Exhibit 10.13
CONFIDENTIAL
BANKCARD MARKETING AGREEMENT
THIS AGREEMENT, made this 2nd day of April, 1999 (the "Effective Date"), by
and between xxxxxxxxxxx.xxx inc., a Michigan corporation having its principal
office at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Company") and
FIRST USA BANK, N.A., a national banking association, having its principal
offices at Three Xxxxxxxxx Centre, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx, 00000 ("FUSA"), sometimes referred to as the "Parties" and
Individually as a "Party".
RECITALS:
WHEREAS, FUSA desires to offer MasterCard and/or Visa consumer credit
cards and related services identified herein to the subscribers and customers of
Company (the "Company Users" and/or "Users"), as follows: (i) FUSA issued
credit cards; and (ii) credit cards that bear the Company's Marks, as defined
herein ("Branded Credit Cards"). All references in this Agreement to "Credit
Cards" shall be deemed to refer to all above identified credit cards issued by
FUSA and covered by this Agreement (including Branded Credit Cards); and
WHEREAS, Company desires to issue Branded Credit Cards and Company is
willing to promote the offering of all Credit Cards to and among Company Users
through its Internet website currently known as xxxx://xxx.xxxxxxxxxxx.xxx (the
Company Website") and any other Internet websites owned and controlled by the
Company, subject to the terms and conditions hereinafter contained; and
WHEREAS, according to Media Metrix, the Company's number of "unique
visitors" for the month of December 1998 was approximately 1,800,000.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the Parties herein contained and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
1. License to Use Marks.
(a) During the term of this Agreement, FUSA shall have the right
and license to use the current and future respective name, trademarks,
servicemarks, copyrights and logo of Company (collectively, the "Marks") solely
in connection with FUSA's marketing of Credit Cards to Company Users under
this Agreement (the "Program"). Examples of Company's Current Marks are set
forth in Exhibit "B" attached hereto. Such right and license is restricted
as set forth herein and shall not apply or extend to any other product or
service offered by FUSA. Company hereby agrees that the Marks may be used on
the Branded Credit Cards as well on merchandise (which has been approved in
writing by Company) used to encourage individuals to apply for or use the
Credit Cards ("Premiums"). The Parties agree that Company may offer Visa and/or
MasterCard as the Bankcard Association for the Branded Credit Cards to be
issued pursuant to this Agreement. If the Company elects to discontinue a Bank-
card Association relationship after the Bankcard Association has been selected
for the Company Branded Credit Card, then, Company shall bear and promptly
reimburse FUSA for any additional expenses incurred by FUSA in connection with
the discontinuance, except, however, Company shall not be required to
reimburse FUSA for such expenses if Company: (1) provides FUSA with at least one
hundred and eighty (180) days advance notice of such pending discontinuance;
(ii) permits FUSA to exhaust its existing mailing inventories with respect to
the Program; and (iii) does not require FUSA to cancel existing Issued Credit
Cards and issue
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replacement Credit Cards which bear the new Bankcard Association. Following
termination or expiration of this Agreement, Branded Credit Cards issued during
the term hereof may continue to bear the Marks until the normal expiration date
thereof. Subject to and consistent with the rules and regulations of Visa or
Master Card (as applicable), FUSA shall comply with the standards established by
Company with respect to the form of the Marks and their usage.
(b) During the term of this Agreement, Company shall have the right
and license to use the respective name, trademarks, servicemarks, copyrights and
logo of FUSA (the "XXXX Xxxxx") solely in connection with the delivery of on-
line Impressions Pursuant to Paragraph 4(a), and off-line solicitations pursuant
to Paragraph 3(c) of this Agreement. Examples of the current XXXX Xxxxx are set
forth in Exhibit "B" attached hereto. Such right and license is restricted as
set forth herein and shall not apply or extend to any other use by Company.
Company shall comply with the standards established by FUSA with respect to the
form of the XXXX Xxxxx and their usage.
(c) Subject to the foregoing, each of the Parties hereto is and shall
remain the owner of all rights in and to its name and logo, as the same now
exist or as they may hereafter be modified, including all rights in and to any
copyright, trademark, servicemark and/or like rights pertaining thereto. Any
and all rights to Company's Marks or the XXXX Xxxxx not herein specifically
granted and licensed are reserved to the respective entity. Except as otherwise
specifically provided for in Paragraph 1(a) hereof, upon the termination or
expiration of this Agreement, all rights conveyed by either Party with respect
to the use of either Party's Marks shall cease, and all such rights shall revert
to the respective Party. Upon termination or expiration of this Agreement,
neither Party shall have any further right to market or to further utilize any
promotional materials containing the other Party's Marks. However, nothing
contained herein shall require FUSA to cancel any Account (as such term is
defined in Paragraph 5(c) below) or to terminate any Credit Card issued in
connection with this Agreement.
2. Credit Cards to be offered for this Program.
(a) The Parties shall perform the following obligations by the
following deadlines:
(i) No later than thirty (30) days after the Effective Date,
FUSA shall offer and be able to issue Credit Cards, to
Company Users.
(ii) No later than sixty (60) days after the Effective Date,
FUSA shall design the Company Branded Credit Card in
accordance with the Company's reasonable design criteria
and the Company shall have the right to approve the front
design of the Company Branded Credit Card to be offered
and issued by FUSA to Company Users pursuant to this
Program. The Parties agree to utilize their best efforts to
design and complete the Company Branded Credit Card
within the time frame referenced above.
(iii) No later than one hundred fifty (150) days after Company
has approved the front design of the Company Branded
Credit Card, FUSA shall offer and be able to issue the
Company Branded Credit Card to Company Users.
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(iv) The Parties agree that for a period of one hundred and
twenty (120) days after the first day the Company Branded
Credit Cards are offered and available to Company Users,
only Company Branded Credit Cards (and not other Credit
Cards) will be offered on the Company's Website.
Thereafter, to afford the best opportunity to maximize the
net response rate to offers under this Program. the
Company's Website may promote the Company Branded Credit
Cards only, Credit Cards only, or both, as determined from
time to time by the mutual agreement of the Parties. If the
Parties are unable to so agree at any time, then each Party
may offer either card alone, or both, under the Program as
that Party, deems appropriate.
(b) The front of the Company Branded Credit Card shall contain the
Company's logo and URL Internet address. FUSA reserves the night to designate on
the back of the Company Branded Credit Card such information as FUSA, in its
sole and absolute discretion, deems appropriate, provided that such information
does not materially and adversely effect the Company's reasonable business
objectives. FUSA shall have the right to designate on all other Credit Cards
issued pursuant to this Agreement, such information as FUSA shall, in its sole
discretion, deem appropriate. In the event the Company makes any changes in its
Marks after the design of the Company Branded Credit Card, then the Company
shall bear and promptly reimburse FUSA for any additional expenses incurred by
FUSA in connection with the mutually agreed upon implementation and use of the
altered Marks.
(c) No later than one hundred twenty (120) days after the Effective
Date, FUSA shall create (and thereafter operate and host at all times while this
Agreement is in effect) a website to process Credit Card applications on-line in
the same manner and in the same time frame as is generally made available to
other Internet companies for whom FUSA is providing affinity on-line programs,
provided that processing applications in such manner does not violate applicable
laws or regulations. Subject to the requirements in the prior sentence, the
design, operation and hosting of the aforementioned website shall be at FUSA's
sole discretion and cost. Company shall provide a link from Company's website
whereby Company Users shall be connected to FUSA's Credit Card application
vehicle.
3. Marketing Promoting and Soliciting Credit Cards.
(a) Subject to Section 4 below, FUSA shall design and develop, in
consultation with the Company, such marketing, promotional and solicitation
materials as the Parties deem appropriate to promote the Program among Company
Users. FUSA shall submit to Company, for its prior written approval, samples of
all marketing. promotion and solicitation materials, printed or otherwise, which
FUSA desires to utilize to market the Program among Company Users. Company shall
review Such materials and respond to FUSA's requests for approval on a
reasonable and timely basis. Approval by Company of any such materials submitted
by FUSA for review shall not be unreasonably withheld or delayed. Upon Company's
approval of such marketing, promotion and solicitation materials, Company shall
reasonably promote and reasonably assist FUSA with the administration of such
promotional and solicitation activities. Provided however that, FUSA reserves
the right to limit its solicitation materials to those persons deemed by it to
be creditworthy in accordance with FUSA's normal credit criteria and credit
practices.
(b) FUSA shall have the right to change the marketing, promotional
and solicitation materials at anytime in order to enhance the promotion of the
Credit Cards
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subject to obtaining the Company's prior written approval for such changed
materials as set forth in subsection 3(a) above, such approval shall not be
unreasonably withheld or delayed.
(c) Upon request by Company and with prior written approval by FUSA.
FUSA shall permit Company, subject to reasonable restrictions set forth by FUSA,
to directly and indirectly solicit applications for Credit Cards from Company
Users (in mediums other than the Internet) without the direct participation of
FUSA ("Company Direct Promotions"). Any marketing materials developed by Company
must be approved in writing by FUSA prior to distribution by Company, however,
any Credit Card applications used for this Program must be supplied to Company
by FUSA. Unless otherwise agreed to by FUSA and Company, all expenses associated
with Company Direct Promotions shall be borne solely by Company. In the event
that FUSA is requested by the Company to provide any materials (including Credit
Card applications) to be used in conjunction with a Company Direct Promotion,
and FUSA advances monies to pay or such materials. FUSA may thereafter offset
such expenditures against the total Marketing Fees and Company Direct Marketing
Fees earned by Company pursuant to this Agreement, until payment of the same in
full. All materials provided or procured by FUSA for which Company is liable,
shall only be provided and/or procured at, and Company shall only be liable for,
commercially reasonable prices. All approvals required under this subparagraph
3(c) shall not be unreasonably withheld or delayed.
4. Internet Offering of Credit Cards.
(a) The Parties shall offer Credit Cards to Company Users on the
Company Website. The Company shall post Impressions (as defined herein) on the
Company Website on an on-going basis as, when, and how deemed appropriate by
Company in its sole discretion. An "Impression" is hereby defined as a single
advertising exposure opportunity rendered by any banner, button, text link,
window, e-mall, "pop-up interstitial, transitional, or other form of Internet
advertisement currently existing or developed in the future, which is served by
Company on an Internet or Intranet delivery vehicle (including. but not limited
to, web pages, e-mails, newsgroup posts, proprietary online service content, on-
premise kiosks, and any other Internet or Intranet delivery vehicle currently
existing or developed in the future), the purpose of which is to attract Company
Users to apply for and/or obtain a Credit Card (or such other credit product or
service which may subsequently become covered by this Agreement) via an active
link to a FUSA or Company website. Company shall determine the type, content,
appearance. and location of all Impressions subject only to FUSA's rights, and
Company's obligations, relative to FUSA's Marks set forth in Paragraph 1(b)
herein.
(b) The Company, in the exercise of its reasonable business judgment,
shall determine those Internet marketing resources at its disposal to be
utilized for this Program in order to produce the maximum response rates based
upon the Parties mutual testing, of the Program.
(c) During each "Quarter" (as such term is defined in Exhibit A
attached hereto) of this Agreement (including each Quarter of any, renewal
term), provided that FUSA has delivered marketing, promotional and solicitation
materials approved by the Company (as set forth above in Section 3)(a)), to
Company, or to a third party, selected by FUSA that is responsible for posting
Impressions, the Company will satisfy one of the following: (i) posting (or
making available the opportunity to post, if posting is to be done by a third
party selected BY FUSA) of not less than five million (5.000,000) Impressions on
the Company 's Website: or (ii) twenty five thousand (25,000) "Click Thrus" (as
such term is defined herein). A "Click Thru" is hereby defined as the activation
of a link in an
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Impression to transport the Company User to a FUSA or the Company Website
(whether in the same browser window, within a different currently open browser
window, or within a newly initiated "pop up" browser window), wherein the
Company User may apply for and/or obtain a Credit Card (or such other credit
product or service which may subsequently become covered by this Agreement). The
Parties agree that at the end of each Quarter during the Initial Term and any
renewal term, FUSA and the Company will meet to review the year-to-date
performance of the Program. The Company acknowledges and agrees that the
Company's provision of these Impressions and/or the Click Thrus is material to
FUSA's decision to enter into this transaction with the Company and that a
failure to post (or the opportunity to post, as the case may be) the number of
Impressions or the Click Thrus described herein, in any given Quarter may, at
FUSA's sole discretion, be deemed and declared a default under Section 14(c) of
this Agreement.
(d) Notwithstanding anything contained in this Agreement which can be
construed to the contrary, the Parties agree that the Company shall have the
right to make any reasonably necessary changes in the types of marketing,
promotional and solicitation materials to be offered through the Company Website
for the purpose of maintaining the integrity of the Company's Marks, or ensuring
that the material complies with: (i) the Company's commercially reasonable
content and advertising guidelines; (ii) reasonable restrictions imposed upon
the Company by third parties as a result of contracts that pre-exist this
Agreement; (iii) quality standards required to protect the Company's goodwill;
and/or (iv) ensuring the Company's compliance with applicable laws governing
the Company's business.
5. Issuance of Credit Cards.
(a) FUSA shall issue Credit Cards, in accordance with FUSA's standard
consumer Credit Card Issuing policies and credit practices, to Company Users who
apply and who are approved for a Credit Card. All decisions concerning the
creditworthiness of any potential Company User shall be made at the sole
discretion of FUSA.
(b) Credit Card(s) issued by FUSA pursuant to the Program shall be
governed by terms of cardmember agreement to be entered into between such person
and FUSA. Such cardmember agreement shall specify that the laws of the State of
Delaware, and as applicable, federal law, shall govern the terms and conditions
of such Account and the extension of credit by FUSA to the cardmember. FUSA
shall have the right to amend such cardmember agreements at any time in
accordance with applicable law. Notwithstanding the forgoing, FUSA shall
continue to offer competitive Credit Card pricing to Company Users throughout
the term of this Agreement. Such pricing shall be comparable to that which is
generally offered in other agreements which are in effect between FUSA and other
like Internet companies for whom FUSA is providing on-line affinity programs
with like financial terms. Company hereby acknowledges that such pricing is
represented by a combination of items including, but not limited to, fees and
royalties paid to such other Internet companies.
(c) Company shall not possess any ownership interest in Credit Cards
issued and accounts established pursuant to this Agreement (the "Accounts"). In
addition, any and all outstanding balances with respect thereto (including,
without limitation, all amounts owing for the payments of goods and services,
periodic finance charges, late and other charges) and all records developed and
retained by FUSA in connection therewith shall be the sole property of FUSA or
its assigns and Company shall have no rights or interests therein.
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(d) FUSA further reserves the right to communicate information to the
cardmember, which it normally sends its other cardmembers and does not utilize
the Company's name or logo, without having to obtain the prior approval of
Company.
6. Fees.
(a) During the term of this Agreement (including any renewal terms as
provided in Paragraph 13 hereof) FUSA shall pay to Company certain Marketing
Fees, Company Direct Marketing Fees and Sales Royalties (collectively, the
"Fees") as set forth on Exhibit A attached hereto.
(b) Notwithstanding any of the above, FUSA shall not be obligated to
pay to Company any duplicate Marketing Fees or Company Direct Marketing Fees
described in items 1 and 2 on Exhibit A in the event that the Account on which
such fees are calculated represents a "substitute" Account. A "substitute"
Account is hereby defined as an Account which is established by one or more
cardmembers on such Account, to replace the existing Account (thereby canceling
the existing Account), for any reason whatsoever.
(c) FUSA shall provide Company with a reconciliation report within
forty-five (45) days following the end of each calendar quarter setting forth
the amount of Fees earned by Company during such calendar quarter. For Marketing
Fees and Direct Marketing Fees, said report shall identify those Accounts opened
on-line, those Accounts opened pursuant to a 1-800 telephone number obtained
from the Company's Website, such other sites as are mutually agreed upon by the
Parties, pursuant to an on-line marketing program of the Company or a Click
Thru, and those Accounts opened off-line as a result of Company's efforts
pursuant to Section 3(c) herein. For Sales Royalties, said report shall set
forth the Net Retail Sales on all Company Branded Credit Card Accounts during
the previous quarter. Any Fees owed to Company and payable pursuant to the terms
of this Paragraph 6 shall be paid to Company within forty-five (45) days
following the end of such calendar quarter.
(d) FUSA's obligation to pay any of the aforementioned Fees to the
Company shall cease immediately upon the termination or expiration of this
Agreement for any reason whatsoever, provided that such Fees shall be reconciled
and paid to the effective date of termination or expiration.
7. Audit Rights.
(a) FUSA, by its duly authorized agents and/or representatives, shall
have the right, at its expense, upon ten (10) days advance written notice to
Company, during Company's normal business hours only, to audit such books,
documents and other material reasonably necessary to confirm Company's
performance of its obligations under this Agreement. All such audits shall be
performed at Company's offices unless otherwise agreed to in writing by Company.
FUSA shall be entitled to make copies of such books, documents and other
material, subject to the confidentiality provisions of Paragraph 11 herein,
such security procedures as Company may reasonably impose, and subject to such
limitations as may be required under applicable rules, regulations or statutes
governing the conduct of Company's business.
(b) Company, by its duly authorized agents and/or representatives,
shall have the right to annually, at its expense, upon ten (10) days advance
written notice to FUSA, during FUSA's normal business hours only, audit such
books, documents and other material reasonably necessary to confirm FUSA's
performance of its obligations
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under this Agreement, including but not limited to the books and records of FUSA
necessary to confirm the amounts of any Fees due to Company under this
Agreement. All such audits shall be performed at FUSA's offices unless otherwise
agreed to in writing by FUSA. Company shall be entitled to make copies of such
books, documents and other material, subject to the confidentiality provisions
of Paragraph 11 herein, such security procedures as FUSA may reasonably impose,
and subject to such limitations as may by required under applicable rules,
regulations or statutes governing the conduct of FUSA's business. In the event
any such audit reveals a shortfall in any payment owing to Company, then FUSA
shall promptly pay such shortfall amount to Company. Further, should any such
shortfall exceed ten percent (10%) of the proper amount due for the period
audited, then in addition to paying the amount of the shortfall, FUSA shall
promptly reimburse Company for all reasonable costs paid by the Company of the
audit. Provide however, in no event shall FUSA be obligated to reimburse Company
in excess of one thousand ($1,000) dollars annually for the reasonable audit
fees incurred by the Company in the above described situation.
8. Cardmember Statements and Data Profiling.
(a) FUSA shall include, at FUSA's cost, Company's name, logo, and URL
address on all Company Branded Credit Card statements of account ("Account
Statements"). Subject to reasonable space, weight, size, content, and scheduling
restrictions (which in no event shall be materially different than those imposed
by FUSA upon other third parties seeking inserts or statement messages), and
upon FUSA's prior review and approval (which approval shall not be unreasonably
withheld or delayed), the Company may periodically include informational inserts
and/or statement, messages in the Account Statements. Notwithstanding the
foregoing and subject to the operation constraint listed above as well as
regulatory requirements, FUSA hereby agrees that the Company shall be entitled
to a minimum of twelve (12) inserts or equivalent statement messages or
substitute promotions in Account Statements, each year while this Agreement is
in effect.
(b) In the event any insert exceeds FUSA's Usual and customary weight
standard for an insert such that it will increase the postal expense incurred by
FUSA to mail such insert with the statements, then FUSA shall inform Company in
advance, and provided Company agrees to reimburse FUSA for such incremental
postage expense, FUSA will include such insertion.
(c) For every twenty thousand (20,000) new Accounts opened pursuant to
this Program, the Company, shall be entitled to one million (1,000,000) inserts
or equivalent statement messages or Substitute promotions (collectively
"Inserts") advertising the Company Website in the monthly statements of account
of FUSA cardmembers who are not Company Branded Credit Card holders (i.e.
statements other than Account Statements). FUSA shall include such Inserts in
said Statements of account upon request by the Company, subject only to
reasonable operational constraints upon FUSA and prohibitive contractual
provisions in Agreements between FUSA and third parties. The Inserts shall not
market any credit card, charge card, stored value card, credit card-type
unsecured and/or secured cards, revolving, line of credit, and/or card
enhancement product during the term of this Agreement, and any Renewal Term
except as otherwise permitted hereunder. The Company shall, at its own expense,
supply any such Inserts and shall reimburse FUSA, at cost, for charters, if any,
incurred for including such Inserts in the billing statements.
(d) Subject to any Force Majeure occurrence, FUSA agrees to use
commercially reasonable efforts to meet the customer service standards for the
Program.
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The customer service standards for the Program shall be comparable to the
customer service standards applied to credit card accounts that FUSA owns or
that FUSA manages for similarly situated programs. Provided however, at a
minimum FUSA shall administer Account services in accordance with the basic
servicing standards established herein and incorporated as Exhibit "C" of this
Agreement ("Account Servicing Standards"). FUSA agrees to share all applicable
monthly and/or quarterly reports (or such other reports as may be mutually
agreed) with Company outlining the customer service statistics regarding the
Program Account holders.
9. Records and Reports.
(a) During the term of this Agreement, FUSA agrees that it will
maintain accurate records with respect to (i) Net Retail Sales (as defined in
Exhibit A), (ii) all Accounts established under this Agreement, and (ii) all
other obligations of FUSA under this Agreement. In addition to Company's audit
rights under Paragraph 7 herein, such records shall be open for inspection by
representatives of Company at reasonable times upon reasonable advance notice,
provided that any inspection shall be subject to such security procedures as
FUSA may reasonably impose and subject to such limitations as may be required
under applicable rules, regulations or statutes governing the conduct of
FUSA's business.
(b) During the term of this Agreement, Company agrees that it will
maintain accurate records with respect (i) Impressions delivered; (ii) the
number of monthly Click Thrus; and (iii) all other obligations of Company under
this Agreement. In addition to FUSA's audit rights under Paragraph 7 herein,
such records shall be open for inspection by representatives of FUSA at
reasonable times, upon reasonable advance notice, provided that any inspection
shall be subject to such security procedures as Company may reasonably impose
and subject to such limitations as may be required under applicable rules,
regulations or statutes governing the conduct of Company's business.
(c) Within forty-five (45) days after the end of each Quarter under
this Agreement, FUSA shall (to the extent permitted by the Fair Credit Reporting
Act) provide Company with general demographic information regarding Company
Branded Credit Card holders. Further, at all times while this Agreement is in
effect, FUSA shall provide the Company with on-going full access via the
Internet to VisaView (or other like marketing data sources for other general
Account holder information) and the ability to download the aggregate
information relating to: (i) the number and amount of merchant transactions on
Company Branded Credit Card Accounts, and (ii) such other reasonable information
that is customarily available from VisaView (or other like marketing data
sources for other general Account holder information). Provided however, that
the foregoing shall not require the dissemination of information that would
result in FUSA being classified as a credit reporting agency or result in the
violation by FUSA of any privacy law.
10. Relationship. Nothing in this Agreement is intended to or shall be
construed to constitute or establish an agency, joint venture, partnership or
fiduciary relationship between the Parties, and neither Party shall have the
right or authority to act for or on behalf of the other Party.
11. Confidentiality.
(a) The Parties acknowledge and agree that the terms of this Agreement
and all information which is (i) proprietary to a Party, and (ii) provided to or
in connection with a Party's performance under this Agreement, and (iii) marked
"CONFIDENTIAL" at
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the time of tender to the other Party, shall be considered confidential and
proprietary information ("Confidential Information") and shall not be disclosed
to any third party without the prior written consent of the Party providing the
Confidential Information ("Disclosing Party"), except as provided in Section 11
(b). Confidential Information may include, without limitation: (1) names,
addresses, and demographic, behavioral, and credit information relating to FUSA
cardmembers or potential FUSA cardmembers; (ii) marketing materials, strategies
and targeting methods; (iii) business objectives, assets and properties; and
(iv) programming techniques and technical, developmental, cost and processing
information. Notwithstanding the forgoing, Confidential Information shall not
include information relative to Credit Card holders or other FUSA cardmembers
wherein such information is used in any manner which does not reveal the
identity of the individual cardmember to a third party (e.g. demographical
reports, statistical analyses, targeted marketing).
(b) The Party receiving such Confidential Information ("Receiving
Party") shall use Confidential lnformation only for the purpose of performing
the terms of this Agreement and shall not accumulate in any way or make use of
Confidential Information for any other purpose. The Receiving Party shall not
disclose the Confidential Information to any third party without the prior
written consent of the Disclosing Party, except for its employees, agents, and
subcontractors who: (i) need to know such Confidential Information to perform
the Receiving Party's obligations or enforce the Receiving Party's rights under
this Agreement; and (ii) agree to be bound by the provisions of this Section.
(c) The obligations with respect to Confidential Information shall not
apply to Confidential Information that: (i) either Party or its personnel
already know at the time it is disclosed as shown by their written records;
(ii) is publicly known without breach of this Agreement; (iii) either Party
received from a third party authorized to disclose it without restriction; (iv)
either Party, its agents or subcontractors, developed independently without use
of Confidential Information; or (v) either Party is required by law, regulation
or valid court or governmental agency order to disclose, in which case the Party
receiving such an order must give notice to the other Party, allowing them to
seek a protective order.
(d) Each Party agrees that any unauthorized use or disclosure of
Confidential Information may cause immediate and irreparable harm to the
Disclosing Party for which money damages may not constitute an adequate remedy.
In that event, each Party agrees that injunctive relief may be warranted in
addition to any other remedies the Disclosing Party may have. In addition, the
Receiving Party agrees promptly to advise the Disclosing Party in writing of any
unauthorized misappropriation, disclosure or use by any person of the
Confidential Information which may come to its attention and to take all steps
at its own expense reasonably requested by the Disclosing Party to limit, stop
or otherwise remedy any misappropriation, disclosure or use by its own
representatives, agents or employees.
(e) Upon either Party's demand, or upon the termination or expiration
of this Agreement, the Parties shall comply with each other's reasonable
instructions regarding the disposition of Confidential Information which may
include return of any and all Confidential Information (including any copies or
reproductions thereof). Such compliance shall be certified in writing, including
a statement that no copies of Confidential Information have been kept. Provided
however, nothing contained herein shall be construed to require the Company to
return any data relative to Credit Card holders or other FUSA cardmembers stored
in the Company's data warehouse which cannot be used by a third party to
discover the identity of the individual holder/cardmember.
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(f) Except as necessary for its performance under this Agreement,
neither Party shall use the name of the other Party, its affiliates or
subsidiaries, in connection with any representation, solicitation, promotion,
sales or marketing publication or advertisement, without the prior consent of
the other.
(g) Except as may be required by law, regulation or any Governmental
Authority, neither Party, nor any of its affiliates, shall issue a press release
or make any similar public announcement related to the transactions contemplated
by this Agreement without the prior written consent of the other, which consent
shall not be unreasonably withheld or delayed. The Parties shall use their best
efforts to agree upon and issue a press release within thirty (30) days of the
Effective Date of this Agreement.
(h) The obligations of this Paragraph 11 shall survive the
termination or expiration of this Agreement for a period of two (2) years.
12. Representations and Warranties.
(a) FUSA represents and warrants that: (i) it is a national banking
association duly organized, valid1y existing and in good standing under the laws
of the United States and (ii) the execution and delivery by FUSA of this
Agreement, and the performance by FUSA of the transactions contemplated hereby,
are within FUSA's corporate powers, have been duly authorized by all necessary
corporate action, do not require any consent or other action by or in respect
of, or filing with, any third party or governmental body or agency (other than
informational filings required by MasterCard or Visa), and do not contravene,
violate or conflict with, or constitute a default under, any provision of
applicable law or regulation or of the charter or by-laws of FUSA or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
FUSA; (iii) it is not currently aware of any claims, and is not currently
involved in any litigation, challenging FUSA's ownership of the XXXX Xxxxx that
would materially effect FUSA's obligations pursuant to this Agreement; (iv) it
is not aware of any claims, and is not currently involved in any litigation,
challenging FUSA's access to the Web and/or the Internet and/or its hosting and
operation of its "instant credit approvals" on its website that would
materially effect FUSA's ability to perform pursuant to this Agreement; and
(v) it has the right, power and authority to execute this Agreement and act in
accordance herewith.
(b) Company represents and warrants that it is a Michigan corporation
duly organized, validly existing and in good standing under the laws of the
State of Michigan. Company further represents and warrants that (i) the
execution and delivery by Company of this Agreement, and the performance by
Company of the transactions contemplated hereby, are within Company's powers,
have been duly authorized by all necessary action, do not require any consent or
other action by or in respect of, filing with, any third party or any
governmental body or agency, and do not contravene, violate or conflict with, or
constitute a default under, any provision of applicable law, regulation, or
under any governing documents, charter or bylaw, or any agreement, judgment,
injunction, order, decree or other instrument binding on Company; (ii) it is not
currently aware of any claims, and is not currently involved in any litigation,
challenging Company's ownership of the Marks; (iii) it is not aware of any
claims, and is not currently involved in any litigation, challenging Company's
access to the Web and/or the Internet; and (iv) it has the right, power and
authority to execute this Agreement and act in accordance herewith.
(c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY
10
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT
MATTER. THE FOREGOING WAIVER SHALL NOT BE CONSTRUED TO LIMIT OR PROHIBIT EITHER
PARTY HEREUNDER FROM PURSUING THE REMEDIES SET FORTH ELSEWHERE IN THIS AGREEMENT
OR AS OTHERWISE AVAILABLE AT LAW OR IN EQUITY FOR A BREACH BY THE OTHER PARTY
HEREUNDER OF ANY CONTRACTUAL OBLIGATION UNDER THIS AGREEMENT.
13. Release and Indemnification.
(a) FUSA shall not be responsible in any way for any
misrepresentation, negligent act or omission or willful misconduct of Company,
its affiliates, officers, directors, agents, or employees in connection with the
entry into or performance of any obligation of Company under this Agreement.
Further, Company shall indemnify, defend and hold FUSA harmless from and against
all claims, actions, suits or other proceedings, and any and all losses,
judgments, damages, expenses or other costs (including reasonable counsel fees
and disbursements), arising from or in any way relating to (i) any actual or
alleged violation or inaccuracy of any representation or warranty of Company
contained in Xxxxxxxxx 00 xxxxx, (xx) any actual or alleged infringement of any
trademark, copyright, trade name or other proprietary ownership interest
resulting from the use by FUSA of the Marks of Company as contemplated by this
Agreement, and (iii) any negligent act or omission or willful misconduct of
Company or its directors, officers, employees, agents or assigns in connection
with the entry into or performance of this Agreement.
(b) Company shall not be responsible in any way for any
misrepresentation, negligent act or omission or willful misconduct of FUSA, its
affiliates, officers, directors, agents, or employees in connection with the
entry into or performance of any obligation of FUSA under this Agreement.
Further, FUSA shall indemnify, defend and hold Company harmless from and against
all claims, actions, suits or other proceedings, and any and all losses,
judgments, damages, expenses or other costs (including reasonable counsel fees
and disbursements), arising from or in any way relating to (i) any actual or
alleged violation or inaccuracy of any representation or warranty of FUSA
contained in Xxxxxxxxx 00 xxxxx, (xx) any actual or alleged infringement of any
trademark, copyright, trade name or other proprietary ownership interest
resulting from the use by Company of the XXXX Xxxxx as contemplated by this
Agreement, (iii) any act or omission of FUSA in connection with the issuance of
Credit Card(s) and/or the administration of Credit Card Accounts which
constitutes a violation of the laws of the State of Delaware or any federal or
state banking or consumer credit laws or regulations, and (iv) any negligent act
or omission or willful misconduct of FUSA or its directors, officers, employees,
agents or assigns connection with the entry or performance of this Agreement.
(c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
11
14. Term/Termination.
(a) Subject to any termination pursuant to subparagraphs 14(b), (c),
(d). (e), (f), (a), (h), and (i) below, this Agreement shall be effective as of
the Effective Date and shall continue for an initial term of five (5) years
(the "Initial Term"). Following the Initial Term, this Agreement shall be
automatically renewed for successive renewal terms of three (3) years each
unless. at least one hundred and eighty days (180) days prior to the expiration
of the Initial Term or the then current renewal term, either Party shall have
notified the other in writing of its decision not to renew this Agreement. If
the terms hereof are to be amended in connection with any renewal, an
appropriate addendum shall be added hereto reflecting, as applicable, the
revised terms hereof.
(b) Should: (i) the Company fail to earn an amount in any Quarter
greater than or equal to the amount of the Advance paid to it by FUSA for such
Quarter (a "Quarterly Advance Shortfall"); and (ii) the Company failed to cure
such Quarterly Advance Shortfall in the ensuing two (2) consecutive Quarters by
earning an amount equal to the applicable Quarterly Advance Shortfall from
monies earned in excess of the Advance (for either or both of the ensuing two
(2) consecutive Quarters (essentially, a Surplus as defined within Exhibit A)
then, FUSA may, in its sole and absolute discretion, terminate this Agreement,
effective seven (7) days after written notice to the Company. Provided however,
in no event, shall FUSA's right to terminate hereunder be exercisable before the
earlier of either: (x) one (1) year after the first marketing effort for the
Company Branded Credit Cards. or (y) eighteen (18) months after the Effective
Date. Notwithstanding the preceding sentence, if Company has in the interim
cured the default which led to the unexersizable right before the right can be
exercised, then, FUSA shall have no right to terminate as a result of such
default.
(c) If there is a material default by either Party in the performance
of the terms and conditions of this Agreement, and such default shall continue
for a period of thirty (30) days after receipt by the defaulting Party of
written notice thereof from the non-defaulting Party (setting forth in detail
the nature of such default), then this Agreement shall terminate at the option
of the non-defaulting Party as of the thirty-first (31st) day following the
receipt of such written notice. If, however, the default cannot be remedied
within such thirty (30) day period, such time period shall be extended for an
additional period of not more than thirty (30) days, so long as the defaulting
Party has notified the non-defaulting Party in writing and in detail of its
plans to initiate substantive steps to remedy the default and diligently
thereafter pursues the same to completion within such additional thirty (30) day
period.
(d) This Agreement shall be deemed immediately terminated, without the
requirement of further action or notice by either Party, in the event that
either Party, or a direct or indirect holding company of either Party, shall
become subject to: (i) voluntary bankruptcy, insolvency, receivership,
conservatorship or like proceedings; or (ii) involuntary bankruptcy, insolvency,
receivership, conservatorship or like proceedings, (including, but not limited
to, the takeover of such Party by the applicable regulatory agency) pursuant to
applicable state or federal law, which is not discharged within sixty (60) days.
(e) In the event that any material change in any federal, state or
local law, statute, operating rule or regulation, or any material change in any
operating rule or regulation of MasterCard or Visa makes the continued
performance of this Agreement under the then current terms and conditions
unreasonably and unduly burdensome, then FUSA shall have the right to terminate
this Agreement upon ninety (90) days advance
12
written notice to Company. Such written notice shall include a detailed
explanation and evidence of the unreasonable burden imposed as a result of such
change. The Parties agree that if the material change can be cured and in
FUSA's sole and absolute discretion, the cure is economically viable, then the
Parties shall work together to cure the condition. If the condition is not
cured within thirty (30) days, then, FUSA shall have the right to terminate this
Agreement upon ninety (90) days written notice.
(f) In the event that any representation or warranty of a Party set
forth in Paragraph 12 of this Agreement shall prove to be untrue, then the other
Party shall have the right to immediately terminate this Agreement and all
of its obligations contained herein effective seven (7) days after written
notice to the other Party.
(g) In the event that Company enters into any merger, acquisition,
agreement, transfer of control or sale of substantially all of its assets to,
or any similar transaction with, (a) any competitor of FUSA or any entity that
owns a competitor FUSA, or (b) any entity that due to its products, services
and/or reputation creates a demonstrable and material conflict of interest for
FUSA, then, FUSA shall have the right to terminate this Agreement effective
thirty (30) days after written notice to Company.
(h) In the event that (i) the number of registered Users on the
Company's Website decreases to one million (1,000,000) or less, or (ii) Company
divests itself of its on-line business(es), then FUSA shall have the right to
immediately terminate this Agreement and all of its obligations contained herein
effective seven (7) days after written notice to Company.
(i) Upon termination or expiration of this Agreement:
1. Each Party shall promptly return to the other Party all
marketing materials that have been supplied to such Party
by the other Party;
2. All Accounts which have been opened pursuant to the terms
hereof, together with all Accounts for which applications
have been received but not yet processed by FUSA as of the
effective date of such termination or expiration, shall
remain the sole and exclusive property of FUSA;
3. FUSA shall have the right, but not the obligation, to
issue credit cards in its own name and without any reference
to Company on such credit cards, to cardmembers holding
Credit Cards pursuant to this Agreement and to applicants
whose applications are received after the effective date of
such termination or expiration,
4. all monies payable to Company under this Agreement
(including, but not limited to, the Fees pursuant to items
1, 2, and 3 of Exhibit A earned through the effective date
of termination or expiration) shall be reconciled and paid
to Company by FUSA within thirty (30) days of the effective
date of termination or expiration (the "Reconciliation
Amount").
5. If this Agreement is terminated by Company due to an
uncured material default by FUSA, or by either Party's
13
election not to renew this Agreement, then Company shall
not be required to remit to FUSA any unearned portion of
any Advance as of the effective date of termination or
expiration (and FUSA shall not be entitled to any credit
for such amount in the determination of the Reconciliation
Amount).
6. If this Agreement is terminated by FUSA pursuant to
subsection 14(c), (d), (f), (g) or (h) above, then the
Company shall be required to remit to FUSA any
"Overpayment" of Advances as of the effective date of
termination, if any. "Overpayment" is hereby defined as:
(i) the total amount of the Advances paid by FUSA to the
Company; minus (ii) the number of Accounts opened each
Quarter multiplied by $50.
7. If this Agreement is terminated by FUSA pursuant to
subsection 14(b) above, then the Company shall be required
to remit to FUSA any Overpayment of Advances as of the
effective date of termination or expiration, if any.
Notwithstanding the foregoing, the Parties agree that if
FUSA terminates as a result of Section 14(b) above, that
the Advances paid in the 1st and 2nd Quarters of the 1st
year of this Agreement, shall not be subject to any
adjustment, reconciliation, or repayment obligation of the
Company upon termination.
8. If this Agreement is terminated by FUSA pursuant to
subsection 14(e) above, then the Company shall not be
required to remit to FUSA any Overpayment of Advances as
of the effective date of termination.
9. If this Agreement is properly terminated by FUSA as
permitted by, and in accordance with, the terms of this
Section 14, then the payment of any and all future Advances
shall immediately cease.
15. Exclusivity.
(a) During the term of this Agreement, FUSA shall have the exclusive right
to perform the credit card services contemplated by this Agreement, and Company
agrees that during the term hereof it shall not, by itself or in conjunction
with others, directly or indirectly, offer, advertise, promote, endorse, or
enter into any agreement with others for the provision of, credit cards,
charge cards or credit card related products or services (i.e. Credit Card
protection insurance, Credit Card disability insurance) on the Company Website.
For the purposes of this Agreement, providing advertising and/or sponsorships
for American Express shall not be construed a breach of this provision so long
as the marketing services provided to American Express do not include: (i) the
ability to complete an application on the Company Website for a consumer card
product with any Company User; or (ii) an endorsement by the Company. The term
"Endorsement" as used in this Agreement is intended to portray a situation
where the Company states a preference towards one provider versus the other.
14
(b) FUSA shall also have a right of first refusal to enter into an
agreement with the Company, on the same terms and conditions offered to the
Company by a third party, to promote any debit cards to Company Users via the
Company Website. The Company shall provide FUSA with a copy of any such offer it
intends to accept with a third party, and FUSA shall have thirty (30) days from
the date of receipt thereof to either (i) decline to exercise its right of first
refusal or (ii) to exercise its right of first refusal and execute a
commercially reasonable agreement with the Company upon the same material terms
and conditions as those contained in the offer. The failure of the Company and
FUSA to execute such agreement within said thirty (30) day period shall entitle
the Company to enter into an agreement with the third party upon the same
material terms and conditions contained in the offer. Provided however, if the
Company does not execute an agreement with the third party within ninety (90)
days after it (x) receives notice of FUSA's decision to decline to exercise its
right of first refusal, or (y) the expiration of the thirty (30) day right of
first refusal period, whichever occurs first, then FUSA's right of first refusal
shall be reinstated as to that product(s) which was the subject matter of the
offer.
(c) The Company agrees that if it elects to accept bids for the promotion
or utilization of any stored value cards through the Company Website, that, the
Company shall notify FUSA and FUSA shall have the right to submit a bid to for
the stored value card program. Provided however, the decision to enter into, and
with whom to enter into, the agreement for a stored value card shall be made by
the Company in its sole and absolute discretion.
(d) Notwithstanding the foregoing, the Company may accept advertising and
sponsorships from Visa and MasterCard or other bankcard associations or similar
entities provided that such advertising or sponsorship does not result in the
Company endorsing or providing credit cards, charge cards, stored value card,
debit cards, or any credit or charge card related product or service, to which
FUSA has any exclusive rights or unexpired/unwaived rights of first refusal
under this Agreement.
16. Non-Competition. With respect to all Accounts established pursuant to
this Agreement, the Company agrees that neither the Company nor any entity
which the Company controls shall by itself or in conjunction with others,
directly or indirectly, during the term of this Agreement (including any
Renewal Term) and for a period of one (1) year following the termination or
expiration of this Agreement for any reason whatsoever, specifically target any
offer of a credit card or credit card related product to cardmembers possessing
an Account. Nothing to the contrary withstanding, the Company may, after
termination or expiration of this Agreement, offer current Account holders the
opportunity to participate in another credit card program promoted by the
Company, provided that: (i) the Company does not specifically target Account
holders only, or because they are Account holders (i.e. the Company may target
Account holders as a part of a general solicitation to Company Users); and
(ii) no existing Account holder is directly or indirectly identified as a
cardmember of FUSA, or offered incentives different from that offered to the
other Company Users included in the general solicitation.
17. Notices. Any and all notices or other communications required or
permitted under this Agreement shall be in writing and shall be delivered
either by personal delivery; by telex, telegram, mailgram or telecopy; by
nationally recognized overnight courier service; or by certified or
registered mail, return receipt requested, addressed as follows:
15
If to FUSA, to:
FIRST USA BANK
Three Xxxxxxxxx Centre
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Senior Vice President
with a copy to:
General Counsel
facsimile: 000-000-0000
If to Company, to:
XXXXXXXXXXX.XXX
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxx
Vice President
Facsimile: (000) 000-0000
with copies to:
Golden & Xxxxxx, P.C.
000 X. Xxxxx Xx. Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or to such other person or address as either Party shall have previously
designated to the other by written notice given in the manner set forth above.
Notices shall be deemed given one day after sent, if sent by telex, telegram,
mailgram, telecopy or by overnight courier; when delivered and receipted for, if
hand delivered; or when receipted for (or upon the date of attempted delivery
where delivery is refused) if sent by certified or registered mail, return
receipt requested. Where notice requires a response in ten (10) or less business
days, the notice should be sent by hand delivery or telecopy.
18. Entire Agreement/Amendment. This Agreement, including exhibits,
constitutes the entire understanding between the Parties with respect to the
subject matter, and supersedes all prior written and oral proposals,
understandings, agreements and representations, all of which are merged herein.
No amendment or modification of this agreement shall be effective unless it is
in writing and executed by all of the Parties hereto.
19. Non-Waiver of Default. No waiver under this Agreement shall be
effective unless it is in writing and executed by all of the Parties hereto.
The failure of either Party to insist, in any one or more instances, on the
performance of any terms or conditions of this Agreement shall not be construed
as a waiver or relinquishment of any rights granted hereunder or of the future
performance of any such term or condition, and the obligations of the non-
performing Party with respect thereto shall continue in full force and effect.
16
20. Severability. In the event that any provision of this Agreement shall,
for any reason, be deemed to be invalid and unenforceable, the remaining
provisions of this Agreement shall remain in full force and effect.
21. Alternative Dispute Resolution. Company and FUSA hereby waive their
rights to resolve disputes through any court proceeding or litigation and
acknowledge that all disputes shall be resolved Pursuant to Paragraphs 22 and 23
below, except, notwithstanding the terms of Paragraphs 22 and 23: (i) equitable
relief may be immediately sought pursuant to Paragraph 11 from any court of
competent jusrisdiction; and (ii) any award rendered in any arbitration pursuant
to this Agreement may be enforced in a court of competent jurisdiction. Both
Parties represent to the other that this waiver is made knowingly and
voluntarily after consultation with and upon the advice of counsel and is a
material part of this Agreement.
22. Informal Dispute Resolution. Any controversy or claim between Company,
on the one hand, and FUSA on the other hand, arising from or in connection with
this Agreement or the relationship of the Parties under this agreement whether
based on contract, tort, common law, equity, statute, regulation, order or
otherwise ("Dispute") shall be attempted to be resolved as follows:
(a) Upon the written request to negotiate the Dispute of either
Company, on the one hand, or FUSA on the other hand, a duly appointed
representative(s) of each party will meet for the purpose of attempting to
resolve such Dispute. Said meeting shall be in person or by telephone, at a
mutually convenient time, but in no event later than seven (7) days after the
written request is deemed received pursuant to Paragraph 17 herein. Should they
be unable to resolve the Dispute, an executive representative of Company will
meet with FUSA's Executive Vice President of Marketing (the "Executives") in an
effort to resolve the Dispute. Said meeting shall be in person or by telephone,
at a mutually convenient time, but in no event later than seven (7) days after
the aforementioned meeting, between the other duly appointed representatives.
(b) The Executives shall meet as often as the Parties agree to discuss
the problem in an effort to resolve the Dispute without the necessity of any
formal proceeding pursuant to Paragraph 23.
(c) Formal proceedings pursuant to Paragraph 23 for the resolution of
a Dispute may not be commenced until the earlier of:
i. the Parties concluding in good faith that amicable resolution
through the procedures set forth in subparagraphs (a)-(b)
hereof does not appear likely; or
ii. the expiration of a thirty-five (35) day period immediately
following the initial written request to negotiate the
Dispute:
provided, however, that this Paragraph will not be construed to prevent a Party
from Instituting formal proceedings earlier to avoid the expiration of any
applicable limitations period, to preserve a superior position with respect to
other creditors or to seek temporary or preliminary injunctive relief. The
commencement of a proceeding pursuant to this provision does not relieve a
Party, from the executive consultation requirement contained in this Paragraph.
17
23. Arbitration.
(a) If the Parties are unable to resolve any Dispute as contemplated
above, such Dispute shall be submitted to mandatory and binding arbitration at
the election of either Company, on the one hand, or FUSA on the other hand (the
"Disputing Party"). The arbitration shall be pursuant to the Commercial
Arbitration Rules of the American Arbitration Association ("AAA").
(b) To initiate arbitration, the Disputing Party shall notify the
other Party, in writing (the "Arbitration Demand") with a copy to AAA, which
shall (i) describe in reasonable detail the nature of the Dispute, (ii) state
the amount of the claim, and, (iii) specify the requested relief. Within
fifteen (15) days after the other Party's receipt of the Arbitration Demand,
such other Party shall file and serve on the Disputing Party a written
statement responding to the claims set forth in the Arbitration Demand as well
as including any affirmative defenses of such Party; asserting any and all
counterclaims, which shall counterclaim shall describe in reasonable detail the
nature of the Dispute relating to the counterclaim, state the amount of the
counterclaim, and specify the requested relief.
(c) If the amount of the controversy set forth in either the claim or
counterclaim is less than $100,000, then the matter shall be resolved by a
single Arbitrator selected pursuant to the rules of the AAA.
(d) If the amount of the controversy set forth in either the claim or
counterclaim is equal to or exceeds $100,000, then the matter shall be resolved
by a panel of three arbitrators (the "Arbitration Panel") selected pursuant to
the rules of the AAA. Decisions of a majority of the members of the Arbitration
Panel shall be determinative.
(e) The arbitration hearing shall be held in such neutral location as
the Parties may mutually agree or, if they cannot agree, Wilmington, Delaware.
The Arbitrator or Arbitration Panel is specifically authorized in proceeding
pursuant to subparagraph (d) to render partial or full summary judgment as
provided for in the Federal Rules of Civil Procedure. Unless otherwise agreed by
the Parties, partial or full summary judgment shall not be available in
proceedings pursuant to subparagraph (c) above. In the event summary judgment or
partial summary judgment is granted, the non-prevailing Party may not raise as a
basis for a motion to vacate an award that the Arbitrator or Arbitration Panel
failed or refused to consider evidence bearing on the dismissed claim(s) or
issue(s). The Federal Rules of Evidence shall apply to the arbitration hearing.
The Party bringing a particular claim or asserting an affirmative defense will
have the burden of proof with respect thereto. The arbitration proceedings and
all testimony, filings, documents and information relating to or presented
during the arbitration proceedings which would otherwise be subject to the
confidentiality provisions of Paragraph 11 herein shall remain subject to said
provisions. The Arbitration Panel will have no power or authority, under the
Commercial Arbitration Rules of the AAA or otherwise, to relieve the Parties
from their agreement hereunder to arbitrate or otherwise to amend or disregard
any provision of this Agreement, including, without limitation, the provisions
of this Paragraph.
(f) Should an Arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Paragraph, the Arbitrator shall be
replaced pursuant to the rules of the AAA. If an Arbitrator is replaced after
the arbitration hearing has commenced, then a rehearing shall take place in
accordance with this Paragraph and the Commercial Arbitration Rules of the AAA.
18
(g) Within fifteen (15) days after the closing of the
arbitration hearing, the Arbitrator or Arbitration Panel will prepare and
distribute to the Parties a writing setting forth the Arbitrator's or
Arbitration Panel's findings of fact and conclusions of law relating to the
Dispute, including the justification for the granting or denying of any award.
(h) The Arbitrator or Arbitration Panel is instructed to
schedule promptly all discovery and other procedural steps and otherwise to
assume case management initiative and control to effect an efficient and
expeditious resolution of the Dispute. The Arbitrator or Arbitration Panel is
authorized to issue monetary sanctions against either Party if, upon a showing
of good cause, such Party is unreasonably delaying the proceeding.
(i) Any award rendered by the Arbitrator or Arbitration Panel
will be final, conclusive and binding upon the Parties and any judgment thereon
may be entered and enforced in any court of competent jurisdiction.
(j) Each Party will bear a pro rata share of all fees, costs and
expenses of the Arbitrators, and notwithstanding any law to the contrary, each
Party will bear all the fees, costs and expenses of its own attorneys, experts
and witnesses; provided, however, that in connection with any judicial
proceeding to compel arbitration pursuant to this Agreement or to confirm,
vacate or enforce any award rendered by the Arbitrator or Arbitration Panel, the
prevailing Party in such a proceeding shall be entitled to recover reasonable
attorney's fees and expenses incurred in connection with such proceedings, in
addition to any other relief to which it may be entitled.
24. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of Delaware without regard to
its conflict of law principles.
25. Assignment. Any assignment by either Party of that Party's rights
and/or obligations pursuant to the Agreement shall be subject to the prior
written consent of the other Party to this Agreement. In addition, and
notwithstanding the foregoing, (i) FUSA may, without prior written consent,
assign this Agreement and any of FUSA's rights and obligations, to any other
federally regulated financial institution upon the condition that the assignee
shall assume, either expressly or by operation of law, all of FUSA's obligations
hereunder, upon the delivery of prior written notice thereof to Company; (ii)
FUSA may, without prior notice or consent, assign its obligations regarding
marketing and card acquisition to First Credit Card Services, USA LLC and (iii)
Company, without prior written notice or consent, may assign its rights to
receive Fees and Royalties pursuant to this Agreement to a commercial lending
institution which provides a credit facility to Company as collateral security
for such credit facility.
26. Force Majeure. In the event that either Party fails to perform its
obligations under this Agreement in whole or in part as a consequence of acts of
God, fire, explosion, public utility failure, accident, floods, embargoes, war.
nuclear disaster or riot, such failure to perform shall not be considered a
breach of this Agreement during the period of such disability. In the event of
any "Force Majeure" occurrence as set forth in this Section 26, Party shall use
its best efforts to meet its obligations under this Agreement. The disabled
Party shall promptly and in writing advise the other Party, if it is unable to
perform due to a Force Majeure occurrence, the expected duration of such
inability to perform and of any developments (or changes therein) that appear
likely to affect the ability of that Party to perform any of its obligations
hereunder in whole or in part.
19
27. Approvals. All approvals required by this Agreement shall not be
unreasonably withheld or delaved. Unless the urgency of a situation and good
faith requires a lesser time period for response, all such approvals shall be
granted or denied, in writing, within ten (10) business days of the date a
request for an approval is deemed received by a Party under Paragraph 17 of this
Agreement.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
day and year first above written.
xxxxxxxxxxx.xxx inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
(type/print name & title below line)
Chairman/CEO
FIRST USA BANK, N.A
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxxx, Senior Vice President
20
EXHIBIT A
FEES
-------------
During the term of this Agreement
and any renewal terms thereof, FUSA agrees to pay to Company the following Fees:
1. For each Account opened, the application for which was generated
during the term of this Agreement and during any extensions and/or
renewals (i) by on-line marketing programs conducted by the Company on
the Company's Website, or (ii) by Click Thrus generated by the
Company, or (iii) by a 1-800 telephone number obtained from the
Company's Website or third party websites pursuant to an on-line
marketing program of the Company or a Click Thru, FUSA shall pay the
Company a fee of fifty and 00/100 ($50.00) Dollars per Account (the
"Marketing Fee").
2. For each Account opened that was generated through efforts or
marketing programs by the Company pursuant to Section 3(c) of this
Agreement, FUSA shall pay the Company a fee of forty and 00/100
($40.00) Dollars per Account (the "Company Direct Marketing Fee").
3. For each Branded Credit Card Account opened. FUSA shall pay the
Company one-tenth of one percent (0.10%) of the amount of Net Retail
Sales posted to such Branded Credit Card Account (the "Sales
Royalties"). For Purposes of this Agreement, "Net Retail Sales" shall
mean the aggregate amount of individual purchases posted to an
Account, but shall not include the aggregate amount of (i) all refunds
to such Account, such as credits for returned merchandise or disputed
billing items, (ii) those amounts representing annual fees, finance
charges and other bank fees or charges posted to such Account (such
fees to include, but not be limited to, late fees, return check fees,
overlimit fees, credit insurance premiums, cash advance fees,
collection costs and administrative fees); and (iii) the amount of all
cash advance transactions fees. The Sales Royalties shall also
exclude any Net Retail Sales posted to an Account whose card(s) have
been reported lost or stolen and which have not been subsequently
replaced or reissued by FUSA.
4. Commencing on the Effective Date, and on the first day of every
ensuing three (3) month period thereafter during the Initial Term of
this Agreement (each a "Quarter"). FUSA shall pay to Company an
advance against the Marketing Fees and the Company Direct Marketing
Fees (items 1 and 2 above) which may be earned by Company in the
forthcoming Quarter (an "Advance"), as follows:
a. The amount of the Advance for each of the first (1st) and second
(2nd) Quarters of the first (1st) year of this Agreement shall be
one hundred twenty five thousand and 00/100 ($125,000) Dollars.
b. The amount of the Advance for the third (3rd) Quarter of the
first (1st) year of this Agreement, shall be determined as
follows: (i) the number of Accounts opened in the 2nd Quarter of
the first year multiplied by $50; minus (ii) fifty percent (50%)
of the "2nd Qtr. Shortfall" (as hereinafter defined), if any.
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"2nd Qtr. Shortfall" shall mean the difference between $125,000
and (the number of Accounts opened in the 2nd Quarter of the
first year of this Agreement multiplied by $50).
c. The amount of the Advance for the fourth (4th Quarter of the
first (1st) year of this Agreement, shall be determined as
follows: (1) the number of Accounts opened in the 3rd Quarter of
the first year multiplied by $50; minus (ii) fifty percent (50%)
of the "2nd Qtr. Shortfall" (as defined in subparagraph b above),
if any.
d. The amount of the Advance to be paid for each Quarter thereafter.
shall be determined by multiplying the number of Accounts opened
in the previous Quarter by $50 and reducing that amount by any
Surplus, as defined below, necessary to cure a Quarterly Advance
Shortfall.
Commencing at the end of the first Quarter of the first year of this
Agreement, in the event the amount of fees earned in the previous Quarter was
greater than the Advance paid for such Quarter (a "Surplus"), and such Surplus
is not required to be applied to cure any Quarterly Advance Shortfall pursuant
to Section 14(b) of the Agreement, then FUSA shall pay the Surplus to Company
within said forty-five (45) day period.
The Parties agree that FUSA may exercise its night to terminate in
accordance with Section 14 (b) if the Company falls to perform as required
therein.
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EXHIBIT B
LICENSED MARKS
--------------
[Attach Company Marks]
[Attach XXXX Xxxxx]
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EXHIBIT C
FUSA Account Servicing Standards
Credit Car Application processing:
----------------------------------
Data Capture (Imaging) per application 2-5 calendar days
Credit Decisioning per application 1-2 calendar days
Operations Support 2-3 calendar days
Total Turnaround Time
(including FDR processing) 10 days
Customer Service:
-----------------
Percent of call answered
Within 20 seconds 80%
Average Speed of Answer 20 seconds
Abandoned Calls Rate 3% or less
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