DATA SHARING AGREEMENT
THIS AGREEMENT dated the 31st day of October, 1996, between
Fingerhut Corporation (hereinafter referred to as "Fingerhut"), a
corporation duly organized under the laws of the State of
Minnesota, with offices at 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx
00000, and Direct Merchants Credit Card Bank, National
Association, a national banking association (hereinafter referred
to as "Direct Merchants Bank") with offices at 0000 Xxxx 0000
Xxxxx, Xxxx Xxxx Xxxx, Xxxx, 00000.
WHEREAS, Direct Merchants Bank and Fingerhut create and
maintain files on their customers (as defined herein); and
WHEREAS, Direct Merchants Bank and Fingerhut desire to
exchange certain customer data;
NOW THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
I. DEFINITIONS
The following terms, as used herein, shall have the
following meanings whether used in the singular or plural:
"Account Booked" means a consumer credit account which meets
Direct Merchant Bank's underwriting criteria for approval with a
credit line opened greater than Direct Merchant Bank's minimum
credit line in effect at time of approval. Account Booked shall
not mean an account which is determined to be fraudulent.
"Behavior Model " means one or more attributes which rank a
Customer's credit performance with Fingerhut or Direct Merchants
Bank, as the case may be, with a credit score.
"Customer" means any consumer name and address which resides on
the data processing systems of Direct Merchants Bank or
Fingerhut, as the case may be.
"Customer File" means a name, address and other identifying
information of a Customer who has an account or other
relationship with Fingerhut or Direct Merchants Bank, as the case
may be, and includes any updates of such information.
II. SERVICES
Section 2.1 File Access.
Fingerhut agrees to provide the Fingerhut Customer File
to Direct Merchants Bank for its use to solicit offers for all
credit products issued by Direct Merchants Bank. Fingerhut
agrees to provide the requested Customer File on a timely basis
so as to ensure that Direct Merchants Bank meets its production
and solicitation dates for its credit product offers; provided
that Direct Merchants Bank has provided such production and
solicitation dates in writing to Fingerhut at least one week
prior to the date it needs such Customer File.
Section 2.2 Compensation.
Direct Merchants Bank agrees to pay Fingerhut (in
immediately available funds) in accordance with the terms and
conditions set forth in Exhibit A, attached hereto and
incorporated herein by reference. Payment of the fees shall be
made not later than the thirtieth (30th) business day of each
month following the end of a calendar quarter, within each
calendar year during the Initial Term or subsequent Renewal Term.
Section 2.3 Use of Information.
Direct Merchants Bank and Fingerhut agree to provide to
each other, without charge, their own transaction and experience
data on their own Customer list which shall also include a
Behavior Model derived from each parties own transaction and
experience data. The parties agree to update such Customer list
and Behavior Models in accordance with their own business
practices for updating such information. Other than as set forth
in this Agreement, Fingerhut agrees that it, any subsidiary or
affiliate or on behalf of third parties, will not directly or
indirectly solicit via direct mail or telemarketing Direct
Merchants Bank Customers for any products or services without the
prior written consent of Direct Merchants Bank. Subject to
compliance with banking applicable laws and regulations related
to transactions with affiliates, Fingerhut and Direct Merchants
Bank agree that, during the term of this Agreement, Fingerhut
will be the exclusive provider of retail merchandise offers to
the Customer list of Direct Merchants Bank (excluding Direct
Merchants Bank Customers that have a cobrand, affinity, private
label or other third party affiliation credit account). The
parties shall cooperate in good faith and mutually agree on the
parameters for merchandise offers. The parties confirm Direct
Merchants Bank may reasonably withhold approval of a merchandise
offer if such offer does not comply with applicable laws and
regulations.
Section 2.4 Restrictions on Use.
The Customer File and Behavior Models will only contain
data on each party's own transactions or experiences with its
customers and shall not contain any information provided by third
parties, or other information, that would cause either party in
its reasonable interpretation, to be deemed a consumer reporting
agency as defined under applicable state or federal law. Nothing
in this Agreement shall require either party to disclose to the
other: (i) confidential information it received from third
parties, including without limitation, customer lists from third
party sources, or (ii) information which either party, in its
reasonable interpretation, is precluded from disclosing under any
applicable laws, rules, regulations or industry practices related
to consumer privacy.
III. TERM
Section 3.1 Term and Termination.
This Agreement shall terminate on September 23, 2003
("Initial Term"). Unless otherwise terminated as provided
herein, at the end of the Initial Term, this agreement will
automatically renew for successive one year terms ("Renewal
Term"). This Agreement may also be terminated by either party
under the following conditions:
a. If either party materially breaches its
obligations and such breach is not cured within thirty (30) days
of receipt of written notice of breach by the non-breaching
party.
b. Upon ninety (90) days' written notice prior to the
end of the Initial Term or any Renewal Term.
x. Xxxxxxxxx shall have the right to terminate this
Agreement by written notice to Direct Merchants Bank upon the
occurrence of a Change of Control (as defined below) with respect
to Direct Merchants Bank. A "Change of Control" shall be deemed
to have occurred if (i) any person or group (within the meaning
of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect
on the date hereof) other than Fingerhut shall own directly or
indirectly, beneficially or of record, shares representing more
than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of Direct Merchants
Bank; (ii) a majority of the seats (other than vacant seats) on
the Board of Directors of Direct Merchants Bank shall at any time
be occupied by persons who were neither (a) nominated by
Fingerhut or by the Board of Directors of Direct Merchants Bank,
nor (b) appointed by directors so nominated; or (iii) any person
or group other than Fingerhut shall otherwise directly or
indirectly have the power to exercise a controlling influence
over the management or policies of Direct Merchants Bank.
IV. CONFIDENTIALITY
Section 4.1 Confidential Information.
a. All Confidential Information (as hereinafter
defined) disclosed by any of the parties to any other party
hereunder is confidential and proprietary to such disclosing
party. Each party, its affiliates, and officers, directors,
employees, agents, consultants and contractors shall not use any
of the Confidential Information for any purpose other than as
expressly permitted hereunder. Confidential Information
furnished by any of the parties to any other in connection with
this Agreement and the transactions contemplated hereby will be
kept in confidence by such other party, including its affiliates
or subsidiaries, in accordance with its policies for maintaining
the confidence of its own information of similar content. The
term Confidential Information shall mean and include: (i)
Customer data, Customer Files and Behavior Models, (ii) all trade
secrets and other confidential business information learned in
the course of performance by any party of its obligations
hereunder, or (iii) any information or data which is disclosed by
any party to the other party under or in contemplation of this
Agreement.
b. Confidential Information may be either the
property of the disclosing party or information provided to the
disclosing party by a corporate affiliate of the disclosing party
or by a third party. Notwithstanding the foregoing, the term
"Confidential Information" shall not include information which:
(i) is already known to such other party when received, except
for information periodically disclosed which is identified as
confidential prior to execution of this Agreement, (ii)
thereafter becomes generally obtainable by a party other than as
a result of an unauthorized disclosure by the party taking
advantage of this clause, (iii) is required by law, regulation or
court order to be disclosed by such party, provided that in the
case of this clause, prior notice of such disclosure has been
given to the party which furnished such information, when legally
permissible, and that such other party which is required to make
the disclosure uses its best efforts to provide sufficient notice
to permit the party which furnished such information to take
legal action to prevent the disclosure, or (iv) is reasonably
necessary, in the opinion of counsel, to be disclosed in the
context of a legal proceeding or regulatory investigation
provided that prior notice shall be given to the party which
furnished the information. This Section 4.1 shall survive any
termination of this Agreement for two (2) years.
V. REPRESENTATIONS & WARRANTIES
Section 5.1 Representations & Warranties of Fingerhut
Fingerhut hereby represents and warrants, as of the
date of this Agreement, as follows:
x. Xxxxxxxxx is a duly organized corporation, validly
existing, and in good standing under the laws of the State of
Minnesota. Fingerhut is duly qualified or licensed to perform
any business necessary under this Agreement and will be in good
standing in each jurisdiction in which its business or the
exercise of its rights, powers or authority under this Agreement
renders such qualification necessary.
x. Xxxxxxxxx has the requisite corporate power and
authority to enter into, and to carry out its obligations under
this Agreement.
c. The execution and delivery by Fingerhut of this
Agreement and the consummation by Fingerhut of the transactions
contemplated hereby have been duly authorized prior to the date
of this Agreement by all necessary corporate action on its part.
d. This Agreement has been duly executed and
delivered by Fingerhut and constitutes a valid and binding
obligation of Fingerhut enforceable against Fingerhut in
accordance with its terms.
x. Xxxxxxxxx is not subject to, or obligated under
any provision of (i) its articles of incorporation, (ii) any
material agreement, arrangement or understanding, (iii) any
license, franchise or permit, or (iv) any law, regulation, order,
judgment or decree that would be breached or violated, or of
which a right of termination or acceleration or any encumbrance
on any of its assets would be created by the execution, delivery
and performance of this Agreement by Fingerhut, or the
consummation by Fingerhut of the transactions contemplated by
this Agreement.
f. No authorization, consent or approval of, waiver
or exemption by, or filing or registration with any public body,
court, third party or authority is necessary on the part of
Fingerhut for the consummation by Fingerhut of the transactions
contemplated by this Agreement.
Section 5.2. Direct Merchants Bank Representations and
Warranties.
Direct Merchants Bank hereby represents and warrants,
as of the date of this Agreement, as follows:
a. Direct Merchants Bank is a national banking
association duly organized, validly existing, and in good
standing under the laws of the United States of America, and is
duly qualified or licensed to do business and is in good standing
in each jurisdiction in which its business or the exercise of its
rights, powers or authority under this Agreement renders such
qualification necessary.
b. Direct Merchants Bank has the requisite power and
authority to enter into, and to carryout its obligations under
this Agreement.
c. The execution and delivery by Direct Merchants
Bank of this Agreement and the consummation by Direct Merchants
Bank of the transactions contemplated hereby have been duly
authorized prior to the date of this Agreement by all necessary
action on its part.
d. This Agreement has been duly executed and
delivered by Direct Merchants Bank and constitutes a valid and
binding obligation of Direct Merchants Bank enforceable against
Direct Merchants Bank in accordance with its terms.
e. Direct Merchants Bank is not subject to, or
obligated under any provision of (i) its articles of
incorporation or bylaws, (ii) any material agreement, arrangement
or understanding, (iii) any license, franchise or permit, or (iv)
any law, regulation, order, judgment or decree that would be
breached or violated, or which a right of termination or
acceleration or any encumbrance on any of its assets would be
created by the execution, delivery and performance of this
Agreement by Direct Merchants Bank, or the consummation by Direct
Merchants Bank of the transactions contemplated by this
Agreement.
f. No authorization, consent or approval of, waiver
or exemption by, or filing or registration with any public body,
court, third party or authority is necessary on the part of
Direct Merchants Bank for the consummation by Direct Merchants
Bank of the transactions contemplated by this Agreement.
VI. INDEMNIFICATION
Section 6.1 Indemnification Obligations
a. By Direct Merchants Bank. Direct Merchants Bank
shall be liable to and shall defend, indemnify and hold harmless,
Fingerhut and its affiliates, and its respective officers,
directors, employees and permitted assigns, from and against any
and all Losses (as hereinafter defined) incurred by any of them
by reason of or related to Direct Merchants Bank's failure to
perform its obligations hereunder.
b. By Fingerhut. Fingerhut shall be liable to and
shall defend, indemnify and hold harmless, Direct Merchants Bank
and its affiliates, and its respective officers, directors,
employees and permitted assigns, from and against any and all
Losses (as hereinafter defined) incurred by reason of or related
to Fingerhut's failure to perform its obligations hereunder.
c. "Losses" Defined. For purposes of this Section
6.1, the term "Losses" shall mean any losses, liability, claims,
damages, costs, and expenses, including attorney's fees,
disbursements and court costs, reasonably incurred by an
indemnified party, judgments, fines and other amounts paid in
settlement, incurred or suffered by an indemnified party in
connection with any threatened, pending or adjudicated claim,
demand, action, suit or proceeding (whether civil, criminal,
administrative or investigative) by an unaffiliated third party
arising out of or in connection with any breach or alleged breach
of this Agreement), without regard to whether or not such Losses
would be deemed material under this Agreement.
Section 6.2 Procedures
a. Notice of Claims. The parties agree that in case
any claim is made, or any suit or action is commenced which, if
not corrected, may give rise to a right of indemnification by a
party hereunder ("Indemnified Party") from one of the other
parties ("Indemnifying Party"), the Indemnified Party will give
notice to the Indemnifying party as promptly as practicable after
receipt by the Indemnified party of such notice or knowledge of
such claim, suit, or action. On a best efforts basis, notice to
the Indemnifying Party shall be given no later than fifteen days
after receipt by the Indemnified Party in the event a suit or
action has commenced or thirty days under all other
circumstances; provided, however, that the failure to give prompt
notice shall not relieve an Indemnifying Party of its obligation
to indemnify except to the extent that the Indemnifying Party is
materially prejudiced by such failure. The Indemnified Party
shall make available to the Indemnifying Party and its counsel
and accountants at reasonable times and for reasonable periods,
during normal business hours, all books and records of the
Indemnified Party relating to any such possible claim for
indemnification, and each party will render to the other such
assistance as it may reasonably require of the other in order to
ensure prompt and adequate defense of any suit, claim or
proceeding based upon a statement of facts which may give rise to
a right of indemnification hereunder.
b. Selection of Counsel. The Indemnifying Party
shall have the right to defend, compromise and settle any suit,
claim or proceeding in the name of the Indemnified Party to the
extent that the Indemnifying Party may be liable to the
Indemnified Party under Section 6 above in connection therewith;
provided, however, that the Indemnifying Party shall not
compromise or settle a suit, claim or proceeding unless it
assumes the obligation to indemnify for all Losses related
thereto. The Indemnifying Party shall notify the Indemnified
Party within ten days of having been notified pursuant to Section
6 of this Agreement if the Indemnifying Party elects to assume
the defense of any such claim, suit or action and employ counsel
in a reasonable exercise of its discretion. The Indemnified
Party shall have the right to employ its own counsel to
participate in such defense, compromise or settlement, but the
fees and expenses of such counsel shall be at the Indemnified
Party's expense, unless the Indemnifying Party shall not have
employed counsel to take charge of the defense thereof.
c. Settlement of Claims. The Indemnified Party may
at any time notify the Indemnifying Party of its intention to
settle or compromise any claim, suit or action against the
Indemnified Party in respect of which indemnification payments
may be sought from the Indemnifying Party hereunder, but shall
not settle or compromise any matter for which indemnification may
be sought without the consent of the Indemnifying Party. Any
settlement or compromise of any claim, suit or action in
accordance with the preceding sentence, or any final judgment or
decree entered on or in any claim, suit or action which the
Indemnifying Party did not assume the defense of in accordance
herewith, shall be deemed to have been consented to by, and shall
be binding upon, the Indemnifying Party as fully as if the
Indemnifying Party had assumed the defense thereof and a final
judgment or decree had been entered in such suit or action by a
court of competent jurisdiction for the amount of such
settlement, compromise, judgment or decree.
d. Subrogation. The Indemnified Party shall be
subrogated to any claims or rights of the Indemnifying Party as
against any other persons with respect to any amount paid by the
Indemnifying Party under this Section 6. The Indemnified Party
shall cooperate with the Indemnifying Party, at the Indemnifying
Party's expense, in the assertion by the Indemnifying Party of
any such claim against such other persons.
e. Indemnification Payments. Amounts owing under
this Section 6.2 shall be paid promptly upon written demand for
indemnification containing in reasonable detail the facts giving
rise to such liability; provided, however, if the Indemnifying
Party notifies the Indemnified Party within thirty (30) days of
receipt of such demand that it disputes its obligation to
indemnify and the Parties are not otherwise able to reach
agreement, the controversy shall be settled by final order
entered by a court of competent jurisdiction.
Section 6.3. Survival of Indemnification.
The provisions of this Section shall expressly survive
any termination of this Agreement, under Section 3.1, or
otherwise for a period of five (5) years.
VII. MISCELLANEOUS
Section 7.1 Notices. Any notice provided for herein shall be
in writing and shall be hand delivered or mailed by first class,
registered or certified mail, postage prepaid return receipt
requested, or sent by electronic or facsimile transmission,
addressed as follows:
If to Direct Merchants Bank:
Direct Merchants Credit Card Bank, National Association
1455 West 0000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: President
with a copy to:
Metris Companies Inc.
000 Xxxxx Xxxxxxx 000, Xxxxx 0000
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: President
If to Fingerhut:
Fingerhut Corporation
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: President
With a copy to the General Counsel
Or at such other place as may be directed in writing by the
party to receive notice.
Section 7.2. Assignment. This Agreement may be assigned by the
parties to any affiliate, subsidiary or successor of such party
upon notice, provided that any affiliate, subsidiary or successor
agrees in writing to be bound by the Terms of this Agreement.
This Agreement may not otherwise be assigned without the prior
written consent of the non-assigning party.
Section 7.3 No Joint Venture. In performing the obligations
under this Agreement, the parties are independent contractors.
This Agreement is not intended to create and shall not be
construed to create a partnership, joint venture or agency
relationship.
Section 7.4 Captions. The captions and headings used in this
Agreement have been inserted for convenience and for reference
only and shall not be deemed to limit or define the text of this
Agreement.
Section 7.5 Validity. If any provision or portion thereof of
this Agreement is held invalid, illegal, void or unenforceable by
reason of any rule or law, administrative order, judicial
decision or public policy, all other provisions of this Agreement
shall remain in full force and effect.
Section 7.6 Amendments. Except as provided herein, neither
this Agreement nor any of its provisions shall be amended or
modified except in writing executed by a duly authorized officer
of each of the parties.
Section 7.7 Audit. Each party agrees to allow the other, upon
reasonable notice, to audit its performance under this agreement.
Section 7.8 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Minnesota without giving effect to the principles of conflicts of
laws thereof.
Section 7.9 Force Majeure. No party shall be liable for any
failure of or delay in the performance of this Agreement for the
period that such failure or delay is due to acts of God, public
enemy, war, strikes or labor disputes, or any other cause beyond
the parties' reasonable control; it being understood that lack of
financial resources is not to be deemed a cause beyond a party's
control. Each party shall notify the other parties promptly of
the occurrence of any such cause and carry out this Agreement as
promptly as practicable after such cause is terminated; provided,
however, that the existence of any such cause shall not extend
the term of this Agreement.
Section 7.10 Waiver. No party shall deemed to have waived any
of its rights, powers or remedies under this Agreement unless
such waiver is given in writing by such party.
Section 7.11 Entire Agreement. This Agreement constitutes the
entire agreement between the parties in connection with the
services hereunder and supersedes all prior agreements,
negotiations and communications on such subject matter.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement effective as of the date and year first above written:
FINGERHUT CORPORATION
By
Title
DIRECT MERCHANTS CREDIT CARD
BANK, NATIONAL ASSOCIATION
By
Title
EXHIBIT A
Compensation
Direct Merchants Bank agrees to pay Fingerhut a fee of xxx
dollars (xxx) for each Fingerhut Customer name and address
subject to the following conditions: (i) the Fingerhut customer
name and address was first obtained from the Fingerhut Customer
File, and (ii) such Fingerhut Customer name and address results
in a Direct Merchants Bank Account Booked, notwithstanding
whether such Account Booked was a jointly marketed product
between Direct Merchants Bank and an unaffiliated third party.
Direct Merchants Bank shall not pay such fee to Fingerhut for any
Account Booked pursuant to the Co-brand Credit Card Agreement
between Fingerhut and Direct Merchants Bank dated October 31,
1996. In addition, Direct Merchants Bank shall pay a non-
cumulative fee of xx basis points of net purchases on an Account
Booked excluding any Account Booked pursuant to the Co-brand
Credit Card Agreement. Payment of the $xxx and xx basis points
of net purchases terminates upon termination of this Agreement.
