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 co-brand, 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
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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
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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.
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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 carry out 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
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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
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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
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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.
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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.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement
effective as of the date and year first above written:
FINGERHUT CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Title General Counsel
---------------------------------------
DIRECT MERCHANTS CREDIT CARD
BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Title Chairman and Chief Executive Officer
---------------------------------------
jb-17a
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EXHIBIT A
COMPENSATION
Direct Merchants Bank agrees to pay Fingerhut a fee of five dollars
($5.00) 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 15 basis points of net purchases on an Account Booked
excluding any Account Booked pursuant to the Co-brand Credit Card Agreement.
Payment of the $5.00 and 15 basis points of net purchases terminates upon
termination of this Agreement.
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