietary or other interest in or
to Xxxxx Licensed Marks, except the limited right to use Xxxxx Licensed Marks in
accordance with this Agreement, and Bank shall not contest Xxxxx'x interest or
Xxxxx Holding's title in and to Xxxxx Licensed Marks.
(e) Infringement by Third Parties. Bank shall notify Xxxxx, in
writing, in the event that it has Knowledge of any infringing use of any of
Xxxxx Licensed Marks by any third party. If any of Xxxxx Licensed Marks is
infringed, Xxxxx and Xxxxx Holdings only have the right, in their sole
discretion, to take whatever action they deem necessary to prevent such
infringing use; provided, however, that if Xxxxx and Xxxxx Holdings fail to take
reasonable steps to prevent infringement of Xxxxx Licensed Marks and such
infringement has an adverse effect upon the Program or the rights of Bank
hereunder, Bank may request that Xxxxx take action necessary to alleviate such
adverse impact. Bank shall reasonably cooperate with and assist Xxxxx, at
Xxxxx'x expense, in the prosecution of those actions that Xxxxx determines, in
its sole discretion, are necessary or desirable to prevent the infringing use of
any of Xxxxx Licensed Marks.
8.2 Bank Licensed Marks.
(a) Grant of License to Use Bank Licensed Marks. Bank hereby grants to
Xxxxx a non-exclusive, royalty-free, non-transferable revocable right and
license to use Bank Licensed Marks in the United States in connection with the
creation, establishment, marketing and administration of, and the provision of
services related to, the Program, all pursuant to, and in accordance with, this
Agreement and any applicable Trademark Style Guide. Those services shall
include, without limitation, the solicitation of Accountholders and the
advertisement or promotion of the Program. Bank grants this license to allow
Xxxxx to perform its obligations under this Agreement. Xxxxx may not sublicense
Bank Licensed Marks without Bank's prior written approval Xxxxx shall ensure
that any subcontractor or third party that Xxxxx uses to reproduce Bank Licensed
Marks shall agree to comply with all of the standards specified herein and the
limitations on the use of Bank Licensed Marks contained in this Section.
(b) New Marks. If Bank adopts a New Xxxx, Bank may, in its discretion,
add such New Xxxx to Bank Licensed Marks and license its use hereunder. The
foregoing notwithstanding, it is understood and agreed that Bank shall not be
required to add a New Xxxx to Bank Licensed Marks if such New Xxxx was developed
by Bank primarily for another charge, credit or debit program.
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(c) Termination of License. The license granted in this Section shall
terminate after the Program Purchase Date or thirty (30) days after termination
after this Agreement under Section 14.4, as applicable. Upon such termination of
this license, all rights to use Bank Licensed Marks shall, with no further
action required by any party, immediately terminate and Xxxxx shall: (i)
discontinue immediately all use of Bank Licensed Marks and any colorable
imitation thereof; and (ii) at Xxxxx'x option, delete Bank Licensed Marks from
or destroy all unused Account Applications, Purchase Documentation, periodic
statements, materials, displays, advertising and sales literature and any other
items bearing any of Bank Licensed Marks.
(d) Ownership of Bank Licensed Marks. Xxxxx acknowledges that (i) Bank
Licensed Marks, all rights therein, and the goodwill associated therewith, are,
and shall remain at all times, the exclusive property of Bank, (ii) it shall
take no action which will adversely affect Bank's exclusive ownership of Bank
Licensed Marks or the goodwill associated with Bank Licensed Marks, and (iii)
any and all goodwill arising from use of Bank Licensed Marks by Xxxxx shall
inure to the benefit of Bank. Nothing herein shall give Xxxxx any proprietary or
other interest in or to Bank Licensed Marks, except the limited right to use
Bank Licensed Marks in accordance with this Agreement, and Xxxxx shall not
contest Bank's title in and to Bank Licensed Marks.
(e) Infringement by Third Parties. Xxxxx shall use reasonable efforts
to notify Bank, in writing, in the event that it has Knowledge of any infringing
use of any of Bank Licensed Marks by any third party. If any of Bank Licensed
Marks is infringed, Bank alone has the right, in its sole discretion, to take
whatever action it deems necessary to prevent such infringing use; provided,
however, that if Bank fails to take reasonable steps to prevent infringement of
Bank Licensed Marks and such infringement has an adverse effect upon the Program
or the rights of Xxxxx hereunder, Xxxxx may request that Bank take action
necessary to alleviate such adverse impact. Xxxxx shall reasonably cooperate
with and assist Bank, at Bank's expense, in the prosecution of those actions
that Bank determines, in its sole discretion, are necessary or desirable to
prevent the infringing use of any of Bank Licensed Marks.
8.3 Ownership of Intellectual Property.
(a) Ownership of Intellectual Property. Each Intellectual Property
already developed and brought to the Program by one party ("Contributing Party")
shall remain the property of the Contributing Party. Each party also shall own
all right, title and interest in the Intellectual Property it develops
independently of the other party during the Term.
(b) Joint Intellectual Property. Except as provided below, any
Intellectual Property developed, conceived or first reduced to practice in the
course of joint development activities during the Term ("Joint Intellectual
Property") shall be owned jointly by the parties during and after the Term.
Unless otherwise provided in writing by both parties, each party hereby grants
to the other party a non-exclusive, perpetual, royalty-free, non-transferable
license, subject to all confidentiality obligations between the parties, to use
any Joint Intellectual Property during or after the Term for any reasons.
Patents and inventions shall be deemed to be Joint Intellectual Property only if
employees or contractors of each party who have assigned all such patent rights
to such party are deemed co-inventors under the patent law. Software and
31
other works of authorship and associated copyrights shall be deemed to be Joint
Intellectual Property only if the parties are deemed co-authors of such software
or other work of authorship under the copyright law or otherwise deemed
co-owners of such copyright. Otherwise, all patents, patentable inventions,
software, other works of authorship and related copyrights shall be deemed to be
developed solely by one party. Thus, to the extent that a work created by one
party is based on or incorporates Intellectual Property of the other party but
the parties are not joint inventors or joint authors under the patent or
copyright law, respectively, then one party shall be the sole owner of the
Intellectual Property in the underlying work and the other party shall be the
sole owner of the Intellectual Property in the new work.
ARTICLE 9
REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 General Representations and Warranties of Xxxxx. To induce Bank to
establish and administer the Program, Xxxxx makes the following representations
and warranties to Bank, each and all of which shall survive the execution and
delivery of this Agreement, and each and all of which shall be deemed to be
restated and remade with the same force and effect on each day of the Term. Bank
acknowledges that as of the date of this Agreement there is in effect a
securitization with Xxxxx and certain Affiliates identified in the Purchase
Agreement, and that the following representations are subject to the
termination thereof on or before the Program Commencement Date in accordance
with the terms of the Purchase Agreement.
(a) Corporate Existence. Xxxxx (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(ii) is duly licensed or qualified to do business as a corporation and is in
good standing as a foreign corporation in all jurisdictions in which the nature
of the activities conducted or proposed to be conducted by it or the character
of the assets owned or leased by it makes such licensing or qualification
necessary to perform its obligations required hereunder except to the extent
that its non-compliance would not have a material and adverse effect on Xxxxx'x
ability to perform its obligations hereunder, and all necessary licenses,
permits, consents or approvals from or by, and has made all necessary notices
to, all governmental authorities having jurisdiction, to the extent required for
Xxxxx'x current ownership, lease or conduct and operation, except to the extent
that the failure to obtain such licenses, permits, consents or approvals or to
provide such notices would not have a material and adverse effect on Xxxxx'x
ability to perform its obligations required hereunder.
(b) Capacity; Authorization; Validity. Xxxxx has all necessary
corporate power and authority to execute and enter into this Agreement, and
perform the obligations required of Xxxxx hereunder and the other documents,
instruments and agreements relating to the Program and this Agreement executed
by Xxxxx pursuant hereto. The execution and delivery by Xxxxx of this Agreement
and all documents, instruments and agreements executed and delivered by Xxxxx
pursuant hereto, and the consummation by Xxxxx of the transactions specified
herein have been duly and validly authorized and approved by all necessary
corporate action of Xxxxx. This Agreement (i) has been duly executed and
delivered by Xxxxx, (ii) constitutes the valid and legally binding obligation of
Xxxxx, and (iii) is enforceable in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, receivership or other laws
affecting the rights
32
of creditors generally and by general equity principles including, without
limitation, those respecting the availability of specific performance).
(c) Conflicts; Defaults; Etc. The execution, delivery and performance
of this Agreement by Xxxxx, its compliance with the terms hereof, and its
consummation of the transactions specified herein will not (i) conflict with,
violate, result in the breach of, constitute an event which would, or with the
lapse of time or action by a third party or both would, result in a default
under, or accelerate the performance required by, the terms of any material
contract, instrument or agreement to which Xxxxx is a party or by which it is
bound, or by which Xxxxx'x assets are bound, except for conflicts, breaches and
defaults which would not have a material and adverse effect upon Xxxxx'x ability
to perform its obligations under this Agreement; (ii) conflict with or violate
the certificate of incorporation or by-laws of Xxxxx; (iii) violate any
Applicable Law or conflict with, or require any consent or approval under any
judgment, order, writ, decree, permit or license to which Xxxxx is a party or by
which it is bound or affected, except to the extent that such violation or the
failure to obtain such consent or approval would not have a material and adverse
effect upon Xxxxx'x ability to perform its obligations under this Agreement;
(iv) require the consent or approval of any other party to any contract,
instrument or commitment to which Xxxxx is a party or by which it is bound; or
(v) require any filing with, notice to, consent or approval of, or any other
action to be taken with respect to, any regulatory authority with respect to the
transactions contemplated by this Agreement.
(d) Solvency. Xxxxx is solvent.
(e) No Default. Xxxxx is not in default with respect to any contract,
agreement, lease, or other instrument to which it is a party or by which it is
bound, except for defaults which would not have a material and adverse effect
upon Xxxxx'x ability to perform its obligations under this Agreement, nor has
Xxxxx received any notice of default under any contract, agreement, lease or
other instrument which default or notice of default would materially and
adversely affect the performance by Xxxxx of its obligations under this
Agreement.
(f) Books and Records. All of Xxxxx'x records, files and books of
account relating to the Program, including but not limited to, records provided
to Bank regarding Xxxxx'x Account activities, are in all material respects
complete and correct and are maintained in accordance with Applicable Law.
(g) Xxxxx Licensed Marks. Xxxxx Holdings has licensed Xxxxx Licensed
Marks to Xxxxx and granted Xxxxx written approval to license to Bank the use of
Xxxxx Licensed Marks in connection with the Program.
9.2 General Representations and Warranties of Bank. To induce Xxxxx to
enter into this Agreement and participate in the Program, Bank makes the
following representations and warranties to Xxxxx, each and all of which shall
survive the execution and delivery of this Agreement, and each and all of which
shall be deemed to be restated and remade with the same force and effect on each
day of the Term.
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(a) Corporate Existence. Bank (i) is an industrial bank duly
organized, validly existing, and in good standing under the laws of Utah with
its home office as indicated in the first paragraph of this Agreement; (ii) is
duly licensed or qualified to do business as an industrial bank and is in good
standing as a foreign corporation in all jurisdictions in which the nature of
the activities conducted or proposed to be conducted by it or the character of
the assets owned or leased by it makes such licensing or qualification necessary
to perform its obligations hereunder except to the extent that its
non-compliance would not have a material and adverse effect on Bank or Bank's
ability to perform its obligations hereunder, and upon approval from the Federal
Deposit Insurance Corporation and the Utah Department of Financial Institutions
with respect to the transactions contemplated by this Agreement will have all
necessary licenses, permits, consents, or approvals from or by and has made all
necessary notices to, all governmental authorities having jurisdiction, to the
extent required for Bank's current ownership, lease or conduct and operation,
except to the extent that the failure to obtain such licenses, permits,
consents, approvals or to provide such notices would not have a material and
adverse effect on Bank or Bank's ability to perform its obligations under this
Agreement.
(b) Capacity; Authorization; Validity. Bank has all necessary power
and authority to (i) execute and enter into this Agreement, and (ii) upon
approval from the Federal Deposit Insurance Corporation and the Utah Department
of Financial Institutions with respect to the transactions contemplated by this
Agreement will have all necessary power and authority to perform all of the
obligations required of Bank hereunder and the other documents, instruments and
agreements relating to the Program and this Agreement executed by Bank pursuant
hereto. The execution and delivery by Bank of this Agreement and all documents,
instruments and agreements executed and delivered by Bank pursuant hereto, and
the consummation by Bank of the transactions specified herein, have been duly
and validly authorized and approved by all necessary corporate action of Bank.
This Agreement (i) has been duly executed and delivered by Bank, (ii)
constitutes the valid and legally binding obligations of Bank, and (iii) is
enforceable in accordance with its respective terms (subject to applicable
bankruptcy, insolvency, reorganization, receivership or other laws affecting the
rights of creditors generally and financial institutions in particular and by
general equity principles including, without limitation, those respecting the
availability of specific performance).
(c) Conflicts; Defaults; Etc. The execution, delivery and performance
of this Agreement by Bank, its compliance with the terms hereof, and the
consummation of the transactions specified herein will not (i) conflict with,
violate, result in the breach of, constitute an event which would, or with the
lapse of time or action by a third party or both would, result in a default
under, or accelerate the performance required by, the terms of any material
contract, instrument or agreement to which Bank is a party or by which it is
bound, except for conflicts, breaches and defaults which would not have a
material and adverse effect upon Bank or Bank's ability to perform its
obligations under this Agreement; (ii) conflict with or violate the articles of
incorporation or by-laws, or any other equivalent organizational document(s) of
Bank; (iii) violate any Applicable Law or conflict with, or require any consent
or approval under any judgment, order, writ, decree, permit or license, to which
Bank is a party or by which it is bound or affected, except to the extent that
such violation or the failure to obtain such consent or approval would not have
a material and adverse effect upon Bank or Bank's ability to perform its
obligations under this Agreement; (iv) require the consent or approval of any
other party to any
34
contract, instrument or commitment to which Bank is a party or by which it is
bound; or (v) require any filing with, notice to, consent or approval of, or any
other action to be taken with respect to, any regulatory authority other than
the approval from the Federal Deposit Insurance Corporation and the Utah
Department of Financial Institutions with respect to the transactions
contemplated by this Agreement:
(d) Solvency. Bank is solvent.
(e) No Default. Bank is not in default with respect to any contract,
agreement, lease, or other instrument to which it is a party or by which it is
bound, except for defaults which would not have a material and adverse effect
upon Bank or Bank's ability to perform its obligations under this Agreement, nor
has Bank received any notice of default under any such contract, agreement,
lease or other instrument which default or notice of default would materially
and adversely affect the performance by Bank of its obligations under this
Agreement.
(f) Books and Records. All of Bank's and, to the best of its
Knowledge, its records, files and books of account relating to the Program are
in all material respects complete and correct and are maintained in accordance
with Applicable Law.
(g) Bank Licensed Marks. Bank is the owner of Bank Licensed Marks and
has the right, power and authority to license to Xxxxx the use of Bank Licensed
Marks in connection with the Program.
9.3 General Covenants of Xxxxx. Xxxxx makes the following covenants to
Bank, each and all of which shall survive the execution and delivery of this
Agreement:
(a) Maintenance of Existence and Conduct of Business. Xxxxx shall
preserve and keep in full force and effect its corporate existence and remain
primarily in the same line of (retail) business in which it was engaged on the
Program Commencement Date, other than in the event of a Change in Control,
merger or consolidation in which Xxxxx is not the surviving entity.
(b) Litigation. Xxxxx promptly shall notify Bank in writing if it
receives written notice of any litigation involving Xxxxx and the Program or any
of the Accounts.
(c) Applicable Law/Operating Procedures. Xxxxx shall at all times
during the Term of this Agreement comply in all material respects with
Applicable Law in connection with Xxxxx'x business, the Value Proposition, the
Continuity Products and Xxxxx'x obligations under this Agreement and the
Operating Procedures.
(d) Disputes with Accountholders. Xxxxx shall cooperate with Bank in a
timely manner (but in no event less promptly than required by Applicable Law) to
resolve all disputes with Accountholders.
(e) Insurance. Xxxxx shall maintain insurance policies with insurers
and in such amounts and against such types of loss and damage as are customarily
maintained by other companies within Xxxxx'x industry engaged in similar
businesses as Xxxxx.
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9.4 General Covenants of Bank. Bank makes the following covenants to Xxxxx,
each and all of which shall survive the execution and delivery of this
Agreement:
(a) Maintenance of Existence and Conduct of Business. Bank shall
preserve and keep in full force and effect its corporate existence and remain
primarily in substantially the same line(s) of business (i.e., banking) in which
it was engaged on the Program Commencement Date, other than in the event of a
Change in Control, merger or consolidation in which Bank is not the surviving
entity.
(b) Litigation. Bank promptly shall notify Xxxxx in writing if it
receives written notice of any litigation involving Bank, Xxxxx and the Program.
(c) Applicable Law/Operating Procedures. Bank shall at all times
during the Term comply in all material respects with Applicable Law in
connection with Bank's business, and Bank's obligations under this Agreement and
the Operating Procedures.
9.5 Financial Statements.
(a) Bank shall provide to Xxxxx the "call reports" of Bank on a
regular basis promptly after such reports are filed by Bank. Bank shall promptly
notify Xxxxx in writing of any event that is reasonably likely to prevent Bank
from being able to issue and transact business in private label credit programs
for Xxxxx.
(b) If at any time during the term of this Agreement Xxxxx or Bank's
Parent is not required to file periodic reports on a timely basis with the
Securities and Exchange Commission ("SEC"):
(i) Xxxxx or Bank's Parent (as appropriate based on the party not
filing) will provide to the other (i) its audited annual financial statements
within 90 days of the end of the fiscal year, and (ii) its unaudited quarterly
financial statements within 60 days of the end of the fiscal quarter. Such
statements shall include the consolidated balance sheet, income statement and
statement of cash flows and financial position, accompanied by the certification
on behalf of such entity by its chief financial officer that such financial
statements were prepared in accordance with GAAP applied on a consistent basis
(except for normal year end adjustments and the absence of footnotes on the
quarterly statements) and present fairly the consolidated financial position of
such entity as of the end of such calendar period and the results of its
operations.
(ii) Xxxxx or Bank's Parent (as appropriate based on the party
not filing) shall make its chief financial officer, or a knowledgeable designee,
available to discuss such party's financial results with a representative of the
other party. Such party shall provide the other party copies of all compliance
certificates delivered to its lenders under its credit facilities, if any.
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ARTICLE 10
AUDIT/ACCESS
10.1 Audit/Access Rights. Once per Program Year or at any time that a party
disputes the amount of any monies owed by either party to the other hereunder,
such party, at its sole cost and expense and upon three (3) Business Days' prior
notice to the other party, may conduct an audit of those of the other party's
financial and operational records that are under the control and/or direction of
the other party and relate to the Program or can be reasonably segregated. Such
audit shall be conducted during normal business hours in accordance with
generally accepted auditing standards and the auditing party shall employ such
reasonable procedures and methods as necessary and appropriate in the
circumstances, minimizing interference with the audited party's normal business
operations. The audited party shall use reasonable commercial efforts to
facilitate the auditing party's review, including making reasonably available
such personnel of the audited party to assist the auditing party as reasonably
requested. The audited party shall deliver any document or instrument necessary
for the auditing party to obtain such records from any Person maintaining
records for the audited party and shall maintain records pursuant to its regular
record retention policies. For purposes of this provision, the audited party
also shall be required to provide records relating to the Program held by
Persons performing services in connection with the Program at the auditing
party's request. Notwithstanding the generality of the foregoing, however, a
party shall not be required to provide access to records to the extent that (a)
such access is prohibited by Applicable Law, (b) such records are legally
privileged, (c) such records are confidential or proprietary internal records,
such as company planning documents of such party or any of its Affiliates,
operating budgets, management reviews or employee records, or (d) such records
relate to other customers or operations of such party other than the Program or
to personnel records not normally disclosed in connection with audits.
10.2 Dispute Resolution. The parties agree to attempt in good faith to
resolve any disputes arising in connection with the payments made or demanded by
the parties under this Agreement excluding Article 14 hereof. In the event the
parties are unable to resolve any such dispute, either party may request a
nationally recognized firm of independent accountants mutually agreeable to the
parties (the "Accountants") to reconcile any amounts in dispute. Any such
request shall be in writing and shall specify with particularity the disputed
amounts being submitted for determination. Each party agrees to promptly and in
good faith take all necessary action to designate the Accountants no later than
ten (10) Business Days after a request that such a designation be made. The
parties shall cooperate fully in assisting the Accountants in their review,
including, without limitation, by providing the Accountants full access to all
files, books and records relevant thereto and providing such other information
as the Accountants may reasonably request in connection with any such review. In
the event the determination made by the Accountants requires either party to
make payment to the other of any additional amount, such party shall (i) make
such payment no later than five (5) Business Days following receipt from the
Accountants of written notice to both parties of such determination plus
interest at the Federal Funds Rate on any amount due computed from and including
the date such amount should have been paid through and excluding the date of
payment; and (ii) shall pay (A) the fees and disbursements of such Accountants
arising out of such reviews, and (B) the prevailing
37
party's audit expenses, if any. The determination of the Accountants shall be
final and binding on the parties subject to the correction of obvious errors.
ARTICLE 11
CONFIDENTIALITY
11.1 General Confidentiality.
(a) For purposes of this Agreement, "Confidential Information" means
any and all of the following: (i) information that is provided by or on behalf
of either Xxxxx or Bank to the other party or its agents in connection with the
Program; (ii) information about Xxxxx or Bank or their respective Affiliates, or
their respective businesses or employees, that is otherwise obtained by the
other party in connection with the Program, in each case including, without
limitation: (A) information concerning marketing plans, objectives and financial
results; (B) information regarding business systems, methods, processes,
financing data, programs and products; (C) information unrelated to the Program
obtained by Xxxxx or Bank in connection with this Agreement, including, without
limitation, by accessing or being present at the business location of the other
party; and (D) proprietary technical information, including source codes; (iii)
the terms and conditions of this Agreement; or (iv) the Marketing Plan. For
purposes of this Agreement, Confidential Information shall not include
Accountholder Data or the Qualified Xxxxx'x Customer List.
(b) The restrictions on disclosure of Confidential Information under
this Article 11 shall not apply to, with respect to Xxxxx or Bank, information
that: (i) is already rightfully known to such party at the time it obtains
Confidential Information from the other party; (ii) is or becomes generally
available to the public other than as a result of disclosure in breach of this
Agreement or any other confidentiality obligations; (iii) is lawfully received
on a non-confidential basis from a third party authorized to disclose such
information without restriction and without breach of this Agreement or any
other agreement or understanding; (iv) is contained in, or is lawfully capable
of being discovered through examination of publicly available records or
products; or (v) is required to be disclosed by Applicable Law (provided that
the party subject to such Applicable Law shall notify the other party of any
such use or requirement prior to disclosure of any Confidential Information
obtained from the other party in order to afford such other party an opportunity
to seek a protective order to prevent or limit disclosure of the Confidential
Information to third parties and shall disclose Confidential Information of the
other party only to the extent required by such Applicable Law). Nothing herein
shall be construed to permit the Receiving Party (as defined below) to disclose
to any third party any Confidential Information that the Receiving Party is
required to keep confidential under Applicable Law.
(c) The terms and conditions of this Agreement shall be the
Confidential Information of both Xxxxx and Bank. The Marketing Plan shall be the
Confidential Information of both Xxxxx and Bank.
(d) If Xxxxx or Bank receives Confidential Information of the other
Party ("Receiving Party"), the Receiving Party shall do the following with
respect to the Confidential Information of the other party ("Disclosing Party"):
(i) keep the Confidential Information of the
38
Disclosing Party secure and confidential; (ii) treat all Confidential
Information of the Disclosing Party with the same degree of care as it accords
its own Confidential Information, but in no event less than a reasonable degree
of care; and (iii) implement and maintain commercially reasonable physical,
electronic, administrative and procedural security measures, including
commercially reasonable authentication, access controls, virus protection and
intrusion detection practices and procedures. For purposes of this subsection,
both parties shall be considered the Receiving Party of Confidential Information
comprised of the terms and/or conditions of this Agreement and the Marketing
Plan.
11.2 Use and Disclosure of Confidential Information.
(a) Each Receiving Party shall use and disclose the Confidential
Information of the Disclosing Party only for the purpose of performing its
obligations or enforcing its rights with respect to the Program or as otherwise
expressly permitted by this Agreement, and shall not accumulate in any way or
make use of such Confidential Information for any other purpose.
(b) Each Receiving Party shall: (i) limit access to the Disclosing
Party's Confidential Information to those employees, authorized agents, vendors,
consultants, service providers and subcontractors who have a reasonable need to
access such Confidential Information in connection with the Program; and (ii)
ensure that any Person with access to the Disclosing Party's Confidential
Information agrees to be bound by the provisions of this Article 11 and
maintains the existence of this Agreement and the nature of their obligations
hereunder strictly confidential.
11.3 Unauthorized Use or Disclosure of Confidential Information. Each
Receiving Party agrees that any unauthorized use or disclosure of Confidential
Information of the Disclosing Party might cause immediate and irreparable harm
to the Disclosing Party for which money damages might not constitute an adequate
remedy. In that event, the Receiving Party agrees that injunctive relief may be
warranted in addition to any other remedies the Disclosing Party may have. In
addition, the Receiving Party agrees promptly to advise the Disclosing Party by
telephone and in writing via facsimile of any security breach that may have
compromised any Confidential Information or Accountholder Data, or of any
unauthorized misappropriation, disclosure or use by any person of the
Confidential Information or Accountholder Data of the Disclosing Party which may
come to its attention and to take all steps at its own expense reasonably
requested by the Disclosing Party to limit, stop or otherwise remedy such
misappropriation, disclosure or use.
11.4 Return or Destruction of Confidential Information. Upon the
termination or expiration of this Agreement, the Receiving Party shall comply
with the Disclosing Party's reasonable instructions regarding the disposition of
the Disclosing Party's Confidential Information or Accountholder Data, which may
include return of any and all of the Disclosing Party's Confidential Information
or Accountholder Data (including any electronic or paper copies, reproductions,
extracts or summaries thereof); provided, however: the Receiving Party in
possession of tangible property containing the Disclosing Party's Confidential
Information or Accountholder Data may retain one archived copy of such material,
subject to the terms of this Agreement, which may be used solely for regulatory
purposes and may not be used for any other
39
purpose. Such compliance shall be certified in writing, including a statement
that no copies of Confidential Information or Accountholder Data have been kept,
except as necessary for regulatory purposes.
ARTICLE 12
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
12.1 Events of Default. The occurrence of any one or more of the following
events (regardless of the reason therefor) shall constitute an Event of Default
hereunder:
(a) A party shall fail to make a payment of any material amount due
and payable pursuant to this Agreement and such failure shall remain unremedied
for a period of five (5) Business Days after the non-defaulting party shall have
given written notice thereof, unless such failure to pay is the subject of a
dispute resolution under Section 10.2, in which case, the five (5) Business Day
period shall commence upon receipt of the written notice from the Accountants.
(b) A party shall fail to perform, satisfy or comply with any
obligation, condition, covenant or other provision contained in this Agreement
(other than failure to comply with any service level standard set forth in
Schedule 5.2), and (i) such failure shall remain unremedied for a period of
thirty (30) days after the other party shall have given written notice thereof
or, if the same cannot be cured in a commercially reasonable manner within such
time, the same shall not constitute an Event of Default if the party shall have
initiated and diligently pursued a cure within such time and such cure is
completed within ninety (90) days from the date of written notice regarding such
failure.
(c) Any representation or warranty contained in this Agreement shall
not be true and correct in any respect as of the date when made or reaffirmed,
and (i) the party making such representation or warranty shall fail to cure the
event giving rise to such breach within thirty (30) days after the other party
shall have given written notice thereof or, if the same cannot be cured in a
commercially reasonable manner within such time, the same shall not constitute
an Event of Default if the party shall have initiated a cure within such time
and such cure shall be completed within ninety (90) days from the date of
written notice regarding such breach, and (ii) such failure shall either have a
material and adverse effect on the Program or materially diminish the economic
value of the Program to the other party.
12.2 Defaults by Bank. The occurrence of any one or more of the following
events (regardless of the reason therefore) shall constitute an event of default
by Bank hereunder:
(a) Bank fails to settle Charge Transaction Data in full when due and
the failure continues for five (5) Business Days after receipt of written notice
by Bank from Xxxxx (which notice may be by fax with a confirmation call) that
such settlement payment was not received.
(b) Bank shall no longer be solvent or shall fail generally to pay its
debts as they become due or there shall be a substantial cessation of Bank's
regular course of business.
40
(c) The FDIC or any other federal or state regulatory authority having
jurisdiction over Bank shall order the appointment of a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or similar official) of Bank or
of any substantial part of its properties, or order the winding-up,
reorganization, or liquidation of the affairs of Bank, and such order shall not
be vacated, discharged, stayed or bonded within sixty (60) days from the date of
entry thereof.
(d) Bank shall (i) consent to the institution of proceedings specified
in paragraph (c) above or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) of Bank of any substantial part of its properties, or (ii) take
corporate action in furtherance of any such action.
12.3 Defaults by Xxxxx. The occurrence of any one or more of the following
events (regardless of the reason therefor) shall constitute an event of default
by Xxxxx hereunder:
(a) Xxxxx shall no longer be solvent or shall fail generally to pay
its debts as such debts become due or there shall be a substantial cessation of
Xxxxx'x regular course of business.
(b) A petition under the U.S. Bankruptcy Code or similar law shall be
filed against Xxxxx and not be dismissed within sixty (60) days.
(c) A decree or order by a court having jurisdiction (i) for relief in
respect of Xxxxx pursuant to the Bankruptcy Code or any other applicable
bankruptcy or other similar law, (ii) for appointment of a custodian, receiver,
liquidator, assignee, trustee, or sequestrator (or similar official) of Xxxxx or
of any substantial part of its properties, or (iii) ordering the winding-up or
liquidation of the affairs of Xxxxx shall be entered, and shall not be vacated,
discharged, stayed or bonded within sixty (60) days from the date of entry
thereof.
(d) Xxxxx shall (i) file a petition seeking relief pursuant to the
Bankruptcy Code or any other applicable bankruptcy or other similar law, (ii)
consent to the institution of proceedings pursuant thereto or to the filing of
any such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar official) of
Xxxxx or any substantial part of its properties, or (iii) take corporate action
in furtherance of any such action.
12.4 Remedies for Events of Default. In addition to any other rights or
remedies available to the parties at law or in equity, the following remedies
shall be available:
(a) Upon the occurrence of an Event of Default pursuant to Section
12.1, the non-defaulting party shall be entitled, in addition to its remedies
under Sections 12.4(b) and (c) (as appropriate), to collect any amount
indisputably in default plus interest based on the Federal Funds Rate and
calculated on a three hundred and sixty (360) day year basis.
(b) Within one hundred and eighty (180) days after the occurrence of
an Event of Default where Bank is a defaulting party or a Bank Event of Default,
Xxxxx may terminate this Agreement upon written notice.
41
(c) (i) After the occurrence of a Xxxxx Event of Default or violation
of Applicable Law, (ii) within thirty (30) days after a violation of the
Operating Procedures by Xxxxx following notice from Bank and an opportunity for
Xxxxx to cure within thirty (30) days of notice, or (iii) within one hundred and
eighty (180) days after the occurrence of an Event of Default where Xxxxx is a
defaulting party, Bank may, at Bank's option, terminate this Agreement upon
written notice to Xxxxx.
ARTICLE 13
TERMINATION
13.1 Term. This Agreement shall continue in full force and effect for ten
(10) years from the Program Commencement Date plus the extra period equal to the
extra days in the first Program Year, if any, (the "Initial Term"). The
Agreement shall renew automatically without further action of the parties for
successive three (3) year terms (each a "Renewal Term") unless either party
provides written notice of termination for any reason or without cause at least
nine (9) months prior to the expiration of the Initial Term or current Renewal
Term, as the case may be.
13.2 Termination by Xxxxx Prior to the End of the Initial Term or a Renewal
Term. Xxxxx may terminate this Agreement:
(a) within one hundred eighty (180) days after the occurrence of a
Bank Event of Default or any other Event of Default where Bank is the defaulting
party.
(b) upon one hundred eighty (180) days' prior written notice if there
is (i) a Change in Control of Bank, (ii) a merger or consolidation of Bank, and
Bank or an Affiliate of Bank is not the surviving entity, or (iii) a sale of all
or substantially all of the assets of Bank to any entity other than an Affiliate
of Bank, and if, within twelve (12) months after completion of any of such
events, the entity acquiring or obtaining control of Bank makes a material
change to any of the underwriting standards which adversely affects the number
of Accounts opened by Bank and credit lines established by Bank after
implementing such change.
(c) upon thirty (30) days' written notice if Bank fails for three (3)
consecutive months to perform any one of the same Service Standards outlined in
Schedule 5.2 and such failure is not the result of an act by Xxxxx or a result
of force majeure, and Bank fails to remedy such failure within thirty (30) days.
(d) if the Closing (as defined in the Purchase Agreement) of the
purchase by Bank of the Purchased Accounts does not occur by October 31, 2005
and the Purchase Agreement is terminated in accordance with the provisions of
such Purchase Agreement.
(e) upon thirty (30) days' written notice if there is a Material
Change and said Material Change continues to exist for thirty (30) days after
written notice is given by Xxxxx to Bank.
(f) following an assignment, in accordance with Schedule 16.3.
42
(g) pursuant to a force majeure under Section 16.15 of this Agreement.
13.3 Termination by Bank Prior to the End of the Initial Term or Renewal
Term. Bank may terminate this Agreement:
(a) immediately after the occurrence of a Xxxxx Event of Default or,
upon one hundred and eighty (180) days' notice after the occurrence of any other
Event of Default where Xxxxx is the defaulting party.
(b) if the Closing (as defined in the Purchase Agreement) of the
purchase by Bank of the Purchased Accounts does not occur by October 31, 2005
and the Purchase Agreement is terminated in accordance with the provisions of
such Purchase Agreement.
(c) pursuant to a force majeure under Section 16.15 of this Agreement.
(d) following an assignment pursuant to Schedule 16.3.
(e) pursuant to a force majeure under Section 16.15 of this Agreement.
(f) pursuant to Section 3.10.
13.4 Termination of Particular State. In addition, Bank may terminate the
operation of the Program in a particular state or jurisdiction if the Applicable
Law of the state or jurisdiction is amended or interpreted in such a manner so
as to render all or any part of the Program illegal or unenforceable, and in
such event Bank will, if requested, assist Xxxxx with finding a new credit
provider for such state or jurisdiction.
ARTICLE 14
EFFECTS OF TERMINATION
14.1 General Effects.
(a) All solicitations, marketing and advertising of the Program, other
than acceptance of applications through Xxxxx Channels in the ordinary course of
business consistent with past practice, shall cease upon notice of termination
of this Agreement by either party, except as the parties may mutually agree,
provided that the parties will continue to operate the Program and service the
Accounts in good faith and in the ordinary course of their respective
businesses, subject to the terms of this Agreement, until the provisions of
Sections 14.2, 14.3 and 14.4 are satisfied. The parties will cooperate to ensure
the orderly wind-down or transfer of the Program.
(b) Upon any termination of this Agreement, the parties shall have any
rights or remedies available to such party under this Agreement or in law or at
equity. Upon the satisfaction of the provisions of Section 14.2, 14.3 and 14.4,
all obligations of the parties under this Agreement shall cease, except that the
provisions specified in Section 16.23 shall survive. In
43
the event that Xxxxx terminates this Agreement pursuant to Section 13.1 of this
Agreement, Bank shall not be required to contribute to the Marketing Fund with
respect to the year of termination.
14.2 Xxxxx'x Option to Purchase the Program Assets.
(a) If this Agreement expires or is terminated by either party for
whatever reason, Xxxxx has the option to purchase from, or arrange the purchase
by a third party nominated or selected by Xxxxx (a "Nominated Purchaser") from,
Bank the Program Assets, except for any Accounts deemed ineligible by Bank, on
such terms and conditions mutually acceptable to Xxxxx (or a Nominated
Purchaser) and Bank, including commercially reasonable representations and
warranties.
(b) The purchase option given by Section 14.2(a) is exercisable by
Xxxxx or the Nominated Purchaser serving notice on Bank within sixty (60) days
after receipt of the master file to be provided pursuant to Section 14.2(e).
(c) If such purchase option is exercised, Xxxxx or the Nominated
Purchaser must complete the purchase of the Program Assets within one hundred
eighty (180) days after the notice has been given pursuant to Section 14.2(b);
provided, however, that such times may be extended for required regulatory
approvals, rating agency consents, and to complete any interim servicing
obligation agreed to by Xxxxx and Bank. The date of such completion shall be the
"Program Purchase Date."
(d) The purchase price for the Program Assets shall be shall be equal
to 100% of the face value of the Accounts (excluding ineligible accounts) and
the receivables related thereto, including without limitation all accrued
finance charges and fees. In the event Xxxxx elects to continue a private label
credit program with another provider on or within twenty-four (24) months after
termination of this Agreement, then Xxxxx or the Nominated Purchaser shall be
obligated to purchase the Accounts and receivables related thereto at the
purchase price set forth above. If Xxxxx or Xxxxx'x new private label credit
provider does not purchase the Accounts, Xxxxx shall not solicit the
Accountholders for any replacement financial product that competes with the
liquidation of the Accounts by Bank. Bank will provide Xxxxx written notice once
liquidation of the Accounts has been completed.
(e) The Parties will use reasonable commercial efforts to minimize
transaction costs. Once a purchase agreement for purchase of Program Assets has
been executed, Bank will provide Xxxxx or the Nominated Purchaser with access to
the Program Assets and such other information related thereto as agreed upon by
Bank and Xxxxx or the Nominated Purchaser.
14.3 If Purchase Option Is not Exercised.
(a) If this Agreement is terminated and Xxxxx does not give written
notice that it will exercise its option referred to in Section 14.2, Xxxxx shall
have no further rights whatsoever in the Program Assets.
44
(b) Bank may use Xxxxx Licensed Marks to communicate with
Accountholders in connection with the billing and collection of Accounts and as
otherwise required by Applicable Law until the Account balances have been
collected in full or written-off and liquidated, notice of which should be
provided by Bank to Xxxxx.
(c) Xxxxx and Bank shall reasonably agree upon a Program termination
letter to be sent to Accountholders if Xxxxx shall not exercise its purchase
option.
ARTICLE 15
INDEMNIFICATION
15.1 Xxxxx'x Indemnification of Bank. From and after the Program
Commencement Date, Xxxxx shall indemnify and hold harmless Bank, its Affiliates,
their respective officers, directors, employees, equity holders, attorneys and
agents, whether or not resulting from a third party claim, against and agrees to
hold each of them harmless from any and all losses, liabilities, damages,
judgments, settlements, claims, penalties, costs and expenses of whatever
nature, including reasonable attorneys' fees and expenses of investigation
(collectively "Losses"), which are caused or incurred by or result from, arise
out of or relate to, without duplication:
(a) Xxxxx'x gross negligence, recklessness or willful misconduct
(including acts and omissions of Xxxxx) relating to the Program;
(b) any breach by Xxxxx or any of its employees or agents of any of
the terms, covenants, representations, warranties or other provisions contained
in this Agreement;
(c) the failure of Xxxxx to satisfy any of its obligations or
liabilities to third parties in connection with the Program, including its
obligations to Accountholders in respect of the purchase of Goods;
(d) dishonest or fraudulent acts by Xxxxx or its employees or agents
in connection with the Program; and
(e) allegations by a third party that the use of Xxxxx Licensed Marks
or any materials or documents provided by Xxxxx in connection with the Program
constitutes: (i) libel, slander, and/or defamation; (ii) infringement of
intellectual property, including but not limited to trademark infringement or
dilution, or copyright infringement; (iii) unfair competition or
misappropriation of another's ideas or trade secret; (iv) invasion of rights of
privacy or rights of publicity; or (v) breach of contract or tortious
interference.
Notwithstanding the foregoing, Bank and its Affiliates will not be entitled to
indemnity pursuant to this Section 15.1 for any Losses, until the aggregate
amount of all such Losses incurred or suffered by Bank or any of its Affiliates
exceeds on a cumulative basis the Indemnity Deductible, in which case the Bank
and its Affiliates shall be entitled to indemnification for the full amount of
such Losses in excess of such Indemnity Deductible; provided that, in no event
will Bank and its Affiliates be entitled to indemnity of Losses pursuant to this
Section 15.1 to the extent that the
45
amount of Losses, in the aggregate, incurred or suffered by the Bank or any of
its Affiliates exceeds the Indemnity Cap.
15.2 Bank's Indemnification of Xxxxx. From and after the Program
Commencement Date, Bank shall indemnify and hold harmless Xxxxx, its Affiliates,
their respective officers, directors, employees, equity holders, attorneys,
agents and representatives against and agrees to hold each of them harmless from
any and all Losses which are caused or incurred by or result from, arise out of
or relate to:
(a) Bank's gross negligence, recklessness or willful misconduct
(including acts and omissions of Bank) relating to the Program;
(b) any breach by Bank or any of its employees or agents of any of the
terms, covenants, representations, warranties or other provisions contained in
this Agreement;
(c) Bank's failure to satisfy any of its obligations or liabilities to
third parties in connection with the Program, including its obligations to
Accountholders under the Program;
(d) dishonest or fraudulent acts by Bank or its employees or agents in
connection with the Program; and
(e) allegations by a third party that the use of Bank Licensed Marks
or any materials or documents provided by Bank in connection with the Program
constitutes: (i) libel, slander, and/or defamation; (ii) infringement of
intellectual property, including but not limited to trademark infringement or
dilution, or copyright infringement, (iii) unfair competition or
misappropriation of another's ideas or trade secret; (iv) invasion of rights of
privacy or rights of publicity; or (v) breach of contract or tortious
interference.
Notwithstanding the foregoing, Xxxxx and its Affiliates will not be entitled to
indemnity pursuant to this Section 15.2 for any Losses, until the aggregate
amount of all such Losses incurred or suffered by Xxxxx or any of its Affiliates
exceeds on a cumulative basis the Indemnity Deductible, in which case Xxxxx and
its Affiliates shall be entitled to indemnification for the full amount of such
Losses in excess of such Indemnity Deductible; provided that, in no event xxxx
Xxxxx and its Affiliates be entitled to indemnity of Losses pursuant to this
Section 15.2 to the extent that the amount of Losses, in the aggregate, incurred
or suffered by the Xxxxx or any of its Affiliates exceeds the Indemnity Cap.
15.3 Notice, Settlements and Other Matters.
(a) A party seeking indemnification pursuant to Section 15.1 or 15.2
(an "Indemnified Party") must give prompt written notice to the party from whom
such indemnification is sought (the "Indemnifying Party") of the assertion of a
claim for indemnification or the assertion or commencement of any Action, in
respect of which indemnity may be sought hereunder specifying in reasonable
detail the individual items of such Losses including the amount, the date each
such item was paid, or properly accrued or arose, and the specific details of
the breach of representation, warranty or covenant or other claim or matter to
46
which such item is related. Notwithstanding the foregoing, the failure of the
Indemnified Party to furnish the written notice referred to in the preceding
sentence in a prompt manner shall not affect its right to indemnification and
will not relieve the Indemnifying Party of any liability it may have to the
Indemnified Party, except to the extent that the Indemnifying Party's right to
defend the matter is materially and irrevocably prejudiced by such failure to
give prompt notice. In the event that any third party claim is made against the
Indemnified Party and the Indemnified Party notifies the Indemnifying Party of
the commencement thereof, the Indemnifying Party may, subject to Section
15.3(b), elect at any time to negotiate a settlement or a compromise of such
Action or to defend such Action, in each case at its sole cost and expense and
with its own counsel reasonably acceptable to the Indemnified Party; provided
however, that any such settlement or compromise may only be for the payment of
money damages, unless with the prior written consent of the Indemnifying Party.
If, within thirty (30) days of receipt from an Indemnified Party of the notice
referred to above the Indemnifying Party (i) advises the Indemnified Party in
writing that it will not elect to defend, settle or otherwise compromise or pay
such Action or (ii) fails to make such an election in writing, the Indemnified
Party may (subject to the Indemnifying Party's continuing right of election in
the preceding sentence), at its option, defend, settle, compromise or pay such
Action; provided that any such settlement or compromise shall be permitted
hereunder only with the written consent of the Indemnifying Party, which consent
shall not be unreasonably withheld. Unless and until the Indemnifying Party
makes an election in accordance with this Section to defend, settle, compromise
or pay such Action or claim, all of the Indemnified Party's reasonable costs
arising out of the defense, settlement, compromise or payment thereof will be
Losses subject to indemnification by the Indemnifying Party. Each Indemnified
Party shall make available to the Indemnifying Party all information reasonably
available to such Indemnified Party relating to such Action, provided the
Indemnifying Party has elected to defend, settle or otherwise compromise or pay
such Action. If the Indemnifying Party elects to defend any such Action, the
Indemnified Party may participate in such defense with counsel of its choice at
the Indemnified Party's sole cost and expense unless (i) the employment of such
counsel has been authorized in writing by the Indemnifying Party, (ii) the
Indemnifying Party has not employed counsel to take charge of the defense within
twenty (20) days after delivery of the applicable notice or, having elected to
assume such defense, thereafter ceases to diligently pursue its defense of such
Action, or (iii) the Indemnified Party has reasonably concluded that there may
be defenses available to it, that are different from or additional to those
available to the Indemnifying Party (in which case the Indemnifying Party shall
not have the right to direct the defense of such Action on behalf of the
Indemnified Party), in any of which events attorneys' fees and expenses shall be
borne by the Indemnifying Party.
(b) The Indemnified Party will have the right to reject any settlement
approved by the Indemnifying Party if the Indemnified Party is not fully and
unconditionally released from any liability resulting from that claim or is
required to pay any costs, expenses or damages to any Person as a result of the
Action that are not covered by and paid or payable pursuant to the indemnity
provided herein. The Indemnified Party will not have the right to settle any
third party Action without the written consent of the Indemnifying Party if the
Indemnifying Party is actively contesting such Action in good faith and has
assumed the defense of such Action from the Indemnified Party or if the period
for determining whether or not to assume the defense of such Action from the
Indemnified Party has not expired.
47
(c) In calculating the amount of any Losses of an Indemnified Party
under this Article 15, there will be subtracted the amount of any (1) insurance
proceeds (net of taxes actually incurred, and other than proceeds received
through self-insurance or insurance provided by Affiliates of such Indemnified
Party) actually received by the Indemnified Party with respect to such Losses
and (2) third-party payments actually received by the Indemnified Party with
respect to such Losses. In the event that the Indemnifying Party reimburses the
Indemnified Party for any Losses prior to the occurrence of any events
contemplated by clauses (1) or (2) above, the Indemnified Party will remit to
the Indemnifying Party any such amounts that the Indemnified Party subsequently
receives or realizes with respect to such Losses. Upon the payment in full of
any claim hereunder, the Indemnifying Party will be subrogated to the rights of
the Indemnified Party against any Person with respect to the subject matter of
such claim.
(d) Without limitation of their respective rights and obligations as
set forth elsewhere in this Article 15, and subject to the procedures for
indemnification claims set forth in this Article 15, the Indemnified Party will
act in good faith, will use commercially reasonable efforts to mitigate any
Losses, will use similar discretion in the use of personnel and the incurring of
expenses as the Indemnified Party would use if the Indemnified Party was engaged
and acting entirely at its own cost and for its own account, and will consult
regularly with the Indemnifying Party regarding the conduct of any Actions or
the taking of any action for which indemnification may be sought.
(e) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
INDEMNIFICATION PROVIDED FOR HEREIN SHALL NOT COVER, AND IN NO EVENT SHALL ANY
PARTY HERETO BE LIABLE FOR, ANY INDIRECT DAMAGES, INCLUDING CONSEQUENTIAL,
INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, OR PUNITIVE DAMAGES, OR IN THE CASE OF
ANY "PUTATIVE DAMAGES," OR FOR AN INDEMNIFIED PARTY'S NEGLIGENCE OR WILFUL
MISCONDUCT.
(f) BANK'S TOTAL CUMULATIVE LIABILITY TO XXXXX FOR ALL DAMAGES FOR ANY
CAUSE WHATSOEVER, SHALL NOT EXCEED THE INDEMNITY CAP PROVIDED, HOWEVER, THAT
THIS LIMITATION SHALL NOT APPLY WITH RESPECT TO BANK'S INTENTIONAL BREACH OF
THIS AGREEMENT.
(g) XXXXX'X TOTAL CUMULATIVE LIABILITY TO BANK FOR ALL DAMAGES FOR ANY
CAUSE WHATSOEVER, SHALL NOT EXCEED THE INDEMNITY CAP PROVIDED, HOWEVER, THAT
THIS LIMITATION SHALL NOT APPLY WITH RESPECT TO XXXXX'X INTENTIONAL BREACH OF
THIS AGREEMENT.
ARTICLE 16
MISCELLANEOUS
16.1 Precautionary Security Interest. Xxxxx and Bank agree that this
Agreement contemplates the extension of credit by Bank to Accountholders.
However, as a precaution in the unlikely event that any person asserts that
Article 9 of the UCC applies or may apply to the transactions contemplated
hereby, and to secure Xxxxx'x payment of and performance of all
48
obligations of Xxxxx to Bank, Xxxxx hereby grants to Bank a first priority
present and continuing security interest in and to the following, whether now
existing or hereafter created or acquired: (i) all Accounts, Accountholder
Indebtedness, Purchase Documentation and Charge Transaction Data, (ii) all
deposits, credit balances and reserves on Bank's books relating to the Program,
and (iii) all proceeds of the Accountholder Indebtedness. In addition, Xxxxx
agrees to take any reasonable action requested by Bank, at Bank's expense, to
establish the first lien and perfected status of such security interest; and
appoints Bank as Xxxxx'x attorney-in-fact to take any such action on Xxxxx'x
behalf in connection therewith.
16.2 Securitization. Bank shall have the right to securitize the
Accountholder Indebtedness or any part thereof by itself or as part of a larger
offering at any time. Such securitization shall not affect Xxxxx'x rights or
Bank's obligations hereunder, including with respect to customer service,
payment processing or collections. Bank shall not securitize the Accountholder
Indebtedness in any manner that may encumber or interfere with the right of
Xxxxx, or its Nominated Purchaser, to purchase any of the Program Assets upon
termination of this Agreement. To the extent any of Xxxxx'x Licensed Marks are
used in any securitization documents, such marks will not be used in a way that
adversely affects Xxxxx or Xxxxx Licensed Marks.
16.3 Assignment. Either party may assign this Agreement or any of its
rights hereunder without the prior written consent of the other party only as
provided on Schedule 16.3 hereto.
16.4 Subcontracting. It is understood and agreed that, in fulfilling its
obligations under this Agreement, either party may utilize its Affiliates or
other Persons to perform functions. The party shall be responsible for functions
performed by such Affiliates or other Persons to the same extent the party would
be responsible if it performed such functions itself.
16.5 Amendment. Except as provided herein, this Agreement and the Exhibits
and Schedules hereto may only be amended by a written instrument signed by Bank
and Xxxxx.
16.6 Non-Waiver. No delay by a party hereto in exercising any of its rights
hereunder, or partial or single exercise of such rights, shall operate as a
waiver of that or any other right. The exercise of one or more of a party's
rights hereunder shall not be a waiver of, or preclude the exercise of, any
rights or remedies available to such party under this Agreement or in law or at
equity.
16.7 Severability. If any provision of this Agreement is held to be
invalid, void or unenforceable, all other provisions shall remain valid and be
enforced and construed as if such invalid provision were never a part of this
Agreement.
16.8 Waiver of Jury Trial. The parties hereto waive all right to trial by
jury in any action or proceeding to enforce or defend any rights under this
Agreement.
49
16.9 Governing Law; Compliance with Law.
(a) This Agreement and all rights and obligations hereunder (other
than the Program itself, including without limitation all matters related to the
Accounts, the Account Agreement, the Forms and the Account Documentation to the
extent related to the relationship between the Accountholders and the Bank,
which shall be governed by Utah law), including, without limitation, matters of
construction, validity and performance, shall be governed by and construed in
accordance with the laws of the State of New York, without regard to internal
principles of conflict of laws, and applicable federal law.
(b) Each party shall comply with Applicable Law in connection with its
activities and the performance of its rights and obligations hereunder.
Notwithstanding anything else contained in this Agreement, neither party shall
be obligated to take any action that such party believes in good faith would
violate, or is reasonably likely to cause either of them to violate, any
Applicable Law or that would cause such party to become a "consumer reporting
agency" for purposes of the federal Fair Credit Reporting Act.
16.10 Captions. Captions of the articles and sections of this Agreement are
for convenient reference only and are not intended as a summary of such articles
or sections and do not affect, limit, modify or construe the contents thereof.
16.11 Notices. Any notice, approval, acceptance or consent required or
permitted under this Agreement shall be in writing to the other party and shall
be deemed to have been duly given when delivered in person or, if sent by United
States registered or certified mail, with postage prepaid, or by a nationally
recognized overnight delivery service, when received, addressed as follows:
If to Xxxxx:
Xxxxx Corporation.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx,
Chief Financial Officer
Fax: (000) 000-0000
With a copy to:
Xxxxxx Xxxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
50
If to Bank:
World Financial Capital Bank
0000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx,
President
Fax: (000) 000-0000
With a copy to:
ADS Alliance Data Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx,
Vice President and Counsel
Fax: (000) 000-0000
16.12 No Joint Venture. Nothing contained in this Agreement shall be deemed
or construed by the parties or any third party to create the relationship of
principal and agent, partnership, joint venture or of any association between
Xxxxx and Bank, and no act of either party shall be deemed to create any such
relationship. Xxxxx and Bank each agree to such further actions as the other may
request to evidence and affirm the non-existence of any such relationship.
16.13 Press Releases. Xxxxx and Bank each shall obtain the prior written
approval of the other party with regard to the substance and timing of any press
releases which announce the execution of this Agreement or the transactions
specified herein, which prior approval shall not unreasonably be withheld. At
all times thereafter, Xxxxx and Bank, prior to issuing any press releases
concerning this Agreement or the transactions specified herein, shall consult
with each other concerning the proposed substance and timing of such releases
and give due consideration to the comments of the other party relating thereto.
The foregoing notwithstanding, it is understood that neither party shall be
required to consult with the other party with regard to (a) press releases and
other announcements as may be required by Applicable Law or the applicable rules
and regulations of any governmental agency or stock exchange and (b)
publications prepared solely by and for employees of Xxxxx or Bank, or their
respective Affiliates, all of which may be issued without prior consultation
with, or the prior written consent of, the other party. Prior to filing a copy
of this Agreement with any governmental authority or agency, the filing party
will consult with the other party with respect to such filing and shall redact
such portions of this Agreement which the other party requests be redacted,
unless, in the filing party's reasonable judgment based on the advice of its
counsel (which advice shall have been discussed with counsel to the other
party), the filing party concludes that such request is inconsistent with the
filing party's obligations under Applicable Law.
51
16.14 Third Parties. There are no third-party beneficiaries to this
Agreement. The parties do not intend: (i) the benefits of this Agreement to
inure to any third party; or (ii) any rights, claims or causes of action against
a party to be created in favor of any person or entity other than the other
party.
16.15 Force Majeure. If performance of any service or obligation under this
Agreement, including the service level standards at Schedule 5.2, is prevented,
restricted, delayed or interfered with by reason of labor disputes, strikes,
acts of God, floods, lightning, severe weather, shortages of materials,
rationing, utility or communication failures, earthquakes, war, revolution,
civil commotion, acts of public enemies, blockade, embargo or any law, order,
proclamation, regulation, ordinance, demand or requirement having legal effect
of any government or any judicial authority or representative of any such
government, or any other act whatsoever, whether similar or dissimilar to those
referred to in this clause, which are beyond the reasonable control of a party
and could not have been prevented by reasonable precautions, then such party
shall be excused from such performance to the extent of and during the period of
such prevention, restriction, delay or interference. A party excused from
performance pursuant to this Section shall exercise all reasonable efforts to
continue to perform its obligations hereunder, including by implementing its
disaster recovery and business continuity plan as provided in Section 5.7, and
shall thereafter continue with reasonable due diligence and good faith to remedy
its inability to so perform except that nothing herein shall obligate either
party to settle a strike or other labor dispute when it does not wish to do so.
In the event a party is unable to perform substantially for any of the reasons
described in this Section, it will notify the other party promptly of its
inability so to perform, and if the inability continues for at least one-hundred
eighty (180) consecutive days (thirty (30) days in the cases of credit
authorizations and processing of new Accounts), the party so notified may then
terminate this Agreement forthwith.
16.16 Entire Agreement. This Agreement, together with the Schedules and
Exhibits hereto which are expressly incorporated herein by reference, supersedes
any other agreement, whether written or oral, that may have been made or entered
into by Xxxxx and Bank (or by any officer or employee of either of such parties)
relating to the matters specified herein, and constitutes the entire agreement
by the parties related to the matters specified herein or therein.
16.17 Binding Effect; Effectiveness. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement is the product of negotiation
by the parties having the assistance of counsel and other advisers. It is the
intention of the parties that this Agreement not be construed more strictly with
regard to one party than with regard to the other.
16.18 Counterparts/Facsimiles. This Agreement may be executed in any number
of counterparts, all of which together shall constitute one and the same
instrument, but in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart. Any telefacsimile of an
executed counterpart shall be deemed an original.
16.19 Survival. Upon the termination of this Agreement, the parties shall
have the rights and remedies described herein. Upon such termination, all
obligations of the parties under this Agreement shall cease, except that the
obligations of the parties pursuant to Sections 6.4
52
(Bank Right of Chargeback), 6.5 (Exercise of Chargeback), 8.1 (Xxxxx Licensed
Marks) which shall survive as provided in such Section, 8.2 (Bank Licensed
Marks) which shall survive as provided in such Section, Section 10.1 (Audit;
Access Rights) which shall survive for sixty (60) days beyond the termination
date, 10.2 (Dispute Resolution), Article 11 (General Confidentiality), Article
14 (Effects of Termination), Article 15 (Indemnification), and Sections 16.1
(Precautionary Security Interest), 16.8 (Waiver of Jury Trial), 16.9(a)
(Governing Law), and 16.20 (Taxes) shall survive the expiration or termination
of this Agreement.
16.20 Taxes. Xxxxx will be responsible for, and agrees to pay, all sales,
use, excise, and value-added taxes, or taxes of a similar nature (excluding
personal property taxes and taxes based on Bank's income which shall be borne by
Bank), imposed by the United States, any state or local government, or other
taxing authority, on all services provided by Bank under this Agreement. The
parties agree to cooperate with each other to minimize any applicable sales,
use, or similar tax and, in connection therewith, the parties shall provide each
other with any relevant tax information as reasonably requested (including
without limitation, resale or exemption certificates, multi-state exemption
certificates, information concerning the use of assets, materials and notices of
assessments). All amounts set forth in this Agreement are expressed and shall be
paid in lawful U.S. dollars.
16.21 Cooperation. Xxxxx and Bank agree to cooperate and to produce or
execute such other documents or agreements as such parties agree may be
necessary or desirable for the execution and implementation of this Agreement
and the consummation of the transactions specified herein or contemplated
hereby.
53
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed as of the date first above written.
XXXXX CORPORATION
By: /s/ XXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------
WORLD FINANCIAL CAPITAL BANK
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: President
------------------------------
54
SCHEDULES TO PROGRAM AGREEMENT
SCHEDULE SUBJECT
-------- -------
2.2..................... Terms for Accounts
3.1..................... Operating Procedures
4.1(a).................. Marketing Commitment
4.2..................... Operating Committee
4.7..................... Enhancement Products
4.7(e).................. Monthly Master File Reports from Bank to Xxxxx
5.1..................... Reports from Bank to Xxxxx and Operating Committee
5.2..................... Service Level Standards
6.5..................... Permitted Chargebacks
7.3..................... Compensation and Fees
15...................... Certain Definitions
16.3.................... Assignment
EXHIBITS SUBJECT
-------- -------
A....................... Licensed Xxxxx Xxxxx
B....................... Licensed Bank Marks
