INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED, IS OMITTED AND IS NOTED WITH **.
A COPY OF THIS AGREEMENT, INCLUDING ALL INFORMATION FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
EXHIBIT 10.4
AGREEMENT FOR SERVICES ADMINISTRATION BETWEEN
INTERSECTIONS INC. AND DISCOVER BANK
THIS AGREEMENT is made and entered into as of the 11th day of March
2002 (the "Effective Date"), by and between Intersections Inc.
("Intersections"), a Delaware corporation with its principal place of business
located at 00000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000, and Discover Bank, a Delaware
corporation, with an office located at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000
("DB").
WHEREAS, Intersections is in the business of providing consumer credit
fraud prevention, detection, monitoring and notification products and certain
administrative services related thereto;
WHEREAS, DB is a credit card issuer;
WHEREAS, DB desires to offer certain products and services to selected
persons who have a credit card issued by DB ("Cardmembers") or other consumers
(collectively "Customers");
WHEREAS, DB wishes to have Intersections provide its consumer credit
products and related administrative services to Customers who have enrolled for
that product as designated by DB ("Members"); and
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending to be
legally bound hereby agree as follows:
1. The Product, and Exhibits.
A. Each product and service to be offered by DB to consumers under this
Agreement (each, a "Product") will be described in an exhibit to this
Agreement executed by DB and Intersections either as of, or subsequent
to, the Effective Date.
B. Each exhibit which states that it is made an exhibit to this Agreement,
and is executed by the parties (each, an "Exhibit"), is deemed
incorporated into this Agreement by reference. Notwithstanding any
requirement of execution in the foregoing, the parties agree that (i)
they have agreed upon, and incorporated into this Agreement, Exhibits A,
B and C attached to this Agreement, (ii) Exhibits A and C apply only to
the Product and Services described in Exhibit A, and (iii) Exhibit B
applies generally to this Agreement and all Products and Services
provided under it.
C. Except as further set forth in an exhibit to this Agreement, DB in its
sole discretion will determine the pricing of the Product to Customers.
Any change or addition to a Product must be agreed by the parties in
writing and in accordance with the applicable provisions of the
applicable exhibit to this Agreement. For purposes of marketing and
distribution only, each Product will be deemed a Product of DB, except as
required by applicable laws or regulations, Intersections' agreements
with the applicable credit reporting agencies, or as provided in an
applicable exhibit.
2 Services. The services ("Services") to be provided by Intersections in
connection with the Products will be set forth in the applicable
exhibits to this Agreement. The parties agree that, with respect to the
Product described in Section 1 of Exhibit A to this Agreement, the
applicable Services are set forth in Sections 2, 4 and 5 of Exhibit A.
Any change to the Services must be agreed to in a
I
further writing agreed by the parties and in accordance with the
applicable exhibit Such further writing is deemed incorporated into this
Agreement.
3. Compensation. DB agrees to pay compensation to Intersections for the
administration and servicing of the Product in the amount and manner
described in the applicable exhibit. The parties agree that, with
respect to the Product and Services set forth in Exhibit A to this
Agreement, the compensation to be paid to Intersections is set forth in
Section 3 of that Exhibit A.
4. Term and Termination.
A. Termination. The term of this Agreement commences upon the Effective Date,
and may be terminated as follows:
i. Either party may terminate this Agreement in its sole discretion at
any time upon at least six (6) months prior written notice to the
other party.
ii. At any time, either party may terminate this Agreement effective
immediately upon notice to the other party, if the other party: (a)
becomes subject to any voluntary or involuntary bankruptcy proceeding,
or similar state proceeding for the benefit of the party's creditors,
if the proceeding is not dismissed within 60 days of filing, (b)
discontinues its business, or becomes insolvent or unable to pay its
obligations as they become due; or (c) breaches any material provision
of this Agreement and fails to cure such breach within thirty (30)
days of receipt of notice of breach or such longer period of time as
agreed to by the parties.
B. Effect of Termination of Agreement. Upon and after termination of this
Agreement, the parties' rights and obligations under the Agreement terminate,
except as follows or as otherwise set forth in the Exhibits, a further writing
between the parties, or as follows:
i. The parties' respective obligations with respect to DB Confidential
Information, NPI, and Intersections Confidential Information (each as
defined in Exhibit B to this Agreement) remain in effect. Each party
shall destroy or return to the other, and cease all use of, the
other's Confidential Information. Further, Intersections, will provide
to DB any NPI in Intersections' possession, except for credit bureau
or other NPI that Intersections is prohibited from so providing under
applicable law or regulation, or Intersections' agreement with an
applicable credit reporting agency.
ii. At DB's request, Intersections will assign the applicable toll-free
"800" number(s) and designated post office boxes for the Products to
DB and thereafter DB will be responsible for the expense of
maintaining such items;
iii. If the termination of this Agreement is without cause, each party will
bear the costs and expenses of terminating the relationship;
iv. Each party will provide the other party with written notice within
five (5) days of any lawsuits, claims or regulatory investigation of
any type involving a Product; and
v. DB will comply with its payment obligations incurred prior to
termination or expiration.
C. Product and Services Termination. Except as otherwise set forth in an
applicable Exhibit, or further written agreement of the parties, either
party in its sole discretion may terminate the rights and obligations of
parties with respect to a Product and related Services in their entirety
under the applicable Exhibits, upon at least six (6) months prior written
notice to the other party.
II
Such termination applies only to the rights and obligations of the parties
with respect to the Products and Services under those Exhibits. In the
event of such termination, each party shall comply with Section B above
solely as it applies to the terminated Products and Services.
5. Service Marks and Other Intellectual Property.
A. Service Marks
i. Subject to the terms and conditions of this Agreement, during the term
of this Agreement: (A) DB grants Intersections a nonexclusive,
nontransferable, royalty-free license to use DB's trademarks, service
marks, logo, name, or other proprietary designations (collectively,
"Service Marks") identified in Exhibit C to this Agreement or a
further written authorization by DB ("XX Xxxxx"); and Intersections
grants DB a nonexclusive, nontransferable, royalty-free license to use
(B) Intersections' Service Marks identified in Exhibit C to this
Agreement or a further written authorization by Intersections
("Intersections Marks"). The licensee may modify or withdraw
authorization for its Service Xxxx, by reasonable prior written
notice, and the licensor will cease use of or modify its use
accordingly.
ii. No right, property, license, permission or interest of any kind in or
to the use of any DB Xxxx owned or used by DB is or is intended to be
given or transferred to or acquired by Intersections by the execution,
performance or non-performance of this Agreement or any part thereof.
No right, property, license, permission or interest of any kind in or
to the use of any Intersections Xxxx owned or used by Intersections is
or is intended to be given or transferred to or acquired by DB by the
execution, performance or non-performance of this Agreement or any
part thereof.
B. Other Intellectual Property
i. For purposes of this Agreement, the following definitions apply:
a. "Intellectual Property" means any legally protectable patent,
copyright or trade secret right.
b. "Materials" means any advertising, promotional or fulfillment
materials, whether in written or digital form, used under this
Agreement in connection with the Product, including, but not
limited to, fulfillment kits, brochures, newsletters, inserts,
telemarketing scripts, customer correspondence and form letters.
ii. Intersections is and will remain the owner of any and all right, title
and interest in Intellectual Property in the Product, and any
improvement or derivative work of that Intellectual Property. DB, on
its behalf and on behalf of its employees, contractors and agents,
assigns to Intersections at the time of creation any Intellectual
Property right obtained by DB or its employees, contractors or agents
in the Product arising from activities under this Agreement. Upon
Intersections' request and at Intersections' reasonable expense, DB
will execute and cause its employees, contractors and agents to
execute any writings necessary to effect that assignment or for
Intersections to prosecute those Intellectual Property rights. The
foregoing does not apply to any Intellectual Property developed or
obtained by DB prior to or independent of this Agreement.
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iii. Subject to the terms and conditions of this Agreement, each party
grants the other a nonexclusive, nontransferable, nonsublicensable,
royalty free license during the term of this Agreement, in the
licensing party's Intellectual Property, as otherwise described in
this Agreement, to use, copy, create derivative works of, and
distribute that Intellectual Property, solely to the extent necessary
and for the sole purpose of performing under and in accordance with
this Agreement.
iv. Each party grants the other a nonexclusive, sublicensable, fully
transferable, perpetual license to any copyright that licensing party
has, or may during the term of this Agreement acquire, in the
Materials. Further, to the extent the parties are or become joint
owners of the copyright in Materials, each party waives against the
other any right to receive an accounting or withhold consent or
permission with respect to that copyright. Notwithstanding anything to
the contrary in the foregoing, DB acknowledges and agrees that any
portion of the Materials in which a consumer's credit information is
displayed or presented is not subject to the license or joint
ownership under this Section 5.B.iv, and is and shall remain solely
Intersections' Intellectual Property under Section 5.B.ii above.
6. Review of Promotional Materials. All Materials must be approved by both
parties, such approval or disapproval not to be unreasonably withheld. Each
party will notify the other in writing of its approval of a submitted item
within ten (10) business days of receipt. Specific reasons must be given for
disapproval. In the event the reviewing party has not notified the submitting
party of its approval or disapproval within the ten (10) day period, the
submitting party will notify the reviewing party in writing of that fact. Upon
receipt of such notice, the reviewing party will have until the end of the next
business day to either approve or disapprove the item. If the submitting party
resubmits an item for review incorporating changes requested by the reviewing
party, the reviewing party will notify the submitting party of its approval or
disapproval within ten (10) business days of receipt of the resubmission.
Failure to disapprove within a time frame set forth above does not constitute
approval.
7. Use of Name. Intersections will not use as a trademark, or for any
promotional or endorsement purposes, and will keep its employees, agents and
subcontractors, if any, from making such use of the name of DB or its parent,
subsidiaries or affiliates or any logo, copyright, servicemark or trademark
owned or licensed by DB or its parent, subsidiaries or affiliates that is not
authorized by DB by the terms of this Agreement, other than disclosure required
by any governmental laws or regulations, without DB's prior written consent.
This limitation includes but is not limited to, client lists, press releases,
promotional brochures or annual reports.
8. Exclusivity. Intersections agrees that it is providing Services to DB on a
non-exclusive basis and as such, DB reserves the right to collaborate with other
providers of services similar to those provided by Intersections. DB
acknowledges and agrees that Intersections provides products and services that
may be the same as or similar to the Products and Services, and nothing under
this Agreement limits Intersections' right to provide such products and
services.
9. Confidentiality. The parties agree to the terms of the Non-Disclosure and
Confidentiality Agreement attached hereto as Exhibit B.
Further, Intersections agrees that it will reveal Confidential Information
of the other party only to those of its employees who are engaged in providing
the Product and Services hereunder. At no time will any Confidential Information
be left unattended in an unlocked area. All work in progress containing
Confidential Information shall be kept in a secured area at Intersections'
facility with access limited to those employees designated to work on the
Product, except during the time of the initial processing of materials
containing Confidential Information in the mail receiving area. Any time an
employee working with Confidential Information leaves the work area during the
workday, he or she will
IV
place the Confidential Information under lock and key. All work in progress
containing Confidential Information shall be placed in a high security locked
area each night. All completed work containing Confidential Information shall be
stored in a high security locked area.
Intersections also warrants and represents that it will not compile,
organize, access, create lists of or otherwise use such Confidential Information
other than as authorized hereunder and that it will not contact any Customer or
Member to market, sell or otherwise promote the use or purchase of any other
goods or services of Intersections or any third party without prior written
consent.
Each party agrees that it shall comply with the provisions of any privacy
laws and regulations requiring confidential treatment of personal information
under such laws and regulations, including, without limitation, the
Xxxxx-Xxxxx-Xxxxxx Act, and any other federal and state privacy laws. In
addition, each party will maintain appropriate measures to safeguard all
Customer and Member information. Such measures will, at a minimum, be designed
to meet the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information as issued and interpreted by the Federal
Deposit Insurance Corporation (as C.F.R. 308 and 364).
10. Notice. Any notice, request, demand, or other communication required or
permitted hereunder will be in writing, by overnight courier, addressed to the
party to be notified. All communications will be deemed given when received. The
respective addresses for the parties for the purpose of such communications are:
If to DB: Discover Bank
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Vice President and Controller
With a copy to: Discover Bank at the same address
Attn: Senior Vice President Discover Enterprises
If to Intersections: Intersections Inc.
00000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Operating Officer
With a copy to: General Counsel at the same address
Either party may change its mailing address by written notice to the other
party in accordance with this section.
11. Independent Contractors. Except as specifically provided herein,
Intersections will perform all Services hereunder as an independent
contractor, and nothing contained herein will be deemed to create any
association, partnership, joint venture or relationship of principal and
agent or employer and employee between the parties hereto, or to provide
either party with the right, power or authority, whether express or
implied, to create any such duty or obligation on behalf of the other
party. Intersections will be solely responsible for compensating its
employees and subcontractors, if any, which perform or provide work or work
products hereunder.
12. Indemnification.
A. DB Indemnification. DB will indemnify and hold harmless Intersections and
its officers, directors, affiliates, employees, agents and representatives,
against any and all liabilities, judgments, damages, claims, demands,
costs, expenses (including reasonable attorneys' fees) or losses
("Claims"), arising in connection with the Product or Services to be
provided hereunder, from
V
DB's negligence, willful misconduct, breach of warranty or failure to
perform in accordance with the terms of this Agreement.
B. Intersections Indemnification. Intersections will indemnify and hold
harmless DB and its officers, directors, affiliates, employees, agents and
representatives, against any and all Claims arising in connection with the
Product and Services to be provided hereunder from Company's negligence,
willful misconduct, breach of warranty, inaccuracy in the credit data
supplied to a consumer as part of the Product, if such inaccuracy was
caused solely by Intersections, or failure to perform in accordance with
the terms of this Agreement.
C. Notice and Rights under Indemnification. The party seeking indemnification
must (i) notify the party from whom indemnification is sought of the Claim;
(ii) not have engaged in negligent or willful misconduct in connection with
the Claim; (iii) provide the party from whom indemnification is sought with
all information reasonably accessible to it for such party to defend the
Claim; and (iv) cooperate with the party from whom indemnification is
sought in regard to its defense or settlement of the Claim. The party
seeking such indemnification shall have the right, at its own expense, to
participate in the defense of the Claim for which it is indemnified and
which has been assumed by this obligation or indemnity hereunder; however,
it shall have no right to control the defense, consent to judgment, or
agree to settle any such Claim without the prior written consent of the
party from whom such indemnification is sought.
13. Fraud Prevention. Intersections agrees to take all actions necessary to
prevent fraud in connection with the Product and Services provided
hereunder including, but not limited to, misuse of enrollment,
authorization or credit bureau information, or Customer or Member
information, by its employees or agents. Intersections agrees to be held
strictly liable for any fraud committed or facilitated by its employees or
agents. Intersections will promptly inform the other of any evidence of
fraud by Customer or Members it may become aware of and cooperate with DB
in resolving such matters.
14. Representations and Warranties.
A. Agreement. Each party represents and warrants that it is free as of the
effective date of this Agreement of any contractual obligation or legal
disability that would prevent it from entering into and performing under
the terms of this Agreement.
B. Intersections Representations and Warranties. Intersections represents and
warrants as follows:
i. The Product and Services as provided by Intersections will comply with
all statutory requirements and applicable rules, regulations and
guidelines issued by any federal or state agency having jurisdiction
over the Product or Services.
ii. The Product and Services as provided by Intersections, the
Intersections Marks as licensed by Intersections under this Agreement,
and any other invention, work of authorship or information provided by
Intersections, will not infringe or violate any third party right in
the United States in Intellectual Property or any trademark, service
xxxx, trade name or trade dress.
iii. Intersections shall perform the Services and provide the Product
hereunder in a professional manner with that standard of care, skill
accuracy and diligence which is customary in the performance of
services and the provision of products similar to those provided in
this Agreement.
VI
iv. Intersections shall be responsible for legal compliance for matters
relevant to the Services and Products so that the Services and
Products, as provided by Intersections, are in compliance with all
federal, state and local laws, rules and regulations, including, but
not limited to (i) the review of all Marketing and Fulfillment
Materials (as those materials are defined in the Exhibits) and any
other communications with Customers or Members; and (ii) the manner in
which the enrollment authorization is obtained and maintained.
Notwithstanding anything to the contrary in this Agreement,
Intersections may make any change to the Products or Services
necessary to comply with an applicable law, rule or regulation. If
Intersections makes any change to the Services as required by any
credit bureau, law or regulation, and the change has a material effect
on the Services as delivered by Intersections, then Intersections will
provide DB prior notice of such change as soon as is reasonably
possible, and, if the change must be communicated to Members,
Intersections agrees that it will communicate such changes to Members
at Intersections' sole expense. Further, Intersections is not
responsible for any act or omission by DB or any third party not
acting as the agent of Intersections, provided Intersections did not
direct DB or the third party to engage in such act of omission.
C. DB Representations and Warranties. DB represents and warrants as follows:
i. No action taken by DB with respect to the Product or Service will
violate any statutory requirements or applicable rules, regulations or
guidelines issued by any federal or state agency having jurisdiction
over the Product or Services.
ii. The XX Xxxxx as licensed by DB under this Agreement, and any other
invention, work of authorship or information provided or licensed by
DB, will not infringe or violate any third party right in the United
States in Intellectual Property or any trademark, service xxxx, trade
name or trade dress.
iii. DB shall market the Product and perform under this Agreement in a
professional manner with that standard of care, skill accuracy and
diligence which is customary in the marketing of products similar to
those provided under this Agreement.
D. Exclusions. Neither party is liable for breach of any representation or
warranty arising from the other party's breach of its representation or
warranty or other obligation under this Agreement, or combination of any
invention, work of authorship, information or Service Xxxx with any
invention, work of authorship, information or Service Xxxx not provided by
that party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 14, NO OTHER
WARRANTIES, EXPRESS OR IMPLIED, OR ARISING FROM A COURSE OF DEALING, USAGE
OR TRADE PRACTICE, ARE MADE BY EITHER PARTY, AND EACH PARTY EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY,
NONINFRINGEMENT OR NONINTERFERENCE.
E. Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT
LIMITATION LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF DATA OR LOSS OF
PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN
IF THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
EXCEPT FOR LIABILITY ARISING OUT OF UNAUTHORIZED USE OF CONFIDENTIAL
INFORMATION OR INTELLECTUAL PROPERTY.
VII
15. Accounting and Audit. Each party will keep accurate and complete books and
records relating to the services provided for the Products sold under this
Agreement. Subject to the confidentiality requirements set forth above, each
party (or such auditors as either party may select) shall have the right to
examine the books and records of the other party as they specifically relate to
the business transacted under this Agreement. Either party may conduct an audit
during the term of this Agreement and for a period of seven (7) years following
its termination, upon reasonable prior written notice to the other party;
provided that no party shall be subject to such an audit more than once during a
twelve (12) month period. Each such audit shall be conducted in the presence of
a duly authorized representative of the party being audited at a time mutually
agreeable to both parties. No documents, machine-readable data or other
information in any format shall be copied or reproduced by the auditing party
(or its selected auditors) without (i) first being reviewed by the audited
party's authorized representatives), and (ii) obtaining the audited party's
written consent for any such copying or reproduction. The party conducting the
audit shall bear all out-of-pocket costs and expenses relating or attributable
to each such audit. The results of any audit requested by either party shall be
made available to the audited party free of charge within ten (10) days after
such results are made known to the auditing party.
16. Severability. If any provision of this Agreement, or the application
thereof to any person or circumstance, is held invalid, such invalidity will not
affect any other provision which can be given effect without the invalid
provision or application, and to this end the provisions hereof will be
severable.
17. Waiver. No delay or omission by DB or Intersections in exercising any
right, remedy or power hereunder will operate as a waiver of such right, remedy
or power or of any other right, remedy or power. No waiver of any right, remedy
or power on one occasion by DB will be construed as a waiver of, or a bar to,
the exercise of such right, remedy or power on any other occasion. All such
rights, remedies and powers of DB, not only hereunder but also under any other
agreement of DB with Intersections, are cumulative, and not alternative or
exclusive, and may be exercised by DB at such time or times and in such order of
preference as DB may deem advisable.
18. Insurance. Intersections will maintain adequate insurance from a qualified
and licensed insurer in good financial standing throughout the term of this
Agreement, as specified in the Exhibits. Intersections will name DB as an
additional insured with respect to Personal Injury Liability, Commercial General
Liability and Umbrella Liability policies. The insurance shall be primary over
any other insurance covering DB and shall remain in effect continuously for the
term of this Agreement and for such longer period as is necessary to support
Intersections' indemnity obligations under this Agreement. Also upon written
request, Intersections shall promptly provide certificate(s) from its insurers
indicating the amount of insurance coverage, the nature of such coverage and the
expiration date of each applicable policy. The certificate(s) will state that
companies affording coverage will provide DB with at least thirty (30) days'
written notice of any cancellation or non-renewal of any coverage. The
certificate will be in a form, which DB can verify provides continuing insurance
coverage through the term of this Agreement. The insurance shall be primary over
any other insurance covering Intersections and shall remain in effect
continuously for the term of this Agreement and for such longer period.
Intersections further agrees that it shall require any subcontractors it
engages hereunder to maintain the insurance coverages described in the Exhibits,
subject to the requirements listed above.
19. Force Majeure. If for any reason, such as strikes, boycotts, war, acts of
God, labor troubles, riots, delays of commercial carriers, restraints of public
authority, or for any other reason, similar or dissimilar, beyond its control,
either party is unable to perform its respective obligations in connection with
this Agreement, such non-performance will not be considered a breach of this
Agreement. Upon the occurrence of such event, the party so affected, upon giving
prompt written notice to the other
VIII
party, shall be excused from such performance to the extent of such prevention,
interference or restriction, provided that the party so affected shall take all
reasonable steps to avoid or remove such causes of nonperformance and shall
continue performance hereunder with dispatch whenever such causes are removed.
20. Improper Payments. Both parties agree that, in connection with the
performance of its obligations under this Agreement, it will not make any
payments to, or confer or offer to confer any benefits upon, any employee, agent
or fiduciary of DB or of any third party, including, without limitation, any
government, agency or instrumentality thereof, with the intent to influence the
conduct of such employee, agency or fiduciary in relation to the business or
affairs of DB or of another party in connection with this Agreement.
21. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois.
22. Assignment. This Agreement may not be assigned by either party without the
prior written consent of the other, except that DB may assign the Agreement to
its parent, any subsidiary or affiliate of DB, or any successor in interest of
DB, without the consent of Intersections. Prior to retaining subcontractors to
provide fulfillment, enrollment, authorization or records collection or
maintenance for the Product or Services, Intersections will obtain the DB's
prior written consent authorizing the use of any such subcontractors. Each party
will remain fully liable for its performance under this Agreement and actions of
its subcontractors.
23. Change in Ownership.
A. DB shall have the right to terminate this Agreement with sixty (60) days
written notice to Intersections in the event of a Change in Control of
Intersections. A "Change in Control" of Intersections means:
i. A change in control of Intersections means the consummation of any
transaction after which Loeb Holding Corporation or controlled
affiliates thereof do not own or have control, either directly or
through one or more controlled subsidiaries, of voting 51% of the
combined voting power of outstanding voting securities.
ii. The consummation of the sale, transfer or other disposition of all or
substantially all of the assets of Intersections, unless such sale,
transfer or other disposition is to the parent or a subsidiary of
Intersections and all of Intersections' rights and obligations under
this Agreement are assigned to that party in accordance with this
Agreement.
24. Entire Agreement: Amendment. This Agreement constitutes the entire
agreement between the parties with respect to its subject matter. Any prior or
contemporaneous agreements, representations, statements, negotiations or
undertakings dealing with these Product and Services or the subject matter of
this Agreement are superseded hereby. This Agreement may be amended or modified
only by a writing signed by both parties to this Agreement.
25. Headings. The paragraph headings used in this Agreement are for the
convenience of the parties only and will not define or limit the substance of
any paragraph. Reference herein, unless otherwise specified, to a paragraph,
subparagraph, clause or subclause is a reference to such paragraph,
subparagraph, clause or subclause of this Agreement.
26. Survival. Paragraphs 4.B, 5.A.ii, 5.B (excluding Paragraph 5.B.iii.), 7, 9,
12, 14.E., and 21 will survive the termination or expiration of this Agreement.
The explicit survival provisions contained in
IX
the Agreement and its exhibits and Addends, if any are not exclusive; the
provisions of this Agreement and its exhibits and Addenda that by their sense
and context are meant to survive expiration or termination of the Agreement
shall so survive.
IN WITNESS WHEREOF, the parties, by their undersigned representatives,
hereby execute this Agreement.
INTERSECTIONS, INC. DISCOVER BANK.
By: ____________________________________ By: _____________________________
Printed name: Xxxxxxx X. Xxxxxxxxx Printed name: Xxxxxxxx X. Xxxxxxx
Title: Chairman & CEO Title: Loan Officer
Date: __________________________________ Date: ___________________________
X
EXHIBIT A
PROFILE PROTECT
1. PRODUCT DESCRIPTION.
PROFILEPROTECT PRODUCT DESCRIPTION
The parties agree that DB may, from time to time in its sole discretion, solicit
and if the Customer accepts, enroll the Customer in the Product, via inbound
telemarketing or other marketing channels. On a quarterly basis, DB will provide
Intersections a marketing plan, which will include monthly sales projections
("Projections") for the quarter. The quarterly marketing plan, including but not
limited to the Projections are provided only as estimates to Intersections and
are not binding upon DB.
All ProfileProtect benefits are subject to any limitations and restrictions
imposed by local, state and federal laws, rules and regulations. Intersections
shall provide the following benefits (or equivalents with DB prior written
approval) to Members.
The ProfileProtect benefits shall consist of the following or as otherwise
described in the Marketing Materials and Fulfillment Materials as may be agreed
to by the parties from time to time:
Notify Express.
- Notifies a Member of changes in subscriber's file at one of the major
credit bureaus, (the "Credit Bureaus") every business day by e-mail,
pager or by U.S. mail.
- 1-Bureau Personal Credit Profile.
- This report will include the individual Member's personal credit
bureau information as reported by one of the Credit Bureaus.
- Intersections reserves the right in its sole discretion to select from
which Credit Bureau the individual credit report is pulled. The report
will be printed in an-easy-to-read format that to facilitate the
Member's understanding of his or her personal credit information.
- The report will include a summary page that provides an overview of
the types of accounts, total accounts, account balances, public
records and a variety of other categories of information.
- The report will include a legend that aids in interpreting data
elements of the profile.
- Daily (business day) monitoring at one of the Credit Bureaus with
Notification of:
- New accounts opened in a Member's name.
- Inquiries (excludes promotional/pre-approval inquiries).
- Address changes reported in a Member's name.
Comprehensive Quarterly Credit Update.
- A Member's personal credit bureau information will be reviewed every
90 days and a detailed summary that includes the following will be
provided:
- New accounts opened in a Member's name.
- Inquiries (excludes promotional/pre-approval inquiries).
- Address changes reported in a Member's name.
- Identification information changes.
Credit Education.
- Toll-free Customer Service available to provide Members one-on-one
assistance as needed - provided by trained credit education
specialists.
- Customer Service Center hours of operation are, at a minimum, 8:00
A.M. to 11:00 P.M. Monday - Friday, Saturday 9:00 A.M. to 6 P.M
Eastern Time.
- Access to ProfileProtect benefits via xxx.XxxxxxxXxxxxxx.xxx Web site
containing helpful information regarding credit card fraud and
identity theft.
Free upgrade to a 3-Bureaus-in-1 Profile and Monitoring.
To thank a Member for enrolling in the Program, Intersections will upgrade (at a
Member's written request) the ProfileProtect membership so that the Member
receives quarterly updates from all three credit bureaus at no additional cost.
Previously offered product configurations shall remain in effect and a Member
may be offered the opportunity to change product configurations using strategies
that have been mutually agreed upon by Intersections and DB.
PREVIOUS PRODUCT CONFIGURATIONS INCLUDE THE FEATURES OUTLINED ABOVE AND THE
FOLLOWING:
Identity Fraud Expense Coverage.
Identity fraud reimbursement program will be provided in accordance with the
terms and conditions of the program description from Intersections, Inc. A
Member will automatically receive protection with Identity Fraud Expense
Coverage. This coverage reimburses a Member who is a victim of identity fraud
for certain types of expenses as listed below:
- Lost wages as a result of time taken off from work to deal with the
fraud (up to $500 per week for a maximum of four weeks)
- Notary and certified mailing costs for completing and delivering legal
documents
- Loan application fees for re-applying for loans that were declined due
to erroneous credit information that had resulted from the fraud
- Phone charges for calling merchants, financial institutions, and law
enforcement agencies to discuss an actual fraud.
2. SERVICES.
A. DB Rights and Responsibilities.
i. Marketing Materials. DB will be responsible for the development of
solicitation materials including scripts and certain direct mail
materials including, without limitation, concept development, copy and
artwork development, typesetting, print and package production,
shipping, storage and postage ("Marketing Materials"). DB must obtain
Intersections' prior written approval of Marketing Materials that DB
produces pertaining to Services which will not be unreasonably
withheld. Intersections will review the Marketing Materials as
provided in Paragraph 6 of the Agreement. In reviewing copy for
Marketing Materials, Intersections will ensure that the description of
the Product and Services is accurate and materially complete as
approved by Intersections. The use, format and content of any and all
marketing materials will be subject to the parties' approval as
described in the Agreement.
ii. Delay or Cancellation. Notwithstanding any other provision in this
Agreement, DB will have the right to delay or cancel any solicitation
campaign or portion of a solicitation campaign for any reason.
iii. Enrollment and Authorization Process.
a. Enrollment Process. As provided herein, DB will be responsible
for enrollment of Customers ("Enrollments") through marketing
channels managed by DB in the Product. On a business-day basis,
or at such other intervals as DB reasonably deems appropriate,
DB or a third party vendor engaged by DB will send Intersections
a file of Enrollments in the file format agreed upon by the
parties.
b. Authorization. **
----------
** This information is confidential and has been omitted and filed
separately with the Securities and Exchange Commission.
ii
c. Expenses. DB will be responsible for the costs incurred with
respect to the Product as outlined above, and in fulfilling its
responsibilities outlined above and as elsewhere designated in
this Exhibit A.
B. Intersections' Rights and Responsibilities.
i. Enrollment Process and Fulfillment Materials. Intersections will be
responsible to develop certain fulfillment and additional Product
materials (collectively "Fulfillment Materials") including, without
limitation, concept development, copy and artwork development,
typesetting, print and package production, shipping, storage and
postage. Intersections will seek DB's prior written approval, which
will not be unreasonably withheld, of all Fulfillment Materials
produced pertaining to the Services and the Product, as well as the
production and printing schedule for such materials. Intersections
will ensure that Fulfillment Materials properly display and use the
Product name(s) correctly. DB will review the Fulfillment Materials as
provided in Paragraph 6 of the Agreement. Notwithstanding the
foregoing, DB may, in its sole discretion, develop Fulfillment
Materials as described above. DB developed Fulfillment Materials will
be approved by the parties as provided in Paragraph 6.
ii. Authorizations. **
----------
**. This information is confidential and has been omitted and
filed separately with the Securities and Exchange Commission.
iv
iii. Credit Education Specialists. Intersections will be responsible for
providing Credit Education Specialists ("Specialists") to respond to
Members inquiries regarding the Product. Intersections will have
Specialists available during the timeframes agreed to by the parties.
Intersections agrees that it will provide on-going training to the
Specialists to insure that the Specialists are in compliance with
applicable law regard the type and manner of information the
Specialists provide to Members.
iv. Credit File Information. Intersections will use its best efforts to
provide accurate credit file and monitoring information to Members
and that such information is provided to the correct Members.
v. Retention. For Enrollments in the Product that occur between March 1
and October 31, 2002, Intersections shall handle all efforts to
retain Members who desire to terminate their membership in the
Product. DB shall handle all efforts to retain Members who desire to
terminate their membership in the Product for Enrollments that occur
on or after November 1, 2002.
vi. Website. Intersections will continue to operate and maintain the
xxx.xxxxxxxxxxxxxx.xxx website. All website content will be subject
to the review of the parties as provided in Paragraph 6 of the
Agreement. Intersections will update the website to the extent
Intersections updates the websites hosted for Intersections'
marketing partners generally. Any other change to the website is
subject to the further written agreement of the parties.
vii. [intentionally omitted]
viii. Membership Fees: Billing and Collection. **
----------
**. This information is confidential and has been omitted and filed
separately with the Securities and Exchange Commission.
ix. Cancellation Procedures. For Enrollments in the Product that occur
between March 1 and October 31, 2002, if the Member contacts DB
stating that the Member no longer wants the Program, DB in its
discretion may direct the Member to contact Intersections or transfer
the Member to the designated toll-free number. At DB's sole
discretion, certain Member requests may be initiated by DB.
Cancellation requests for Enrollments that occur on or after November
1, 2002, will be handled by DB.
x. Membership Fees: Credits. For Enrollments in the Product that occur
between March 1 and October 31, 2002, Intersections, if requested to
do so by DB, will use its best efforts to process each customer
request for credit within twenty-four (24) hours but in no event
longer than ten (10) business days after receipt of such request from
customer or DB. DB will handle requests for credits for Enrollments
that occur on or after November 1, 2002.
xi. Changes of Services. Intersections may not change Services without
DB's prior written approval; provided that Intersections may make
reasonable changes required as a result of changes imposed or
required by any credit bureau, law or regulation, or changes that do
not have a material effect on the Services as delivered to DB. If
Intersections makes any change to the Services as required by any
credit bureau, law or regulation, and the change has a material
effect on the Services as delivered by Intersections, then
Intersections will provide DB prior notice of such change as soon as
is reasonably possible, and, if the change must be
v
communicated to Members, Intersections agrees that it will
communicate such changes to Members at Intersections' sole
expense.
xii. Member List. **
----------
**. This information is confidential and has been omitted and
filed separately with the Securities and Exchange Commission.
xiii. Customer Service Representative Liaison. Intersections will
designate a Client Service Representative to act as a liaison
between Intersections and DB on Service Standards issues. This
liaison will participate in weekly meetings to discuss these
issues
xiv. Telephony and Postal Requirements.
a. Phone System. For Enrollments in the Product that occur
between March 1 and October 31, 2002 Intersections shall
establish and maintain, at its own expense, a customer
service 800 number (0-000-000-0000), which shall be the
property of DB, and dedicated solely to the Services
provided to Customers and Members.
b. For enrollments in the Product that occur after November
1,2002 DB shall establish and maintain, at its own expense a
customer service number as designated by DB from time to
time, which shall be the property of DB, and dedicated to
the Services provided to Customers and Members.
c. Postal Box. Intersections shall establish and maintain, at
its own expense, a lockable postal box, which shall be the
property of DB, and dedicated solely to Customers and
Members.
xv. Expenses. Intersections will be responsible for the costs
incurred with respect to the Product and Services as outlined
above, and in fulfilling its responsibilities outlined above and
as elsewhere designated in this Exhibit A.
3. INTERSECTIONS' COMPENSATION.
A. Service Fees. For Intersections' performance of the Services and its
obligations under this Agreement, DB will pay Intersections the Service
Fees as provided below. Except as provided in this Agreement, DB will have
no other obligation to pay or compensate Intersections for any aspect of
the Services or for any related costs or expenses that Intersections incurs
under this Agreement unless otherwise agreed in writing.
B. Invoicing and Payment. Commencing at the end of the first month of Service
delivery, on a monthly basis, Intersections shall send DB an invoice in
accordance with this Exhibit covering the Service Fee based on services
delivered to Members in the preceding month. All invoices submitted by
Intersections shall be accompanied by supporting documentation as requested
by DB. DB will pay such fees within 30 days of receipt of Intersections'
invoice, unless any invoice or portion thereof is subject to dispute or
Intersections' production of requested supporting documentation.
C. Compensation. Intersections shall send DB a monthly reconciliation/invoice
for previous activity based on the following Service Fee schedule:
i. During the first month of Enrollment, DB shall pay Intersections a fee
of $** for the Fulfillment Materials plus the monthly fee referenced
in section C, ii of this Exhibit for all Services rendered as
described in this Exhibit for all new Enrollments acquired during the
month that do not cancel by the end of that month and are active by
the last business day of the month.
----------
**. This information is confidential and has been omitted and filed
separately with the Securities and Exchange Commission.
vi
ii. After the first month of enrollment, DB shall pay Intersections a
monthly fee for all members that are active on the first day of the
month based on the following schedules:
FOR ENROLLMENTS THAT OCCUR BETWEEN MARCH 1 AND OCTOBER 31, 2002
----------------------------------------------------------------------------------------------------------------------------
Mar.'02 - Nov.'03 Dec.'03 - Nov.'04 Dec.'04 - Nov.'05 Dec.'05 - Nov.'06 Dec. '06 - Nov. 07
----------------------------------------------------------------------------------------------------------------------------
Intersections $** $** $** $** $**
handles billing
and retention
----------------------------------------------------------------------------------------------------------------------------
----------
**. This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
FOR ENROLLMENTS THAT OCCUR ON OR AFTER NOVEMBER 1, 2002
----------------------------------------------------------------------------------------------------------------------------
Nov.'02 - Nov.'03 Dec.'03 - Nov.'04 Dec.'04 - Nov.'05 Dec.'05 - Nov.'06 Dec. '06 - Nov. 07
----------------------------------------------------------------------------------------------------------------------------
DB handles $** $** $** $** $**
billing and
retention
----------------------------------------------------------------------------------------------------------------------------
----------
**. This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
iii. If a Member requests additional credit profiles, Intersections will
provide the profiles at a cost of $** for a 1-Bureau report and
$** for a 3-Bureau report, subject to DB's xxxx-up. This pricing
will be effective once operationally available by both parties.
iv. Intersections shall send monthly revenue net of the monthly credits,
by wire transfer on the seventh business day of the month. Actual
Revenue, net of credits will be communicated to DB weekly.
**. This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
4. SERVICE STANDARDS.
A. Service Standards. Intersections' shall comply with the following Customer
Service Standards ("Standards"):
FUNCTION STANDARD
Inbound Call Handling **
Average Speed of Answer **
Abandonment Rate
Rejection Rate **
Member Enrollments **
**
Membership Fulfillment **
**
Written Correspondence **
Dispute Resolution **
External Customer Service Surveys **
Customer Listening **
----------
**. This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
B. Penalty Pricing. If Intersections fails to comply with any of the Service
Standards for 4 consecutive weeks it will pay DB a penalty payment of
$ ** and $ ** for each week thereafter during which Intersections
fails to comply with any of the Service Standards. Such penalty payment
will be in addition to any remedy available under the Agreement or in law
or equity. The amount of any penalty payment may be offset any amounts due
and owing Intersections by DB. DB may waive any penalty payment in
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
vii
its discretion. Waiver of any penalty payment or Service Standard will not
be construed as a waiver of or bar to DB's right to impose penalties or
enforce the Service Standard in the future.
Notwithstanding the foregoing, If Product Enrollments exceed the
Projections provided by DB to Intersections by more than the greater of
** or ** % of the Projections for any month; Intersections will not be
responsible for meeting the Service Standards for any such month or the
succeeding month.
Intersections will not be subject to the above penalties for violations of
the Membership Fulfillment Standard, if those violations are due to DB data
integrity issues.
----------
** This information is confidential and has been omitted and filed
separately with the Securities and Exchange Commission.
5. REPORTS.
The following reports will be provided by Intersections:
**
----------
**. This information is confidential and has been omitted and filed separately
separately with the Securities and Exchange Commission.
6. INSURANCE REQUIREMENTS. Intersections shall maintain the following
coverages.
A. Errors & Omissions. Limit of Liability: $2,000,000 per occurrence and
$2,000,000 aggregate. Coverage is defined, but not limited to, the
following:
i. Communications Liability. Damages incurred on account of injury
sustained by any person or organization arising out of:
a. defamation including libel or-slander;
viii
b. disparagement or harm to character;
c. product disparagement;
d. invasion or infringement of the right to privacy;
e. plagiarism or misappropriation of information;
ii. Personal Injury Liability. Damages incurred on account of injury
sustained by any person or organization arising out of:
a. defamation including libel or slander;
b. disparagement or harm to character;
c. product disparagement;
d. invasion or infringement of the right to privacy;
e. false arrest or malicious prosecution.
B. Intersections. Employee Dishonesty. Limit of Insurance: $2,000,000 per
occurrence and $2,000,000 aggregate. Coverage is defined as, but not limited to
dishonest acts committed by an employee, whether identified or not, acting alone
or in collusion with other persons, with the intent to cause Intersections to
sustain loss and obtain financial benefit.
C. Commercial General Liability. Limit of Liability: $1,000,000 per
occurrence, and $2,000,000 aggregate.
D. Workers' Compensation. Limit of Liability: Statutory.
E. Employers Liability. Limit of Liability: $500,000 per occurrence and
aggregate.
F. Excess Umbrella Liability. Each of the preceding policies listed as
underlying policies, with a limit of liability of $4 million per occurrence and
$4 million aggregate.
IN WITNESS WHEREOF, the parties, by their undersigned representatives,
hereby execute this Exhibit A.
INTERSECTIONS INC. DISCOVER BANK
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------- -----------------------------
Printed Name: Xxxxxxx Xxxxxxxxx Printed Name: Xxxxxxxx X. Xxxxxxx
----------------- -------------------
Title: CEO Title: Loan Officer
------------------------ --------------------------
Date: August 8, 2003 Date: August 5, 2003
------------------------- ---------------------------
ix
BANK
EXHIBIT B
MUTUAL NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
In order to protect the Confidential Information (as defined below) of
Intersections, Inc., ("Intersections") with an office at 00000 Xxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, and Discover Bank Services, Inc. ("DB"), with an
office at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000, which may be disclosed or
obtained during a business relationship between DB and Intersections (the
"Business Purpose"), the parties are entering into this Mutual Non-Disclosure
and Confidentiality Agreement (the "Confidentiality Agreement").
1. (a) "DB Confidential Information" shall include all information of DB and/or
any of its affiliates to which Intersections has had or will have access,
whether in oral, written, graphic or machine-readable form, including without
limitation, specifications, operations or systems manuals, decision processes,
profiles, system and management architectures, diagrams, graphs, models,
sketches, technical data, research, business or financial information, plans,
strategies, forecasts, forecast assumptions, business practices, marketing
information and material, customer names, proprietary ideas, concepts, know-how,
methodologies and all other information related to DB's business and/or the
business of any of its affiliates. DB Confidential Information shall also
include all information of a third party to which DB and/or any of its
affiliates have access and to which Intersections has had or will have access,
and all notes, analyses and studies prepared by Intersections or any of its
Representatives (as defined in Paragraph 4 below) incorporating any of the
information described in this Paragraph 1. Each of Intersections' affiliates
shall be permitted to have access to the DB Confidential Information (and, upon
such access, the relevant affiliate shall be deemed to be a "Receiving Party"
for purposes of Paragraph 3 below) and all of Intersections' rights and
obligations under this Confidentiality Agreement shall apply equally to all of
Intersections' affiliates, provided that Intersections shall be responsible for
any breach of this Confidentiality Agreement by any of such affiliates.
(b) DB Confidential Information includes "NPI". "NPI" has the meaning
ascribed to "Nonpublic Personal Information" in Title V of the
Xxxxx-Xxxxx-Xxxxxx Act of 1999 or any successor federal statute, and the rules
and regulations thereunder, all as may be amended or supplemented from time to
time (collectively, "Applicable Law") as it relates to DB's or its affiliates'
consumers. Intersections shall, and shall cause its Representatives to, keep NPI
confidential and may use and disclose NPI only as necessary to carry out those
specific aspects of the Business Purpose for which the NPI was disclosed to
Intersections and in accordance with this Confidentiality Agreement and
Applicable Law.
2. "Intersections Confidential Information" shall include all information of
Intersections and/or any of its affiliates to which DB has had or will have
access, whether in oral, written, graphic or machine-readable form, including
without limitation, specifications, operations or systems manuals, decision
processes, profiles, system and management architectures, diagrams, graphs,
models, sketches, technical data, research, business or financial information,
plans, strategies, forecasts, forecast assumptions, business practices,
marketing information and material, customer names, proprietary ideas, concepts,
know-how, methodologies and all other information related to Intersections'
business and/or the business of any of affiliates. Intersections Confidential
Information shall also include all information of a third party to which
Intersections and/or any of its affiliates have access and to which
Intersections has had or will have access, and all notes, analyses and studies
prepared by Intersections or any of its Representatives (as defined in Paragraph
4 below) incorporating any of the information described in this Paragraph 2.
Each of DB's affiliates shall be permitted to have access to the Intersections
Confidential Information (and, upon such access, the relevant affiliate shall be
deemed to be a "Receiving Party" for purposes of Paragraph 3 below) and all of
DB's rights and obligations under this Confidentiality Agreement shall apply
equally to all of DB's affiliates, provided that DB shall be responsible for any
breach of this Confidentiality Agreement by any of such affiliates. DB
Confidential Information and Intersections Confidential Information are referred
to collectively as the "Confidential Information".
0000 Xxxx Xxxx Xxxx Xxxxxxxxxx, Xxxxxxxx 00000
Member FDIC
i
3. Confidential information shall not include information that: (a) is in the
public domain at the time of its use or disclosure through no fault of the party
receiving Confidential Information (the "Receiving Party") or its
Representatives; (b) was lawfully in the possession of or demonstrably known by
the Receiving Party prior to its receipt from the party disclosing Confidential
Information (the "Disclosing Party"); (c) is independently developed by the
Receiving Party without use of or reference to the Disclosing Party's
Confidential Information; or (d) becomes known by the Receiving Party from a
third party and, to the Receiving Party's knowledge, is not subject to an
obligation of confidentiality to the Disclosing Party.
4. The Receiving Party will maintain the confidentiality of the Disclosing
Party's Confidential Information using procedures no less rigorous than those
used to protect and preserve the confidentiality of its own similar proprietary
information, provided that the Receiving Party shall not use less than a
reasonable degree of care to protect and preserve the Disclosing Party's
Confidential Information, and shall exercise no less than a reasonable degree of
care to not, without the Disclosing Party's prior written permission: (a)
transfer or disclose any of the Disclosing Party's Confidential Information to
any third party; (b) use any of the Disclosing Party's Confidential Information
for any purpose other than in connection with the Business Purpose; or (c) take
any other action with respect to the Disclosing Party's Confidential Information
inconsistent with the confidential and proprietary nature of such information.
Notwithstanding clause (a) of this paragraph, the Receiving Party may disclose
the Disclosing Party's Confidential Information to the officers, directors,
employees, consultants, attorneys, accountants, agents or other representatives
(each, a "Representative") of the Receiving Party who have a need to know such
Confidential Information solely in connection with the Business Purpose,
provided that the Receiving Party shall: (i) cause such Representatives to
comply with this Confidentiality Agreement; and (ii) assume full responsibility
for any breach of this Confidentiality Agreement caused by any such
Representatives. Each party shall promptly notify the other (i) of any
disclosure or use of any Confidential Information of the or any of its
Representatives in breach of this Confidentiality Agreement and (ii) of any
disclosure of any Confidential Information of the other to the party or its
Representatives where the purpose of such disclosure is not known to the party.
Each party reserves the right to review the other's policies and procedures used
to maintain the confidentiality of Confidential Information. Each party shall,
at the other's direction in its sole discretion, promptly return or destroy any
or all-Confidential Information of the other.
5. If the Receiving Party is requested or required to disclose any of the
Disclosing Party's Confidential Information pursuant to a subpoena, court order,
statute, law, rule, regulation or other similar requirement (a "Legal
Requirement"), the Receiving Party shall, to the extent permitted by law,
provide prompt notice of such Legal Requirement to the Disclosing Party so the
Disclosing Party may seek an appropriate protective order or other appropriate
remedy or waive compliance with the provisions of this Confidentiality
Agreement. If the Disclosing Party is not successful in obtaining a protective
order or other appropriate remedy and the Receiving Party is, in the opinion of
its counsel, compelled to disclose such Confidential Information under pain of
liability for contempt of court or other censure or liability, or if the
Disclosing Party waives compliance with the provisions of this Confidentiality
Agreement in writing, the Receiving Party may disclose, without liability
hereunder, such Confidential Information in accordance with, but solely to the
extent necessary, in the opinion of its counsel, to comply with, the Legal
Requirement.
6. On the Disclosing Party's request, the Receiving Party shall, in its
discretion, return to the Disclosing Party, or destroy, the Disclosing Party's
Confidential Information, including any and all copies whether in written or
electronic format, and certify in writing to the Disclosing Party that the
request has been completely fulfilled.
7. Each party acknowledges that the other and its affiliates may from time to
time evaluate investments in, offer financial services to, purchase and sell
securities and loans issued by, and enter into other transactions with,
companies that may be competitors, suppliers or customers of the party. No such
activities will be affected by the agreement hereunder.
ii
8. Each party acknowledges that a breach of its obligations under this
Confidentiality Agreement may, as determined by a court of competent
jurisdiction, result in irreparable and continuing damage to the other party for
which monetary damages will not be sufficient, and agrees that the other party
will be entitled to seek, in addition to its other rights and remedies hereunder
or at law, injunctive and/or other equitable relief, and such further relief as
may be proper from a court of competent jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Confidentiality
Agreement on the 5th day of August, 2003.
INTERSECTIONS INC. DISCOVER BANK
By: /s/ XXXXXXX XXXXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
--------------------------------- --------------------------------------
Printed name: Xxxxxxx Xxxxxxxxx Printed name: Xxxxxxxx X. Xxxxxxx
----------------------- ----------------------------
Title: CEO Title: Loan Officer
------------------------------ -----------------------------------
iii
EXHIBIT C
SERVICE MARKS FOR PRODUCT UNDER EXHIBIT A
Intersections Service Marks
Notify Express(SM)
DB Service Marks
ProfileProtect(R)
Discover(R)
IN WITNESS WHEREOF, the parties have executed this Exhibit C on the 5th day of
August, 2003.
INTERSECTIONS INC. DISCOVER BANK
By: /s/ XXXXXXX XXXXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
--------------------------------- --------------------------------------
Printed name: Xxxxxxx Xxxxxxxxx Printed name: Xxxxxxxx X. Xxxxxxx
----------------------- ----------------------------
Title: CEO Title: Loan Officer
------------------------------ -----------------------------------
i
