Exhibit 10.17
PROGRAM AGREEMENT
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THIS PROGRAM AGREEMENT by and between First Data Merchant Services
Corporation, a Florida corporation ("FDMS"), and xxxxxxxxxxx.xxx inc., a
Michigan corporation ("CSI"), is made this 17th day of February, 2000 (the
"Effective Date").
R E C I T A L S:
WHEREAS, FDMS has entered into certain processing services agreements with
its Channels, as defined below, pursuant to which such Channels acquire merchant
credit card transactions through merchant processing agreements between the
respective Channel and merchants;
WHEREAS, CSI operates a savings destination site on the Internet at
xxx.xxxxxxxxxxx.xxx (the "CSI Web Site") wherein consumers who are enrolled with
CSI ("CSI Members") may obtain many varied savings, including but not limited
to, coupons and other discounts (the "CSI Member Programs");
WHEREAS, FDMS has informed CSI that it has developed and owns a proprietary
system (the "FDMS System") through which FDMS provides Fulfillment Services;
WHEREAS, CSI and FDMS desire to cooperate to develop and launch various
Joint Programs as defined in Section 1 herein;
WHEREAS, the parties have already developed one Joint Program that will
initially only be offered to FDMS Merchants in the restaurant industry (the
"CoolDining Program"); and
WHEREAS, the parties desire to document the terms under which the parties
will provide the CoolDining Program and other Joint Programs, all as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
1. Definitions. The following terms shall have the following meanings when
capitalized in this Agreement:
a. "Affiliate" shall mean: (i) any entity which, directly or indirectly,
owns or controls, is owned or is controlled by or is under common
ownership or control with FDMS; and (ii) Alliances.
b. "Alliance" shall mean any venture (in any form, including in
corporate, partnership or limited liability company form) or
contractual alliance now or hereafter entered into between FDMS (or
any of its Affiliates) and one or more third parties for the provision
of Payment Processing Services pursuant to an arrangement whereby FDMS
or its Affiliate shares the economic benefit of ownership of merchant
contracts through profit sharing, revenue sharing, a royalty interest,
or otherwise.
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c. "Auditor" shall mean any of the "Big Five" public accounting firms.
d. "Channel" shall mean: (i) an Alliance; (ii) a FDMS Bank; and (iii)
such other third parties as FDMS and CSI may agree to in writing.
e. "Channel Participation Agreement" shall mean an agreement between FDMS
and a Channel pursuant to which such Channel agrees to market and sell
a Joint Program or Programs to FDMS Merchants pursuant to a Merchant
Participation Agreement. The parties acknowledge and agree that a
Channel Participation Agreement may be in the form of an addendum to
the extent FDMS or its Affiliate already has a master services or
alliance agreement with such Channel.
f. "CSI Member Information" shall mean: (i) Program Member Registration
Data and Program Member Offer Selection Data as described in Exhibit
6(h); and (ii) CSI Member profile data obtained from "cookies";
provided by CSI to FDMS, a Channel, or their agents, but specifically
excluding any information that FDMS can prove was obtained
independently from CSI.
g. "CSI Web Site Interface" shall mean the software and related systems
that allow the CSI Web Site and related CSI systems and servers to
interface with FDMS or its agents to enable the transmission of
Transmitted Data.
h. "Exclusivity Exception" shall mean the following exception to the
specific exclusivity rights of FDMS set forth in this Agreement to
provide Fulfillment Services for Joint Programs (including the
CoolDining Program): the right of CSI to enter into an agreement with
American Express, Discover, a private label card for which FDMS
provides less than 50% of all settlement services, and/or Alliance
Data Systems, Inc. pursuant to which such party will provide
Fulfillment Services for a Joint Program or for another program that
provides for the issuance of a discount directly to a CSI Member's
American Express, Discover, or private label card, upon such CSI
Member "clicking" or otherwise enabling a coupon or other similar
offer and redeeming such coupon or offer at a merchant's web site,
business premises, or through a catalogue, provided that CSI may only
enter into an arrangement with Discover so long as FDMS provides less
than 50% of all settlement services for Discover.
i. "FDMS Bank" shall mean a bank with whom FDMS and/or an Affiliate have
entered into an agreement to provide certain Payment Processing
Services.
j. "FDMS Merchant" shall mean a merchant that has entered into an
agreement with FDMS and/or a Channel under which FDMS or such Channel
provides the Payment Processing Services or other services to such
merchant.
k. "Fulfillment Services" shall mean the provision of all of the
following services: (i) the matching of a Merchant Offer against the
redemption of that Merchant Offer by a CSI Member; (ii) the
performance of all processing services necessary to prepare the
appropriate credit arising out of such redemption for submission to
the entity responsible for the posting said credit to the CSI Member's
card account (e.g. the Visa or MasterCard Association), for posting to
the CSI Member's card account; (iii) the submission of the appropriate
credit arising out of such
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redemption to the entity responsible for the posting said credit to
the CSI Member's card account ; and (iv) the performance of reasonable
services to resolve problems with the entity responsible for posting
the appropriate credit to the CSI Member's card account to effectuate
the posting of the appropriate credit to the CSI Member's card
account.
l. "Joint Programs" shall mean: (i) CoolDining Program; and (ii) other
CSI Member Programs that satisfy all of the following requirements:
(1) the program requires Fulfillment Services; (2) FDMS agrees to
provide the Fulfillment Services; (3) CSI agrees to provide access to
such program to CSI Members; and (4) the terms and conditions of the
program (including but not limited to, revenue and expense splits)
have been agreed upon by the parties in a written addendum to this
Agreement.
m. "Marks" shall mean the logos, trademarks, trade names, domain names
and/or service marks owned or licensed by a party and used in carrying
out the services and obligations contemplated under this Agreement.
n. "Merchant Offer" shall mean the Joint Program offer that a merchant
makes to CSI Members through the CSI Web Site or a Joint Program web
site from time to time.
o. "Merchant Participation Agreement" shall mean an agreement between
FDMS, an Affiliate, or CSI, as applicable, and an FDMS Merchant
pursuant to which such FDMS Merchant agrees to participate in a Joint
Program.
p. "Payment Processing Services" shall mean the services FDMS and/or its
Affiliates provide to FDMS Merchants, including but not limited to
authorization, data capture, processing, settlement and reconciliation
of credit and debit card transactions.
q. "Program Terms" shall mean those certain on-line terms and conditions
located on the CSI Web Site that a CSI Member must access and agree to
prior to participating in a Joint Program. CSI shall be a party to all
Program Terms.
r. "Termination Date" shall mean (a) the date on which this Agreement
expires by its terms; or (b) the date on which a party gives written
notice to the other of termination under this Agreement.
s. "Transaction Data" shall mean the data that: (i) FDMS or a Channel
captures in the ordinary course of business as a result of providing
the Payment Processing Services when a consumer pays by credit card,
(by way of example but not limitation, the credit card number, amount
of purchase, date of purchase, and other information related to a
specific transaction); and (ii) FDMS or a Channel provides to CSI as
Transmitted Data, but specifically excluding any information which CSI
can prove was obtained independently from FDMS or its Affiliates.
t. "Transmitted Data" shall mean, as to each party, the data fields that
such party maintains, captures and transmits to the other in order to
effect the CoolDining Program, as set forth in Exhibit 6(h).
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u. "Yclip" shall mean Yclip, Inc., a party with whom FDMS has entered
into a separate agreement under which Yclip and FDMS have (i)
established interfaces between Yclip and FDMS that allow for the
transmission of Transmitted Data between the parties for purposes of
allowing FDMS to provide the Fulfillment Services; and (ii) authorize
Yclip, on behalf of FDMS, to establish interfaces between Yclip and
third parties that allow Yclip to facilitate the transmission of
Transmitted Data between FDMS and such third parties.
2. Term. The term of this Agreement shall be three (3) years commencing on
the Effective Date, unless earlier terminated as provided herein.
3. Joint Programs. The parties will use commercially reasonable efforts to
implement and launch Joint Programs. In addition to the CoolDining Program
(which the parties shall launch and operate as described in Section 6), the
parties currently contemplate the following programs will become Joint
Programs under this Agreement, as follows:
a. Other Targeted Programs. The parties will use good faith, diligent
efforts to roll out other Targeted Programs for non-restaurant
merchants, in accordance with the terms of the executed Addendum
covering each such program, within one year of the Effective Date so
long as the CoolDining Program is reasonably successful at such time.
For purposes of clarification only, a Targeted Program is a Joint
Program requiring payment of a membership fee by CSI Members for
Merchant Offers in a specific industry. The CoolDining Program is a
Targeted Program.
b. CSI Web Site Program. The parties will use good faith, diligent
efforts to roll out a program, in accordance with the terms of the
executed Addendum covering such program, under which FDMS will provide
Fulfillment Services for Merchant Offers presented at the CSI Web Site
(the "CSI Web Site Program"), no later than September 30, 2000.
c. Other Programs. The parties will use good faith, diligent efforts to
roll out other programs requiring Fulfillment Services, in accordance
with the terms of the executed Addendum covering each such program,
within the time frame set forth in said Addendum.
Subject to the Exclusivity Exception, FDMS shall be the exclusive provider
of Fulfillment Services for (x) each program offered by CSI that requires
Fulfillment Services (a "New Program"), and (y) the Joint Programs, for one
(1) year from the date of launch of such New Program or Joint Program,
except for New Programs for which CSI requires technology or capabilities
that FDMS does not possess. FDMS shall have sixty (60) days from the date
it receives written notice from CSI setting forth the technology and
capabilities that CSI requires for the New Program that CSI seeks to
launch, to obtain such technology and capabilities and to so inform CSI in
writing that it possesses the same. In the event FDMS fails to so obtain
the required technology and capabilities and so inform CSI in writing that
it possesses the same within said 60 day period, then CSI shall be entitled
to enter into an agreement with a third party to provide the Fulfillment
Services for that New Program, as long as such third party agrees to
provide the technology and capabilities that CSI required of FDMS for such
New Program.
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Merchants who enroll to participate in any Joint Program shall be referred
to as "Participating Merchants".
4. Channel Participation. As soon as practicable after the Effective Date,
FDMS shall solicit Channels to participate in the Joint Programs. CSI shall
provide reasonable assistance to FDMS in its effort to sign up Channels.
Each Channel electing to participate in Joint Programs (the "Participating
Channels") shall be required to enter into a Channel Participation
Agreement, which shall, at a minimum, provide express authorization from
such Channel allowing FDMS and CSI to use Transaction Data for the purposes
of providing the Joint Programs and charging FDMS Merchants applicable fees
on behalf of the Participating Channel.
5. Merchant Processing Agreement. Within thirty (30) days of the Effective
Date CSI shall enter into FDMS' standard Merchant Processing Agreement with
FDMS and its designated sponsoring bank pursuant to which FDMS will process
CSI's bankcard transactions for the Joint Programs, including but not
limited to the processing of Program Member Fees for the Joint Programs
(the "MPA")
6. The CoolDining Program.
a. CoolDining Program Web Site. CSI shall establish a separate URL
address(es) known as xxx.XxxxXxxxxx.xxx dedicated to the CoolDining
Program ("CoolDining Program Web Site") that may be accessed through a
link on the CSI Web Site, which shall be prominently displayed "above
the fold" for no less than one hundred twenty (120) days after the
CoolDining Launch (as defined below). Within ninety (90) days of the
Effective Date: CSI will complete development of the CoolDining
Program Web Site to the reasonable satisfaction of FDMS; and FDMS will
incorporate the CoolDining Program into its proprietary online
incentive management site (the "yourwebvalues Site") to the reasonable
satisfaction of CSI.
i. The CoolDining Program Web Site shall display Merchant Offers
that may be selected by CoolDining Program Members (as defined in
Section 6(c) below). In addition, the CoolDining Program Web Site
shall allow CSI Members to enroll in the CoolDining Program, as
set forth in Section 6(c).
ii. FDMS shall prominently display "above the fold" on the
yourwebvalues Site a linking image (to be supplied by CSI)
linking to the CoolDining Program Web Site. The Channels may, at
their option, also include the same linking image on their
respective web sites linking to the CoolDining Program Web Site.
b. Implementation Plan. Within thirty (30) days of the Effective Date
the parties will use their best efforts to develop and agree upon an
implementation plan setting forth the process through which the
CoolDining Program will be launched. Each party will identify one
representative to act as such party's contact for day-to-day
implementation of the CoolDining Program. Each party will provide such
cooperation and assistance to the other as may be reasonably required
or requested in order to develop the implementation plan and to
implement the CoolDining
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Program. The parties shall launch the CoolDining Program by July 15,
2000 (the "CoolDining Launch") in accordance with the implementation
plan. In the event the CoolDining Launch is not achieved by July 15,
2000 due solely to FDMS' acts and/or omissions, then FDMS shall pay to
CSI a late fee in the amount of $25,000. In the event the CoolDining
Launch is not achieved by September 1, 2000 due solely to FDMS' acts
and/or omissions, then all exclusivity rights to provide Fulfillment
Services granted FDMS under this Agreement shall be immediately and
automatically terminated.
c. CSI Member Enrollment. In order to enroll in the CoolDining Program,
CSI Members will be required to go to the CoolDining Program Web Site
and: (i) provide the number(s) and expiration date(s) of a valid VISA
and/or MasterCard credit card (or other credit cards covered under the
Exclusivity Exception), and such other information as CSI and FDMS may
otherwise agree upon in writing for said VISA and MasterCard credit
cards; (ii) agree to pay an annual fee for participation in the
CoolDining Program in an amount to be determined by CSI after
consultation with FDMS (the "CoolDining Program Fee"); and (iii) agree
to other terms and conditions of the CoolDining Program as FDMS and
CSI mutually agree upon and which will be attached hereto as Exhibit
6(c) within ninety days of the Effective Date, including but not
limited to the items currently set forth in Exhibit 6(c). CSI Members
who satisfy (i), (ii) and (iii) above shall be known as CoolDining
Program Members. FDMS shall process the CoolDining Program Fees
pursuant to the MPA, as set forth in Section 5.
i. From time to time during the term of this Agreement, CSI shall
design and conduct CoolDining Program Member satisfaction surveys
and share the results of the same promptly with FDMS.
ii. CSI shall promptly respond to e-mail questions about the
CoolDining Program received from CoolDining Program Members. Such
response shall be by e-mail and may include directing CoolDining
Program Members to FDMS for handling of credit card related
issues. CSI shall copy a designated FDMS representative on all
responses referencing FDMS.
iii.
d. FDMS Merchant Enrollment. FDMS Merchants may be enrolled to
participate in the CoolDining Program by either CSI or a Participating
Channel. FDMS Merchants that enroll through CSI shall be considered
CSI-Sourced Merchants and FDMS Merchants that enroll through a
Participating Channel shall be considered FDMS-Sourced Merchants.
i. FDMS Merchants who desire to participate in the CoolDining
Program will be required to enter into a Merchant Participation
Agreement, which will set forth the terms of the CoolDining
Program (to be determined jointly by CSI and FDMS within thirty
(30) days of the Effective Date) (the "FDMS Merchant
Participation Agreement"). All FDMS Merchants (both CSI-Sourced
Merchants and FDMS-Sourced Merchants) with Internet access who
desire to participate in the CoolDining Program shall be directed
to an Internet site(s) to be agreed upon by the parties within
thirty (30) days of the Effective Date, to enroll. All web pages
accessible by said
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FDMS Merchants at such Internet Site shall display the CSI name
and logo in a prominent place. Furthermore, in recognition of the
fact that certain FDMS Merchants who desire to participate in the
CoolDining Program may not have access to the Internet, CSI and
FDMS shall develop within 30 days of the Effective Date an off-
line enrollment process for such FDMS Merchants. The applicable
Participating Channel shall be party to the FDMS Merchant
Participation Agreement for all FDMS-Sourced Merchants, and CSI
shall be party to the FDMS Merchant Participation Agreement for
all CSI-Sourced Merchants.
ii. Each party shall provide reasonable information to the other upon
request regarding what FDMS Merchants it (or in the case of the
FDMS, the Channels) has signed up.
iii. CSI will provide in-store promotional materials reasonably
requested by FDMS for Participating Merchants to post on their
premises during the term of the Agreement.
e. CSI Restriction. CSI shall not solicit or sell the CoolDining
Program to a Channel without the prior approval of FDMS.
f. CoolDining Program Participation. The Channel Participation Agreement
will require Participating Channels to use commercially reasonable
efforts to target the CoolDining Program to FDMS Merchants. Likewise,
CSI shall target the CoolDining Program to FDMS Merchants located in
cities wherein a reasonable number of FDMS Merchants have contracted
to participate in the Program.
g. Merchant Offers. CSI-Sourced Merchants will be directed to a CSI
branded web site for creating Merchant Offers. Yclip will build and
host this site. FDMS-Sourced Merchants will be directed to the
yourwebvalues Site or a Channel-branded web site for creating Merchant
Offers, provided that such Channel-branded web site will include
reference to the CoolDining Program specifically, and such reference
shall prominently display CSI's name and logo.
i. Each site used to create Merchant Offers will be embedded with
the Yclip Offer Making Tool, which will be enhanced prior to the
CoolDining Launch if necessary in order to deliver Merchant
Offers to CSI in a mutually agreed upon format that satisfies the
criteria mutually agreed upon between the parties as soon as
practicable (but no later than thirty (30) days after the
Effective Date) to be attached to this Agreement as Exhibit
6(g)(i), and as mutually amended thereafter (the "Offer
Standards"). All Merchant Offers submitted to CSI shall comply
with the Offer Standards. FDMS shall proof and edit all Merchant
Offers prior to the submission of each such Merchant Offer to CSI
(and the cost of such service shall be a Deduction as more fully
set forth on Exhibit 6l). From time to time, CSI may conduct
quality assurance testing on samples of proposed Merchant Offers
submitted for posting to ensure such proposed Merchant Offers
comply with the Offer Standards then in effect. The first time
more than ten percent (10%) offers in a particular month, fail to
pass such testing, CSI shall notify FDMS in writing, and FDMS
shall take reasonable efforts to ensure that proposed Merchant
Offers submitted to CSI thereafter comply with the Offer
Standards then in effect. The second time more than ten percent
(10%) offers fail to pass such testing in a particular month, OR
the first time more than
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twenty-five percent (25%) offers fail to pass such testing in a
particular month, then: (i) CSI may elect to perform all proofing
and editing of all Merchant Offers in place of FDMS and the cost
of such of such service shall be a Deduction under Exhibit 6l; or
(ii) CSI shall be entitled to immediately terminate this
Agreement pursuant to Section 14f. FDMS, at its sole cost and
expense, shall obtain a license enabling CSI to use Yclip's Offer
Making Tool during the term of this Agreement, and for that
period thereafter necessary to wrap up the parties obligations
under this Agreement under Section 17, provided that CSI's use
may be subject to standard terms and conditions.
ii. Notwithstanding anything contained in this Agreement to the
contrary, all Merchant Offers are at all times subject to CSI's
reasonable approval. CSI reserves the right at all times to
refuse, reject, censor, or withdraw, without notice, any Merchant
Offer that CSI deems to be improper for any reason. CSI will
immediately notify FDMS of any rejected Merchant Offer and will
cooperate with FDMS and the applicable FDMS Merchant in order to
educate such FDMS Merchant on the Offer Standards and ways to
resubmit a Merchant Offer that will not result in rejection.
iii. Merchant Offers for the CoolDining Program may be posted on web
sites other than the CoolDining Program Site.
h. Data Transmission. Each party shall capture and maintain its
respective Transmitted Data, as set forth in Exhibit 6(h), and
transmit the Transmitted Data to the other party through the Program
Interface (as defined in Section 7 below).
i. Fulfillment Services. FDMS shall provide Fulfillment Services for the
CoolDining Program in accordance with the performance standards set
forth on Exhibit 11, except with respect to those credit cards covered
under the Exclusivity Exception. For each credit card registered in
the CoolDining Program for which FDMS is required to provide
Fulfillment Services, each fulfilled Merchant Offer shall appear on
the applicable CoolDining Program Member's credit card statement as a
separate transaction item clearly denoted as a "CoolDining" credit,
pursuant to the terms of the MPA.
j. Customer Service. FDMS will provide customer service to the
Participating Merchants through toll free lines or e-mail. Program
Members seeking customer service will first be directed to e-mail CSI
for assistance. CSI shall provide such assistance via e-mail to the
extent it can reasonably do so. In the event CSI is unable to
reasonably provide the necessary assistance, then CSI shall refer the
Program Member to FDMS for assistance, and FDMS shall provide such
assistance to the extent it can reasonably do so. FDMS shall provide
such assistance through e-mail. Provided however, upon the first to
occur of: (i) FDMS receiving more than 5000 e-mails in any one month
during the first six (6) months after the CoolDining Launch; or (ii)
six (6) months after the CoolDining Launch; (the "Trigger Date") FDMS
and CSI will review the costs incurred by FDMS in providing such
Program Member customer service. In the event FDMS is unwilling to
continue providing such services without any reimbursement for doing
so, and the parties are unable to agree in writing upon such a
mutually acceptable level of reimbursement within thirty (30) days
after the Trigger Date,
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then for a period ending on the sixty-first (61st) day after the
Trigger Date, FDMS shall be entitled to terminate this Agreement
effective upon written notice to CSI. Upon any such termination
hereunder, the terms of Section 17 shall apply.
k. CoolDining Fees. FDMS shall collect all CoolDining program fees from
CSI-Sourced Merchants and FDMS-Sourced Merchants and shall remit to
CSI the amounts set forth in Exhibit 6(k) within forty-five (45) days
of the end of each month. Provided however, in the event that fees
collected from Participating Merchants in any 90 day period is less
than fifty percent (50%) of the amount owing, then either CSI or FDMS
may terminate this Agreement pursuant to Section 14f. CSI shall
collect CoolDining Program Fees from CoolDining Program Members and
remit to FDMS the amounts set forth in Exhibit 6(l) within forty-five
(45) days of the end of each month. FDMS may charge a Participating
Channel any fees FDMS deems appropriate for participation in the
CoolDining Program. Likewise, the Participating Channels and CSI, as
applicable, may charge the FDMS Merchants any fees such party deems
appropriate for participation in the CoolDining Program.
Notwithstanding the foregoing, the parties may elect to market the
CoolDining Program to the Channels with a suggested retail price.
i. FDMS shall use commercially reasonable efforts to collect all
fees from FDMS Merchants related to the CoolDining Program.
l. Revenue Sharing. The parties shall share revenue from CoolDining
Program Fees pursuant to the calculation set forth in Exhibit 6(l).
m. Exclusivity. Subject to the Exclusivity Exception, FDMS shall be the
exclusive provider of Fulfillment Services with respect to the
CoolDining Program.
n. Termination of CoolDining Program. Either party may terminate the
CoolDining Program at any time after six (6) months after the
CoolDining Launch in the event either party is dissatisfied with the
results of the CoolDining Program. In the event a party elects to
terminate the CoolDining Program under this Section, such party shall
provide the other party with not less than sixty (60) days prior
written notice. In the event of termination of the CoolDining Program,
the parties shall comply with the terms of Section 17 (Effect of
Termination) as it relates to their obligations with respect to the
CoolDining Program only. Termination of the CoolDining Program shall
not relieve either party of other obligations under this Agreement not
related to the CoolDining Program.
7. Interface Development. Yclip will develop an interface and/or a web site
between CSI's server and Yclip by June 1, 2000 that will allow: (i) each
party to transmit the Transmitted Data to one another (through Yclip); and
(ii) FDMS to provide the Fulfillment Services (the "Program Interface").
The parties will provide reasonable cooperation, information and assistance
in order to achieve development of the Program Interface. FDMS and/or Yclip
shall own all rights in or to the Program Interface, subject to CSI's
rights under Section 23 (Ownership). If Yclip fails to "develop" the
Program Interface by June 1, 2000, then FDMS shall pay to CSI a late fee in
the amount of $25,000. As used herein, "develop" shall mean having the
Program Interface in a state of
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operation wherein it is capable of being reasonably tested but not
necessarily of being able to function in a production mode.
8. Authorization to Place Cookies. CSI hereby authorizes and will provide
access to Yclip to place a cookie on the browser of each Joint Program
Member solely for the purpose of providing any Joint Program or any
component of such Joint Program hereunder. All information obtained
therefrom shall be CSI Member Information and shall be owned exclusively by
CSI.
9. CSI Nonsolicitation Obligation. CSI shall not (i) knowingly solicit any
FDMS Merchants for services similar to or competitive with the Payment
Processing Services; or (ii) engage or retain a third party to solicit the
FDMS Merchants for services similar to or competitive with the Payment
Processing Services (the "Non-Solicitation Obligation").
10. FDMS Nonsolicitation Obligation. FDMS shall not use CSI Member Information
under this Agreement to knowingly solicit, or engage or retain any third
party to solicit, such CSI Members for any reason other than with respect
to the Joint Programs unless otherwise agreed to in writing by CSI. Nothing
in this Section shall preclude FDMS or its Affiliates (or third parties on
their behalf) that solicit consumers for various products and services in
the ordinary course of business from continuing to do so, provided that
they obtain the names of the consumers from a source other than the CSI
Member Information (also, the "Non-Solicitation Obligation").
11. Performance Standards. For all Joint Programs, including the CoolDining
Program, each party shall meet the respective performance standards set
forth in Exhibit 11 (the "Performance Standards"). In the event a party
fails to meet any Performance Standard, the other party shall provide
written notice of the specific failure and the failing party shall promptly
initiate a cure of such failure and complete such cure as soon as
practicable. Three (3) failures of a party to meet all applicable
Performance Standards in any consecutive three (3) month period shall be
considered a material breach of this Agreement (an "Ongoing Performance
Standard Breach") and subject to the other party's right to terminate this
Agreement under Section 14(b) (Termination for Ongoing Performance Standard
Breach).
12. Hyperlink. CSI will prominently post a linking image provided by FDMS at
the CSI and/or CoolDining Web Site that will promote FDMS as a provider of
Payment Processing Services. CSI shall refer any merchants requesting or
seeking Payment Processing Services to FDMS, and CSI shall not make any
referral to or otherwise promote any provider of Payment Processing
Services other than FDMS during the term of this Agreement, except for any
provider of Payment Processing Services covered under the Exclusivity
Exception.
13. License. Each party hereby grants to the other party a nonexclusive,
limited, revocable, nontransferable, nonassignable license to use the Marks
of such party for the sole purposes expressly set forth herein. A party's
use of the other's Xxxx(s) requires the prior approval of the other party,
which shall not be unreasonably withheld. Furthermore, each party retains
the right to ensure the other party maintains the quality of the Marks of
the other party and to revoke this license in the event such quality is not
upheld. Each party accepts such grant from the other, acknowledges and
admits that it has no right, title or interest in the other's Marks other
than the right to use the Marks as set forth herein,
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and agrees to knowingly do nothing inconsistent with the other party's
ownership rights which would in any material way cause dilution of any of
the other party's Marks.
14. Termination. Either party may at its option immediately terminate this
Agreement by giving written notice thereof to the other party in the event
of the occurrence of any of the following:
a. Failure of the other party to correct or cure any material breach of
this Agreement by such other party within thirty (30) calendar days
after receipt of a written notice from the non-breaching party
specifying such breach, provided that the breaching party promptly
commences and diligently pursues a cure as soon as practicable after
receiving notice thereof.
b. An Ongoing Performance Standard Breach;
c. A material breach by the other party of Section 20 (Use of Data),
Section 21 (Privacy Policy), or Section 22 (Proprietary Information);
d. Failure by a party to pay monies required to be paid under this
Agreement, when due (an "Economic Default"), within twenty (20) days
after written notice to the other party identifying the Economic
Default, provided however, in the event that a party commits more than
two (2) Economic Defaults in any six (6) month period under this
Agreement, then upon the occurrence of the next Economic Default by
such party within that six month period, the non-defaulting party
shall be entitled to immediately terminate this Agreement upon written
notice to the defaulting party and no cure period or right to cure
shall be available to the defaulting party;
e. The other party becomes insolvent, or a petition in bankruptcy is
filed, or any similar relief is filed by or against the other party,
or a receiver is appointed with respect to any of the assets of the
other party, or a liquidation proceeding is commenced by or against
the other party; or
f. As otherwise specifically provided in another Section of this
Agreement.
15. Termination by FDMS in the Event of Change of Control. In the event that
all or a controlling interest in CSI is acquired by an unrelated third
party by merger, acquisition or private or public purchase of securities or
assets, and such third party is a competitor of FDMS as a provider of
Payment Processing Services, then FDMS shall have the right, at its sole
option and discretion, to immediately terminate this Agreement upon written
notice to CSI. CSI shall provide FDMS written notice of such transaction as
soon as such transaction has been consummated.
16. Termination by CSI for FDMS Shortfall. CSI may terminate this Agreement
immediately upon written notice to FDMS in the event an Auditor identifies
a shortfall in payment due CSI of more than 10% two times in any twenty-
four month period pursuant to an audit conducted under Section 19.
17. Effect of Termination. In the event of the expiration of this Agreement
under Section 2 or the termination of this Agreement as specifically
provided in this Agreement, the parties shall perform as follows:
11
a. As of the Termination Date, each party shall cease marketing or
promoting all applicable Joint Programs and shall remove all
references to the other party on their respective web sites (except as
may be required to comply with the next sentence). Each party shall
only continue to perform their respective obligations hereunder as may
be necessary to wind down all Joint Programs for up to forty-five (45)
days after the Termination Date.
b. Each party shall post within five (5) business days of the Termination
Date at any and all Joint Program-related web sites a notice of the
termination of the applicable Joint Program(s). Such notice may only
inform Program Members of the end of the Joint Program, the effective
date of the end of the Joint Program, and other essential facts
necessary to wind up the Joint Program. The notice shall not give any
statement regarding the reason for the end of the Program or assess
any blame or fault on the other party. The parties shall consult with
each other as to the contents of such notice.
c. Upon completion of the wind down of all Joint Programs under
subsection a, above: (i) FDMS (or Yclip on behalf of FDMS) shall take
down the applicable Program Interfaces; (ii) CSI shall cease all use
of Transaction Data and shall certify to FDMS in writing within five
(5) business days of the Termination Date that it has destroyed copies
of all files or other media containing Transaction Data and that it no
longer uses or will use the Transaction Data; and (iii) FDMS, the
Channels, the Affiliates and their agents (as applicable) shall cease
all use of CSI Member Information and FDMS shall certify to CSI in
writing within five (5) business days of termination that it, the
applicable Channels, Affiliates, and their agents have destroyed
copies of all files or other media containing CSI Member Information
and that they no longer use or will use the CSI Member Information.
d. Within thirty (30) days after the Termination Date, FDMS shall notify
the FDMS-Sourced Merchants, and CSI shall notify the CSI-Sourced
Merchants and the applicable Program Members (in writing), of the
cancellation of the applicable Joint Program(s). Said notices shall
only state that the Joint Program(s) has been terminated without
stating the reason for such termination and without any disparaging
remarks about the other party. Each party shall provide the other
party with a copy of the communication it intends to send under this
Section at least two (2) weeks prior to sending such communication;
e. As soon as practicable after the Termination Date but in no event
later than sixty (60) days after the Termination Date, CSI shall
initiate a refund to each applicable Program Member via its registered
credit card of a pro rata portion of any Program Fees collected from
such Program Member for its respective membership year, and FDMS shall
process such refund pursuant to the terms of the MPA. In addition,
FDMS shall refund to each Participating Merchant who enrolled during
the calendar year in which the expiration occurs, a prorated portion
of any "set-up" fees collected from such Participating Merchant. The
parties shall be liable for their respective percentage share as set
forth on Exhibit 6(l) of (i) any fees so refunded, and (ii) any
Deductions on Exhibit 6(l) incurred for such feeds refunded, and shall
promptly reconcile and pay any amounts owing.
f. Each party shall promptly pay to the other any amounts then due and
owing
12
pursuant to the terms of this Agreement. FDMS shall provide applicable
billing and accounting services as described in this Agreement until
all monies owing under the Joint Programs are collected and allocated
pursuant to the applicable revenue share, and CSI's share is paid to
CSI.
g. Each party shall promptly return to the other any Proprietary
Information (as defined in Section 21 herein) belonging to the other
party and shall cease all use of the other's Marks (except, and only
to the extent, as may otherwise be necessary to wind down all Joint
Programs under subsection a. above).
h. Each party shall continue to comply with its respective
Nonsolicitation Obligation for one (1) year after the Termination
Date.
18. No Limitation of Remedies. Nothing contained in this Agreement shall
be construed to limit or deny either party's rights or remedies provided
under this Agreement or at law or equity. By way of example but not
limitation, a party's election to terminate this Agreement because of the
other party's breach, shall not in any way limit the non-breaching party's
right to pursue damages suffered as a result of such breach (subject to the
terms of Sections 31 and 32).
19. Audit Rights. No more than two (2) times in any twelve month period either
party shall have the right, at its expense, upon five (5) business days
advance written notice to the other party, to retain an Auditor to audit
copies of all relevant books and records of the other party necessary to
confirm any calculations made hereunder. In the event any such audit
reveals a shortfall or overpayment in any payment made to CSI or FDMS, then
the party owing monies to the other shall pay the amount owing within two
weeks of the date the amount of such shortfall or overpayment is finally
determined and notice of the same is provided to the other party. Further,
should any such shortfall or overpayment exceed ten percent (10%) of the
actual amount due for the period audited, then in addition to paying the
amount of the shortfall or overpayment, the party obligated to pay shall
promptly (i) pay the other party interest on the amount of the shortfall or
overpayment at the rate of Two Percent over the Prime Rate of Bank One (as
announced by Bank One) from the date of the underlying shortfall or
overpayment until the amount is paid; and (ii) reimburse the other party
for all reasonable, direct costs of the audit, in the event the other party
initiated the audit. Should any audit hereunder reveal a party's second
underpayment of the amount properly owing to the other party exceeding ten
percent (10%) of the actual amount due for the period audited, then in
addition to the remedies provided herein, the other party may immediately
terminate this Agreement.
20. Use of Data. Notwithstanding anything to the contrary herein:
a. Transaction Data. As between the parties, FDMS and/or the applicable
Channel own all Transaction Data. CSI may only have access to and use
of the Transaction Data for the purposes of fulfilling its obligations
hereunder with respect to the Joint Programs (including the CoolDining
Program). Except as expressly provided herein, CSI will not use,
disclose or sell any Transaction Data without FDMS' prior written
consent, which consent FDMS may elect not to give in its sole
discretion. As between the parties, Transaction Data shall be
considered Proprietary Information of FDMS. CSI's use, sale or
disclosure of the Transaction Data for any program or purpose other
than those expressly set forth
13
herein, or for other than any Joint Program, shall be considered a
material breach of this Agreement. CSI expressly represents that it
will not merge the Transaction Data with any other data or database
used by CSI except for data or databases relative to other Joint
Programs, and any such merger shall be solely for purposes of carrying
out the Joint Programs.
b. CSI Member Information. CSI owns all CSI Member Information. FDMS,
the Channels, the Affiliates, and their agents may only have access to
and use of the CSI Member Information for the purposes of carrying out
the Joint Programs (including the CoolDining Program). Except as
expressly provided herein, FDMS, the Channels, the Affiliates, and
their agents will not use, disclose or sell any CSI Member Information
without CSI's prior written consent, which consent CSI may elect not
to give in its sole discretion. As between the parties, CSI Member
Information shall be considered Proprietary Information of CSI. The
use, sale or disclosure of the CSI Member Information by FDMS, the
Channels, the Affiliates, or their agents for any program or purpose
other than those expressly set forth herein, or for other than any
Joint Program, shall be considered a material breach of this
Agreement. FDMS expressly represents that it, the Channels, the
Affiliates and their agents will not merge the CSI Member Information
with any other data or database except for data or databases relative
to other Joint Programs, and any such merger shall be solely for
purposes of carrying out the Joint Programs.
21. Privacy Policy. Within forty-five (45) days of the Effective Date the
parties shall cooperate to draft a privacy policy related to the Joint
Programs and the use of CSI Member Information (the "Program Privacy
Policy"), which shall be posted prominently at the applicable Joint Program
and/or CSI Web Site(s). The Program Terms shall include clear, prominent
authorization by the Program Member allowing the applicable Joint Program
provider the right to use and/or disclose CSI Member Information for the
purposes of providing the Joint Program to such Program Member, targeting
more specific Merchant Offers to such Program Member, and providing the
Fulfillment Services. The Program Member terms and conditions shall also
include a means by which a Program Member may cease participation in each
applicable Joint Program and remove its information from the CSI and/or
FDMS systems. The parties acknowledge and agree that each Joint Program,
including but not limited to the CoolDining Program, shall be expressly
designed to comply with all applicable laws and regulations related to
privacy and each party shall take all steps necessary to comply with such
laws and abide by the terms of the Program Privacy Policy. In no event
shall either party violate the Program Privacy Policy, and such breach
shall be considered a material breach of this Agreement. Each party agrees
that any violation of the Program Privacy Policy by a party (the
"Defaulting Party") may cause the other party (the "Non-Defaulting party")
immediate and irreparable harm for which money damages may not constitute
an adequate remedy. In such event, each party agrees that injunctive relief
may be warranted in addition to any other remedies the Non-Defaulting Party
may have.
22. Proprietary Information. The terms of that certain Information Exchange
and Non-Disclosure Agreement between the parties dated August 5, 1999 shall
apply to any "Proprietary Information" (as defined therein) accessed or
disclosed during the term of this Agreement. Each party agrees that any
unauthorized use or disclosure by a party (the "Defaulting Party") of the
Proprietary Information of the other (the "Non-Defaulting
14
party") may cause immediate and irreparable harm to the Non-Defaulting
Party for which money damages may not constitute an adequate remedy. In
such event, each party agrees that injunctive relief may be warranted in
addition to any other remedies the Non-Defaulting Party may have. In
addition, the Defaulting Party agrees promptly to advise the Non-Defaulting
Party in writing of any unauthorized misappropriation, disclosure or use by
any person of such party's Proprietary Information which may come to its
attention and to take all steps at its own expense reasonably requested by
the Non-Defaulting Party to limit, stop or otherwise remedy any
misappropriation, disclosure or use by its own representatives, agents or
employees. The obligations of this Section shall survive the termination of
this Agreement for the longest period of time permitted by law.
23. Ownership. FDMS hereby acknowledges and agrees that CSI owns all right,
title and interest in and to: (i) the CSI Web Site, the CoolDining Program
Web Site, and all other Joint Program web sites unless specifically
otherwise agreed to in writing by the parties; (ii) the CSI Member
Information; (iii) the CSI Marks; and (iv) all other technology, systems,
software or development to the extent provided by CSI (collectively, the
"CSI Property"). CSI hereby acknowledges and agrees that FDMS owns and or
licenses all right, title and interest in and to (a) the FDMS System; (b)
the FDMS Marks; (c) the Program Interface (except as provided in subsection
(iv) above); (d) all Transaction Data; and (e) all other technology,
systems, software or development to the extent provided by FDMS
(collectively, the "FDMS Property").
24. Compliance with Laws. Each party shall comply with all applicable laws and
regulations, including but not limited to, all laws related to consumers
and consumer privacy ("Laws").
25. Representations and Warranties.
a. By CSI. CSI hereby represents and warrants that:
i. it has all requisite corporate power and authority to enter into
this Agreement and carry out the transactions contemplated
hereby;
ii. the execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby have been
duly authorized by all requisite corporate action and does not
violate any agreement which CSI is bound by or any law, rule or
regulation to which CSI is subject;
b. By FDMS. FDMS hereby represents and warrants that:
i. it has all requisite corporate power and authority to enter into
this Agreement and carry out the transactions contemplated
hereby; and
ii. the execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby have been
duly authorized by all requisite corporate action and does not
violate any agreement which FDMS is bound by or any law, rule or
regulation to which FDMS is subject.
c. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT: (i),
NEITHER PARTY WARRANTS THAT THE COOLDINING PROGRAM
15
WEB SITE, THE CSI WEB SITE, ANY OTHER JOINT PROGRAM WEB SITE, THE
PROGRAM INTERFACE, OR THE FDMS SYSTEM, AS APPLICABLE, WILL PERFORM IN
THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR OR DEFECT; AND (ii)
NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED.
26. Agents. Neither party may use an agent to perform any of its obligations
hereunder without the prior written consent of the other. In the event an
agent is used to perform hereunder, such agent: (i) may in no event access
or use the Transaction Data for any reason unless FDMS provides its prior
written consent and such use is allowed by applicable law or regulation;
(ii) may in no event access or use the CSI Member Information for any
reason unless CSI provides its prior written consent and such use is
allowed by applicable law or regulation; and (iii) shall be required to
enter into a written agreement under which such agent shall be subject to
obligations of confidentiality no less restrictive than those set forth in
this Agreement and the terms of Section 20. In addition, the party using an
agent shall at all times remain fully and primarily liable and responsible
for the performance of its obligations under this Agreement, as well as the
manner in which any delegated obligations are performed. FDMS hereby
notifies CSI that Yclip shall be considered an agent of FDMS under this
Agreement, and upon receipt of a written agreement satisfying subsection
(iii) herein, CSI hereby agrees to consent to such agency.
27. Stored Value Cards. For a period of one (1) year from and after the
CoolDining Launch, CSI shall not enter into an agreement with any third
party for processing of transactions from a CSI branded stored value card
(i.e. bearing the "Coolsavings" name) without providing FDMS with the
opportunity to bid on providing such processing services.
28. Disclaimer/Force Majeure. Neither party shall be liable for any loss or
damage whatsoever suffered by the other party, any Participating Channel,
any Participating Merchant, any CSI Member, or any other third party as a
result of, or arising from, the failure of any Merchant Offers, at any
time, to appear on the applicable Joint Program Web Site unless caused by
the gross negligence or intentional wrongful act of such party. The parties
acknowledge that in the event that any Merchant Offer fails for any reason
to appear on the applicable Joint Program Web Site or is in any way
incorrectly posted, the sole and exclusive remedy shall be the placement
of, or the corrected posting of, such Merchant Offer on the applicable
Joint Program Web Site for an additional period equal to the period in
which it fails to appear or appeared incorrectly. Each FDMS Merchant
Agreement shall contain substantially the same disclaimer. Furthermore,
neither party shall be liable for any delay or failure in performance of
any part of this Agreement, other than for any delay or failure to pay
money owed hereunder, by reason of acts of God, fire, strikes, shortages of
labor or materials, or any change in law that makes performance hereunder
impossible.
29. General Indemnifications.
16
a. By CSI. CSI shall indemnify FDMS, its Affiliates and Channels, and its
and their directors, officers and employees (the "FDMS Group"), for
any claim, loss, damage, expenses, penalty or liability the FDMS Group
member sustains or incurs, including reasonable attorneys fees and
litigation costs (together, "Loss") as a result of a claim by a third
party (i) that CSI or its agent has breached the Program Privacy
Policy; (ii) arising out of any products and services provided by CSI
or its agents; (iii) related to the CSI Property; and (iv) arising out
of a breach of this Agreement by CSI or its agents. CSI's obligation
to indemnify the FDMS Group pursuant to the foregoing shall not apply
to the extent such claim is due to the breach of this Agreement by any
member of the FDMS Group or its agents, or the gross negligence or
willful misconduct of any member of the FDMS Group, or its agents. In
addition to the foregoing, CSI shall indemnify the FDMS Group for any
Loss arising out of CSI's or its agents' use or disclosure of the
Transaction Data in any manner not permitted under this Agreement,
wherein the information in issue was obtained by the party who
wrongfully used or disclosed it, pursuant to, or as a result of, this
Agreement.
b. By FDMS. FDMS shall indemnify CSI, its affiliates, directors,
officers and employees (the "CSI Group") for any Loss as a result of a
claim by a third party (i) that FDMS, its Affiliates, the Channels, or
their agents has breached the Program Privacy Policy; (ii) related to
the FDMS Property; (iii) arising out of any products and services
provided by FDMS, its Affiliates, the Channels, or their agents; and
(iv) arising out of a breach of this Agreement by FDMS or its agents.
FDMS' obligation to indemnify the CSI Group pursuant to this Section
shall not apply to the extent such claim is due to the breach of this
Agreement by a member of the CSI Group or its agents or the gross
negligence or willful misconduct of any member of the CSI Group, CSI
or its agents. In addition to the foregoing, FDMS shall indemnify the
CSI Group for any Loss arising out of the use or disclosure of the CSI
Member Information in any manner not permitted under this Agreement by
any member of the FDMS Group (as defined in subsection 29a above) or
its agents, wherein the information in issue was obtained by the party
who wrongfully used or disclosed it, pursuant to, or as a result of,
this Agreement.
30. Intellectual Property Indemnification.
a. By CSI. CSI shall indemnify the FDMS Group for any Loss that may
result by reason of any infringement or claim of infringement of any
copyright, patent, trademark, trade secret or other proprietary right
of any third party related to the CSI Property, and all software,
services and systems provided by CSI and its agents in connection with
any Joint Program hereunder.
b. By FDMS. FDMS shall indemnify the CSI Group for any Loss that may
result by reason of any infringement or claim of infringement of any
copyright, patent, trademark, trade secret or other proprietary right
of any third party related to the FDMS Property, and all software,
services and systems provided by FDMS, its Affiliates, the Channels,
and their agents in connection with any Joint Program hereunder.
31. No Consequential or Punitive Damages. NEITHER PARTY WILL BE LIABLE TO THE
OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM
17
THE OTHER PARTY'S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL,
PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR
PROFITS, LOSS OF BUSINESS OR LOSS OF DATA - ARISING OUT OF THIS AGREEMENT
(INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR
OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR
ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF
THE POSSIBILITY THEREOF. PROVIDED HOWEVER, NOTHING CONTAINED HEREIN SHALL
BE CONSTRUED TO DENY OR LIMIT A PARTY'S RIGHT TO BE MADE WHOLE PURSUANT TO
ANY INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 29 OR 30, EVEN IF THE
DAMAGE AMOUNT AWARDED TO THE THIRD PARTY (AND ASSESSED AGAINST THE
INDEMNIFIED PARTY) IN THE CLAIM FOR WHICH INDEMNIFICATION IS REQUIRED UNDER
THIS AGREEMENT INCLUDES INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL,
PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR
PROFITS, LOSS OF BUSINESS OR LOSS OF DATA.
32. Limitation of Liability. Except for a party's liability under Section 22
(Proprietary Information), Section 20 (Use of Data), Section 21 (Privacy
Policy), Sections 29 and 30 (Indemnification), and a party's obligation to
pay fees or other monies required to be paid to the other party under this
Agreement, each party's cumulative liability under this Agreement for
damages suffered by the other party from a breach of this Agreement shall
be limited to $1,000,000.
33. Mutual Nonassert. Neither party shall make a claim against the other for
infringement of such party's intellectual property rights to the extent
such claim relates to a party's performance of its obligations or exercise
of its rights hereunder.
34. Arbitration. In the event of a dispute between the parties with regard to
any of the matters set forth in this Agreement, the parties will first make
reasonable efforts to resolve such dispute among themselves. If the parties
are unable to resolve the dispute within thirty (30) calendar days of the
initiation of such procedure, the dispute will be settled by arbitration as
provided for below, which will be the sole and exclusive procedure for the
resolution of any such dispute except for disputes wherein a party seeks
injunctive relief. The arbitration will be governed by the then existing
rules of the American Arbitration Association. One arbitrator shall be
chosen pursuant to the rules of the American Arbitration Association,
provided however, that the arbitrator so chosen shall not be employee,
consultant, officer or director of any party or of any affiliate of either
party and who has not received any compensation, directly or indirectly,
from any party or any affiliate of any party. The determination of the
arbitrator as to the resolution of any dispute will be binding and
conclusive upon the parties. The fees and expenses of the arbitrator will
be paid 50% by each party. The arbitrator may award the prevailing party
its costs and expenses (including attorneys fees) of the arbitration, as
he/she deems appropriate and just. Any arbitration award may be entered in
and enforced by any court having jurisdiction thereof.
35. Publicity and Marketing. No release shall be made to the news media or to
the general public relating to this Agreement without the prior written
approval of the other party. The parties will use their best efforts to
agree upon and issue a press release announcing
18
the existence of this Agreement on or after the Effective Date. Any
marketing, web site or other media referencing the other party's
participation in a Joint Program shall be subject to the other party's
prior review and written approval. Notwithstanding the foregoing, either
party may disclose this Agreement as required by law or Securities Exchange
Commission rule or regulation.
36. Relationship of the Parties. CSI, FDMS, and the Participating Channels
shall not have any authority to bind any party to this Agreement by
contract or otherwise to make representations as to the policies and
procedures of the other, other than as specifically authorized by this
Agreement. FDMS and CSI acknowledge and agree that the relationship arising
from this Agreement does not constitute or create a general agency, joint
venture, partnership, employee relationship or franchise between them and
that each is an independent contractor with respect to the services
provided by it under this Agreement.
37. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the state of Illinois except as to its principles
of conflicts of laws.
38. Entire Agreement. This Agreement together with the Information Exchange
and Non-Disclosure Agreement constitute the entire agreement between the
parties hereto and contains all of the agreements between said parties with
respect to the subject matter hereof. There is no statement, promise,
agreement, or obligation in existence which may conflict with the terms of
this Agreement or may modify, enlarge, or invalidate this Agreement or any
provision hereof. None of the prior and/or contemporaneous negotiations,
preliminary drafts, or prior versions of this Agreement leading up to its
execution and not set forth herein shall be used by any of the parties to
construe or affect the validity of this Agreement. Each party acknowledges
that no representation, inducement or condition not set forth herein has
been made or relied upon by either party. Further, this Agreement
supersedes any and all other agreements, either oral or in writing, between
the parties hereto with respect to the subject matter hereof.
39. Nonexclusive. Nothing in this Agreement shall prohibit or prevent FDMS
from entering into an arrangement with a third party under which FDMS may
provide similar products and services.
40. Modification/Waiver. No provision of this Agreement may be altered,
amended and/or waived, except by a written document signed by an executive
officer of both parties hereto setting forth such alteration, amendment,
and/or waiver. The parties hereto agree that the failure to enforce any
provision or obligation under this Agreement shall not constitute a waiver
thereof or serve as a bar to the subsequent enforcement of such provision
or obligation or any other provisions or obligation under this Agreement.
41. Joint Drafting. Each of the parties hereto has joined in and contributed
to drafting this Agreement; there shall be no presumption favoring or
burdening any one or more parties hereto based upon draftsmanship.
42. Notices. All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be deemed
sufficiently given, served, and received for all purposes upon the first to
occur of actual receipt, or delivery by generally recognized overnight
courier service, or by facsimile transmission (with the original
subsequently
19
delivered by other means permitted by this Agreement, although the
effective date of such notice shall be the date of such facsimile
transmission provided the original is subsequently delivered as provided
herein), or three (3) days after deposit in the United States Mail,
certified or registered, return receipt requested, with postage prepaid,
addressed as follows:
To FDMS: Xxxx Xxxxxx
------- First Data Merchant Services Corporation
Internet Commerce Group
000 Xxxxx Xxxxxx Xx.
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: General Counsel
-------------- First Data Merchant Services Corporation
Internet Commerce Group
0000 X. Xxxxxx, Xxx. 000 XX
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
To CSI: President
------ xxxxxxxxxxx.xxx inc.
0000 Xxxx Xxxxxxx Xxxx, Xxx. 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000____
With a copy to: General Counsel
-------------- xxxxxxxxxxx.xxx inc.
0000 Xxxx Xxxxxxx Xxxx, Xxx. 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000____
Or at such other address(es) set forth in any written notice delivered to the
other party.
43. Survival. The following provisions shall survive termination of this
Agreement: Sections 7, 8, 17, 18, 19 (for a period of 9 months after the
Termination Date), 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34.
43. Future Performance. Notwithstanding anything contained in this Agreement
that can be construed to the contrary, wherein any Section of this Agreement
contemplates the parties agreeing upon something within a specific time period
after the Effective Date (e.g. within 30 days after the Effective Date), should
the parties fails to so agree within the specified time period, then the
specified period shall be extended for thirty (30) days. Should the parties
fail to so agree within the extension period, then either party shall be
entitled to terminate this Agreement during the ensuing thirty (30) day period,
effective upon written notice to the other party, provided that each party shall
use good faith efforts to meet all time periods specified herein.
44. Execution. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, and all of which together shall be deemed to
be one and the same instrument. Facsimile signatures shall have the same force
and effect as original signatures.
20
IN WITNESS WHEREOF, the parties have executed this Agreement under seal on
the date first written above.
FIRST DATA MERCHANT SERVICES xxxxxxxxxxx.xxx inc.
CORPORATION
/s/ Xxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
By:_____________________________ By:_______________________________
EVP, Business Development CEO/President
Title:__________________________ Title:____________________________
21
EXHIBIT 6(C)
CoolDining Program Members
Online Terms and Conditions
Agreement will be between CSI and CoolDining Program Member. Agreement must
include the following terms:
. Express authorization to allow FDMS to charge CoolDining Program Fees
to credit card
. Express authorization to use transaction data in order to effect
coupon fulfillment
. Express description of CoolDining Privacy Policy
. Explanation of how CoolDining Member may opt out of CoolDining Program
and obtain refund of some or all of CoolDining Program Fees
. Limitation of Liability of FDMS and disclaimer of warranties.
Form of Agreement between CSI and CoolDining Program Member to be mutually
agreed upon and attached within 90 days of Effective Date.
22
EXHIBIT 6(g)(i)
Offer Standards
(to be attached as soon as practicable but in any event
within thirty days of Effective Date)
23
EXHIBIT 6(h)
Transmitted Data
Transmitted Data from CSI to FDMS
Program Member Registration Data. CSI shall provide Yclip/FDMS with the
following information when a consumer registers to be a Program Member:
1. Program Member CSI I.D. Number
2. Program Member registered VISA or MasterCard credit card number(s) and
expiration date(s)
3. Program Member zip code
4.
Program Member Offer Selection Data. CSI shall provide Yclip/FDMS with the
following information when a Program Member selects a Merchant Offer:
1. Program Member CSI I.D. Number
2. Yclip Offer I.D. Number
Merchant Enrollment Data. CSI shall provide Yclip/FDMS with the following
information when a Merchant enrolls for the Program:
1. Merchant name
2. Merchant contact information
3. Merchant pricing information
4. Merchant preferences (e.g. notifications, etc.)
Merchant Offer Creation Data. CSI shall provide to Yclip/FDMS the
following information when a Merchant submits a valid Merchant Offer:
1. Merchant Name
2. Merchant Id Number
3. Merchant Offer Amount (percentage or fixed dollar amount)
4. Purchase Threshold Amount, if any (i.e., min purchase of $x required)
5. Maximum Purchase Amount allowed for discount, if any
6. Specific rules for offer (validity on 1st purchase or 2nd purchase,
etc.)
7. Offer Start Date
8. Offer Expiration Date
9. Yclip Merchant classification (taxonomy will support cuisine type)
Transmitted Data from FDMS to CSI
Merchant Offer Creation Data. Yclip/FDMS shall provide CSI with the
following information when a Merchant submits a valid Merchant Offer:
1. Merchant Name and zip code (and other location information, if any,
submitted by the Merchant)
2. Yclip Offer ID Number
3. Merchant Offer Amount (percentage or fixed dollar amount)
4. Purchase Threshold Amount, if any (i.e., min purchase of $x required)
5. Maximum Purchase Amount allowed for discount, if any
6. Specific rules for offer (validity on 1st purchase or 2nd purchase,
etc.)
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7. Offer Start Date
8. Offer Expiration Date
9. Yclip Merchant classification
10. Presentation data
Program Member Offer Redemption Data. Yclip/FDMS shall provide CSI with
the following information when a Program Member redeems a Merchant Offer:
1. CSI Program Member I.D. Number
2. Program Member redemption data, including but not limited to:
(a) amount of the discount (e.g. percentage savings or dollar savings)
the Program Member was entitled to receive under the terms of the
Merchant Offer clipped;
(b) total amount charged on the Member's credit card statement in the
transaction against which the Merchant Offer is to be applied;
(c) amount credited against (b) above on the Member's credit card
statement (i.e. amount of the savings realized)
(d) name of the Participating Merchant
(e) zip code of the Participating Merchant
(f) Yclip merchant classification
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EXHIBIT 6(k)
COOLDINING PROGRAM FEES
A. Program Fees/Fulfillment Fees
For CSI-Sourced Merchants:
FDMS will collect from each CSI-Sourced Merchant the percentage fee the
CSI-Sourced Merchant agreed to pay on each qualifying purchase transaction (e.g.
4% of the qualifying purchase transaction amount) pursuant to its agreement for
the CoolDining Program (the "Fulfillment Fee"). From each Fulfillment Fee
collected, FDMS shall first retain an amount equal to Two and one-half percent
(2.5%) of the qualifying purchase transaction amount and then pay the entire
balance of such Fulfillment Fee to CSI.
For FDMS-Sourced Merchants:
FDMS will collect from each FDMS-Sourced Merchant the percentage fee the
FDMS-Sourced Merchant agreed to pay on each qualifying purchase transaction
(e.g. 4% of the qualifying purchase transaction amount) pursuant to its
agreement for the CoolDining Program (the "Fulfillment Fee"). From each
Fulfillment Fee collected, FDMS shall first pay to CSI an amount equal to One
percent (1.0%) of the qualifying purchase transaction amount before retaining or
paying any third parties any portion of such Fulfillment Fee.
B. Additional Revenue Sharing
CSI shall earn:
Merchant Set-up Fee 50% of the mutually agreed upon fee
(paid by FDMS Merchants)
Net Program Fee Revenue 60% pursuant to terms of Exhibit 6(l)
FDMS shall earn:
Merchant Set-up Fee 50% of the mutually agreed upon fee
(paid by FDMS Merchants)
Net Program Fee Revenue 40% pursuant to terms of Exhibit 6(l)
Pricing Review
The parties acknowledge that these fees may change as a result of market
response or through additional market research. The parties will review this fee
schedule not less than semi-annually (or more frequently as needed) for the
purpose of determining if any amendments to the foregoing fees are appropriate.
The fees in this Exhibit will not change unless both parties agree
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to such amendment and such amendment is documented in writing and signed by both
parties. To the extent new products/services are added to the CoolDining
Program, the parties will mutually agree upon fees and supplement this Exhibit
in writing.
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EXHIBIT 6(l)
CoolDining Program Revenue Sharing
In addition to a party's obligation to pay Fees under Exhibit 6(k), the parties
shall also share Net Program Revenues as follows:
Calculation of Net Program Revenues:
Each month CSI shall receive CoolDining Program Fees for Visa or Master Card
credit cards registered for the CoolDining Program (Section 6(c)), which shall
be considered "Gross Revenues". CSI shall deduct from Gross Revenues the direct
costs and expenses set forth below or otherwise agreed upon in writing by CSI
and FDMS ("Deductions"). The remainder shall be deemed "Net Program Revenues".
Deductions:
Unless otherwise agreed in writing, Deductions shall only be for the following
specific categories:
. The cost of proofing and editing Merchant Offers under Section 6g(i)
. Visa and Mastercard Interchange and Assessment fees related to
CoolDining for purposes of Program Member billing
. Transaction processing fees related to CoolDining for purposes of
membership billing
Within fifteen (15) days after the end of each calendar month (a) each party
shall notify the other in writing of the actual amount of its Deductions (by
category) for the immediately preceding calendar month, and, upon request,
provide the other party with reasonable information in support thereof; and (b)
CSI shall notify FDMS of the number of CoolDining Program Members that enrolled
in the CoolDining Program in the immediately preceding calendar month.
Payment to FDMS:
Within forty-five (45) days after the end of each calendar month, CSI shall pay
to FDMS forty (40%) percent of the Net Program Revenues for the applicable
month. CSI shall include a detailed accounting with each payment setting forth
the basis for its calculation of FDMS's share of Net Program Revenues.
Notwithstanding anything contained in this Agreement that can be construed to
the contrary, FDMS shall not be entitled to any portion of any revenues received
by CSI for: (i) the posting of any advertising on the CoolDining Program Web
Site or any other portion of the CSI Web Site, that is not a Merchant Offer
under the CoolDining Program; or (ii) received by CSI for any other services
provided by CSI, even if such monies are paid by a Participating Merchant or a
CoolDining Program Member, provided that CSI may not offer an FDMS Merchant any
services or products other than the CoolDining Program without the prior written
consent of FDMS.
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Exhibit 11
Performance Standards
Note: all blanks will be agreed upon and filled in by the parties within
ninety days of the Effective Date.
System Availability Excluding maintenance and other scheduled
outages, the CSI Web Site, the CoolDining
Program Web Site and all related systems
will be operational at least 98% of the
time, and the FDMS System will be
operational at least 98% of the time.
System Response Time The time between a user request to a
CoolSavings System and a CoolSavings System
response will not exceed ___ seconds for
95% of the transactions. The time between a
user request to an FDMS System and a FDMS
System response will not exceed ___ seconds
for ___% of the transactions.
Transmitted Data Turnaround CSI will forward the CSI Transmitted Data
to FDMS within 24 hours of receipt and FDMS
will process such Transmitted Data within
____ of receipt. FDMS will forward the FDMS
Transmitted Data to CSI within ___ hours of
receipt and CSI will post the Merchant
Offers within such Transmitted Data within
____ of receipt.
Notification of Outages Each party will notify the other at least
___ business days in advance for any known
or anticipated down time to such party's
system which may impact the CoolDining
Program or any other Joint Program.
Merchant Enrollment Turnaround FDMS will ensure that the software for
Merchant submission of Merchant Offers for
the CoolDining Program will enable
Merchants to submit Merchant Offers to
Yclip within ___ after Merchant enrollment.
Merchant Offer Preparation Yclip shall prepare, proof, and otherwise
edit all Merchant Offers in accordance with
the Offer Standards and forward each such
Merchant Offer to CSI within ____ hours of
receipt of such Merchant Offer.
Merchant Offer Posting Merchant Offers that comply with the Offer
Standards will be posted on the CoolDining
Program Web Site or other Joint Program web
site within 24 hours of receipt by CSI.
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Help Desk Average Speed of Answer The average speed of answer (ASA) for FDMS
help desk calls will not exceed ___
minutes. The average response time for CSI
e-mail responses will not exceed ___.
Help Desk Call Length The average length of an FDMS help desk
call will not exceed ___ minutes.
Help Desk Abandon Rate The abandon rate for FDMS help desk calls
will not exceed __% __% of the time.
Rebate Posting FDMS will submit ___% of rebates related to
valid Merchant Offers to settlement within
___ business days of receipt of the
associated qualifying purchase in a
Channel's merchant transaction file.
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