EXHIBIT 10.2
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.
CONSUMER CREDIT INFORMATION SERVICE AGREEMENT
This Consumer Credit Information Service Agreement (the "Agreement")
is entered into this 12th day of March 1997, by and between CreditComm Services
LLC., a Delaware Limited Liability Company ("CreditComm") and American Express
Travel Related Services Company, Inc., a New York corporation ("AMEX").
WHEREAS, CreditComm is engaged in, among other things, the business of
promoting, selling and providing consumer and other services associated with its
Consumer Credit Information Service; and
WHEREAS, AMEX desires to offer, and to participate with CreditComm in
the promotion of such services to certain of its current and future Cardmembers
and other customers ("Customers") on the terms and conditions of this Agreement.
THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. The Service: AMEX hereby retains CreditComm and CreditComm agrees to provide
the services specifically described in the Proposal/Description of Services
attached hereto as Exhibit A and made a part hereof (the "Service"). Customers
enrolled in the Service ("Enrollee(s)") shall have their enrollment fees billed
on their American Express Card accounts. AMEX shall be compensated for each
enrollment as set forth in the Financial Arrangement schedule attached hereto as
Exhibit B and made a part hereof.
2. Promotion of The Service: AMEX shall assist CreditComm in the promotion of
the Service to AMEX's Customers by participating in Programs (as defined below)
in the manner and to the extent provided in this Agreement.
(a) Programs: The parties acknowledge that they intend to test and
offer the Service through various promotional approaches and channels,
including but not limited to direct mail packages. The parties agree
that it is impractical to define now each program that they may pursue
and therefore agree to develop jointly a written marketing plan which
will identify the offers contemplated hereunder and which will be
mutually updated by the parties. Each such program to offer the Service
hereunder shall be referred to as a "Program", and all marketing and
other promotional materials (including without limitation,
solicitation, fulfillment, customer service and retention materials)
developed hereunder shall be referred to as "Promotional Materials".
(b) Promotional Materials: CreditComm shall prepare Promotional
Materials for all Programs offered pursuant to this Agreement. Such
materials shall be designed to solicit AMEX's Customers and prospects
to subscribe to the Service and become New Enrollees or Renewal
Enrollees. All Promotional Materials shall be subject to AMEX's written
approval prior to production, which approval shall not be unreasonably
withheld or delayed. Promotional Materials shall indicate that AMEX is
endorsing or promoting the Service, but that CreditComm is the party
that is responsible for providing the Service. Promotional Materials
shall include AMEX's brand imagery in a manner that is acceptable to
AMEX. It is
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agreed that neither party may use any of the other party's registered
trademarks or service marks in the Materials or otherwise in connection
with the promotion of the Service, except with the prior written
consent of such other party and, then, only in accordance with such
guidelines as the other party may from time-to-time reasonably
establish concerning such use. In particular, AMEX shall permit
CreditComm to solicit AMEX Cardmembers through the mail as described in
Exhibit B. From time-to-time during the Initial Term, as defined in
Section 13 infra, AMEX may engage in other solicitation activities
relating to the Service, with respect to other products or services
offered by CreditComm.
3. Performance Standards: CreditComm shall fulfill its operational and customer
service obligations as set forth in the following exhibits which are attached
hereto and made a part hereof:
Exhibit C Performance Standards
Exhibit D Customer Service Standards and Operating Procedures
4. Exclusivity: In view of the fact that the Service shall be an AMEX-branded
service, during the term of this Agreement, CreditComm will not administer nor
directly offer its own or a similar Consumer Credit Information service on
behalf of or in conjunction with any Visa, MasterCard, Discover or Diners Club
(the "Competitors") card products prior to January 1, 2000. Similarly, during
the term of this Agreement, AMEX will not promote to its Customers any other
AMEX- branded service similar to the Service.
Nothing herein shall be construed to prevent CreditComm from offering an
affinity charge or credit card program to Customers who are not Enrollees. With
respect to above referenced affinity charge or credit card program, CreditComm
shall grant AMEX the right of first refusal to issue such affinity card.
5.Warranties: Each party represents and warrants that it is under no obligation
or restriction which would cause it to be in breach of this Agreement. Each
party to this Agreement represents and warrants to the other party that this
Agreement, when signed on behalf of a party, constitutes the legal, valid and
binding obligation of such party enforceable in accordance with its terms.
CreditComm represents and warrants that it is fully licensed and authorized to
operate the Service as described in Exhibit A, in compliance with all applicable
federal, state, and local laws.
0.Xxxxx System for the Services: CreditComm shall be responsible for
establishing and maintaining, at its own expense, one or more local telephone
numbers (as reasonably determined by AMEX in consultation with CreditComm) for
Customers to use for collect calls with respect to the CreditComm operations
center with respect to the Service; provided, however, that AMEX shall be the
customer of record for such telephone numbers and, as between AMEX and
CreditComm, AMEX shall have all rights in and to such telephone numbers. (AMEX's
status as customer of record and rights in and to all such telephone numbers
shall survive the termination of this Agreement.) AMEX shall have the right to
inspect, at CreditComm's offices during regular business hours, any and all
telephone bills relating to these numbers. These telephone numbers shall be
dedicated solely to the use of Enrollees of the Service. CreditComm personnel
shall answer these telephone numbers in a manner specified by AMEX, and
CreditComm shall not publicize or use these numbers for any purpose not related
to this Agreement without the express written consent of AMEX.
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(a) CreditComm agrees that it will maintain its telecommunications
systems in any manner reasonably requested by and reasonably acceptable
to AMEX. CreditComm will bear all the costs of any necessary upgrading
with the exception of any consulting and services provided by AMEX
through its telecommunications personnel, which shall be free of charge
to CreditComm.
(b) AMEX shall consider any reasonable request and plan from CreditComm
to operate the phone system for the Service described in this Agreement
in any legitimate and technically feasible manner that takes advantage
of any volume telecommunications user discounts available to AMEX.
AMEX, however, shall be under no obligation to agree to such requests
and plans, and may reject them with or without cause.
(c) Additionally, all 800 telephone numbers obtained by AMEX or used in
connection with the performance of the Service by CreditComm for AMEX
hereunder shall be the sole and exclusive property of AMEX. CreditComm
hereby irrevocably assigns to AMEX all its rights, title and interest
in and to such 800 telephone numbers and will execute any and all
documents necessary to transfer and/or evidence AMEX's ownership rights
including, but not limited to, shared user agreements for the 800
telephone numbers.
7. Publicity: No party shall refer to or identify the other party, such other
party's parent, subsidiaries or affiliates, or the respective products or
services of any of them, in advertising, promotional activity or publicity
release relating to the Program without securing the prior written consent of
such other party.
8. Notices: All notices and other communications hereunder shall be in writing
and shall be sent properly addressed by any prepaid method (including but not
limited to U.S. Mail, private courier service, or telex) to the other party at
its respective addresses as follows:
(a) If to AMEX: American Express Travel Related Services Company. Inc.
3 World Financial Center
American Express Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Senior Vice President, Fee Services
COPY TO: General Counsel's Xxxxxx
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn. Group Counsel, AERS Fee Services
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If to CreditComm: CreditComm Services LLC
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Dallas, Jr., President
COPY TO: Loeb Holdings Corporation
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Each party may change its address for receiving written notice under this
Agreement by written notice pursuant to this Section.
9. Use of Program Enrollee Customer List: During the term hereof, CreditComm
shall not use the list of Enrollees without the express and written consent of
AMEX, accept in connection with this program.
10. Indemnification and Hold Harmless: Each party (the "Indemnifying Party")
shall indemnify and hold harmless the other party, its respective parent,
subsidiaries and affiliates and their respective successors, assignees,
directors, members, managers, officers, agents and employees (each an
"Indemnitee") from and against(each of the following, a "Claim") all third party
liabilities, losses, damages, costs, expenses, actions, claims, demands, suits,
and proceedings whatsoever, including losses incurred by them which result
directly or indirectly from the willful misconduct or negligent acts or
omissions of the indemnifying Party, its employees, agents or contractors in
connection with the Indemnifying Party's obligations under this Agreement, or in
connection with the Service.
Each party seeking indemnification under this Agreement shall give prompt notice
to the Indemnifying Party along with its request for indemnification, of any
Claim for which it is seeking indemnification. The parties understand and
further agree that no settlement of an indemnified Claim shall be made by an
Indemnitee without the concurrence of the Indemnifying Party. The Indemnifying
Party shall control the settlement or defense of any Claim; provided, however,
that the Indemnitee may, at its cost, engage its own attorneys. The Indemnitee
will fully cooperate with the Indemnifying Party to enable the Indemnifying
Party to fulfill its obligations under this paragraph.
11. Trademarks: Notwithstanding any other provision of this Agreement, neither
party shall have the right to use the other party's registered or unregistered
trademarks, service marks, or trade names, or to refer to the other party
directly or indirectly, in connection with any product, promotion or publication
without the prior written approval of that party.
12. Data and records: Acknowledging the confidentiality of AMEX's Customer data,
CreditComm hereby agrees to the terms of the Confidentiality/Data Security
schedule attached hereto as Exhibit E and the Customer Data and Data Related
Rights schedule attached hereto as Exhibit F, each made a part hereof.
CreditComm will limit the information it obtains from AMEX Customers to the
following: Name, Address, Phone Number(s), Customer`s Card Number, Social
Security Number, and Additional Names of families members to be enrolled in the
Service. In addition, CreditComm
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will comply with the schedules entitled "Confidentiality/Data Security",
"Customer Data and Data-Related Rights", "Security", and "AMEX Audit Rights"
attached hereto as Xxxxxxxx X,X,X and H, respectively, and made a part hereof.
In the event CreditComm uses the services of third party vendors,
representatives or subcontractors, CreditComm shall be responsible for ensuring
their compliance with the terms of this Agreement, and shall ensure that all
such vendors, representatives and/or subcontractors execute the Confidentiality
Agreement attached hereto as Exhibit K. With respect to access of AMEX data via
a computer, CreditComm's employees will follow the Terminal Rules set forth in
Exhibit I, and shall execute the non-disclosure agreement attached hereto as
Exhibit J, prior to gaining access to AMEX data.
13. Term and Termination:
(a) This Agreement will be effective as of the date first above written and
will continue until December 31, 2000(The "Initial Term") unless earlier
terminated in accordance with subsection c, below. Thereafter, this Agreement
may be extended for additional one-year terms provided that at the end of the
third year and each successive additional one year term thereafter, American
Express notifies CreditComm of its intent to renew. Should American Express
decide to renew the Service, it will be renewed for one year terms, unless a
new agreement is agreed to.
(b) Should American Express choose not to renew this Agreement, for reasons
1-3 as listed below that American Express may evoke at its sole discretion upon
prior written notice to CreditComm, then American Express will terminate this
Agreement at the end the Initial Term and all rights to renewals and fees by
CreditComm will be forfeited, subject to the provisions of 13(g).
1) The breadth of services being offered, with regards to either network
size or program benefits is no longer competitive with or better than
other like services in the marketplace. In the event American Express
decides to take this course of action American Express will notify
CreditComm in writing that CreditComm has ninety (90) days to make the
Service competitive to other similar Services in the market place.
2) American Express is unhappy with the overall relationship with
CreditComm.
3) American Express receives a better financial offer from another
service provider for this Service. However, CreditComm will have the
right to match any financial bid provided that American Express is
satisfied with the overall business relationship with CreditComm,
which will be determined at the sole discretion of American Express.
(c) American Express agrees that it may cancel this Agreement prior to the
end of the Initial Term only in the event of the following:
(1) the commencement of any bankruptcy, insolvency, dissolution, or other
proceeding under any applicable bankruptcy or debtor's relief law, by or
against CreditComm and, in the case of any involuntary bankruptcy
proceeding brought against CreditComm, such proceeding is not discharged
within 180 days of the commencement thereof.
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(2) The suspension or termination of business or dissolution of or the
appointment of a receiver, trustee or similar officer to manage any
substantial part of the assets or business operations of CreditComm.
(3) A determination by any regulatory authority having jurisdiction over
American Express or any court of competent jurisdiction that the Service
cannot be offered to American Express Cardmembers in a sufficient number of
jurisdictions to make the offer economical and by the manner contemplated
by this Agreement.
(4) In the event of a sale or distribution of all or substantially all of the
assets of CreditComm or a sale or distribution of sufficient stock (other
than pursuant to a public offering) of CreditComm to effect a change in
control, AMEX may terminate this contract effective upon the closing date
of the transaction. For the purposes of this paragraph, a change of control
shall not have occurred if after any said transaction a majority of the
outstanding shares of stock of CreditComm are held by persons which were
shareholders, employees or affiliates of Loeb Holding corporation or
CreditComm prior to the effective time of such transaction. CreditComm
shall promptly give AMEX notice of any such sale or distribution.
(5) In the event of a breach by CreditComm as follows: If CreditComm fails
during any calendar month to perform in accordance with any performance
standard summarized in Exhibit C or throughout the contract, American
Express will notify CreditComm in writing of such failure in writing
specifying the details of non performance. CreditComm shall correct this
failure within thirty (30) days after receiving American Express's
notification and shall immediately notify American Express of the
correction. In the event CreditComm fails to correct the problem within
said 30 day period, or should CreditComm, during the consecutive two (2)
calendar months following the initial correction, CreditComm fails to
perform in accordance with the same standard, in each of the two (2)
months, American Express, may in its discretion, reserving cumulatively all
other remedies and rights under this Agreement or in law or equity,
terminate this Agreement upon ninety (90) days' written notice.
(d) In the event of any material breach of this Agreement by either of the
parties hereto, which breach is not cured by the breaching party within thirty
(30) days of receiving specific written notice of same, the non-breaching party
may, reserving cumulatively all other remedies and rights under this Agreement,
or that may exist in law or equity, terminate this Agreement in whole or in part
by giving sixty (60) days' prior written notice.
(e) CreditComm may elect to terminate this Agreement at any time upon 120
days notice to American Express in the event CreditComm determines that the
economics do not justify continued marketing and CreditComm may continue to
receive renewal payments, from the date such notification is received for a
period of one year, from all current Enrollees. In this event, CreditComm agrees
to continue servicing existing Enrollees for the duration of the Initial Term,
or if AMEX requests for an additional year. Although no new Enrollees will be
solicited during this time, CreditComm agrees that all other terms and
conditions applicable to the administering of existing Enrollees, including the
payment of compensation (as provided for in Exhibit B) to American Express,
shall continue in full force and effect.
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(f) In the event of termination or non-renewal for any reason, the parties
agree to cooperate in a transition phase, including: moving files/records to a
new vendor; making press releases to the public; and, facilitating the transfer
of any other Enrollee Records provided however, nothing herein should be
construed to force CreditComm to provide any credit records or its proprietary
software. All elements of the Service will continue as directed by American
Express during this transition phase and all costs related to this transition to
a new Vendor will be borne by American Express unless the termination is a
result of CreditComm's demand or request. If the termination is due to the
material breach of CreditComm pursuant to subsections 13c (5) or 13d, CreditComm
will be responsible for the following transition costs arising out of the
termination: costs of notifying Enrollees of the transition; costs incurred by
American Express in making billing related and systems changes necessitated by
the transition; and Telecom related costs necessitated by the transition and
American Express warrants that it will be fair and reasonable in assigning these
payments to CreditComm.
(g) After the Initial Term, American Express agrees that if it cancels for
any other reason than those listed in subsections 13(c), and 13(d) above, with
respect to a breach by CreditComm, CreditComm will be entitled to renew the
current Enrollee base at the time of said notification for a period of two
additional years, provided CreditComm continues with customer servicing for the
Enrollees as described in this Agreement. CreditComm will be prohibited from
proceeding with any other activities with regards to this Service, other than
the renewal of the current Enrollee file, during these two extended contract
years.
14. Termination Assistance. Upon the expiration of this Agreement or the
termination of this Agreement under the preceding section, other than a
termination based on a material breach by AMEX, CreditComm shall, upon AMEX's
request: (1) continue to provide the Service to the extent requested by AMEX for
90 days, in accordance herewith and in particular at the rates and Performance
Standards for such Service in effect under this Agreement immediately prior to
such expiration or termination, unless expiration occurs at the end of the
second Renewal term, in which case the parties shall agree upon the applicable
Fees and service levels; and (2) provide such assistance as required by AMEX to
transfer the files/records to a new vendor or to AMEX itself and faciliate the
transfer of any other Enrollee Records, provided however, nothing herein shall
be construed to force CreditComm to provide any credit records [missing text] to
another vendor or to AMEX itself (the "Termination Assistance Services"). At all
times, the list of Enrollees shall be AMEX's sole property and AMEX shall be
entitled to continue to solicit the Enrollees for renewals, and to service such
Enrollees either directly or through another vendor. CreditComm shall not use,
market, or solicit the list of Enrollees or any portion thereof after this
Agreement has expired or is terminated. Nothing herein shall prohibit CreditComm
from continuing to solicit prospects, provided such solicitation efforts are
without use of or reference to the list of Enrollees. After the expiration of
the Termination Assistance Period, CreditComm shall (a) answer questions
regarding the Services on an as needed basis for sixty (60) days, (b) deliver to
AMEX any remaining AMEX-owned reports and documentation still in CreditComm's
possession and (c) at AMEX's direction, destroy all AMEX data and information in
its possession. CreditComm shall provide the Termination Assistance Services at
no cost to AMEX, except as otherwise expressly provided in this Agreement. In
the event that AMEX terminates this Agreement because of a breach by CreditComm
which is not timely cured, CreditComm shall reimburse AMEX for reasonable
out-of-pocket expenses incurred in connection with transferring the Services to
another vendor or to AMEX itself.
15. AMEX Software and Proprietary Rights: In the event CreditComm shall directly
access AMEX's Cardmember database in order to perform its obligation hereunder,
AMEX hereby grants
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to CreditComm solely for the purpose of providing the Service described herein,
a non-exclusive, non-transferable right to have access to and (1) operate (a)
the AMEX Cardmember information proprietary software operated by AMEX prior to
the Effective Date (or on an interim basis, AMEX will provide CreditComm with a
supplementary method of identification of Cardmember information), and (b) to
the extent agreed upon by the parties, any AMEX Cardmember information
proprietary software acquired or developed by AMEX, or on behalf of AMEX, in
AMEX's name after the execution of this Agreement for use in connection with the
Services ((a) and (b) collectively, the "AMEX Proprietary Software"), (2)
operate (i) the software licensed or leased by AMEX from a third party which was
operated by AMEX prior to the date of execution of this Agreement, and (ii) to
the extent agreed upon by the parties, any software licensed or leased by AMEX
from a third party after the execution of this Agreement ((i) and (ii)
collectively, the "AMEX Third Party Software"), and (3) use any related
documentation in AMEX's possession on or after the date of execution of this
Agreement (the "Documentation"). The AMEX Proprietary Software, the AMEX Third
Party Software and the Documentation shall be collectively referred to as the
"AMEX Software". As part of the Service, CreditComm shall pay all license and
maintenance fees for AMEX Third Party Software that CreditComm elects to use to
perform the Service. CreditComm shall notify AMEX in advance in writing if it
determines not to pay such license and maintenance fees. In the event that
CreditComm desires to use other comparable and compatible third party software
and AMEX insists that CreditComm use AMEX Third Party Software, AMEX shall pay
the license and maintenance fees for such AMEX Third Party Software. Upon
expiration of this Agreement or termination of this Agreement for any reason,
the rights granted to CreditComm in this Section shall terminate and immediately
revert to AMEX and CreditComm shall deliver to AMEX, at no cost to AMEX, a
current copy of all of the AMEX Software in the form in use as of the date of
such expiration or termination and CreditComm shall destroy or erase all other
copies of the AMEX software in its possession.
(a) For purposes of billing, preauthorization, authorization, enrollment
eligibility, and general Cardmember maintenance requirements for the Service,
CreditComm will utilize the Recurrent Billing Interface ("RBI") software which
is Amex proprietary software. AMEX shall pay the license fee for this software
and CreditComm shall pay the one-time set up charge for program configuration
and the monthly maintenance fees. CreditComm will also complete, sign and adhere
to Exhibit M.
16. Alternative Dispute Resolution
(a) Negotiation. The parties shall attempt in good faith to resolve any dispute
arising out of or relating to this agreement promptly by negotiations between
executives who have authority to settle the controversy. Any party may give the
other party written notice of any dispute not resolved in the normal course of
business. Within 20 days after delivery of said notice, executives of both
parties shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, to exchange relevant information and to
attempt to resolve the dispute. If the matter has not been resolved within 60
days of the disputing party's notice, or if the parties fail to meet within 20
days, either party may initiate mediation of the controversy or claim as
provided hereinafter.
If a negotiator intends to be accompanied at a meeting by an attorney, the other
negotiator shall be given at least three working days' notice of such intention
and may also be accompanied by an
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attorney. All negotiations pursuant to this clause are confidential and shall be
treated as compromise and settlement negotiations for purposes of the Federal
Rules of Evidence and state Rules of evidence.
(b) Mediation. If the dispute has not been resolved by negotiation as provided
above, the parties shall endeavor to settle the dispute by mediation under the
then current Center for Public Resources ("CPR") Model Procedure for Mediation
of Business Disputes. One neutral third party will be selected from the CPR
Panels of Neutrals to mediate the dispute. If the parties encounter difficulty
in agreeing on a neutral mediator, they will seek the assistance of CPR in the
selection process.
(c) Other Remedies. In the event of a dispute arising out of or relating to this
contract or the breach, termination or validity thereof, which has not been
resolved by non-binding means as provided in Sections (a) and (b) above within
60 days of the initiation of such procedure, either party may seek any remedy
available at law or equity, including recourse to the courts.
17. Assignments: This Agreement shall be binding upon and inure solely to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned by either party hereto without the
prior written consent of the other party hereto, except that AMEX may assign
this Agreement to its parent or a subsidiary or affiliate company without
CreditComm's consent, provided that the assignee company has the assets and
facilities to carry out AMEX's obligations under this Agreement.
18. New York Law: This Agreement shall be governed by and construed in
accordance with the internal, substantive laws of the State of New York without
giving effect to the conflict of law rules thereof. CreditComm hereby consents
to the jurisdiction of the state and federal courts sitting in the State of New
York.
19. Affiliate Guarantee: The obligation of AMEX to perform its duties and other
obligations hereunder shall be subject to AMEX' receipt of a fully executed
Affiliate Guarantee in the form of Exhibit N hereto from Loeb Holding
Corporation.
20. Miscellaneous: No failure or delay (in whole or in part) on the part of any
party to exercise any right or remedy, or operate as a waiver thereof, nor
effect any other right or remedy. All rights and remedies hereunder are
cumulative and are not exclusive of any other rights or remedies provided
hereunder or by law.
If any provision contained in this Agreement is or becomes invalid, illegal, or
unenforceable in whole or in part, such invalidity, legality, or
unenforceability shall not affect the remaining provisions and portions of this
Agreement.
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior contemporaneous oral or
written understandings or agreements among the parties which relate to the
subject matter hereof. No modification or amendment of this Agreement or any of
its provisions shall be binding upon any party unless made in writing and duly
executed by authorized representatives of all parties.
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IN WITNESS WHEREOF, AMEX and CreditComm, intending to be legally bound by the
terms of this Agreement, have caused this Agreement to be executed by their
duly authorized representatives.
AMERICAN EXPRESS TRAVEL RELATED CREDITCOMM SERVICES LLC
SERVICES COMPANY, INC.
By: -s- Xxxxx Xxxxxxx By: -s- Xxxx X. Dallas, Jr.
------------------------------- -------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxx X. Dallas, Jr.
Title: Senior Vice President Title: President
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EXHIBIT A
PRODUCT DESCRIPTION
American Express will brand a Consumer Credit Information Service (named
American Express(R) Credit Aware) which will be a recurrent billing service. The
following describes the services features and benefits:
3-BUREAU-IN-1 PERSONAL CREDIT HISTORY PROFILE
- This profile will include the individual subscriber's personal credit
bureau information as reported by Trans Union, Equifax and Experian
(formerly TRW) merged into one document. The profile is printed in an
easy to read style that simplifies bureau by bureau, item by item
comparisons.
- A summary page which provides an overview of types of accounts, total
accounts, account balances, public record and a variety of other
categories of information at a glance.
- A legend that aids in interpreting some of the data elements on the
profile.
ONGOING MONITORING AND NOTIFICATION OF ACTIVITY
- Ongoing monitoring with Monthly Notification if and when new account(s)
are opened in the subscriber's name. This notification would be sent
monthly so as to assist consumers in detecting fraudulent activity.
Ongoing monitoring with, at least Quarterly Notification (NOTE:
notification may be more frequent than quarterly) if and when any or
all of the following activities occur:
- Addition of delinquent account information
- Addition or removal of derogatory information (i.e. public
filings, bankruptcy)
- Full-file inquiries (excludes promotional/pre-approval
inquiries)
- Derogatory file information that is nearing the end of a
statutory 7 or 10 year record keeping cycle
ADDITIONAL BENEFITS:
- Toll-free Customer Service available to offer enrollees one-on-one
assistance as needed provided by bureau trained credit education
specialists
- Quarterly Newsletter containing helpful credit and personal financial
information
- Access to a web-site containing helpful credit and personal financial
information
IN DEVELOPMENT:
American Express will brand a CORPORATE Credit Information Service (service to
be targeted to a Small Business owner) which will be a recurrent billing
service. This product is in the early development phase. CreditComm and Amex
will endeavor to develop this service in conjunction with **.
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** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
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EXHIBIT B
FINANCIAL ARRANGEMENT & GUARANTEE
CreditComm agrees to pay AMEX **% of Net Revenue (defined as Gross Revenue less
Refunds and Credits) as a Net Commission for all first year enrollees.
CreditComm will pay AMEX **% of the Net Revenue for all renewals.
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** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Additionally, and in lieu of the amounts set forth in the previous paragraph,
CreditComm will pay AMEX a **% commission commencing in the first year for each
Enrollee enrolled as a result of internal AMEX generation of enrollee through
channels other than the channels used by CreditComm.
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** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
CreditComm shall remit payment to AMEX within thirty (30) days after the end of
each calendar month, along with back up documentation reasonably acceptable to
AMEX, indicating the calculation of the amount so paid.
Notwithstanding anything herein to the contrary, the Net Commission payable to
AMEX in 1997 by CreditComm shall not be less than $**.
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** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
AMEX shall permit CreditComm to solicit through the mail up to ** Cardmembers in
calendar 1997, and up to ** Cardmembers annually thereafter, in accordance with
this Agreement, and as a result of a screening and selection process acceptable
to Amex and CreditComm. All names will be de-duped against CreditComm's in-house
file. All names will be screened to demographic and other criteria set by
CreditComm and AMEX as may be reasonably practical for the AMEX data system to
handle.
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** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
In the event the Net Response/Conversion Rate for solo direct mail solicitations
is less than **% at the end of 1997, CreditComm or AMEX will have the right to
cancel the program. If either party cancels pursuant to this paragraph,
CreditComm will continue to service the 1997 enrollees, and CreditComm will pay
AMEX a commission on such 1997 enrollees at a rate of **% on renewal
revenue generated from said enrollees subsequent to 1997.
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
In the event this program is canceled pursuant to the paragraph immediately
preceding, CreditComm will discontinue solicitation of membership renewals after
(a) negotiation of a buyout of the AMEX enrollee file by another vendor; (b)
full recoup, net of all commission to AMEX, of CreditComm's out of pocket
marketing costs (costs defined as $** cost per thousand for direct mail at
rollout and $** cost per hour for outbound telemarketing) and out of pocket
servicing costs (defined as $** for fulfillment and $** per month for
monitoring); or (c) after ** years of CreditComm's servicing of AMEX enrollees,
whichever may occur first.
In consideration of the performance guarantee in the Exhibit B, AMEX will agree
to reasonable ancillary programs of solicitation including, but not limited to,
inserts, bangtails, outbound telemarketing, inbound AMEX call center referral
program, and other sales promotion programs as may be reasonably requested. AMEX
Marketing Personnel will make best efforts to obtain prioritization in said
ancillary programs per NPV and other required criteria. Commission revenue
received by AMEX from such ancillary programs in 1997 will be credited against
the 1997 Net Commission.
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
EXHIBIT D
CUSTOMER SERVICE STANDARDS AND OPERATING PROCEDURES
CreditComm also shall perform under this Agreement substantially in
accordance with the following customer service standards and operating
procedures:
(1) At all times, CreditComm agrees to restrict
access of assistance coordinators who handle AMEX Telephone lines from
handling calls of Competitors ( as defined in Section 4 of the
Agreement).
(2) At all times, CreditComm shall provide services
under this Agreement in accordance with any and all customer service
scripts developed by AMEX in consultation with CreditComm.
(3) At all times, CreditComm shall provide services
under this Agreement in accordance with any and all other reasonable
customer service standards and operating procedures developed by AMEX
in consultation with CreditComm. AMEX shall have the right to
promulgate and revise such standards and procedures from time to time
in connection with any or all of the services described in this
Agreement with the concurrence of CreditComm.
CreditComm shall develop a comprehensive and reasonably detailed manual
of customer service standards and operating procedures for its employees in
connection with all of the services described in this Agreement. CreditComm
shall update that manual from time to time as necessary and appropriate.
CreditComm shall provide AMEX upon request with a copy of the non-proprietary
material which material includes the Manual and any other mutually agreed
materials.
AMEX and CreditComm mutually agree to inform the other, in writing, of
any significant oral or written complaints about the services described in this
Agreement. CreditComm shall forward all such complaints to AMEX within one week
of their receipt and AMEX shall forward all such complaints to CreditComm within
one week of receipt. CreditComm shall endeavor in good faith to correct any and
all systemic and particular customer service problems identified by those
complaints as soon as reasonably possible.
In addition to other rights stated herein, AMEX shall have the right to
terminate this Agreement upon written notice to CreditComm if:
(a) During any quarter AMEX and/or CreditComm receives
legitimate, factually accurate complaints, for which no reasonable explanation
exists, and for reasons within the control of CreditComm, from more than **
(**%) but not fewer than **, of those Cardmembers/Customers to whom CreditComm
has provided services under this Agreement during that quarter, which complaints
reveal that CreditComm has failed to provide such services in accordance with
the terms of this Agreement; or
(b) CreditComm fails to perform under this Agreement
substantially in accordance with the quality service standards set forth in
Exhibit C and continues to fail to so perform after having received ** (**)
hours written notice from AMEX.
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
2
EXHIBIT E
CONFIDENTIALITY/DATA SECURITY
1. Confidentiality: Definition "Confidential Data and Information" shall
include any information, data, or materials obtained by one party to this
Agreement (the "Receiving Party") from, or disclosed to such party by the other
party (or, in the case of AMEX, disclosed to or by AMEX, Centurion Bank, or any
other parent, subsidiary, or affiliated company related to AMEX) (the
"Disclosing Party"), or customer or service establishment, which information,
data, or materials relate to the aforesaid Program and their design and
processes, or to the past, present, or future business activities of the
Disclosing Party or any of its subsidiaries, affiliates, or clients, including
methods, processes, telephone conversations, financial data, systems, customer
names, account numbers, and other customer data, lists, apparatus, statistics,
programs, and research and development related (information of such entities,
except such information as:
(a) is previously known to the Receiving Party or is lawfully obtained
by the Receiving Party from a third party who, in making such disclosure,
breaches no obligation of confidence; or (b) is independently developed by the
Receiving Party. With respect to CreditComm's access to customer files and
related customer data ("Files"), CreditComm specifically acknowledges the
importance of maintaining the security and confidentiality of the Files, and
agrees to take whatever reasonable steps are necessary to prevent the
unauthorized transfer, disclosure to, or use of the Files by any person or
entity not a party to this Agreement.
2. Standard of Care: Neither party shall disclose, publish, release,
transfer, or otherwise make available Confidential Data and Information of the
other party in any form to, or for the use or benefit of, any person or entity
without such party's prior written consent. Each party;, however, shall be
permitted to disclose relevant aspects of the other party's Confidential Data
and Information only to its officers and its employees on a need to know basis
to the extent that such disclosure is reasonably necessary for the performance
of their duties and obligations under the Agreement; provided, that such party
shall take all reasonable measures to ensure that Confidential Data and
information of the other party is not disclosed or duplicated in contravention
of the provisions of this Agreement by such officers and employees. CreditComm
agrees to ensure that the terms and conditions of this Agreement are strictly
adhered to by all of its employees and any third party representative. The
obligations shall not restrict any disclosure by either party mandated by any
applicable law, or by order of any court or government agency (provided that the
disclosing party shall give prompt notice to the non-disclosing party of such
order). In the event CreditComm will have direct on-line access to American
Express Cardmember data, CreditComm also agrees to the terms of the AMEX Data
Access Document attached hereto as Exhibit L and will ensure that each
CreditComm employee with on-line access shall read, sign and comply with all
Terminal Rules and Regulations attached hereto as Exhibit I.
3. Notice of Violations: Each party or its employees shall: (a) notify the
other party promptly of any material unauthorized possession, use or knowledge,
or attempt thereof, of the other party's Confidential Data and Information by
any person or entity which may become known to such party and encourage its
employees to do the same, (b) promptly
3
furnish to the other party full details of the unauthorized possession, use or
knowledge, or attempt thereof, and use reasonable efforts to investigate any
unauthorized possession, use or knowledge, or attempt thereof, of Confidential
Data and Information, (c) use reasonable efforts to cooperate with the other
party in any litigation and investigation against third parties deemed necessary
by the other party to protect its proprietary rights, and (d) promptly use all
reasonable efforts to prevent a recurrence of any such unauthorized possession,
use or knowledge of Confidential Data and Information. Each party shall bear the
cost it incurs as a result of compliance with the requirements set forth in
these paragraphs.
4. Monitoring: AMEX reserves the right to monitor access to Confidential
Data and Information to prevent the improper or unauthorized use of such
Confidential Data and Information such monitoring may include, but is not
limited to, on-site inspection of CreditComm's locations providing Services for
AMEX at any time, and inserting decoy names and addresses in any lists provided
to CreditComm. In addition, AMEX reserves the right to visit, unannounced, any
of the locations used by CreditComm that provides the Services for AMEX and
verify security procedures.
5. Remedy for Confidential Data and Information Loss: Each party agrees
that if there is any disclosure of the Confidential Data and Information by its
employees or the employees of any third party, it will enforce for the other
party's benefit through litigation, if necessary, all rights provided under law
to compensate the former party for any damages arising out of such disclosure
and to protect the former party from additional disclosure.
6. Remedy for Breach: Each party agrees that if a party, its officers,
employees or anyone obtaining access to the proprietary information of the other
party by, through or under them, breached any provision of this Exhibit, such
other party would suffer irreparable harm and the total amount of monetary
damages for any injury to such other party from any violation of this Exhibit
would be impossible to calculate and would therefore be an inadequate remedy.
Accordingly, each party agrees that the other party shall be entitled to
temporary and permanent injunctive relief against the breaching party, its
officers or employees, and such other rights and remedies to which such other
party may be entitled to at law, in equity and under this Agreement for any
violation of this Exhibit.
7. Survival: The provisions of this Exhibit shall survive the termination
or expiration of this Agreement.
4
EXHIBIT F
CUSTOMER DATA AND DATA-RELATED RIGHTS
1. Limited Access to Customer Data. CreditComm shall have limited access
to certain Card Member data including Customer account number, address and other
relevant information (the "Customer Data") solely for the purposes of
investigating and monitoring the handling of cases and related customer services
for particular AMEX Programs and plans to be determined by the parties hereto.
AMEX shall have the sole responsibility of overseeing all security standards
and requirements as set forth by AMEX in relation to the Customer Data in
CreditComm's possession. CreditComm shall insure that all standards and
requirements will meet AMEX's full and reasonable satisfaction.
AMEX's Rights. All inventions, methods, techniques, works of authorship,
computer software, computer upgrades, computer programs, service providers,
CreditComm's information, training materials, telemarketing scripts, computer
screens, reports, data, any other proprietary or confidential information made,
created, developed or written and intellectual property ("Developed Materials"),
shall be deemed AMEX property if paid for and developed by AMEX. Furthermore, in
the event Developed Materials are initiated and paid for by AMEX and were
jointly created by CreditComm and AMEX such Developed Materials are the sole
property of AMEX. AMEX acknowledges that CreditComm has developed, and will
continue to develop during the term of this Agreement, valuable intellectual
property used by CreditComm in connection with the providing of Services of the
type covered by this Agreement and that CreditComm ownership and protection of
such property is essential to its competitive success. Accordingly, irrespective
of any other provision of this Agreement, AMEX expressly agrees that Developed
Materials paid for entirely by CreditComm (or any agent of CreditComm) shall be
the property of CreditComm ("CreditComm PROPERTY"). The CreditComm Property
shall be fully subject to the confidentiality provisions of this Agreement and
shall not be used by AMEX in any manner except in connection with this Program
during the term of this Agreement. The foregoing notwithstanding, Developed
Materials and/or intellectual property jointly developed by the parties
exclusively for use in connection with this Agreement shall not be used by
either party (except in relationship to this Agreement) without the express
written consent of both AMEX and CreditComm. Under no circumstances shall AMEX
or CreditComm disclose any information concerning Developed Materials either
owned by AMEX or CreditComm.
2. Data and Reports
Ownership of AMEX Data. All data and information submitted to CreditComm by AMEX
in connection with the Services (the "AMEX Data") is and shall remain the
property of AMEX. The AMEX Data shall: (1) not be used by CreditComm other than
in connection with providing or analyzing the Services, (2) not be disclosed,
sold, assigned, leased or otherwise provided to third parties by CreditComm; and
(3) not be commercially exploited by or on behalf of CreditComm, its employees
or agents except as provided in this Agreement. CreditComm shall take all
appropriate actions to safeguard the AMEX Data. The database of Enrolled
Customers shall remain the sole property of AMEX.
5
Return of Data. Upon request by AMEX upon the termination or expiration of this
Agreement, CreditComm shall (1) promptly return to AMEX, in a format agreed upon
by the parties hereto and on the media reasonably requested by AMEX, all AMEX
Data and/or (2) erase or destroy under the supervision of AMEX, all AMEX Data in
CreditComm possession.
Database Maintenance. CreditComm agrees to transmit information each month
within thirty (30) days of the end of the month on use of the Service by
Cardmembers/Customer (including, Cardmember account number and service used), to
AMEX's database maintenance facility. The mechanism for this transmission to be
agreed to by the parties.
Accuracy of Data. As part of the Services, CreditComm shall be responsible for
the accuracy and completeness of the data and information submitted by
CreditComm to AMEX and any errors in and with respect to data and information
submitted to AMEX. CreditComm shall promptly correct any errors or inaccuracies
in the data or information prepared by CreditComm and submitted to AMEX.
Corrections of Errors. As part of the Service, CreditComm shall promptly correct
any errors or inaccuracies made known to them either through their own sources
or made known to them by AMEX in the AMEX Data. AMEX shall be responsible for
(1) the accuracy and completeness of the AMEX Data submitted by AMEX to
CreditComm and (2) any errors in and with respect to data obtained from
CreditComm caused by inaccurate or incomplete AMEX Data.
6
EXHIBIT G
SECURITY
1. Safety and Security Procedures: General - CreditComm shall have limited
access to certain Confidential Data and Information solely for the purpose of
administering, supervising, investigating and monitoring the handling of claims
and related customer services for particular AMEX Programs: (a) CreditComm shall
require all visitors to be identified at the front entrance and to sign a
visitor's log which includes the date, time in/out, firm represented and
signature. All visitors shall be issued badges containing a control number. An
inventory of all badges shall be conducted on a daily basis; (b) CreditComm
shall maintain a secure environment for all Confidential Data and Information
which includes a level of physical security controls at least equal to AMEX data
security requirements for such CreditComm service location to prevent
unauthorized access, damage, or destruction of Confidential Data and
Information, including, but not limited to: appropriate alarm systems, access
controls, fire suppression, video surveillance, plan material disposal (e.g.
sensitive trash disposal program), and staff egress searches; (c) All
Confidential Data and Information shall be securely stored for a mutually agreed
to retention period, either at the CreditComm's service location or at an
off-site location. Said off-site storage location shall be subject to AMEX's
prior approval. No party shall, without the prior written consent of the
Disclosing Party, use any of the Confidential Data and Information supplied by
the Disclosing Party for any purpose other than to fulfill the terms of this
Agreement; (d) CreditComm shall maintain an adequately secured computer room
facility and tape library, with access restricted to only approved CreditComm
staff; (e) CreditComm shall provide to AMEX Information Security management
copies of all internal security policies and standards for review prior to
commencing administration of the Service; (f) CreditComm shall return all
magnetic media to the appropriate AMEX location within seven (7) business days
of receipt of such magnetic media; and (g) In the event that AMEX commences an
investigation of possible fraudulent activity, or otherwise upon AMEX's
reasonable request, CreditComm shall provide to AMEX all employee information
maintained by CreditComm for those employees working on AMEX related services,
as provided or allowed by law.
2. Logical Security Controls: **
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
7
3. Authorized Access: The CreditComm service location or a separately
designated area within the CreditComm service location shall be utilized for the
services hereunder and access thereto shall be limited to AMEX personnel and
CreditComm personnel performing the services hereunder. CreditComm may admit its
prospective clients and clients to the separately designated area or service
location, as the case may be, for the purpose of promoting CreditComm's
services; provided, however, that no such prospective client and client of
CreditComm is an AMEX Competitor. In addition, AMEX shall have the right to
escort all such prospective clients and clients through such separately
designated area or CreditComm service location. At no time during any such
client visit shall CreditComm permit said prospective client or client to
monitor AMEX calls or claims handling processes. If AMEX requests that
CreditComm implement or maintain safety and security procedures in addition to
those stated herein, CreditComm shall implement or maintain such reasonable
procedures at CreditComm's expense.
4. Security Relating to Competitors: **
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
5. Disaster Recovery: CreditComm shall provide to AMEX a disaster recovery
plan with a maximum of 24 hour recovery for each location performing services
hereunder. CreditComm shall also provide information on hot site and cold sites.
CreditComm shall provide AMEX written notification should there be a change or
modification with respect to CreditComm's hot and cold sites. All critical
supporting applications at each CreditComm site performing services hereunder
shall have had a valid and documented test of the disaster recovery plan, and
CreditComm shall provide copies of such to AMEX.
6. Assignment and Successions: The services provided by CreditComm
hereunder are personal services that cannot be assigned, transferred or
subcontracted to any third party without the express prior written consent of
AMEX. No party shall transfer or assign this Agreement, or any right or
obligation under it, by operation of law or otherwise, to any person or entity
without the prior written consent of the other party and any such attempted
assignment shall be void; provided, however, that each party may assign this
Agreement and any of its rights and obligations under it to its parent,
subsidiaries and affiliates without such written consent
This Agreement shall be binding upon and inure to the benefit of the successors
and assigns of each party, unless terminated as provided herein.
8
EXHIBIT H
CREDITCOMM REPORTING AND RECORDKEEPING
AMEX AUDIT RIGHTS
CreditComm shall provide AMEX with a monthly report showing the number of
requests received for each type of service covered by this Agreement, the number
of times each such service was rendered, and an explanation of any significant
delay in the provision of the service. CreditComm shall also provide, as part of
this monthly report, such additional information as AMEX may reasonably request.
CreditComm shall prepare and submit to AMEX such other periodic reports relating
to any or all of the services described in this Agreement as AMEX may reasonably
request.
CreditComm shall keep all documents (excluding credit and monitoring reports)
relating to services provided under this Agreement for a period of seven (7)
years. Unless otherwise instructed by AMEX, CreditComm shall promptly deliver
all such documents to AMEX upon the termination of this Agreement.
AMEX shall have the right, during normal business hours and with 24 hour notice
to CreditComm, to visit CreditComm's operations center to (i) monitor telephone
conversations between CreditComm customer service representatives and
Cardmembers/Customers to the extent permitted by and in accordance with
applicable law, and (ii) to audit CreditComm's Service Locations and files for
the services described in this Agreement and otherwise relating to CreditComm's
performance of its obligations under this Agreement. Upon AMEX's request,
CreditComm shall also cooperate with AMEX in developing the telecommunications
systems necessary to enable AMEX to conduct such telephone monitoring at any
time from AMEX's New York headquarters or other reasonable remote location(s) to
the extent permitted by and in accordance with applicable law. In the event such
systems are developed, AMEX may conduct such remote monitoring at any time to
the extent permitted by and in accordance with applicable law and to the extent
AMEX will cover the cost to develop the necessary telecommunications systems,
AMEX shall cover those costs that are reasonable and appropriate.
AMEX shall have the right, without notice, to perform a Data Security review of
CreditComm's security controls as they relate to the physical security and
protection of AMEX Confidential data/system access.
9
[AMERICAN EXPRESS LOGO] TRAVEL
RELATED
SERVICES
An American Express company TERMINAL RULES AND REGULATIONS EXHIBIT I
Part of our mission is to make changes and adjustments to various Cardmember
accounts. This is done through the use of our computer system. The use of this
system is extremely critical. There are a few very specific rules and
regulations that go along with working with the computer system. These rules
must be followed in detail by every employee who is involved with the computer
system. Therefore, you are being shown the rules and regulations so that you
understand how the system works. It is very important that you understand and
comply with the following operating rules and regulations.
MAINTENANCE CHANGES TO CARDMEMBER ACCOUNTS.
As part of your job, you may be making address changes, maintenance changes, or
issuing replacement cards. You may also be making financial adjustments.
THE RULE IS: You are never to make any type of maintenance changes or financial
adjustments to the following types of Card account:
1. Your own American Express Account.
2. A Card Account held by anyone you know outside of work.
3. Any Account that you are not required to access as part of your job
responsibility.
*Note - If in the normal course of business you need to make any type of
maintenance or financial adjustment on an account held by another
employee of American Express, immediately notify your Team Leader of
the employee account you have just handled and the change or adjustment
you have made.
USE OF YOUR PASSWORD AND IDENTIFICATION NUMBER
THE RULE IS: You are not to give your password to any person and you are not to
use another employee's password or identification number.
This is for your own protection. Your password identifies you to the system. The
computer system tracks all entries that are made by the person who makes them.
If your password were to be use by anyone in such a manner that results in
errors or fraud, you would be held accountable for the error or fraud.
THE RULE IS: You are to sign off when you leave your terminal and sign back on
when you return to your terminal. This applies to time away from
your desk for breaks, lunch, meetings, etc.
MONITORING
10
All terminals are subject to monitoring and terminal monitoring may occur
simultaneously with telephone monitoring. In addition, you should understand
that all transactions in the system are recorded by the computer. Print-outs
listing all transactions by employee identification number and password are
monitored on a regular basis.
UNAUTHORIZED ACCESS/VIEWING OF ACCOUNTS
THE RULE IS: You are never to access or view the following types of Card
accounts:
1. Your own American Express Account.
2. A Card Account held by anyone you know outside of work.
3. Any Account that you are not required to access as part of your job
responsibility.
*Note - If in the course of business you need to access an account held by
another employee of American Express immediately notify your Team Leader
of the employee account you have just had to access. Otherwise, you are
never to access or view a Card account held by another employee.
IMPORTANCE OF THE RULES AND REGULATIONS
- These rules are extremely important.
- Any employee who willfully disregards these rules and regulations is
subject to discipline, up to and including discharge from employment.
ACKNOWLEDGMENT
I have read and understand the above regulations and agree to comply with them.
___________________________ ______________________ ___________________
Employee Signature Print Name Date
11
EXHIBIT J
NON-DISCLOSURE
[Subcontractor/Agent/Representative Name] ("Receiving Party") agrees that
Receiving Party is aware that American Express Travel Related Services Company,
Inc. ("AMEX") and_______________________________________ ("CREDITCOMM") have
entered into a Consumer Credit Information Service Agreement ("Agreement") that
imposes certain obligations on CREDITCOMM, some of which are specifically set
forth below. Receiving Party understands that as part of obligations under the
Agreement, CREDITCOMM is required to obtain this written agreement from
Receiving Party to further ensure understanding and compliance with these
obligations.
In consideration of Receiving Party's future assignment and/or responsibilities
in connection with CREDITCOMM's performance under the Agreement, Receiving Party
hereby acknowledges, represents and confirms to CREDITCOMM and AMEX as follows:
(a) Receiving Party has read the provisions of this Non-Disclosure Agreement,
understands each of them, agrees to them, and knows of no agreements,
obligations or restrictions which prevent or prohibit Receiving Party from
complying with them; (b) Receiving Party shall receive and maintain all AMEX
information and perform services in a manner consistent with these obligations;
and (c) Receiving Party agrees not to, directly or indirectly, engage in or
assist others to engage in, any activity or conduct which violates the
provisions of this Non-Disclosure Agreement.
1. General Obligations. All confidential or proprietary information and
documentation ("Confidential Information" (including the terms of this
Agreement, the AMEX Data and the Software) relating to AMEX shall be held in
confidence by CREDITCOMM to the same extent and in at least the same manner as
AMEX protects its own confidential or proprietary information and as recommended
as a result of any facility audits or reviews. CREDITCOMM shall not disclose,
publish, release, transfer or otherwise make available Confidential Information
of AMEX in any form to, or for the use or benefit of, any person or entity
without AMEX's consent. CREDITCOMM shall, however, be permitted to disclose
relevant aspects of AMEX's Confidential Information to its officers, agents,
subcontractors and employees and to the officers, agents, subcontractors and
employees of its corporate affiliates or subsidiaries to the extent that such
disclosure is reasonably necessary for the performance of its duties and
obligations under this Agreement; provided, that CREDITCOMM shall take all
reasonable measures to ensure that Confidential Information of AMEX is not
disclosed or duplicated in contravention of the provisions of this Agreement by
such officers, agents, subcontractors and employees. The obligations in this
Section 1 shall not restrict any disclosure by CREDITCOMM pursuant to any
applicable law, or by order of any court or government agency (provided that
CREDITCOMM shall give prompt notice to AMEX of such order) and shall not apply
with respect to information which (1) is developed by CREDITCOMM without
violating AMEX's proprietary rights, (2) is or becomes publicly known (other
than through unauthorized disclosure), (3) is disclosed by AMEX to a third-party
free of any obligation of confidentiality, is already known by CREDITCOMM
without an obligation of confidentiality other than pursuant to this Agreement
or any confidentiality agreements entered into before the Effective Date between
AMEX and CREDITCOMM, or (4) is rightfully received by CREDITCOMM free of any
obligation of confidentiality.
2. Unauthorized Acts. CREDITCOMM shall: (1) notify AMEX promptly of any
material unauthorized possession, use or knowledge, or attempt thereof, of the
other party's Confidential Information by any person or entity which may become
known to such party, (2) promptly furnish to AMEX full details of the
unauthorized possession, use or knowledge, or attempt thereof, and use
reasonable efforts to investigate and prevent the recurrence of any unauthorized
possession, use or knowledge, or attempt thereof, of Confidential Information,
(3) use reasonable efforts to cooperate with AMEX in any litigation and
investigation against third parties deemed necessary by AMEX to protect its
proprietary rights and (4) promptly use all reasonable efforts to prevent a
recurrence of any such unauthorized possession, use or knowledge of Confidential
Information. CREDITCOMM shall bear the cost it incurs as a result of compliance
with this Section 2.
3. Remedy. CREDITCOMM agrees that if CREDITCOMM, its officers, employees
or anyone obtaining access to the proprietary information of AMEX by, through or
under them, breaches any provision of this Non-Disclosure Agreement, AMEX would
suffer irreparable harm and the total amount of monetary damages for any injury
to AMEX from any violation of this Non-Disclosure Agreement would be impossible
to calculate and would therefore be an inadequate remedy. Accordingly,
CREDITCOMM agrees that AMEX shall be entitled to temporary and permanent
injunctive relief against CREDITCOMM, its officers, agents or employees, and
such
12
other rights and remedies to which AMEX may be entitled to at law, in equity and
under this Agreement for any violation of Non-Disclosure Agreement."
Receiving Party agrees that if Receiving Party threatens to or
actually breaches or fails to observe any of the obligations set forth in this
Non-Disclosure Agreement, AMEX and CREDITCOMM shall be subject to irreparable
harm which shall not be adequately satisfied by damages. Receiving Party
therefore agrees that CREDITCOMM or AMEX shall be entitled to an injunction
and/or any other remedies permitted, to ensure and enforce Receiving Party's
compliance with these obligations; provided, however, that no specification
herein of any particularly legal or equitable remedy shall be construed as a
waiver, prohibition or limitation of any legal or equitable remedies.
By: __________________________
Name: ________________________
(Type, Stamp or Print)
Title: _______________________
Date: ________________________
Witness: _____________________
13
EXHIBIT K
Confidentiality Agreement
The nature of your work at for American Express Travel Related Services
Company, Inc., and its affiliates (collectively the "Company") involves your
access to trade secrets, confidential information, files, records and forms of
the Company (collectively "Confidential Information"). Confidential Information
includes, but is not limited to, any information relating to the Company
organizational structure, marketing philosophy and objectives, project plans,
data models, strategy and vision statements, business initiatives, business
requirements, systems design, methodologies, processes, competitive advantages
and disadvantages, financial results, product features, systems, operations,
technology, customer lists, customer account information, products development,
advertising or sales programs and any other information which would give the
Company an opportunity to obtain an advantage over its competitors or which the
Company is ethically obligated to protect from unauthorized sources. None of
such information shall be deemed to be in the public domain.
The Company desires to protect its Confidential Information and therefore
requires that you agree, as a condition of your performing services for the
Company pursuant to the Company's agreement with , to safeguard all
Confidential Information and not to reveal Confidential Information to any third
party (including, without limitation, at conferences, seminars, meetings or
professional organizations or by publications in journals or granting of
interviews to journalists and other members of the news media) or use
Confidential Information for your own benefit or the benefit of any third party,
except to the extent necessarily required for the performance of your services
for the Company.
You agree not to discuss Confidential Information of the Company in public
places.
You agree that any work product produced or developed by you in the performance
of your services for the Company shall be Confidential Information subject to
this Agreement and such work product is, and shall remain, the property of the
Company.
You also agree to help safeguard the Company's customers' expectations of
privacy by exercising diligence and care in the handling of Confidential
Information relating to them, as more fully explained in the Company's privacy
code of conduct.
By signing below, you indicate that you understand the above terms and that, as
a condition of performing Services for the Company, you agree to adhere to them.
______________________________
Your Signature
______________________________ ___________________
Print Your Name Date
14
EXHIBIT L
AMEX DATA ACCESS DOCUMENT
Information Security Requirements
The following are provided as minimum requirements or guidelines only. In all
instances, the recommendations resulting from all site audits, as indicated in
writing to CREDITCOMM, will govern.
GENERAL
Each CREDITCOMM employee, subcontractor, agent or representative shall sign a
Confidentiality Agreement (Exhibit K) or Non-Disclosure Agreement (Exhibit J),
as applicable, and abide by all terms contained therein.
CREDITCOMM shall allow site audit visit by AMEX assigned staff during all
periods of the relationship, including unscheduled visits and reviews with 24
hours notice. American Express reserves the express right to make unscheduled
visits to any and all CREDITCOMM sites when there is a suspicion of a security
breach. CREDITCOMM agrees to comply with any recommendations from said audit and
reviews.
CREDITCOMM shall ensure all regulations and laws are complied with including:
- Conflicts of Interest
- Confidential Information and Trade Secrets
- Xxxxxxx Xxxxxxx
- Copyrights, Trademarks, and Intellectual Property
- Money Laundering
- Political Activities
- Federal Banking Regulations
CREDITCOMM shall maintain an adequate level of physical security controls over
the CREDITCOMM Service Location including, but not limited to: appropriate alarm
systems, access controls, fire suppression, video surveillance, staff (describe
allowances for carrying out data) egress searches.
CREDITCOMM shall maintain an adequate level of data security controls including,
but not limited to: proper safeguarding of AMEX data, logical access controls
(e.g. password protection of AMEX applications, data files, libraries), computer
security software, a secure tape library. The controls maintained by CREDITCOMM
shall meet the minimum AMEX Information Security Standards (standards attached).
CREDITCOMM shall maintain an adequately secured computer room facility, with
access restricted to only approved CREDITCOMM staff.
15
CREDITCOMM shall provide to AMEX Information Security management copies of all
internal security policies and standards for review prior to the program
commencement. This shall include escalation procedures for non-compliance with
standards.
CREDITCOMM shall provide to AMEX Information Security management a copy of the
most recent third party data processing audit or review, conducted by
CREDITCOMM's external auditors. CREDITCOMM shall provide to AMEX Information
Security management copies of any related data processing audits from their
internal audit team.
CREDITCOMM agrees to abide by the AMEX TRS Client Privacy Rules and Practices as
adopted by AMEX for itself. Those requirements are as follows:
**
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
16
Disregard of these Standards and regulations shall be cause for termination
pursuant to Section 13 of the Agreement.
CREDITCOMM shall have an appropriate sensitive-trash disposal program at each
location.
CREDITCOMM shall return all magnetic media to the appropriate AMEX location
within seven business days of receipt of such magnetic media.
Government requirements should be included (check with GSA compliance).
- Gratuities
- Training on GSA rules
- Kickbacks
- Procurement
- Lobbying
- False Claims and False Statements
- Defective Costs
CREDITCOMM shall ensure at each site that no shared environments exist with
other businesses for all WANs, LANs, Network connections, dial-up connections,
DASD, distributed systems, and that appropriate data controls are implemented.
CREDITCOMM shall follow industry best practices in configuring and operating
voice systems to control fraudulent use of 800 numbers, PBX switches and other
voice networks.
17
CARDMEMBER PRIVACY
CREDITCOMM employees may only access, make maintenance changes, or perform
financial adjustment on those accounts as required by their job. In addition:
1. They may not access their own personal or corporate AMEX
account(s) for any reason.
2. They may not access any AMEX employee's account, except where it
is part of their normal job responsibility.
3. They may not access another CREDITCOMM employee's account.
4. They may not access an account held by anyone they know outside
of work.
5. They may not access any account that they are not required to
access as part of their job responsibility.
EMPLOYEE RESPONSIBILITIES
CREDITCOMM employees are encouraged to report suspected violations of any
Privacy Rules, or violations of Information Security Standards to their
management for investigation and action.
CREDITCOMM employees shall never share their USERID/PASSWORD with any other
person.
CREDITCOMM employees must sign-off when leaving their workstation for any
reason.
SECURITY ADMINISTRATION AND RESPONSIBILITIES
**
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
18
SYSTEM SECURITY
**
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
19
EXHIBIT M
[AMERICAN EXPRESS LOGO] TRAVEL
RELATED RECURRENT BILLING
SERVICES INTERFACE ADDENDUM
An American Express company
This Addendum ("Addendum") supplements and amends the terms of your agreement
with us governing your acceptance of the American Express(R) Card (the
"Agreement"). As used in this Addendum, the words "you" and "your" refer to the
company that signs this Addendum; the words "we," "us" and "our" refer to
American Express Travel Related Services Company, Inc., and its subsidiaries,
affiliates and licensees which issue Cards. Unless otherwise specified below,
the capitalized terms used in this Addendum shall have the same meaning as in
the Agreement.
I. SCOPE OF ADDENDUM
This Addendum governs your use of the Recurrent Billing Interface, under which,
pursuant to the license set forth below, you may use the application software
package (the "Software") we provide to: (i) support the electronic formatting
and transmission processes for Authorization and Submission of recurring summary
xxxxxxxx required in the Agreement (if applicable) and for submission of detail
xxxxxxxx (if applicable); (ii) establish cross reference files between your
customer account numbers and our Card account numbers; (iii) provide "lock box"
files to credit your customer accounts for billing through us; (iv) provide
major corporate account matching software (if applicable); and/or (vi) if
applicable, provide authorization and summary billing submission of Visa,
Mastercard and Discover charge to an approved third party processor retained by
you for this purpose. You acknowledge and agree that your use of the Software in
no way affects our rights or your obligations under the Agreement, including but
not limited to our right(s) of Full Recourse.
II. SOFTWARE LICENSE
A. Scope of License. We hereby grant you a personal, nonexclusive and
non-transferable restricted license to use the Software only at the location(s)
indicated on Exhibit A (the "Location(s)") and solely for the business purposes
described in this Addendum. We retain all rights and title to, and ownership of,
the Software and any associated materials and documentation (the
"Documentation") furnished in connection with the Software, including without
limitation, the installation and operating instructions and any written
specifications provided to you, as well as any updates or additional materials
which may be provided from time to time. This Addendum does not convey any
proprietary or other interest therein other than the licenses granted hereunder.
Exhibit A is incorporated herein by this reference.
Any changes, adaptations, derivative works, modifications, updates, enhancements
and/or additions made to the Software, whether based on your suggestion, input,
evaluation, feedback or otherwise, and whether made by us or you, shall belong
to us exclusively.
B. Protection of Software. You shall not use, distribute, transfer, modify,
disclose, make or have made any copies of the Software or the Documentation, in
whole or in part, without our prior written authorization, nor shall you use it
for any purpose other than as specified herein.
In no event shall you attempt to reverse engineer, decompile or disassemble the
Software, or otherwise derive the source code to the Software, in whole or in
part.
You shall notify and inform your employees having access to the Software and the
Documentation of the limitations and restrictions hereunder and your obligations
regarding non-disclosure and non-copying of the Software and the Documentation.
The Software and the Documentation shall be provided to your employees on a
"need to use" basis only.
You shall reproduce all notice(s) and/or proprietary legends, regardless of
form, contained in, affixed to, or appearing on the Software and/or the
Documentation and on any and all copies of such Software and/or Documentation or
any part thereof made by you as permitted hereunder.
C. Maintenance/Help Desk Support. Using the customer service telephone number
you may receive assistance in correcting any errors or malfunctions which you
identify in the Software as supplied by us which prevent the Software from
operating in substantial conformance with the most recent specifications
supplied to you. The foregoing shall be our sole obligation with regard to the
Software and Documentation. We do not warrant that the Software or Documentation
is error free or that your use of the Software will be uninterrupted. You shall
promptly install all updates and/or modifications to the Software which we
provide to you.
We will provide you with this support at no charge during the first two (2)
months after your first production file is transmitted for access by the
Software. Thereafter, basic help desk support will be provided at no charge for
the first four
20
(4) hours per month only. Extended help desk support for more than fifteen (15)
hours per month during the first two month period and/or for more than four (4)
hours per month thereafter will be charged at $125 per hour.
Support shall not include, and a separate charge of $125 per hour shall be made
for, non-standard set-up/configuration services, and services outside of the
specific support services described above.
THE FOREGOING IS IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
D. Third Party Action. In the event that you are subject to any action based on
a copyright or patent infringement claim by a third party arising from your
possession or use of the Software as permitted hereunder, we will defend or
arrange the defense of such action and indemnify you for all amounts finally
awarded in damages by a court of appropriate jurisdiction, provided, that you
have installed the most recent updates and/or modifications to the Software
which we have made available to you and you promptly notify us of any such
action and provide us with all reasonable assistance in our defense of such
action.
E. Return of Software. Within ten (10) days after expiration or termination of
this Addendum or upon our written request, you shall return to us all copies of
the Software and the Documentation, with any copies thereof made by you.
F. Fees. You agree to pay us the fee(s) indicated in this Addendum and/or on
Exhibit A and you hereby authorize us to deduct such fee(s) and any amounts due
hereunder, from payments we make to you pursuant to the Agreement for Charges
you submit to us. We may change any of the fee(s) on thirty (30) days' prior
written notice to you. Additionally, you shall be responsible for any license
fees to third party licensors and/or any applicable taxes with respect to the
Software and/or services.
III. CONFIDENTIAL INFORMATION AND
PROPRIETARY RIGHTS
A. In connection with your use of the Recurrent Billing Interface you and we may
have access to or receive disclosure of certain confidential information
relating specifically to the other's business, customers or clients. Both
parties agree to keep any such confidential information concerning the other
party in confidence and not to disclose it to any third party (except as
required by law) without prior written authority of the other party.
B. All Software programs, documentation, materials, procedures and
specifications we provide to you shall remain our property. Upon termination of
this Addendum you shall return to us any and all such Software programs,
materials, procedures and specifications.
C. You shall regard and preserve in trust and confidence and keep as
confidential the Software and the Documentation. You shall not, without first
obtaining our prior written consent, disclose the Software or the Documentation,
any portion thereof or any details relating thereto, to any other person, firm
or enterprise, or use the Software or the Documentation for your own benefit
(except as permitted hereunder) or the benefit of any other party.
IV. TERM AND TERMINATION
A. This Addendum shall become effective on the date we receive end accept your
signed copy (the "Effective Date").
B. This Addendum shall remain in effect for so long as the Agreement is in
effect unless this Addendum is terminated earlier by either party upon thirty
(30) days' prior written notice.
C. In the event of a material breach of this Addendum, the non-breaching party
may state its intent to terminate this Addendum by giving written notice to the
other party. Such notice shall set forth the nature of the breach and the steps
required to cure such breach to the satisfaction of the party giving notice. If
the breach is not cured within ten (10) days of such notice, the Addendum shall
automatically terminate without further notice twenty (20) days from the day the
notice of breach was first given.
V. INDEMNIFICATION
Except as otherwise provided in this Addendum, each party shall indemnify and
hold harmless the other, its officers, directors, employees and agents from and
against all claims, demands, damages, losses or judgments arising out of the
negligent acts or omissions of the indemnifying party. IN NO EVENT, HOWEVER,
SHALL EITHER PARTY BE RESPONSIBLE FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES. Neither party shall be liable for non-performance due to acts of God,
civil disturbances, strikes, power failures, changes in applicable laws or
regulations, fire or any other cause which such party cannot prevent by the
exercise of reasonable diligence.
21
VI. GOVERNING LAW
This Addendum shall be governed by and construed in accordance with the laws of
the state of New York regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be executed
by their duly authorized representative as set forth below.
American Express Travel Related Services
Company, Inc.
By:
Xxxxx Xxxxx
President, Establishment Services Worldwide
/s/ XXXX X. DALLAS, JR
------------------------------------------------
Signature
XXXX X. DALLAS, JR
------------------------------------------------
Name (Please Print)
CREDITCOMM SERVICES LLC
------------------------------------------------
Corporate Partnership Proprietorship Name
SAME
------------------------------------------------
Doing Business As (DBA Name)
0000 XXXXXXXXXX XXX
------------------------------------------------
Establishment address
FAIRFAX, VA. 22031
------------------------------------------------
City, State, Zip
445 780 000 1
------------------------------------------------
Service Establishment Number
22
EXHIBIT A to Exhibit M
Name of Service Establishment: CreditComm Services LLC
Location(s) for Use of Software: Fairfax, VA
Fees
1. License Fee(s): $ ** (Paid by American Express)
2. Standard Set-up/Configuration Fee: Billed at Cost
3. Maintenance/Support Fee: $ ** per Month (Charged against
Merchant Account)
-Basic Included
-Extended $ **/hr
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Software functions Included
(Indicated by check xxxx) AMEX Other Cards
--------------------------- ------------- ----------------
- Enrollment [X] NO
- Account Maintenance [X] N/A
- Authorization & Charge [X] NO
Submission - Summary
- Detail Billing NO N/A
- Lockbox [X] NO
- Dial-up Communication [X] NO
- Major Corporate Account NO NO
Matching System
Standard Set-Up and Configuration Activities include the following if done as
part of initial set-up:
1) Translation of your enrollment files into American Express specifications.
2) Translation of your billing files in the agreed upon format into standard
credit card specifications. (Summary billing only and includes translation
into third party processor specifications that the software has certified
with).
3) Creation of lockbox files in your format.
4) Installation of Recurrent Billing Interface System software application.
AMEX-II
FIRST AMENDMENT TO THE
CONSUMER CREDIT INFORMATION SERVICE AGREEMENT
This First Amendment, dated JANUARY 30, 1998 sets forth agreed changes to the
Consumer Credit Information Service Agreement dated March 12th, 1997. The sole
purpose of this First Amendment is to amend portions of the existing contract as
described below.
EXHIBIT C: PERFORMANCE STANDARDS
Exhibit C is amended such that the Exhibit C-1 attached hereto replaces the
original Exhibit C.
EXCLUSIVITY
Section 4 originally stated (under the title "Exclusivity of the Consumer Credit
Information Service Agreement dated March 12, 1997"): "In view of the fact that
the Service shall be an AMEX-branded service, during the term of this agreement,
CreditComm will not administer nor directly offer its own or a similar Consumer
Credit Information Service on behalf or in conjunction with any Visa,
MasterCard, Discover or Diners Club (the "Competitors") card products prior to
January 1, 2000. Similarly, during the term of this Agreement, AMEX will not
promote to its Customers any other AMEX branded service similar to the Service."
Such Section 4 as set forth above is hereby amended to delete "Discover" and to
read, "In view of the fact that the Service shall be an AMEX-branded service,
during the term of this agreement, CreditComm will not administer nor directly
offer its own or a similar Consumer Credit Information Service on behalf or in
conjunction with any Visa, MasterCard, or Diners Club (the "Competitors") card
products prior to January 1, 2000. Similarly, during the term of this Agreement,
AMEX will not promote to its Customers any other AMEX branded service similar to
the Service."
Section 4 is further amended to add:
STAFFING COMMITMENT
"CreditComm will develop staffing levels in anticipation of planned
customer growth in order to maximize efficiency as well as maintain the
highest levels of customer service, marketing capabilities and account
management. CCS commits to maintaining the staffing at levels necessary
to fulfill the obligations set forth to this Consumer Credit
Information Service Agreement as specified in Exhibit C: Performance
Standards. Such standards are to be maintained on a daily basis and in
the event they fall below standard, as a result of CCS controlled
systems and processes, it will be the sole responsibility of CCS to
hire additional staff to ensure that such an event does not occur
moving forward."
** ___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
---------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission
EXHIBIT B: FINANCIAL ARRANGEMENT & GUARANTEE
**
---------------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
If the above terms and conditions of this amendment are acceptable to both
parties, please so indicate by signing and dating this document in the space
provided.
Agreed to: Agreed to:
By: By:
-------------------------------- ----------------------------
CreditComm Services American Express
Date: Jan. 29, 1998 Date: 2/3/98
AMERICAN EXPRESS CREDITAWARE QUALITY STANDARDS
EXHIBIT C-1
BPC 1/98
ACCURACY TIMELINESS
KEY PROCESS/MEASURE STANDARD STANDARD DESCRIPTION
-----------------------------------------------------------------------------------------------------------------------
ENROLLMENTS
-----------------------------------------------------------------------------------------------------------------------
ENROLLMENT (CCS) - DATA ** ** Accuracy: Enrollments are
ENTRY (PHONE AND/OR keyed accurately
CORRESPONDENCE)
Timeliness: # days elapsed
from enrollment until data
entered and appropriate Amex
area is updated
-----------------------------------------------------------------------------------------------------------------------
ENROLLMENT (AMEX) - XXXXXXX ** ** Timeliness: # days elapsed
from data being sent to
XXXXXXX, to receipt of
enrollment data back from
XXXXXXX.
-----------------------------------------------------------------------------------------------------------------------
ENROLLMENT (CCS) - DATA ** ** Timeliness: # days elapsed
SUBMISSION TO RBI from data receipt from
XXXXXXX to data submission
to RBI.
-----------------------------------------------------------------------------------------------------------------------
ENROLLMENT (AMEX) - RBI ** ** Timeliness: # days elapsed
from data being sent to RBI,
to receipt of billing data
back from RBI.
-----------------------------------------------------------------------------------------------------------------------
CANCELLATIONS
-----------------------------------------------------------------------------------------------------------------------
PROCESS CANCELLATIONS ** ** Accuracy: Cancellations are
(PHONE AND/OR processed accurately
CORRESPONDENCE)
Timeliness: # days from
cancellation request until
letter is generated and
appropriate Amex area is
updated
-----------------------------------------------------------------------------------------------------------------------
CORRESPONDENCE
-----------------------------------------------------------------------------------------------------------------------
GENERAL CORRESPONDENCE Accuracy: Accurate responses
INCLUDES MAIL SENT FROM CM to CM inquiries
TO CREDITCOMM (INCLUDING
MISDIRECTED MAIL) AND MAIL Timeliness: # days from
SENT FROM AMEX TO ** ** receipt of correspondence
CREDITCOMM) until actioned
-----------------------------------------------------------------------------------------------------------------------
FULFILLMENT
-----------------------------------------------------------------------------------------------------------------------
FULFILLMENT KIT ** ** Accuracy: Fulfillment kit
(INITIAL - WELCOME KIT contains accurate materials
AND 3 BUREAU CREDIT PROFILE) that are addressed properly
Timeliness: # days elapsed
from receipt of enrollment
until kit mailed
-----------------------------------------------------------------------------------------------------------------------
ACCURACY TIMELINESS
KEY PROCESS/MEASURE STANDARD STANDARD DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------
FULFILLMENT CONT.
ACCOUNT MONITORING REVIEW/ ** ** Accuracy: CMs correctly
NOTIFICATION OF: notified of activity
-ADDITION/REMOVAL OF ** Timeliness: # days elapsed
DEROGATORY from receipt of monitoring
-ADDITION OF DELINQUENT information until acknowledgment
-FULL FILE INQUIRY is mailed
(NOTIFICATION OF THE ABOVE
WILL OCCUR AT A MINIMUM OF
EVERY 90 DAYS)
---------------------------------------------------------------------------------------------------------------------------
ACCOUNT MONITORING REVIEW/ ** ** Accuracy: CMs correctly
NOTIFICATION OF: notified of activity
-NEW ACCOUNT OPENED ** Timeliness: # days elapsed
from receipt of monitoring
(IF ACTIVITY, NOTIFICATION information until acknowledgment
OF THE ABOVE WILL OCCUR is mailed
AFTER CCS IS NOTIFIED - AT A
MINIMUM OF EVERY 30 DAYS.)
---------------------------------------------------------------------------------------------------------------------------
RENEWAL NOTIFICATION LETTER ** ** Accuracy: Letters are
(ALL CMS WILL RECEIVE A accurate and addressed
RENEWAL NOTICE UNLESS properly
CANCELED) **
Timeliness: # days
between date letter
mailed and renewal date
---------------------------------------------------------------------------------------------------------------------------
PREMIUM DELIVERY ** **
---------------------------------------------------------------------------------------------------------------------------
CERTIFICATE FOR 3 BUREAU ** ** Accuracy: Fulfillment kit
CREDIT PROFILE contains accurate materials
that are addressed properly
Timeliness: # days elapsed
from receipt, call, or
renewal date until
Certificate mailed
---------------------------------------------------------------------------------------------------------------------------
________________
**
This information is confidential and has been omitted and separately filed with
the Securities and Exchange Commission.
SECOND AMENDMENT TO THE CONSUMER CREDIT INFORMATION SERVICE AGREEMENT
This Second Amendment sets forth additional items to the Consumer
Credit Information Service Agreement ("Master Agreement"). The sole purpose of
this Second Amendment is to clarify American Express telemarketing requirements
as described below. This service agreement ("Agreement") is entered into this
_________ day of __________ 1998 ("Effective Date"), by and between CreditComm
Services LLC., a Delaware Limited Liability Company ("CREDITCOMM")and American
Express Travel Related Services Company, Inc., a New York Corporation ("AMEX").
ATTACHMENTS:
ATTACHMENT DESCRIPTION ATTACHMENT IDENTIFIER
---------------------------------------------------------------------------
American Express Back End Process for Contact Attachment A
Management - Detailed Document Design -
---------------------------------------------------------------------------
American Express Telemarketing Policy Attachment B
---------------------------------------------------------------------------
Performance Reporting and Standards Attachment C
---------------------------------------------------------------------------
American Express Legal Guidelines Attachment D
---------------------------------------------------------------------------
Two Sample Telemarketing Reports Attachment E
---------------------------------------------------------------------------
ARTICLE 1. TERM AND DEFINITION
1.01 Term The initial term of this Agreement shall commence on the
Effective Date. Termination is linked to the Master Agreement between CREDITCOMM
and AMEX and shall continue unless terminated earlier pursuant to Article 9
("Termination").
1.02 Definitions TM VENDORS are defined as any person, group or
company contracted to conduct telemarketing activities on behalf of AMEX
products or services. These companies include, but are not limited to, APAC
TeleServices, Inc, and MARCOMM,Inc..
ARTICLE 2. SERVICES
2.01 Systems CREDITCOMM shall be responsible for TM VENDORS
telecommunication systems interfacing with AMEX's telecommunication systems.
System requirements are included in Attachment A.
2.02 Telemarketing Policy CREDITCOMM shall be responsible for TM
VENDORS compliance with AMEX's Telemarketing Policies. AMEX's Telemarketing
Policy is included in Attachment B.
2
2.03 Telemarketing Legal Guidelines CREDITCOMM shall be responsible
for TM VENDORS compliance with all federal laws and regulations surrounding
telemarketing practices. A summary of telemarketing legal guidelines for use by
CREDITCOMM is provided in Attachment D. Attachment D is a summary of federal law
and regulations and does not intend to be a complete description of applicable
legal guidelines around telemarketing practices. Complete descriptions of
federal laws and regulations should be requested from the Federal Trade
Commission and other government agencies.
2.04 Changes in Law and Regulations CREDITCOMM shall use
commercially reasonable efforts to identify the impact of changes in applicable
legislative enactments on its ability to deliver the Services. CREDITCOMM shall
notify AMEX of such changes and shall work with AMEX to identify the impact of
such changes on how AMEX uses the Services. AMEX, CREDITCOMM and TM VENDORS
shall make any resulting modifications to the Services. CREDITCOMM shall be
responsible for any fines and penalties arising from any noncompliance by TM
VENDORS with the laws in respect of its delivery of the Services. CREDITCOMM
shall use commercially reasonable efforts to perform the Services regardless of
changes in legislative enactments. If such changes prevent TM VENDORS'
performance, AMEX and CREDITCOMM shall arrange a reasonable solution which as
close as practicable implements the intent of the Agreement. CREDITCOMM
recognizes its independent responsibility to comply with telemarketing and
insurance laws, and shall discuss all legal and regulatory issues pertaining to
AMEX programs for the purpose of reaching a consensus on the feasibility of
programs or modifications to programs in order to continue compliance with
applicable laws and regulations.
ARTICLE 3. SERVICE LEVELS
3.01 Service Levels CREDITCOMM shall provide the Services in
accordance with the performance standards set forth in Attachment B and
Attachment C (collectively, the "Service Levels").
3.02 Continuous Improvement Program As part of the Services,
CREDITCOMM shall establish and implement a continuous improvement program,
approved by AMEX, for quality, and delivery of the Services to determine whether
these factors are best of breed (the "Continuous Improvement Program"). This
3
shall consist of an end of calling campaign summary for each campaign analysis
of results, and shall include a formal discussion of potential improvements.
3.03 Reports CREDITCOMM shall provide performance and other reports
to AMEX in a form agreed upon by AMEX and CREDITCOMM for programs including
Daily Telemarketing Report (cumulative and by cell code) and a Program Report
Summary. Sample reports are provided in Attachment E.
3.04 Root-Cause Analysis and Resolution Within 6 business days of
receipt of a notice from AMEX in respect of (l) TM VENDORS' material failure to
provide the Services or (2) TM VENDORS' repeated failure to provide any of the
Services in accordance with the Service Levels, CREDITCOMM shall (a) perform a
root-cause analysis to identify the cause of such failure, (b) correct such
failure, provided, however, if the failure cannot be cured within 6 business
days, the vendor shall commence the cure within such six (6) business day period
and diligently pursue the cure until completed within twenty-one (21) business
day period from the date of original failure, (c) provide AMEX with a report
detailing the cause of, and procedure for correcting, such failure and (d)
provide AMEX with reasonable evidence that such failure will not reoccur.
3.05 Monitoring. Subject to applicable laws, AMEX shall have the
right, at its discretion, to remotely monitor Inbound Telemarketing and Outbound
Telemarketing performed by TM VENDORS at any time, and without notice to
CREDITCOMM or TM VENDORS for programs.
3.06 Security Relating to Major Competitors CREDITCOMM and TM
VENDORS shall not share with AMEX Competitors the TM VENDORS Service Location or
resources used to provide the Services. AMEX reserves the right to disapprove
any such sharing with AMEX Competitors. "AMEX Competitor" is defined as any
person, firm or enterprise conducting a business or providing or supporting a
product or service substantially similar to any of AMEX's products or services
being handled by TM VENDORS.
ARTICLE 4. PROJECT TEAM
4.01 CREDITCOMM and TM VENDOR Project Managers CREDITCOMM and TM
VENDORS shall (1) appoint an individual who from the Effective date shall be in
charge of implementing the Services on a part-time basis and (2) replace such
individual when required or permitted pursuant to this Section 4.01. TM VENDORS'
appointment of a TM VENDOR Project Manager shall be subject to AMEX's consent
which
4
consent shall not be unreasonably withheld. The initial TM VENDOR Project
Manager shall be in place at least five days before the Effective Date of this
Agreement. The TM VENDOR Project Manager shall be available to address bonafide
emergency situations relative to this Agreement. An additional on-site person of
similar rank and qualifications shall serve as a back up. CREDITCOMM and TM
VENDORS shall not reassign or replace any TM VENDOR Project Manger during the
first three months of his or her assignment or replacement unless (1) AMEX
consents to such reassignment or replacement, or (2) the TM VENDORS Project
Manager (a) voluntarily resigns from TM VENDORS, (b) is dismissed by a TM
VENDORS for (i) misconduct (e.g., fraud, drug abuse, theft) or (ii) materially
failing to perform his or her duties and responsibilities pursuant to this
Agreement or TM vendors' policies in TM VENDORS' reasonable judgment or (c) is
unable to work due to his or her death or disability [(1) and (2) in respect of
the TM VENDOR Project Managers, collectively, the "Reassignment Waivers; each, a
"Reassignment Waiver"]. In the event that AMEX notifies CREDITCOMM that AMEX
wishes TM VENDORS to replace the TM VENDOR Project Managers, AMEX and CREDITCOMM
shall meet to attempt to resolve AMEX's concerns. If AMEX, CREDITCOMM and TM
VENDORS are not able to resolve AMEX's concerns within 10 days (or such other
time period as the parties may agree) after AMEX notifies CREDITCOMM that AMEX
wishes to replace the TM VENDOR Project Manager, CREDITCOMM shall move to
replace the TM VENDOR Project Manager with an individual acceptable to AMEX.
4.02 Project Team Meetings On a weekly basis and, if necessary, on
an emergency basis, weekly conference calls will be set up between CREDITCOMM,
AMEX and TM VENDORS for the objective to review and discuss telemarketing
campaign issues and opportunities to ensure successful execution of the
campaign. In addition, on site visits by AMEX will be conducted throughout the
course of the campaign to ensure compliance to AMEX standards and telemarketing
policies,
4.03 Subcontractors CREDITCOMM and TM VENDORS may not subcontract
all or any part of the Services, without AMEX's consent, which consent shall not
be unreasonably withheld; provided, however, TM VENDORS may subcontract all or
part of the Services to one of TM VENDORS' subsidiaries without AMEX's consent.
AMEX reserves the right to review the terms of all subcontracting agreements
between CREDITCOMM and TM VENDORS and TM VENDORS and their respective
subcontractors. AMEX reserves
5
the right to reject any subcontractor offered by TM VENDORS for performance of
all or any part of the Services; provided, however, TM VENDORS may subcontract
all or part of the Services to one of TM VENDORS' wholly owned subsidiaries or
limited liability partnerships without AMEX's consent. The consent of AMEX to
any subcontracting shall not relieve CREDITCOMM or TM VENDORS of its
responsibility for the performance of its obligations under this Agreement.
CREDITCOMM and TM VENDORS shall remain fully responsible for any obligations
subcontracted.
4.04 Non-Competition CREDITCOMM acknowledges that the Services
performed for AMEX may relate to past, present or future strategies, plans,
business activities, methods, processes and information which afford AMEX
certain competitive or strategic advantages. AMEX agrees that CREDITCOMM and TM
VENDORS shall be exempt from the limitations of these non-competition provisions
with regard to TM VENDORS' existing customer base for the Term of this Agreement
and any Renewal Terms, to the extent of existing marketing programs or
agreements in place as of the Effective Date. To further ensure the protection
of AMEX's interests, TM VENDORS agree: (1) during the Term and any Renewal Term
and for a period of six months thereafter, TM VENDOR shall not commingle
services or provide materials or information, directly or indirectly, for or in
support of any AMEX Competitor or in connection with a Competitive Service, that
are substantially similar in form, substance, purpose or intent as performed or
provided under this Agreement without prior consent of AMEX, which may be given
or withheld for any reason in AMEX's sole discretion; (2) during the Term and
any Renewal Term and for a period of six months thereafter, CREDITCOMM and TM
VENDOR shall not assign or utilize any TM VENDOR Project Managers assigned to
perform the Services for AMEX to perform services for or in support of any AMEX
Competitor or a Competitive Service without prior consent of AMEX, and (3)
during the Term and any Renewal Term and for a period of three months
thereafter, TM VENDORS shall not assign or utilize any other employees, agents
or representatives assigned to perform the Services for AMEX, to perform
services for or in support of any AMEX Competitor or a Competitive Service
without prior consent of AMEX, which consent may be given or withheld for any
reason in AMEX's sole discretion. "Competitive Service" is defined as any task
or work related to a product or service of a third party that is or will be
substantially similar to any AMEX product or service handled by a TM VENDOR
pursuant to this Agreement. If there is any doubt whether any person, firm or
enterprise is deemed an AMEX
6
Competitor or whether any product or service effort is deemed a Competitive
Service, CREDITCOMM and TM VENDORS shall identify competitors by name or service
offering description and obtain AMEX's approval, which decision shall be deemed
final and controlling for all purposes hereunder. In addition, if TM VENDORS do
provide services for any AMEX Competitor or Competitive Service, that CREDITCOMM
and TM VENDOR will do so in a manner which will avoid any possibility that any
proprietary or confidential information of AMEX will be exposed to or used for
the benefit of any such AMEX Competitor or Competitive Service.
If any Competitive Service is undertaken by TM VENDORS with AMEX's
consent, CREDITCOMM and TM VENDORS shall conduct such Competitive Service in
such a way as to avoid any possibility that the proprietary nature of AMEX's
confidential information will be jeopardized. At a minimum, CREDITCOMM and TM
VENDORS agree that: (1) for such Competitive Service, a different building or
segregated floor(s) shall be utilized; any use of a shared building or buildings
by CREDITCOMM or TM VENDORS shall be subject to approval by AMEX Data Security
Dept.; (2) software transferred to TM VENDORS by AMEX or software specifically
developed for any unique aspect of the Services shall not be utilized for such
Competitive Service; and (3) any reports, systems, methods, manuals, procedures,
scripts or other writings created in whole or in part (provided that AMEX
contributed 50% or more to its' creation) by AMEX for use in connection with any
aspect of the services shall not be utilized in connection with such Competitive
Service.
4.05 Non-Disclosure Agreement CREDITCOMM shall, in advance, require
each TM VENDORS' subcontractor, agent or representative assigned to perform the
Services and each TM VENDORS' subcontractor, agent or representative who obtains
or is in a position to obtain any AMEX information or materials required by the
terms of this Agreement to be kept confidential, to execute a not-disclosure
agreement in the form set forth in Exhibit H (a "Confidentiality Agreement").
Prior to any subcontractor other than a wholly-owned subsidiary or limited
liability partner of TM VENDORS performing the Services, TM VENDORS shall
provide AMEX with a true copy of such Non-Disclosure agreement. Upon AMEX's
request, TM VENDORS shall provide AMEX with a true copy of each such
Non-Disclosure Agreement for TM VENDORS' agents or representatives. TM VENDORS'
further agree to take any other steps reasonably required or appropriate to
ensure compliance with the obligations set forth in this Section 4.04. AMEX
shall be
7
a third party beneficiary of any such Non-Disclosure Agreement.
ARTICLE 5. AMEX MARKS
5.01 AMEX Marks AMEX owns and shall remain the sole and exclusive
owner of all right, title and interest in and to the AMERICAN EXPRESS name,
trademarks, service marks, trade names, and the goodwill associated therewith
(the "Marks") and CREDITCOMM and TM VENDORS agree that any and all use of the
Marks by TM VENDORS shall inure solely to the benefit of AMEX. TM VENDORS is not
granted any right or license to, and shall not use, the Marks in any manner for
any purpose except as may be agreed in advance between TM VENDORS, CREDITCOMM
and AMEX.
ARTICLE 6. DATA AND REPORTS
6.01 Ownership of AMEX Data All data information submitted to TM
VENDORS by AMEX in connection with the Services (the "AMEX Data") is and shall
remain the property of AMEX. The AMEX Data shall not be (1) used by TM VENDORS
other than in connection with providing the Services, (2) disclosed, sold,
assigned, leased or otherwise provided to third parties by TM VENDORS or (3)
commercially exploited by or on behalf of TM VENDORS, its employees or agents.
CREDITCOMM and TM VENDORS will take all appropriate actions to safeguard the
AMEX data.
6.02 Correction of Errors AMEX shall be responsible for (1) the
accuracy and completeness of the AMEX Data submitted by AMEX to TM VENDORS and
(2) any errors in and with respect to data obtained from TM VENDORS because of
any inaccurate or incomplete AMEX Data.
6.03 Return of Data Upon request by AMEX at any time, TM VENDORS
shall (1) promptly return to AMEX, in the format and on the media requested by
AMEX, all AMEX Data and (2) erase or destroy under the supervision of AMEX all
AMEX Data in TM VENDORS' possession. Any archival tapes containing AMEX Data
shall be used solely for back-up purposes.
6.04 Reports Commencing as of the Effective Date, CREDITCOMM shall
provide to AMEX those management and production reports prepared by AMEX as of
the Effective Date (the "Reports"). TM
8
VENDORS shall provide AMEX with such documentation and information as may be
requested by AMEX from time to time in order to verify the accuracy of the
Reports.
ARTICLE 7. CONTINUED PROVISION OF SERVICES
7.01 Disaster Recovery Plan As part of Services, TM VENDORS shall
(1) develop and submit to AMEX for AMEX's consideration a Disaster Recovery Plan
(the "DRP") within 20 business days of the Effective Date that meets or exceeds
the requirements set forth in Exhibit E, (2) periodically update and test the
operability of the DRP in effect at that time, (3) upon AMEX's request, certify
to AMEX that the DRP is fully operational at least once a year and (4)
immediately provide AMEX with notice of a disaster and implement the DRP upon
the occurrence of a disaster at a TM VENDORS Service Location or otherwise
affecting the provisions or receipt of the Services (a "Disaster"). TM VENDORS
shall use its best efforts to reinstitute the Services within four (4) hours of
the occurrence of a Disaster but, in any event, shall reinstitute the Services
within twenty-four (24) hours of each occurrence. In the event TM VENDORS
provides the Services from a business recovery center for more than thirty (30)
days, AMEX may terminate this Agreement for cause upon notice to CREDITCOMM.
ARTICLE 8. CONFIDENTIALITY
8.01 General Obligations All confidential or proprietary
information and documentation ("Confidential Information") (including the terms
of this Agreement, the AMEX Data and the Software) relating to AMEX shall be
held in confidence by CREDITCOMM and TM VENDORS to the same extent and in at
least the same manner as CREDITCOMM and TM VENDORS protects its own confidential
or proprietary information and as recommended as a result of any facility audits
or reviews. Each party shall not disclose, publish, release, transfer or
otherwise make available Confidential Information of the other party in any form
to, or for the use or benefit of, any person or entity other than as permitted
by this Agreement without the other party's consent. Each party shall, however,
be permitted to disclose relevant aspects of the other party's Confidential
Information to its officers, agents, subcontractors and employees and to the
officers, agents, subcontractors and employees of its corporate affiliates or
subsidiaries to the extent that such disclosure is
9
reasonably necessary for the performance of its duties and obligations under
this Agreement; provided, that CREDITCOMM and TM VENDORS shall take all
reasonable measures to ensure that Confidential Information of AMEX is not
disclosed or duplicated in contravention of the subcontractors' provisions of
this Agreement by such officers, agents, subcontractors and employees. The
obligations in this Section 8.01 shall not restrict any disclosure by the
disclosing party pursuant to any applicable law, or by order of any court or
government agency (provided that the disclosing party shall give prompt notice
to the other party of such order) and shall not apply with respect to
information which (1) is developed by either party without violating the other
party's proprietary rights, (2) is or becomes publicly known (other than through
unauthorized disclosure), (3) is disclosed by either party to a third-party free
of any obligation of confidentiality, (4) is already known by either party
without it an obligation of confidentiality other than pursuant to this
Agreement or any confidentiality agreements entered into before the Effective
Date between AMEX and CKEDITCOMM, or (5) is rightfully received by either party
free of any obligation of confidentiality.
8.02 Unauthorized Acts CREDITCOMM shall: (1) notify AMEX promptly
of any material unauthorized possession, use or knowledge, or attempt thereof,
of AMEX' Confidential Information by any person or entity which may become known
to CREDITCOMM, (2) promptly furnish to AMEX full details of the unauthorized
possession, use or knowledge, or attempt thereof, and use reasonable efforts to
investigate and prevent the recurrence of any unauthorized possession, use or
knowledge, or attempt thereof, of Confidential Information, (3) use reasonable
efforts to cooperate with AMEX in any litigation and investigation against third
parties deemed necessary by AMEX to protect its proprietary rights and (4)
promptly use all reasonable efforts to prevent a recurrence of any such
unauthorized possession, use or knowledge of Confidential Information.
CREDITCOMM shall bear the cost it incurs as a result of compliance with this
Section 8.01 and 8.02.
8.03 Remedy CREDITCOMM agrees that if TM VENDORS, officers,
employees or anyone obtaining access to the proprietary information of AMEX by,
through or under them, breaches any provision of this Article 8, AMEX would
suffer irreparable harm and the total amount of monetary damages for any injury
to AMEX from any violation of this Article 8 would be impossible to calculate
and would therefore be an inadequate remedy. Accordingly, CREDITCOMM agrees that
AMEX shall be entitled to temporary and permanent injunctive relief against TM
VENDORS, its officers, agents or employees, and such other rights and
10
remedies to which AMEX may be entitled to at law, in equity and under this
Agreement for any violation of this Article 8.
ARTICLE 9. TERMINATION
9.01 Termination for Convenience AMEX may, at its sole discretion,
terminate this telemarketing Agreement without cause at any time during the Term
upon 90 days' prior notice to CREDITCOMM. In the event of termination for
convenience, AMEX shall permit TM VENDORS' AMEX program trained representatives
to be reassigned by program to other AMEX programs, including where this will
not adversely affect TM VENDORS' provision of service obligations under this
Agreement, nor create charges greater than what would be incurred without
termination for convenience.
9.02 Termination for Change of Control/Business of TM VENDORS In
the event (1) of a sale or distribution of all substantially all of the assets
of TM VENDORS or a sale or distribution of sufficient stock (other than pursuant
to a public offering) of TM VENDORS to effect a change in control to any of the
AMEX Competitors or (2) that TM VENDORS or its Affiliates enters into the
business of credit or financial services, consistent with the scope of
then-current offerings of AMEX, its affiliates or subsidiaries, AMEX may
terminate this Agreement immediately. In the event of a sale or distribution of
all or substantially all of the assets of TM VENDORS or a sale or distribution
of sufficient stock (other than pursuant to a public offering) of TM VENDORS to
effect a change in control to an entity other than any of the AMEX Competitors,
AMEX may terminate this Agreement upon seven days' notice to CREDITCOMM given
within 30 days of AMEX's receipt of notice of such change of control or
activity.
9.03 Termination for Cause Except as expressly provided elsewhere
in this Agreement, if either party fails to perform any of its material
obligations under this Agreement, and such failure is not cured within 30 days
after notice is given to the defaulting party specifying the nature of the
default, the non-defaulting party may, upon further notice to the defaulting
party, terminate this Agreement as of the date specified in such notice of
termination.
ARTICLE 10. LOSS OF TELEMARKETING MATERIALS
11
10.1 Loss of Telemarketing Materials In the event of a material
loss, theft or mysterious disappearance of any customer information, data or
telemarketing materials CREDITCOMM and TM VENDORS shall promptly notify AMEX, in
which case AMEX may take whatever steps it deems reasonably necessary to protect
itself from losses, including without limitation arranging for security and
processing oversight of all items held by TM VENDORS which are owned by AMEX or
in which AMEX has a proprietary interest. CREDITCOMM or TM VENDORS' notification
does not require it to inform AMEX of TM VENDORS' customer's identity or other
confidential information, but is designed to give AMEX an understanding of the
circumstances and magnitude of the loss.
ARTICLE 11. MISCELLANEOUS PROVISIONS
11.01 Severability If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, then the remaining
provisions of this Agreement shall remain in full force and effect, and the
parties shall substitute for the invalid provisions a valid provision which most
closely approximates the intent and economic effect of the invalid provision.
11.02 Publicity Each party shall (1) submit to the other all
advertising, written sales promotion, press and other publicity matters relating
to this Agreement in which the other party's name or xxxx is mentioned or
language from which the connection of said name or xxxx xxx be inferred or
implied and (2) not publish or use such advertising, sales promotion, press
releases or publicity matters without the other parry's consent.
11.03 Amendments No amendment to, or change, waiver or discharge of,
any provision of this Agreement shall be valid unless in writing and signed by
an authorized representative of the party against which such amendment, change,
waiver or discharge is sought to be enforced.
11.04 Third Party Beneficiaries Each party intends that this
Agreement shall not benefit, or create any right or cause of action in or on
behalf of, any person or entity other than AMEX, CREDITCOMM and TM VENDORS.
11.05 Governing Law EXCEPT AS REQUIRED BY LOCAL LAW IN ANY
JURISDICTION OUTSIDE OF THE UNITED STATES, THIS AGREEMENT AND TOE RIGHTS AND
OBLIGATIONS OF
12
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO THE CONFLICTS OF LAW (OTHER THAN SECTIONS 5-1401 OP THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). The United Nations
Convention on Contracts for the International Sale of Goods shall not apply to
this Agreement.
11.06 Covenant of Further Assurances AMEX and VENDOR covenant and
agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of AMEX and VENDOR shall execute and
deliver any further legal instruments and perform any nets which are or may
become necessary to effectuate the purposes of this Agreement.
11.07 Negotiated Terms The parties agree that terms and conditions
of this Agreement are the result of negotiations between the parties and that
this Agreement shall not be construed in favor of or against any party by reason
of extent to which any party or its professional advisors participated in the
preparation of this Agreement.
11.08 Interpretation of Certain Terms All usage of the word
"including" or the phrase "c.g." in this Agreement shall be deemed to mean
"including, without limitation."
11.09 Modification No modification of the terms and conditions of
this Agreement will be valid unless in writing and signed by all of the parties
to this Agreement.
IN WITNESS WHEREOF, CREDITCOMM and AMEX have each caused this Agreement
to be signed and delivered by its duly authorized representative.
CreditComm Services LLC
By: _______________________________
Title: ____________________________
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: _______________________________
Title: ____________________________
13
ATTACHMENT C
PERFORMANCE REPORTING AND STANDARDS
-------------------------------------------------------------------------------------------------
PERFORMANCE METRIC REQUIRED LEVEL MEASUREMENT BASIS
-------------------------------------------------------------------------------------------------
Accuracy of information provided ** AMEX sampling*
-------------------------------------------------------------------------------------------------
Close rate ** weekly
-------------------------------------------------------------------------------------------------
Accuracy of information recorded ** AMEX sampling*
-------------------------------------------------------------------------------------------------
Mail fulfillment cycle times ** Weekly
-------------------------------------------------------------------------------------------------
Accuracy of contacts submitted ** AMEX sampling
-------------------------------------------------------------------------------------------------
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
* AMEX sampling includes, but is not limited to, on-sight and remote call
monitoring and mystery calling by third party vendor or American Express
personnel.
THIRD AMENDMENT TO
CONSUMER CREDIT INFORMATION SERVICE AGREEMENT
This THIRD AMENDMENT TO CONSUMER CREDIT INFORMATION SERVICE AGREEMENT
(this "Third Amendment") is made as of the 1st day of February, 2000, by and
between AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York
corporation, and CREDITCOMM SERVICES LLC, a Delaware limited liability company
("CreditComm"), with offices located at 00000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000.
WHEREAS, AMEX and CreditComm have entered into that certain Consumer
Credit Information Service Agreement, dated March 12, 1997 (the "Main
Agreement"); as amended by that certain First Amendment to Consumer Credit
Information Service Agreement, dated January 30, 1998 (the "First Amendment");
and as further amended by that certain Second Amendment to Consumer Credit
Information Service Agreement, dated June 5, 1998 (the "Second Amendment;" and
together with the Main Agreement and the First Amendment, the "Agreement");
WHEREAS, AMEX and CreditComm desire to amend the Agreement in
accordance with the terms and provisions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth below, the parties agree as follows:
1. DEFINITIONS.
The parties hereto agree that the capitalized term "Customer"
as used in the Agreement shall be amended to expressly include
AMEX's Small Business Services, Establishment Services and
Corporate Services customers and prospects. Other capitalized
terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Agreement.
2. OFFERING OF THE BUSINESS CREDIT SERVICE.
Reference is hereby made to the stated development of the
Corporate Credit Information Service as provided in Exhibit A
of the Agreement ("Business Credit Service"). The parties
agree that the implementation of such Business Credit Service
shall involve:
2.1.1. The procurement from ** of certain rights to market
self-inquiry Business Information Reports (each a
"BIR") and Commercial Credit Scoring Reports (each a
"CCSR") in accordance with
---------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
the terms of that certain Program Agreement dated as
of July 9, 1999 (the "Program Agreement") by and
between AMEX and **.
2.1.2. The appointment of CreditComm as the "Service
Provider" pursuant to the terms of that certain
Service Provider Agreement, dated July 9, 1999, by
and among AMEX, CreditComm and **.
2.1.3. The procurement from ** of certain rights to market
to Customers which enroll in the Business Credit
Service certain ** information products on other
businesses via ** all in accordance with the terms of
an Affinity Program Agreement dated as of February 1,
2000 (the "Affinity Agreement") by and between AMEX
and **.
2.1.4. Amex and CreditComm mutually acknowledge that the
Business Credit Service requires the participation of
** Neither CreditComm nor Amex shall consider the
other party in default, nor require specific
performance in any way, in relation to any part of
this Agreement that relates to the Business Credit
Service product, in the event of a failure to agree
or inability to continue to operate the product as
the result of any action by**.
3. CONTINUITY OF ** AGREEMENTS.
3.1. AMEX agrees to use commercially reasonable efforts to maintain
AMEX's rights under the Program Agreement and the Affinity
Program Agreement (collectively, the "** Agreements") without
interruption for as long as the Agreement is in effect between
AMEX and CreditComm. All commissions payable to AMEX in
accordance with the Affinity agreement will be paid within 30
days of receipt of payment from **.
3.2. Amex and CreditComm agree that if ** cancels its agreement
with Amex, or ** takes actions that make the product
unprofitable to either Amex or CreditComm, then CreditComm may
seek to replace ** and if it replaces ** then it shall offer
to Amex the revised Corporate Service on a non exclusive
basis.
4. MODIFICATION TO SECTION 4 OF THE AGREEMENT
4.1. The parties hereby agree that Section 4 of the Agreement is
hereby amended in its entirety and shall be replaced with the
new Section 4 as set forth immediately following:
"From the date of this Third Amendment and continuing
until the termination or expiration of the Agreement,
CreditComm will identify for
-------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
AMEX's review all planned substantial upgrades to the
Consumer Credit Service which are developed by or on
behalf of CreditComm ("Major Revisions"); provided
however, nothing herein shall prevent CreditComm from
delivering an enhancement to its product to another
client if such enhancement is developed specifically
at the request of the client and such enhancement is
not comparable to the last Major Revision. Each such
Major Revision will be reviewed with AMEX, and AMEX
will have the first right, for the entire term of the
Agreement (including, without limitation, any renewal
or extensions thereof), to the exclusive use of any
such Major Revision. If AMEX chooses to accept and
utilize a Major Revision in connection with the
marketing and offering of the Consumer Credit Service
to the exclusion of any Visa, MasterCard, Discover or
Diners Club card product (including, without
limitation, any credit, charge, stored value, debit
or smart card product) (herein, "Competitive Card
Product"), then CreditComm may not provide such Major
Revision on any program which CreditComm administers,
facilitates or provides with or on behalf of any
Competitive Card until the earlier of (a) the date on
which AMEX has given its approval for such use or (b)
CreditComm has provided to AMEX another Major
Revision which AMEX has accepted to use to the
exclusion of any Competitive Card Product; provided
that if AMEX chooses not to use a Major Revision to
the exclusion of any Competitive Card Product, then
CreditComm is free to offer such Major Revision to
all of its customers and customers of CreditComm's
marketing partners as a product enhancement.
From the date of this Agreement and until AMEX
accepts a Major Revision, AMEX's Consumer Credit
Information Service ("CreditAware") will have the
following unique feature: In the Renewal Year(s), all
Customers will automatically receive a 3-bureau
credit profile on their respective enrollment
anniversary date. Customers of Competitive Card
Products will receive certificates that may be
redeemed for a 3-bureau profile.
The parties further agree that the Corporate Credit
Information Service provided by AMEX, CreditComm and
** shall be an exclusive service offered to no
Competitive Card Product (including without
limitation Discover card products) without the
express written permission of AMEX."
5. ROYALTIES & COMMISSIONS
5.1. If CreditComm offers the Business Credit Service to
Competitive Card Products, having received the express written
permission of AMEX, CreditComm will pay AMEX $** per member
per month that CreditComm receives a monthly
---------------
"** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission."
membership fee from the customer. If the customer pays
membership fees on an annual basis, CreditComm will begin
paying the $** per month when it receives the annual fee and
continue paying AMEX the $** royalty payment until the
customer is no longer a member of the program.
5.2 CreditComm and AMEX agree that the same commission rates set
forth in Exhibit B of the Agreement shall apply to Net
Revenues of the Business Credit Service product.
5.3 Any amounts paid by ** pursuant to the Affinity Agreement
dated February 1, 2000, will be divided equally among AMEX and
CreditComm.
----------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
6. WARRANTS.
CreditComm agrees that its parent, Intersections Inc., will issue to
AMEX warrants to purchase 268.75 shares of common stock of
Intersections Inc., at $7,000.00 per share in accordance with the terms
of a Letter Agreement dated as of the date of this Third Amendment.
7. SERVICE STANDARDS.
CreditComm agrees that all it shall fulfill its operational and
customer service obligations related to the Business Credit Service in
accordance with the standards agreed to and as set forth in Exhibit C-1
as part of the First Amendment. CreditComm further agrees that it shall
meet the timeliness standards for the Business Credit Service specified
in Section 2.1 in the Program Agreement dated July 9, 1999.
8. LATE PAYMENT FEE.
In accordance with Exhibit B of the Agreement, CreditComm shall remit
payment to AMEX within thirty (30) days after the end of each calendar
month. CreditComm agrees that a late payment of 1.5% per month shall be
payable on any delinquent amounts due.
9. LIMITATION OF LIABILITY
9.1. The following provisions shall relate to the performance of
either party hereto under the Agreement;
9.1.1 IN NO EVENT SHALL ANY PARTY HERETO (INCLUDING WITHOUT
LIMITATION THE AGENTS AND EMPLOYEES THEREOF) BE
LIABLE TO THE OTHER PARTY (INCLUDING WITHOUT
LIMITATION THE AGENTS AND EMPLOYEES THEREOF) FOR ANY
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN
IF SUCH PARTY SHALL
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE.
9.1.2. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THE
AGGREGATE LIABILITY OF EITHER PARTY HERETO (THE
"LIABLE PARTY") TO THE OTHER PARTY HERETO (INCLUDING
WITHOUT LIMITATION THE AGENTS AND EMPLOYEES THEREOF)
IN CONNECTION WITH THIS AGREEMENT, SHALL NOT EXCEED
THE AMOUNT RECEIVED BY AMEX UNDER THE AGREEMENT,
REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH
LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE).
THE LIMITATION SET FORTH IN SECTION 9.1.2 ABOVE SHALL NOT APPLY TO
DAMAGES ARISING DIRECTLY FROM (i) THE BREACH BY THE LIABLE PARTY OF ITS
CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT,
(ii) A NON-AFFILIATED THIRD PARTY CLAIM OR (iii) THE INTENTIONAL
MIDCONDUCT OR GROSSLY NEGLIGENT ACT OR OMISSION OF THE LIABLE PARTY IN
THE COURSE OF THE PERFORMANCE OF ITS DUTIES OR OBLIGATIONS UNDER THIS
AGREEMENT.
The provisions of the Section 9 shall survive the termination of the
Agreement.
10. EXTENSION OF THE INITIAL TERM.
10.1. Section 13(a) of the Main Agreement, is hereby deleted in its
entirety and replaced with the following paragraph:
(a) This Agreement will be effective as of the
date first above written and will continue
until December 31, 2005 (the "Initial Term")
unless earlier terminated in accordance with
subsection c, below. Thereafter, this
Agreement may be extended by AMEX for
additional one-year terms provided that at
the end of the third year following the
Initial Term, any extension to the Agreement
shall be by mutual consent of AMEX and
CreditComm.
11. AFFIRMATION.
11.1 As amended or modified by the terms of this Third Amendment,
the parties hereto expressly affirm the terms and obligations
of the Agreement.
12. ENTIRE AGREEMENT.
12.1 This Third Amendment, the Agreement and all of the related
attachments, exhibits and ancillary agreements (which are
incorporated herein in full), constitute the entire agreement
between the parties hereto with respect to the subject matter
of the Third Amendment and the Agreement and supersede all
prior agreements and
understandings, oral or written, by and between the parties
hereto with respect to such subject.
13. COUNTERPARTS.
13.1 This Third Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original,
but all of which together will constitute one and the same
instrument.
The remainder of this page has been left blank intentionally.
IN WITNESS WHEREOF, the parties have caused this Third Amendment to be executed
as of the date and year first above written.
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
BY: -s-
--------------------------------------
NAME:
TITLE:
American Express Relationship Services
CREDITCOMM SERVICES LLC
BY: -s-
--------------------------------------
NAME:
TITLE:
CreditComm Services LLC
EXHIBIT A
PRODUCT DESCRIPTION
American Express will brand a Business Credit Service (named American Express(R)
Business CreditAware from American Express) which will be a recurrent billing
service. The following describes the services features and benefits:
3-BUREAU-IN-1 PERSONAL CREDIT HISTORY PROFILE
- This profile will include the individual subscriber's personal credit
bureau information as reported by Trans Union, Equifax and Experian
(formerly TRW) merged into one document. The profile is printed in an
easy to read style that simplifies bureau by bureau, item by item
comparisons.
- A summary page which provides an overview of types of accounts, total
accounts, account balances, public record and a variety of other
categories of information at a glance.
- A legend that aids in interpreting some of the data elements on the
profile.
** BUSINESS INFORMATION REPORT (BIR) OR A ** COMMERCIAL CREDIT SCORING REPORT
(CCSR)
----------
** This information is confidential and has been omitted and filed with the
Securities and Exchange Commission.
- The BIR provides an overall profile of the cardmember's company
including: Financial information, payment information, history of the
business, ownership details, operational information, details on
related firms and special events.
- If ** does not have a BIR on file for the cardmember's company, then
the customer may receive a CCSR which includes credit score
information, payment information, credit balance information,
operational changes and special events
- A detailed guide to the ** report
- Access to other ** products (affinity reports) at discounted prices
up to **% off retail prices
----------
** This information is confidential and has been omitted and filed with the
Securities and Exchange Commission.
ONGOING MONITORING AND NOTIFICATION OF ACTIVITY
- Ongoing monitoring with Monthly Notification if and when new
account(s) are opened in the subscriber's name. This notification
would be sent monthly so as to assist consumers in detecting
fraudulent activity.
- Ongoing monitoring with, at least Quarterly Notification (NOTE:
notification may be more frequent than quarterly) if and when any or
all of the following activities occur:
- Addition of delinquent account information
- Addition or removal of derogatory information (i.e. public
filings, bankruptcy)
- Full-file inquiries (excludes promotion/pre-approval
inquiries)
- Derogatory file information that is nearing the end of a
statutory 7 or 10 year record keeping cycle
- Ongoing monitoring of the ** reports for certain changes. If certain
changes occur, the cardmember will be notified by ** Alert Service.
----------
** This information is confidential and has been omitted and filed with the
Securities and Exchange Commission.
ADDITIONAL BENEFITS:
- Toll-free Customer Service available to offer enrollees one-on-one
assistance as needed provided by bureau trained credit education
specialists
- Access to a web-site containing helpful credit and personal financial
information
AMENDMENT TO
CONSUMER CREDIT INFORMATION SERVICE AGREEMENT
This AMENDMENT TO CONSUMER CREDIT INFORMATION SERVICE AGREEMENT (this
"Amendment") is made as of the 28th day of June, 2002 (the "Effective Date") by
and between AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York
corporation ("AMEX") and CREDITCOMM SERVICES, LLC, a Delaware limited liability
company ("CREDITCOMM").
WHEREAS, AMEX and CREDITCOMM have entered into that certain Consumer
Credit Information Services Agreement, dated March 12, 1997 (as amended and
supplemented from time to time, the "Agreement");
WHEREAS, INTERSECTIONS, INC. ("INTERSECTIONS") is the successor in
interest to CREDITCOMM under the Agreement and references to CREDITCOMM in the
Agreement shall be construed as references to INTERSECTIONS, and the parties to
the Agreement are AMEX and INTERSECTIONS;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements set forth below, the parties agree as follows:
1. MARKETING ACTIVITIES AND EXPENSES. AMEX will reimburse INTERSECTIONS for ** %
of INTERSECTIONS' marketing expenses incurred for marketing campaigns initiated
on or after April 15, 2002, for marketing of any product or Service offered
under this Agreement. AMEX's reimbursement obligation pertains only to expenses
for all telemarketing and direct mail marketing, including cost per hour for
telemarketing, production, postage, and creative costs for direct mail. The
aforementioned "marketing campaigns initiated on or after April 15, 2002" begin
with Second Quarter 2002 marketing campaigns which include only the following:
----------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
TABLE 1: DEFINITION OF SECOND QUARTER 2002 MARKETING CAMPAIGNS
SECOND QUARTER 2002 MARKETING CAMPAIGNS CAMPAIGN START DATES
--------------------------------------- --------------------
2Q CreditSecure OBTM April 15, 2002
2Q Business CreditAware OBTM May 20, 2002
2Q CreditSecure SBS OBTM May 20, 2002
May and June CreditSecure DM May and June Mail drop timeframe
The payment schedule for reimbursement is set forth in Paragraph 4 below.
2. COMMISSION.
2.1. For each Enrollee that enrolls as a result of telemarketing or
direct mail marketing of Services via any marketing campaign initiated on or
after April 15, 2002 (see TABLE 1 in Paragraph 1 above for the first set of
campaigns), INTERSECTIONS shall pay AMEX a commission equal to:
A. ** % of the Net Revenue (defined for purposes of this
Amendment as gross revenue less refunds or credits) received by INTERSECTIONS
for the first 12 billing months of such Enrollee's
----------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
- 1 -
enrollment, where "billing month" is defined as the month where the customer is
billed for their service, thereby excluding any trial periods; and
B. ** % of the Net Revenue received by INTERSECTIONS for any period of
enrollment after such Enrollee's first 12 billing months of enrollment.
----------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
2.2. For such Enrollees who enroll in Services via campaigns initiated
on or after April 15, 2002 through telemarketing or direct mail marketing (see
TABLE 1 in Paragraph 1 above for the first set of campaigns), the first two
paragraphs of Exhibit B of the Agreement are deemed replaced with Paragraph
2.1 A and 2.1B above.
2.3. All other Enrollees acquired via marketing campaigns initiated
prior to April 15, 2002 or from any other channel, other than that set forth in
1 above, before or after April 15, 2002 will remain under the original
Agreement, pursuant to Exhibit B of the Agreement.
3. MARKETING MANAGEMENT.
3.1. The parties agree to meet, in person or via teleconference or
videoconference, no less than once per calendar quarter, to (a) consider
approval of marketing activities proposed by either party; (b) review management
of vendors used for marketing; and (c) consider any other marketing issues
raised by either party.
3.2. Marketing activities are deemed approved by AMEX upon delivery of
a written notice or e-mail from AMEX approving the activities. AMEX agrees to
approve marketing activities consistent with, and agrees to exercise,
commercially reasonable efforts to substantially increase the number of
prospective Enrollee leads above the numbers for comparable periods prior to the
Effective Date.
3.3. INTERSECTIONS and AMEX shall be responsible for engaging any
vendors used for approved marketing activities. Vendors include telemarketing
vendors, telematching vendors, creative agencies, print shops. AMEX reserves the
right to suggest and sometimes impose any changes to vendors used for marketing
any products or Services under this Agreement based on AMEX's policy and
compliance requirements, and/or vendor performance requirements. Such
suggestions will be discussed with INTERSECTIONS and both parties will come to
mutually acceptable agreement upon the exchange or written or e-mail agreement.
INTERSECTIONS shall follow any guidelines or instructions agreed by the parties
for management of marketing vendors. Such instructions or guidelines are deemed
agreed by the parties upon the exchange of the written or e-mail agreement of
each party.
4. PAYMENT SCHEDULE.
4.1. INTERSECTIONS shall remit payment of the amounts set forth in
Paragraph 2 above, or elsewhere in the Agreement, within 30 days of the
applicable calendar month. AMEX's ** % share of marketing expenses shall be kept
separate from the calculation of the monthly commission remittance.
INTERSECTIONS shall invoice AMEX each month for these marketing expenses with
back-up documentation reasonably acceptable to AMEX, including the calculation
of the amount so paid. AMEX shall pay such invoices within 30 days of receipt of
invoices. Notwithstanding the foregoing, INTERSECTIONS may invoice AMEX for
direct mail postage in advance per agreed upon estimates, and AMEX shall pay
these invoices within 30 days of receipt. The direct mail postage invoices are
estimates and are subject to credit to AMEX for any amount paid but not used.
----------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
- 2 -
4.2. In light of the fact that this Amendment was executed one or more
calendar months after April 30,2002, INTERSECTIONS may adjust the next invoice
as necessary to reconcile the payments and marketing expense reimbursements
under this Amendment for the prior months. This reconciliation of payments and
marketing expenses will be agreed by both parties by August 6, 2002, and payment
for these reconciliations will be completed by August 30, 2002. INTERSECTIONS
will provide reasonable documentation, including the calculation of the
reconciliation.
4.3. Effective upon execution of this Amendment, the third paragraph of
Exhibit B is deleted and replaced by Paragraphs 4.1 and 4.2 above.
5. AFFIRMATION AND ENTIRE AGREEMENT.
5.1. As amended or modified by the terms of this Amendment, the parties
hereto expressly affirm the terms and obligations of the Agreement.
5.2. This Amendment, the Agreement and all of the related attachments,
exhibits and ancillary written agreements (which are incorporated herein in
full), constitute the entire agreement between the parties with respect to the
subject matter of the Amendment and the Agreement and supersede all prior
agreements and understandings, oral or written, by and between the parties
hereto with respect to such subject.
6. COUNTERPARTS. This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this AMENDMENT to be executed as of
the date and year above first written.
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
BY:
-------------------------------
NAME:
-----------------------------
TITLE: VICE PRESIDENT
DATE: 07/30/2002
INTERSECTIONS, INC.
BY:
-------------------------------
NAME:
-----------------------------
TITLE: CEO
DATE: 8/2/02
- 3 -
SEVENTH AMENDMENT TO CONSUMER CREDIT INFORMATION
SERVICE AGREEMENT
This SEVENTH AMENDMENT TO CONSUMER CREDIT INFORMATION SERVICE AGREEMENT (this
"Fourth Amendment") is made as of the 15th day of November, 2002 by and between
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York corporation,
and INTERSECTIONS INC., a Virginia based corporation, with offices located at
00000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000.
WHEREAS, AMEX and Intersections have entered into a Consumer Credit Information
Service Agreement, dated March 12, 1997 ("the Main Agreement"). WHEREAS, Amex
and Intersections desire to amend the Agreement in accordance with the terms and
provisions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
set forth below, the parties agree as follows:
1. Amex hereby retains Intersections to provide the services described on
Exhibit A to this Letter (such services to be branded CreditSecure (sm)
from American Express and referred to herein as the "Service"). The Service
shall include the Unique Amex Features as specified on Exhibit A, and
Intersections shall not make such Unique Amex Features available to any
customers other than through the Services offered in accordance with this
Letter.
2. Marketing of the services shall be conducted by vendors approved by Amex.
Costs of such marketing shall be paid based on the terms outlined in the
Fourth Amendment dated June 28, 2002.
3. SECTION 13 (b) OF THE AGREEMENT IS DELETED IN ITS ENTIRETY AND THE
FOLLOWING IS SUBSTITUTED IN LIEU THEREOF:
"13. Term and Termination:
(B) Termination: Notwithstanding the above, this Agreement may be
terminated prior to the expiration of the initial term or any renewal
term:
(i) By either party immediately upon written notice to the
other party if the other party commits a material breach or
default under this Agreement, which breach is not cured by the
breaching party thirty (30) days from the receipt of written
notice to cure the breach from the non-breaching party.
(ii) By either party immediately upon written notice to the
other party upon a change in control of the other party
(through a sale, distribution, merger, or acquisition of
assets or stock of the other party or its parent or affiliates
or otherwise) which change in control resulted in a
demonstrable, substantive, detrimental effect upon the other
party's commitment to or prioritization of offering the
Program to AMEX Customers. Any such notice shall identify with
specificity the actions that have caused the demonstrable,
substantive detrimental effect upon the commitment to, or
prioritization of, the offering of the Program to AMEX
Customers.
(iii) By either party immediately upon the perpetration of
fraud by the other party upon the party, its borrower, or
policyholder.
(iv) By either party immediately: (1) upon the institution by
the other party of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the other party to institution of
bankruptcy or insolvency proceedings against it or the filing
by the other party of a petition or answer or consent seeking
reorganization or release under the Federal Bankruptcy Code,
or any other applicable Federal or state law, or the consent
by the other party to the filing of any such petition or the
appointment of a receiver, liquidator, assignee, trustee, or
other similar official of the other party or of any
substantial part of its property, or the making by the other
party of an assignment for the benefit of creditors, or the
admission in writing by the other party of an assignment for
the benefit of creditors, or the admission in writing by the
other party of its inability to pay its debts generally as
they become due or the taking of corporate action by the other
party in furtherance of any such actions; and (2) if, within
sixty (60) days after the commencement of an action against
the other party seeking any bankruptcy, insolvency,
reorganization, liquidation, dissolution or similar relief
under any present or future law or regulation, such action
shall not have been dismissed or all orders or proceedings
thereunder affecting the operations or the business of the
other party stayed, or if the stay of any such order or
proceeding shall thereafter be set aside; or if, within sixty
(60) days after the appointment without the consent or
acquiescence of the other party of any trustee, receiver or
liquidator or similar official of the other party, or of all
or any substantial part of the property of the other party,
such appointment shall not have been vacated.
4. AFFIRMATION AND ENTIRE AGREEMENT.
1.1. As amended or modified by the terms of this Amendment, the parties
hereto expressly affirm the terms and obligations of the Agreement.
1.2. This Amendment, the Agreement and all of the related attachments,
exhibits and ancillary written agreements (which are incorporated herein in
full), constitute the entire agreement between the parties with respect to the
subject matter of the Amendment and the Agreement and supersede all prior
agreements and understandings, oral or written, by and between the parties
hereto with respect to such subject.
5. COUNTERPARTS. This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this AMENDMENT to be executed as of
the date and year above first written.
AMERICAN EXPRESS TRAVEL
INTERSECTIONS INC. RELATED SERVICES COMPANY, INC.
By: __________________________ ___________________________
Name: ________________________ ___________________________
Title: _______________________ ___________________________
EXHIBIT A
CREDITSECURE is a fraud protection and security service designed to alert and
protect enrollees from potential fraud through daily monitoring of the
enrollees' Equifax credit report and detailed quarterly reports to enrollees of
their credit profile based upon the Equifax credit report information. Note:
CreditSecure was launched in late November 2001 using TransUnion credit bureau
information. CreditSecure with Equifax information replaced TransUnion as of May
2002. Features and benefits of CreditSecure includes:
- 1-Bureau Credit Profile from -Equifax (EFX)
- Monitoring of enrollees EFX credit report every business day
- Notification of changes to the enrollee's EFX credit report by choice of
e-mailor mail.
- Access to Notify Express on-line to view changes to EFX credit profile
- Option to receive Notify Express off-line
- Quarterly Credit Updates from EFX
- Free upgrade to 3-Bureau Credit Profile and Quarterly Credit Updates upon
receipt of signature card (free upgrade certificate).
- Identity Theft Kit and sample Dispute Letters
- Toll-free access to Credit Education Specialists
- 30 Day Free Trial
- Identity Theft Expense Coverage. Intersections shall maintain as master
policy holder an insurance policy providing insurance coverage for all
enrollees for reimbursement of costs incurred resulting from identity
fraud. Intersection shall maintain such insurance in effect at all times
and provide all customer servicing and claims adjustment for all enrollees
hereunder. The underwriter of such insurance policy must be a reputable
insurance underwriter with an A.M. Best rating of AA or better. Current
underwriter is AIG. In the event such rating is not met Intersection shall,
at the direction of Amex, transition coverage to an insurance underwriter
meeting such rating requirement.
UNIQUE AMEX FEATURES:
- Strict Amex branding on CreditSecure Web site and all
marketing/fulfillment materials.
- $5000 Identity Theft Expense Coverage. Intersection's other clients
offer lower coverage of $2500.
