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EXHIBIT 10.34
CO-BRANDED BANKCARD AGREEMENT
THIS CO-BRANDED BANKCARD AGREEMENT, incorporating any schedules or
exhibits attached hereto (collectively the "Agreement"), dated as of November 8,
1999, ("Effective Date") is entered into between Xxxxxx.xxx, L.L.C., a Delaware
limited liability company and an affiliate of Xxxxxx.xxx, Inc., a Delaware
corporation, with its principal place of business at 0000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx ("Xxxxxx.xxx") and NextCard, Inc. a Delaware
corporation with its principal place of business at 000 Xxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx ("NextCard").
RECITALS
Whereas, NextCard presently operates a VISA(R) credit card program under
which bankcards are issued by NextBank, N.A. (the "Issuer"), a member of Visa
International Service Association ("VISA");
Whereas, Xxxxxx.xxx and its affiliates presently hold all worldwide
right, title, and interest in and to the Xxxxxx.xxx web site currently located
at xxx.xxxxxx.xxx (the "Property") including, but not limited to all worldwide
copyrights therein (the "Xxxxxx.xxx Copyrights") and trademarks, trade names and
logos relating thereto (the "Xxxxxx.xxx Marks") and all subsidiary rights
therein and is engaged in the business of operating the Property, and NextCard
presently holds all worldwide right, title, and interest in and to the
Xxxxxxxx.xxx web site currently located at xxx.xxxxxxxx.xxx and its financial
services operations (the "Business") including, but not limited to all worldwide
copyrights therein (the "NextCard Copyrights") and trademarks, trade names and
logos relating thereto (the "NextCard Marks") and all subsidiary rights therein
and is engaged in the operating the Business;
Whereas, Xxxxxx.xxx and NextCard (each a "Party" or "party" or
collectively the "Parties" or "parties") desire to market a bankcard issued by
the Issuer and branded with the NextCard Copyrights and Xxxxxx.xxx Copyrights
(collectively, the "Copyrights") and NextCard Marks and Xxxxxx.xxx Marks
(collectively, the "Marks") and with the VISA trademarks, trade names and/or
logos (the "VISA Marks") and;
Whereas, this Agreement sets forth the terms and conditions under which
the Parties shall participate in marketing the Co-Branded Card and the
respective rights and obligations with respect to Co-Branded Accounts and to the
individuals to whom Co-Branded Cards are issued.
NOW, THEREFORE, NextCard and Xxxxxx.xxx agree as follows:
SECTION ONE
DEFINITIONS
1.1. "Account Fee" is defined in Section 1 of Schedule C.
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1.2. "Xxxxxx.xxx Competitor" means any Company designated by Xxxxxx.xxx
on Schedule B hereto, as may be amended from time to time pursuant to Section
3.2.2. By agreement of the parties, Schedule B hereto is intentionally left
blank as of the Effective Date, and will be supplied by Xxxxxx.xxx to NextCard
not later than six (6) weeks following the Effective Date, at which time it will
be appended hereto and made a part hereof.
1.3. "Xxxxxx.xxx Customer Information" means information provided to
Xxxxxx.xxx by an Xxxxxx.xxx customer for storage and subsequent use by an
Xxxxxx.xxx customer on the Internet including an Xxxxxx.xxx customer's identity,
address, credit card number(s), personal information, purchasing preferences or
history, or similar information.
1.4. "Applicable Law" means applicable federal, state and local
statutes, regulations, regulatory guidelines and judicial or administrative
interpretations as well as any rules or requirements established by VISA (or,
should the Parties determine to issue a "MasterCard," those rules or
requirements established by MasterCard).
1.5. "Business Day" means Monday through Friday, excluding Federal
banking holidays.
1.6. "Cardholder Agreement" means the document in substantially the form
included as Schedule D to this Agreement, and as may be amended from time to
time, which governs the Co-Branded Accounts and use of the Co-Branded Cards. By
agreement of the parties, Schedule D hereto is intentionally left blank as of
the Effective Date, and will be drafted by NextCard and mutually approved by the
parties not later than six (6) weeks following the Effective Date, at which time
it will be appended hereto and made a part hereof.
1.7. "Co-Branded Account" means an unsecured, revolving, open-end credit
account provided by NextCard for Xxxxxx.xxx customers through the Issuer and
established pursuant to this Agreement, which is accessed solely by a Co-Branded
Card, the features and terms of which are further described on Schedule A to
this Agreement.
1.8. "Co-Branded Card" means a bankcard issued pursuant to this
Agreement that bears the Copyrights and Marks and the VISA Marks and that
accesses a Co-Branded Account.
1.9. "Co-Branded Cardholder" means the holder of a Co-Branded Card
issued pursuant to this Agreement.
1.10. "Confidential Information" means the terms of this Agreement, the
Customer Data and all information, materials or reports provided to or in
connection with either Party's performance under this Agreement, including
without limitation, Registered Buyer information or other Xxxxxx.xxx Customer
Information, all names, address, demographic, behavioral, and credit information
relating to Co-Branded Cardholders or potential Co-Branded Account cardholders,
cardholder communication materials and issuance strategies or methods, business
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objectives, assets and properties, marketing programs and methods; and
programming techniques and technical, developmental, cost and processing
information.
1.11. "Copyrights" is defined in the third paragraph of the Recitals.
1.12. "Customer Data" means all information, whether personally
identifiable or in aggregate, that is submitted and/or obtained as a result of a
Co-Branded Account relationship or an application (whether or not completed) for
a Co-Branded Account relationship, including without limitation, NextCard
Customer Information, credit information, financial standing and demographic
data, and primary transactional data generated by a Co-Branded Cardholder's use
of the Co-Branded Card (including Transaction Data).
1.13. "Customer Retention Fund" means that pool of monies used to fund
certain retention efforts (other than the Co-Branded Loyalty Program) related to
the Co-Branded Accounts.
1.14. "Fortnight" shall mean a period of fourteen (14) consecutive
calendar days.
1.15. "Marketing Materials" means badges, links, sponsored e-mails,
micro-sites, splash pages, other placements on the web sites, and trade,
broadcast or banner advertisements, press communications, and any printed
physical elements designed to promote the Co-Branded Card or a Party hereto.
"Marketing Materials" shall also include [*] information on value-added products
and services provided directly or indirectly by a marketing partner of NextCard,
and delivered by NextCard to the Co-Branded Cardholders; provided that no [*]
will be sent to any Co-Branded Cardholder who has opted out from the receipt of
such messages.
1.16. "Minimums" is defined in Section 3 of Schedule C.
1.17. "New Co-Branded Account Goals" means those goals that are set
forth in the table in Schedule C.
1.18. "NextCard Customer Information" means information provided by a
NextCard customer to NextCard for storage and subsequent use by a NextCard
customer including a NextCard customer's identity, address, credit card number,
personal information, purchasing preferences or history, or similar information.
1.19. "Registered Buyers" means those visitors to the Property who have
purchased at least one item or service from Xxxxxx.xxx (not including the
Co-Branded Card) through use of a unique and nonduplicative email address and
for whom Xxxxxx.xxx has a viable means to contact (either valid email address,
Property visits, physical mailings or other means mutually agreed upon by the
Parties).
1.20. "Shared Customer Data" means and is specifically limited to [*]
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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[*] "Shared Customer Data" specifically excludes (i) information provided on
application materials, such as social security number, income, debt or other
personal financial information, (ii) credit bureau scores and other credit
report information, and (iii) credit reference information obtained directly
from other creditors or businesses. Notwithstanding the foregoing, "Shared
Customer Data" may include application-level information (other than the
information specifically described in clause (i), above) that the parties
mutually agree to request from applicants, and shall exclude any Customer Data
that NextCard reasonably determines, upon the written advice of outside counsel,
would result in NextCard becoming a consumer reporting agency or, if provided by
NextCard to Xxxxxx.xxx, would constitute a violation under Applicable Law.
1.21. "Transaction Data" is defined as Merchant Category Code (MCC) as
defined by Visa regulations, transaction amount, merchant description and
transaction date, individually identifiable for each Co-Branded Cardholder
purchase transaction.
SECTION TWO
CO-BRANDED CARD PROGRAM
2.1 Design of Card. The parties shall create mutually acceptable designs
for the front of the Co-Branded Card, which will include the Copyrights and
Marks and the VISA Marks and be subject to Applicable Law. The Xxxxxx.xxx Xxxx
will be in a primary position and the NextCard Xxxx will be in a secondary
position on the front of the Co-Branded Card; provided that, the size of the
NextCard Xxxx shall be no less than a percentage, expressed as the fraction
"1(divided by)(square root of pi)" (expressed for convenience as fifty-six
percent (56%)) of the size of the Xxxxxx.xxx Xxxx.
2.2 MasterCard Program. At Xxxxxx.xxx's request, NextCard will take all
necessary steps to offer to Co-Branded Account applicants a Co-Branded Card
through MasterCard within twelve (12) months following NextCard's receipt of
such request, under such terms and conditions as mutually upon agreed by the
Parties.
2.3 Features and Terms of Accounts. The features and terms of Co-Branded
Accounts to be offered initially by NextCard are described on Schedule A to this
Agreement. [*] Except for the foregoing requirement, NextCard shall have
complete discretion to change any terms and conditions on existing Co-Branded
Accounts and the terms on which new Co-Branded Accounts are originated, or to
add additional terms and conditions; provided, however, that NextCard shall use
its best efforts to give Xxxxxx.xxx prior written notice of any material change.
Notwithstanding the above, [*]
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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measured by Bank Rate Monitor or, if Bank Rate Monitor no longer exists, a
mutually acceptable proxy therefor.
2.4 Co-Branded Account Origination Web Site. No later than fourteen (14)
days prior to the Launch Date, NextCard, at its sole cost and expense, shall
create, and, at all times while this Agreement is in effect, operate, host and
maintain a web site within the "xxxxxxxx.xxx" domain (the "Origination Web
Site"), which may be accessed from any on-line location, for the purpose of
soliciting Co-Branded Card applications, effecting online approvals, customized
Co-Branded Card offers and automated balance transfers. The Origination Web Site
will clearly indicate that NextCard and the Issuer, and not Xxxxxx.xxx, are the
entities granting credit and that the Issuer is the sole owner of the Co-Branded
Accounts. The parties may mutually agree to add additional fields or pages to
the application process.
2.5 Credit Decisions. NextCard shall have complete discretion to make
all credit decisions regarding the Co-Branded Accounts. Nothing in this
Agreement shall require NextCard to provide a Co-Branded Card to any person who
NextCard determines does not meet NextCard's credit underwriting standards.
Without limiting the foregoing, such discretion shall include decisions relating
to approval of applicants for Co-Branded Accounts, choice of type of Co-Branded
Card to be issued, including Platinum or Classic, credit limit adjustments upon
application from a Co-Branded Cardholder, termination, suspension or
reactivation of credit privileges on Co-Branded Accounts, and collection of
amounts owing on the Co-Branded Accounts. NextCard shall be solely responsible
for taking and reviewing applications for Co-Branded Accounts, issuing plastics,
providing customer service and otherwise administering and operating the
Co-Branded Accounts. NextCard or the Issuer, as the case may be, shall bear all
risk of credit loss and program operating costs for the Co-Branded Accounts and
Xxxxxx.xxx shall have no responsibility for any such loss or costs.
2.6 Approvals. NextCard will use best efforts to maximize booking rates
for Co-Branded Cards and Accounts by experimenting with various Co-Branded
Account pricing terms.
2.7 Cardholder Agreement. Co-Branded Accounts and use of Co-Branded
Cards will be governed by the terms of the Cardholder Agreement. Such Cardholder
Agreement shall comply with Applicable Law. Notwithstanding any other
limitations contained in this Agreement, NextCard may amend the Cardholder
Agreement at any time to comply with Applicable Law.
[*]
2.9 Ownership and Operation of Accounts. NextCard shall be the sole and
absolute owner of, and Xxxxxx.xxx shall have no right or title to, or interest
in, the Co-Branded
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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Accounts and the Co-Branded Cards. NextCard shall be responsible for all aspects
of operating and servicing the Co-Branded Accounts and for compliance with
Applicable Laws relating to the solicitation, operation and servicing of the
Co-Branded Accounts.
2.10 Co-Branded Account Customer Service. NextCard will develop, operate
and maintain, at NextCard's sole cost and expense, a full service online
customer service and support web site (the "Customer Service Web Site") for the
servicing of only Co-Branded Accounts. The Customer Service Web Site shall be
hosted by NextCard within the "xxxxxxxx.xxx" domain, shall be operational not
less than fourteen (14) days prior to the Launch Date, and shall be branded and
have a look and feel consistent with the Property no later than March 1, 2000;
provided, that, until the Customer Service Web Site is fully operational,
NextCard shall not display any marketing messages to any Co-Branded Cardholder
other than those allowed by this Agreement. NextCard shall provide Xxxxxx.xxx
with a test account on the Customer Service Web Site. All users of the Customer
Service Web Site will understand that they are interfacing and doing business
with NextCard and/or the Issuer. In addition to the Customer Service Web Site
and other customer support channels, and at the request of Xxxxxx.xxx,
Co-Branded Cardholders will have access to all other customer service channels
provided by NextCard to its other cardholders. NextCard will meet or exceed the
performance requirements set forth in Schedule E "Customer Service and Account
Service Performance Requirements."
2.11 Marketing Materials. The Parties shall jointly agree to insert
prominent and persistent Marketing Materials on appropriate Co-Branded customer
materials (as described in Section 2.12). NextCard shall provide an easy process
for Co-Branded Cardholders to opt out of receiving e-mail messages that are not
required by Applicable Law.
2.12 Co-Branded Customer Materials. The parties will jointly review and
approve, all Co-Branded customer materials (with the exception of insignificant
materials as agreed by the Parties) featuring the Marks and Copyrights such as
pages on the Customer Service Web Site or the Origination Web Site, official
Co-Branded communications, and any other Co-Branded customer materials,
regardless of media, that either of the parties reasonably believe constitutes a
significant customer "touch point." All Co-Branded customer materials will have
a look and feel consistent with the Property. The Origination and Customer
Service Web Sites will include back buttons and links to the Property as
appropriate. The parties will cooperate so that all materials relating to the
Co-Branded program are made available with adequate time for advance review and
modification of graphic design and text copy, as well as to ensure error-free
functionality and pre-Launch user testing.
2.13 Customer Data.
2.13.1 Collection and Ownership. NextCard shall collect,
maintain, and be the sole owner of all Customer Data. NextCard may use the
Customer Data in a manner consistent with this Agreement for any legitimate
business purpose, provided that no personally identifiable Customer Data may be
disclosed or transferred to any Xxxxxx.xxx Competitor or any third party (other
than credit bureaus or as otherwise necessary or appropriate for administration,
servicing and funding of the Co-Branded Accounts), and provided further that
NextCard shall not
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release any portfolio-level Customer Data pertaining to the Co-Branded Accounts
unless required by Applicable Law or for the administration of the Co-Branded
Accounts. Whenever NextCard is required to disclose such portfolio-level
Customer Data it will request confidential treatment from the recipient.
Xxxxxx.xxx will not disclose or transfer any Shared Customer Data to any third
party.
2.13.2 Opt-out and Data Sharing. The application form for the
Co-Branded Card will contain the provision set forth in Schedule G that will
permit each Co-Branded Account applicant to "opt-out" of having Shared Customer
Data shared with Xxxxxx.xxx. NextCard shall be solely responsible for tracking
such election and, unless the applicant exercises such opt-out privilege, shall
make available such Shared Customer Data to Xxxxxx.xxx pursuant to Section
2.13.4. Each Co-Branded Cardholder will have the ability to change their data
sharing option through the Co-Branded Customer Service Web Site. In the event a
Co-Branded Cardholder who has not previously opted out decides to opt-out, that
Co-Branded Cardholder's Shared Customer Data shall no longer be shared with
Xxxxxx.xxx and Xxxxxx.xxx will purge all such data from its systems to the
extent required by Applicable Law. [*]
2.13.3 Use by Xxxxxx.xxx. Subject to Applicable Law, NextCard
will make available to Xxxxxx.xxx, and Xxxxxx.xxx will receive and may use the
Shared Customer Data only for the purposes of (i) selling goods and services,
and (ii) for internal analysis of trends and performance. Xxxxxx.xxx will not
use or distribute the Shared Customer Data in any manner not specifically
provided in the preceding sentence, including using it to screen referrals to
third parties (except this restriction shall not preclude Xxxxxx.xxx from
marketing or promoting the products or services of a third party based on the
Shared Customer Data in a manner that is otherwise consistent with this
Agreement), using it to determine eligibility for credit, insurance, or
employment, distributing or publishing it, or using it in a manner inconsistent
with Applicable Law.
2.13.4 Within ten (10) Business Days from the Effective Date,
the parties will agree on (i) the manner in which the Shared Customer Data is to
be formatted, (ii) how frequently the Shared Customer Data will be transmitted
from NextCard to Xxxxxx.xxx. and (iii) a schedule for test transmissions of
Shared Customer Data. At any time during the Term, and at Xxxxxx.xxx's request
and at its sole expense, NextCard will create and maintain a segregated, secure
database for Shared Customer Data, which Xxxxxx.xxx will access and download.
2.14 Periodic Statements and Inserts.
2.14.1 The periodic statement will include the Copyrights and
the Marks. The Parties shall agree on all other elements of the periodic
statement for the Co-Branded Accounts, except those required by Applicable Law,
which shall be determined by NextCard.
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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2.14.2 At Xxxxxx.xxx's request, NextCard shall include up to two
marketing inserts per month on or with the periodic statements sent to
Co-Branded Cardholders via U.S. mail in paper form, subject to Applicable Law
and NextCard's right to review and approve such inserts. Xxxxxx.xxx will pay for
the design and production of such inserts, provided that NextCard will cooperate
with Xxxxxx.xxx to secure the most favorable design and production cost.
NextCard will pay for all standard insertion and mailing costs. Xxxxxx.xxx shall
reimburse NextCard for any additional postage or other costs incurred as a
result of including inserts with periodic statements only to the extent such
costs are attributable to Xxxxxx.xxx inserts. Except as set forth above,
NextCard may impose reasonable limitations on the number or volume of such
marketing inserts, or may delay the inclusion of such materials to accommodate
requirements under Applicable Law. If Xxxxxx.xxx declines to use such space in a
particular statementing cycle, NextCard may use the space for other collateral
marketing materials consistent with this Agreement.
2.14.3 At Xxxxxx.xxx's request, any printed materials
distributed to Co-Branded Cardholders pursuant to this Agreement will be printed
in or disseminated from a State or a location as mutually agreed by the Parties.
Xxxxxx.xxx will pay for all expenses, including reasonable overhead costs,
incurred, directly and indirectly, as a result of Xxxxxx.xxx's request to
utilize a state other than the one currently used by First Data Resources on
behalf of NextCard.
2.15 Payments. If any Co-Branded Cardholder incorrectly makes a check,
money order, draft or other form of payment for a Co-Branded Account payable to
the order of Xxxxxx.xxx rather than to the order of NextCard or its agents,
Xxxxxx.xxx hereby expressly authorizes NextCard to endorse the item on
Xxxxxx.xxx's behalf and to credit the payment to the appropriate Co-Branded
Account. Xxxxxx.xxx shall not accept payments from Co-Branded Cardholders for
any Co-Branded Account.
2.16 Launch Date. The Parties shall use their best efforts to have the
Co-Branded Card program operational by the calendar date that is no later than
ten (10) weeks from the Effective Date. The date the Co-Branded Accounts are
first offered shall be the "Launch Date". The Parties may begin joint marketing
efforts prior to the Launch Date with mutual agreement.
2.17 Credit Card Issuer. Subject to Xxxxxx.xxx's prior approval, which
shall not be unreasonably withheld, NextCard may select which financial
institution shall be the issuer of the Co-Branded Cards and may change such
issuer at any time during this Agreement, provided, however, that any such
issuer shall at all times be a member in good standing of VISA or MasterCard.
SECTION THREE
COMPENSATION, EXCLUSIVITY AND LICENSE
3.1 Compensation Paid by NextCard. During the Term of the Agreement,
NextCard agrees to provide compensation to Xxxxxx.xxx in the amounts and in the
manner described in Schedule C to this Agreement, contingent upon Xxxxxx.xxx's
continuing to satisfy, in all
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material respects, its obligations hereunder. All amounts owing to any party
shall be sent via wire transfer to such account(s) as may be specified, in
writing, not later than two (2) business days prior to the date such amounts are
transmitted. NextCard shall pay Xxxxxx.xxx interest on any late payment (as
defined in Schedule C) at a rate of one and one half percent (1.5%) per month.
3.1.1 All accounting statements shall be sent by NextCard to the
following address:
Xxxxxx.xxx
Attn: [*]
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
3.1.2 Any promotional payments or amounts, excluding Interchange
fees, that NextCard or Xxxxxx.xxx receives from VISA or MasterCard specifically
attributable to the Co-Branded Cards or the Co-Branded Accounts will be itemized
separately on the reconciliation statements referred to in the following
paragraph, and, subject to any disbursement instructions from VISA or
MasterCard, allocated [*].
3.1.3 An appropriate reconciliation statement shall accompany each such
payment. The receipt or acceptance by Xxxxxx.xxx of any statements furnished
pursuant to this Agreement, or the receipt or acceptance of any payments made,
or the fact that Xxxxxx.xxx has previously audited the periods covered by such
statements, shall not preclude Xxxxxx.xxx from questioning their accuracy at any
time. If any inconsistencies or mistakes are discovered in such statements or
payments, the parties shall make appropriate adjustments within thirty (30)
days. During the Term and for two (2) years thereafter (or such other period of
time as may be required by Applicable Law), NextCard shall keep full and
accurate books of account and copies of all documents and other material
relating to this Agreement at NextCard's principal office. Xxxxxx.xxx, by its
duly authorized agents and representatives, shall have the right on reasonable
prior notice and at Xxxxxx.xxx's sole cost and expense to audit or make copies
of such books, documents, and other material during ordinary business hours. At
Xxxxxx.xxx's request, NextCard shall provide an authorized employee to assist in
the examination of NextCard's records. If any audit of NextCard's books and
records reveals that NextCard has failed properly to account for and pay amounts
owing to Xxxxxx.xxx, and the amount of any amounts which NextCard has failed
properly to account for and pay for any quarterly accounting period exceeds, by
ten percent (10%) or more, the amounts actually accounted for and paid to
Xxxxxx.xxx for such period, NextCard shall, in addition to paying Xxxxxx.xxx
such past due amounts, reimburse Xxxxxx.xxx for professional fees and direct
out-of-pocket expenses incurred in conducting such audit, in accordance with
NextCard's normal expense guidelines.
3.2 Exclusivity.
3.2.1 By Xxxxxx.xxx. During the Term of this Agreement, neither
Xxxxxx.xxx nor any entity controlled by Xxxxxx.xxx or in common control with
Xxxxxx.xxx will on its own or in conjunction with others, directly or indirectly
for any reason whatsoever
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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enter into an agreement to assist in the marketing in the United States or any
of its territories or possessions of any application for any credit, debit or
charge card, except for the Co-Branded Cards, or recommend or endorse the
acquisition of any debit, credit or charge card, except as provided for in this
Agreement. The restrictions set forth in this section shall not apply to
co-branded individual bankcards offered solely to employees of Xxxxxx.xxx
through a credit union affiliated with Xxxxxx.xxx. Nothing in this Agreement
shall prevent Xxxxxx.xxx from offering a private label credit facility (a
"house" charge account) that the parties mutually agree shall not be competitive
with the Co-Branded Card.
3.2.2 By NextCard. Xxxxxx.xxx shall have the right to designate
up to [*] companies (the "Restricted List") with which NextCard shall be
prohibited from working to promote the sale of products or services to the
Co-Branded Cardholder base. The initial Restricted List will be attached hereto
as Schedule B not later than six (6) weeks from the Effective Date. Xxxxxx.xxx
shall have the right to substitute up to [*] of the companies on the Restricted
List once every six months from the Effective Date, provided that Xxxxxx.xxx
must give not less than one month's advance written notice of such substitution;
and provided further, that no company may be substituted in to the Restricted
List that provides debit, credit or charge card-related products or services as
a material part of their business, including facilitating purchasing activity
(other than merchants) and the extension of credit; and provided further that no
company may be added by Xxxxxx.xxx to the Restricted List if NextCard has a
current relationship, or is in significant discussions, with a company not
primarily involved in the merchandise or consumer goods business to provide a
free non-merchandise product or service to the Co-Branded Cardholders. In
addition, NextCard shall not promote any other debit, credit, secured or other
charge card or account without Xxxxxx.xxx's prior written consent, nor shall
NextCard promote the products or services of any company on the Restricted List,
to declined Co-Branded Card applicants.
3.3 Ownership and License.
3.3.1 NextCard Marks and NextCard Copyrights. Xxxxxx.xxx hereby
acknowledges that as between the Parties the NextCard Marks and NextCard
Copyrights shall be the property of NextCard and NextCard hereby grants
Xxxxxx.xxx a nonexclusive, nontransferable, restricted and royalty-free license
to use the NextCard Marks and NextCard Copyrights only in a manner and at such
times as are expressly authorized by this Agreement, as follows:
3.3.1.1 All materials produced by Xxxxxx.xxx which
utilize the NextCard Copyrights or the NextCard Marks, including advertising
materials, will be submitted to NextCard not less than five (5) business days
prior to its first intended use for its prior written approval. If NextCard does
not object within the five-day period, NextCard shall be deemed to have
consented to Xxxxxx.xxx's use of such materials;
3.3.1.2 All NextCard-related materials created by
Xxxxxx.xxx will, at NextCard's election, contain an appropriate NextCard
copyright or trademark notice and a visible printed reference or hyperlink, as
appropriate, to the Origination Web Site.
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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3.3.2 Xxxxxx.xxx Copyrights and Xxxxxx.xxx Marks. NextCard
hereby acknowledges that as between the Parties all rights in the Xxxxxx.xxx
Copyrights and the Xxxxxx.xxx Marks shall be the property of Xxxxxx.xxx, and
Xxxxxx.xxx hereby grants NextCard a nonexclusive, nontransferable, restricted
and royalty-free license to use the Xxxxxx.xxx Copyrights and Xxxxxx.xxx Marks
only in a manner and at such times as are expressly authorized by this
Agreement, as follows:
3.3.2.1 All materials produced by NextCard which utilize
the Xxxxxx.xxx Copyrights or the Xxxxxx.xxx Marks, including advertising
materials, will be submitted to Xxxxxx.xxx not less than five (5) business days
prior to its first intended use for its prior written approval. If Xxxxxx.xxx
does not object within the five-day period, Xxxxxx.xxx shall be deemed to have
consented to NextCard's use of such materials;
3.3.2.2 All Amazon.com-related materials created by
NextCard will, at Xxxxxx.xxx's election, contain an appropriate Xxxxxx.xxx
copyright or trademark notice and a visible printed reference or hyperlink, as
appropriate, to the Origination Web Site and/or the Property;
3.3.2.3 The physical Co-Branded Cards will display the
URL for the Customer Service Web Site; and
3.3.2.4 All non-Internet ads must display the
Origination Web Site URL.
3.3.3 Except as specified in this Agreement, all uses of the
Marks will inure to the benefit of the Parties; provided that nothing in this
Section shall be read to imply that Xxxxxx.xxx shall have any right, title or
interest in or to any Co-Branded Account receivable generated by any Co-Branded
Account holder.
3.3.4 Each Party grants to the other a nonexclusive,
nontransferable, restricted and royalty-free license: (i) to establish
hyperlinks to its appropriate Internet web sites (in the case of Xxxxxx.xxx,
NextCard may link only to the Property) and, (ii) in connection with
establishing such links, to use each graphical image file of the Party,
including all Marks, contained therein (each an "Image") in conjunction with the
Co-Branded Card program only as contemplated by this Agreement; provided,
however, that neither Party shall add, subtract or in any way alter or edit any
Image (including, for this purpose, any machine-readable code which may be a
part of any Image) of the other Party, or make any use whatsoever of any Image
of the other Party other than for the purposes of, and as expressly contemplated
by, this Agreement. Each Party represents and warrants that it has the requisite
power to grant such license.
3.3.5 Upon termination or expiration of this Agreement, each
Party shall, except where authorized in writing by the other Party or under this
Agreement, cease the use or reference to the other Party's name, Marks, Images,
Copyrights and hyperlinks in any manner whatsoever, and destroy, at its own
expense, all Marketing Materials or other publications and
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promotional materials bearing the other Party's name, Marks, Images, Copyrights
and hyperlinks in its possession and in the possession of its agents, employees,
and independent contractors.
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SECTION FOUR
CUSTOMER RETENTION PROGRAMS
4.1. Establishment of Co-Branded Loyalty Program. The Co-Branded Card
will include a customer loyalty program (the "Co-Branded Loyalty Program")
designed by NextCard to promote use of the Co-Branded Card. Under the Co-Branded
Loyalty Program, Cardholders will receive points for using the Co-Branded Card
to purchase goods and services which points may be redeemed for rewards provided
through the Co-Branded Loyalty Program. The number of points required to earn
rewards under the Co-Branded Loyalty Program will be no greater than [*] times
the number of points required to earn rewards under the current NextCard loyalty
program. The rules and regulations governing the Co-Branded loyalty program
offered to NextCard's account holders (the "Rules and Regulations") are attached
hereto as Schedule H. By agreement of the parties, Schedule H hereto is
intentionally left blank as of the Effective Date, and will be drafted by
NextCard and mutually approved by the parties not later than six (6) weeks
following the Effective Date, at which time it will be appended hereto and made
a part hereof. Under the Co-Branded Loyalty Program, each Co-Branded Account
holder shall be given an offer that will allow participation in a single-points
reward program with no fees or balance transfers required.
4.2. NextCard's Rights and Responsibilities for the Loyalty Program.
4.2.1. NextCard shall be responsible for managing the Loyalty
Program, and for all administrative costs related thereto. The Loyalty Program
will be funded by NextCard at a rate of not less than [*] basis points [*]
of net Co-Branded Cardholder spending (defined as purchases less returns
and credits).
4.2.1.1. As soon as practicable following the Effective
Date, Xxxxxx.xxx will contact the third-party provider of the Co-Branded Loyalty
Program rewards, [*], and commence negotiations to permit Xxxxxx.xxx products to
be offered to Co-Branded Cardholders redeeming points earned under the Loyalty
Program If [*] does not accommodate Xxxxxx.xxx's reasonable requests to (i)
discontinue the participation of certain vendors of goods and services through
the Co-Branded Loyalty Program that Xxxxxx.xxx deems competitive to Xxxxxx.xxx
or, (ii) substitute a vendor of Xxxxxx.xxx's choosing for vendors currently
participating in the Co-Branded Loyalty Program, then NextCard will suppress
such vendors' participation in the Co-Branded Loyalty Program; provided,
however, that the parties must mutually agree on any Xxxxxx.xxx suppression
request for any vendor not on the Restricted List.
4.2.1.2. Co-branded Cardholders may be offered
"double-points" for a fee not to exceed the fee charged from time to time by
NextCard to its other account holders.
4.2.2. NextCard may in its sole and complete discretion change
the terms or structure of the Co-Branded Loyalty Program, including the rules
and regulations and the provider of the program, at any time; provided, however,
that it shall give Xxxxxx.xxx notice of any material change. Xxxxxx.xxx hereby
acknowledges that it shall have no rights or interests
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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in the relationships and agreements between NextCard and its designated
affiliates or rewards provider. NextCard will provide a monthly report to
Xxxxxx.xxx detailing all actual expenditures attributable to the Co-Branded
Loyalty Program, exclusive of overhead charges.
4.3. Xxxxxx.xxx's Loyalty Program Option. Xxxxxx.xxx may, at its sole
option and expense, develop a loyalty program to be offered to the Co-Branded
Cardholders (the "Amazon Program"). Following the development of the Amazon
Program, the parties will conduct a test, not to exceed four (4) calendar
months, whereunder the Amazon Program will be offered to a mutually agreed upon
percentage of new applicants for a Co-Branded Card. During the test, Xxxxxx.xxx
will receive [*] basis points of net Co-Branded Cardholder spending for all
Co-Branded Cardholders who elect the Amazon Program. At the conclusion of the
test period, the parties will jointly evaluate the performance of the Amazon
Program, as compared with the Co-Branded Loyalty Program, with the objective of
choosing, in good faith, the program which, in the reasonable judgment of the
parties, is more likely to stimulate balance build and purchase activity.
4.3.1 Funding for the Amazon Program. If the Parties choose to
substitute the Amazon Program for the Co-Branded Loyalty Program, NextCard will
provide to Xxxxxx.xxx funding for the Amazon Program of [*] basis points [*] of
net Co-Branded Cardholder spending.
4.4. Opportunities for Xxxxxx.xxx. For Loyalty Programs offered to other
NextCard cardholders in general, NextCard will, subject to the approval of any
third-party operator of the such Loyalty Programs, provide Xxxxxx.xxx with
opportunities for itself, its affiliates and entities with which it has formed
an alliance to have their goods and/or services included in the incentive
offerings on terms and conditions at least as favorable as those provided to
other vendors that participate in the Loyalty Programs.
4.5. Customer Retention Fund. NextCard shall establish, manage, and
maintain the Customer Retention Fund, to be held by NextCard in a non-commingled
bank account. The Customer Retention Fund shall be funded equally,
dollar-for-dollar, by NextCard and Xxxxxx.xxx, provided that Xxxxxx.xxx shall
determine when and in what amount funds shall be deposited, and provided further
that the maximum amount to be contributed in to the Customer Retention Fund
shall not exceed [*] per Co-Branded Account. Funds in the Customer Retention
Fund may only be spent on promotions and activities that the parties shall
mutually agree are designed to encourage Co-Branded Cardholders to retain and
use their Co-Branded Cards.
SECTION FIVE
MARKETING AND PROMOTION
5.1 Reporting. Xxxxxx.xxx will provide monthly reports to NextCard of
the number of clicks. NextCard will provide monthly reports to Xxxxxx.xxx of the
number of new Co-Branded Accounts applied for and the number and type of
Co-Branded Accounts accepted and opened. NextCard agrees to provide at least
monthly reports to Xxxxxx.xxx of the: (i) number
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
Page 14 of 42
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of active Co-Branded Cards, (ii) average monthly purchases on Co-Branded Cards,
(iii) all operational reports related to the performance of NextCard's
obligations under Schedule E, (iv) all reports related to the performance of
NextCard's obligations under Schedule C, (v) average yield on the Co-Branded
Account portfolio, (vi) average annual percentage rate charged to Co-Branded
Accounts opened during the reporting period, (vii) percentage of Co-Branded
Account applicants that exercise the "opt-out" privilege described in Schedule
G, and (viii) data on the performance of each marketing tool (such as e-mail,
banner ads, etc.) employed by Xxxxxx.xxx to promote the Co-Branded Card program.
NextCard will make reasonable efforts to automate such reporting and make it
available to Xxxxxx.xxx via email.
5.2 Monthly Program Review. At least once per month following the
Effective Date of this Agreement and until termination or expiration of this
Agreement, the Parties shall conduct a monthly Co-Branded Card program review.
At a minimum, such review will include a report on the progress of the
financial, operational and marketing aspects of the Co-Branded Card program and
this Agreement and will review plans designed to achieve the New Co-Branded
Account Goals and the other requirements of this Agreement.
SECTION SIX
CONFIDENTIALITY, PROMOTION AND NONSOLICITATION.
6.1. Confidential Information. Each Party acknowledges that it may
acquire Confidential Information of the other Party in the course of exercising
its rights and carrying out its obligations under this Agreement. Each Party
agrees not to use Confidential Information of the other Party for its own
benefit or to disclose such information to any third party, except as
specifically authorized by this Agreement or reasonably necessary for the Party
to carry out its obligations hereunder. Each Party further agrees that its
employees, agents and independent contractors shall treat the other Party's
Confidential Information in the same manner as such Party is required to treat
such Confidential Information. Each Party to this Agreement shall not disclose
any information about the relationships created by this Agreement or any
information on the operation of the Co-Branded Card program, including but not
limited to, amounts paid and reports and financial information provided pursuant
to this Agreement, to any third party, except to the extent necessary to carry
out the Party's respective obligations under this Agreement, or with the prior
written consent of the other Party. In addition, either Party may disclose
Confidential Information to the extent that, in the reasonable opinion of its
legal counsel, it is legally required to be disclosed. The Party seeking to
disclose the Confidential Information shall notify the other Party a reasonable
time prior to disclosure and allow the other Party a reasonable opportunity to
seek appropriate protective measures.
6.2 Nothing in this Section 6 shall be deemed to prohibit:
6.2.1. Use or disclosure of the Party's Confidential Information
if a Party obtains such information from a source other than pursuant to the
relationship created by this Agreement, or
6.2.2. Disclosure of information required by subpoena, court
order or process, or governmental inquiry, provided that the Party from which
such information is sought provides
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the other Party with notice of the request of such information and a reasonable
opportunity to prevent disclosure of the information or to seek appropriate
protective measures.
6.3 Disposition of Confidential Information. 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 the return or destruction of any and
all Confidential Information (including any copies, extracts, compilations, or
reproductions thereof). Upon request, such compliance shall be certified in
writing, including a statement that no copies of Confidential Information have
been kept.
6.4 Targeting. Except as specifically provided by this Agreement,
NextCard will not target individuals for solicitation based solely on account of
their Co-Branded Account holder status. Nothing in this Section 6.4 shall
preclude NextCard from marketing products or services to a general population of
potential customers, some of whom may be Registered Buyers or Co-Branded Account
holders but are not targeted as such. NextCard shall not sell, license,
disclose, distribute or transfer to any third party a list consisting of
individuals known to NextCard to be Co-Branded Cardholders or any aggregate
purchasing or demographic information about individuals known to NextCard to be
Co-Branded Cardholders, that identifies the individuals as Co-Branded
Cardholders, either expressly or by direct implication. For a period of [*]
from the Launch Date, NextCard will not market the products and/or services of
any Xxxxxx.xxx Competitor to that subset of NextCard's general cardholder base
that NextCard determines has purchased such products and/or services from
Xxxxxx.xxx and no other merchant. Xxxxxx.xxx shall not sell, license, disclose,
distribute or transfer to any third party a list consisting of individuals known
to Xxxxxx.xxx to be Co-Branded Cardholders or any aggregate purchasing or
demographic information about individuals known to Xxxxxx.xxx to be Co-Branded
Cardholders, that identifies the individuals as Co-Branded Cardholders, either
expressly or by direct implication.
6.5 Injunctive Relief. Each Party agrees that any unauthorized use or
disclosure of Confidential Information or a breach of this Section 6 may cause
immediate and irreparable harm to the affected Party for which money damages
shall not constitute an adequate remedy. Therefore, each Party agrees that
injunctive relief, including without limitation Ex Parte relief, without notice
or the posting of bond, shall be warranted in addition to any other remedies the
affected Party may have. In addition, the other Party agrees promptly to advise
the affected 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
affected Party to limit, stop or otherwise remedy such misappropriation,
disclosure or use.
6.6 Promotion. The parties understand that their participation in this
relationship will be announced in a mutually agreed upon press release or press
event in advance of the Launch Date, and that from time to time additional press
releases will be required or deemed desirable by both parties. Xxxxxx.xxx and
NextCard will pool their media-relations resources, internal and external, as
appropriate to develop a coordinated media plan and execute the desired or
necessary public relations goals. Both parties will provide advance approval for
inclusion of boilerplate
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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copy and for press releases and other public disclosures related to the
Co-Branded Card program. For inclusion in the main copy section of a release,
each Party's approval will be obtained in writing and not unreasonably withheld,
at least two Business Days in advance of the release date.
6.6.1 If either Xxxxxx.xxx or NextCard reasonably determines
that the use of Shared Customer Data has resulted in a public protest (including
a lawsuit filed against either party) that, in the reasonable judgment of such
party, is reasonably likely to result in a material adverse effect on the
business, prospects or financial condition of such party, then Xxxxxx.xxx and
NextCard will work together in good faith to respond to the protest, which may
include the issuance of a mutually acceptable press release discussing [*].
SECTION SEVEN
DURATION AND MODIFICATION OF THE AGREEMENT
7.1 Term. Subject to the provisions of this Section 7, this Agreement
shall be effective as of the Effective Date and shall continue for a term of
five (5) years from and after the Launch Date (the "Initial Term"). Following
the Initial Term, this Agreement shall be renewed for successive renewal terms
of [*] each (each, a "Renewal Term"), unless a Party provides written notice to
the other at least [*] prior to the termination of the Initial Term or each then
current Renewal Term stating that it does not wish to renew this Agreement. The
Initial Term and the Renewal Terms, if any, may be collectively referred to
herein as the "Term."
7.2 Default; Breach. If there is a material breach of any representation
or warranty, or default in the performance of any covenant or obligation of this
Agreement, by either Party, and such breach or default shall continue for a
period of thirty (30) days after receipt by the breaching or defaulting Party of
written notice thereof from the non-breaching or defaulting Party (setting
forth in detail the nature of such default), then this Agreement may terminate
at the option of the non-breaching or -defaulting Party as of the thirty-first
(31st) day following the receipt of such written notice. If, however, the breach
or default cannot be remedied within such thirty (30) day period, such time
period shall be extended for an additional period of not more than a Fortnight,
so long as the breaching or defaulting Party has notified the non breaching or
-defaulting Party in writing and in detail of its plans to initiate substantive
steps to remedy the breach or default and diligently and continuously thereafter
pursues the same to completion within such additional Fortnight. Notwithstanding
the foregoing, any failure to perform by NextCard, as defined in Schedule E,
constitutes a material default by NextCard of this Agreement, allowing for
immediate termination by Xxxxxx.xxx upon written notice to NextCard.
7.3 Insolvency. 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 voluntary or 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 Law.
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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7.4 Change in Applicable Law. If there is a modification or other change
in Applicable Law that has a material adverse effect on the ability of either
NextCard or Xxxxxx.xxx to continue the Co-Branded Card program contemplated by
this Agreement, the parties shall meet or otherwise discuss whether it is
possible to modify this Agreement to continue the Co-Branded Card program. If
the parties are unable to agree to a modification to the Agreement, either Party
may terminate this Agreement upon prior written notice to the other Party. A
"material adverse effect" includes, among other things, any change in Applicable
Law that has a significant impact on the financial or operational burdens or
rewards of either Party under this Agreement. The Parties agree to modify the
Co-Branded Card program as necessary from time to time to comply with all
Applicable Law.
7.5 Change in Control. If either Party enters into any merger,
acquisition, transfer of control, or sale of substantially all of its assets, or
any similar transaction resulting in a change of control (the "Acquired Party"),
then the other Party (the "Non-Acquired Party") shall have the right to
terminate this Agreement without breach or penalty upon [*] days' notice;
provided that, the foregoing provision shall not affect the sale, assignment,
pledge or other hypothecation by the Issuer of any receivable(s), including any
finance charge, fee or other obligation owed to the Issuer by any Co-Branded
Account holder. Notwithstanding the foregoing, if the Non-Acquired Party
exercises its right to terminate this Agreement and (a) the successor to the
Acquired Party is not reasonably construed to be a competitor of the
Non-Acquired Party, or (b) if continuation of this Agreement by the Non-Acquired
Party with the successor to the Acquired Party would not constitute a material
breach by the Non-Acquired Party of any contract existing at the time the
Acquired Party entered into the change of control transaction, then, upon any
purchase of the Co-Branded Account portfolio by Xxxxxx.xxx, pursuant to Section
8 hereof, (y) if Xxxxxx.xxx is the Non-Acquired Party, the purchase price for
the Co-Branded Account portfolio shall be [*] of FMV, and (z) if NextCard is the
Non-Acquired Party, the purchase price for the Co-Branded Account portfolio
shall be [*] of FMV, in each case as FMV is defined and [*] calculated pursuant
to Section 8.2 hereof.
7.6 Termination for Convenience. So long as Xxxxxx.xxx does not exercise
any of its rights under the Warrant (as defined below), Xxxxxx.xxx shall have
the right to terminate this Agreement without cause, for convenience, at the end
of the [*] from the Launch Date upon delivery of at least [*] prior written
notice to NextCard; provided, that NextCard shall have the right to reject
unilaterally such termination if Xxxxxx.xxx exercises the Warrant, in whole or
in part, at any time following any notification of termination for convenience.
7.7 Process upon Termination. Upon termination, expiration or breach of
this Agreement, the provisions of Section 8 shall apply and, consistent
therewith:
7.7.1 Xxxxxx.xxx and NextCard shall work together to ensure an
orderly termination of the Co-Branded Card program; and
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
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7.7.2 Each Party shall promptly return to the other Party any
materials that have been supplied by such Party to the other, if any.
7.8 Warrant In Favor of Xxxxxx.xxx. As soon as possible after the
Effective Date, NextCard shall issue, execute and deliver a valid warrant,
attached as Schedule F hereto, in favor of Xxxxxx.xxx entitling Xxxxxx.xxx to
purchase up to 4,400,000 shares of common stock of NextCard at a purchase price
of equal to one hundred and forty percent (140%) of the closing price of
NextCard common stock on the Business Day preceding the Effective Date, as
reported by the National Association of Securities Dealers Automated Quotation
System (the "Warrant"). In consideration for the Warrant, Xxxxxx.xxx will pay to
NextCard, by wire transfer, twenty two million, five hundred thousand dollars
($22,500,000). If NextCard fails to issue, execute or deliver the Warrant, then
this Agreement (including the payment obligations of Xxxxxx.xxx set forth in
this Section 7.8) shall fail of its essential purpose, and shall be null and
void as if never executed by the parties.
SECTION EIGHT
SALE OF ACCOUNTS
8.1 Sale of Accounts. At such time as this Agreement is terminated, for
whatever reason, Xxxxxx.xxx shall have the option, subject to Applicable Law and
approval from all applicable parties involved in NextCard receivables financing,
as legally required, to purchase all of the Co-Branded Accounts (other than the
intellectual property associated with NextCard's prior use of the Customer Data)
by providing notice to NextCard of a desire to do so within five months prior to
the date fixed for termination of this Agreement. In the event of a termination
of this Agreement due to the breach of either party, then Xxxxxx.xxx shall have
seven (7) days in which to give notice to NextCard of its intention to purchase
the portfolio.
8.2 Purchase Price; Appraisal Process. The purchase price for the
Co-Branded Account portfolio shall be the fair market value ("FMV") of the
portfolio as determined by appraisal; provided that, in the event of a
termination of this Agreement resulting from a material breach by Xxxxxx.xxx,
the purchase price for the Co-Branded Account portfolio shall be [*] of the FMV;
and provided further, that in the event of a termination of this Agreement
resulting from (i) a material breach by NextCard or (ii) Xxxxxx.xxx's
termination for convenience pursuant to Section 7.6, the purchase price for the
Co-Branded Account portfolio shall be FMV minus [*], provided that, if FMV is
less than [*], NextCard shall not be obligated to pay the difference to
Xxxxxx.xxx. All third-party appraisal costs and expenses incurred during the
appraisal process shall be shared equally by the Parties. The conclusion of the
appraiser(s) shall be binding upon the Parties and conclusive for the purposes
described herein. Any appraiser selected under this Section 8 must be a top tier
United States investment bank with experience in credit card securitization.
8.2.1. If Xxxxxx.xxx exercises its purchase option, the entire
portfolio of Co-Branded Accounts (including all Co-Branded Accounts in
charge-off or delinquent status) must be purchased and a purchase and sale
agreement shall be executed and shall establish a closing
An asterisk [*] indicates that certain information has been omitted from this
agreement pursuant to a request for confidential treatment and has been filed
separately with the Securities and Exchange Commission.
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date that allows NextCard, upon the exercise of its best efforts in regard
thereto, to remove the Co-Branded Accounts and associated balances from any
applicable loan or asset securitization arrangement. The purchase and sale
agreement shall also provide that upon payment of the purchase for the
Co-Branded Accounts to NextCard NextCard's obligation to continue to fund the
Co-Branded Loyalty Program shall cease.
8.2.2 The determination of FMV hereunder shall consider the
value of the portfolio of Co-Branded Accounts as if they had remained serviced
by NextCard, so as to fairly represent the portfolio's value, including customer
servicing, active customer management, cross-selling, and up-selling.
8.2.3 During the term of this Agreement, and subject to
Applicable Law, NextCard will take no action that would prevent the orderly
transfer of the Co-Branded Accounts following any termination of this Agreement.
8.2.4 In the event of a termination of this Agreement due to
either (i) Xxxxxx.xxx's termination for convenience, or (ii) NextCard's
termination due to Xxxxxx.xxx's breach, then, as soon as possible following
NextCard's receipt of Xxxxxx.xxx's election to purchase, NextCard will choose an
appraiser to determine the FMV of the portfolio, which appraisal shall be
completed as soon as commercially reasonable. Should Xxxxxx.xxx disagree with
the FMV in good faith within seven (7) days of the initial appraisal, then,
within an additional seven (7) days, each party will choose an additional
appraiser (for a total of three appraisers) to determine FMV as soon as might be
commercially reasonable thereafter, and the average of the three appraisals will
be binding. In the event of Xxxxxx.xxx's termination of this Agreement due to
NextCard's breach, then, as soon as possible following NextCard's receipt of
Xxxxxx.xxx's election to purchase, Xxxxxx.xxx will choose an appraiser to
determine the FMV of the portfolio, which appraisal shall be completed as soon
as might be commercially reasonable. Should NextCard disagree with the FMV in
good faith within seven (7) days of the initial appraisal, then, within an
additional seven (7) days, each party will choose an additional appraiser (for a
total of three appraisers) to determine FMV as soon as might be commercially
reasonable thereafter, and the average of the three appraisals will be binding.
In the event of a termination of this Agreement at the end of the Term, then, as
soon as possible following NextCard's receipt of Xxxxxx.xxx's election to
purchase, NextCard will choose an appraiser to determine the FMV of the
portfolio, which appraisal shall be completed as soon as might be commercially
reasonable. Should Xxxxxx.xxx disagree with the FMV in good faith within seven
(7) days of the initial appraisal, then, within an additional seven (7) days,
Xxxxxx.xxx will choose an additional appraiser (for a total of two appraisers)
to determine FMV as soon as might be commercially reasonable thereafter, and the
average of the two appraisals will be binding.
8.3 Termination Assistance. Upon notice of termination of this
Agreement, NextCard will provide to Xxxxxx.xxx an account file in
industry-standard format for the Co-Branded Account portfolio as soon as
commercially reasonable. In the event of termination, NextCard will assist in
the transfer of the Co-Branded Accounts and Customer Data in a timely manner,
and will, for a period of [*] [*], not target any Co-Branded Cardholder for a
credit
An asterisk [*] indicates that certain information has been omitted from this
agreement pursuant to a request for confidential treatment and has been filed
separately with the Securities and Exchange Commission.
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card solicitation solely on the basis of their status as Co-Branded Cardholders.
Upon payment by Xxxxxx.xxx for the portfolio, NextCard shall provide whatever
reasonable transitional assistance is requested at industry-standard rates for
such assistance.
8.4 Run-off Period. If, five months prior to the end of the Term or, in
the case of a termination for cause, within seven (7) days following NextCard's
receipt of Xxxxxx.xxx's termination notice, Xxxxxx.xxx does not choose to
purchase the existing portfolio of Co-Branded Accounts, then NextCard will
immediately discontinue offering new Co-Branded Accounts and will continue
servicing existing Co-Branded Accounts under the terms of this Agreement and any
Loyalty Program until the expiration of each Co-Branded Card or Account. In such
circumstances, replacement Co-Branded Cards will not be issued following their
expiration. For a period of [*] from the end of the Term, Xxxxxx.xxx will not
target (for example, by use of email or welcome greeting) Co-Branded Cardholders
with an offer for any other bankcard, and, where reasonable, will identify and
exclude Co-Branded Cardholders from any such offer solicitation.
8.4.1 Following any event of termination, the Customer Retention
Fund shall be immediately distributed equally to the parties, after payment of
all outstanding or accrued costs, expense, charges or other liabilities.
SECTION NINE
REPRESENTATIONS, WARRANTIES, COVENANTS, AND INDEMNIFICATION
9.1 Representations, Warranties and Covenants of the Parties
9.1.1 By NextCard. NextCard represents and warrants that: (i) it
is a duly organized, validly existing Delaware corporation and in good standing
under the laws of Delaware; (ii) the execution and delivery by NextCard of this
Agreement, and the performance by NextCard of it obligations contemplated
hereunder, are within NextCard'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, including approval of card design, as
required by MasterCard or VISA), and do not contravene, violate or conflict
with, or constitute a default under, any provision of Applicable Law, or of the
charter or by-laws of NextCard or of any agreement, judgment, injunction, order,
decree or other instrument binding upon NextCard, or of any applicable VISA or
MasterCard rules or regulations; (iii) it is not currently aware of any claims,
and is not currently involved in any litigation, challenging NextCard's
ownership of NextCard Marks; (iv) all intellectual property used by NextCard
(excluding the intellectual property being provided by Xxxxxx.xxx) in connection
with its obligations under this Agreement is either owned or properly licensed
by NextCard for the uses contemplated hereby and that such intellectual property
does not infringe the rights of any third parties (except that, as to patents,
this representation is given only as to current knowledge); (v) the services to
be provided by NextCard shall be performed in a diligent and professional manner
in accordance with NextCard's obligations under this Agreement and to
Xxxxxx.xxx's reasonable satisfaction; (vi) all of NextCard's systems being used
in connection with the services contemplated
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hereunder are year 2000 compliant in that all systems will provide the following
functions: (a) handle date information before, during and after January 1, 2000,
including without limitation, to accepting date input, providing date output and
performing calculations on dates or portions of dates; (b) function accurately
and without interruption before, during and after January 1, 2000, without any
change in operations associated with the advent of the new century and any
subsequent leap years; (c) respond to two-digit year-date input in a way that
resolves the ambiguity as to century in a disclosed, defined, and predetermined
manner; and (d) store and provide output of date information in ways that are
unambiguous as to century; and (vii) NextCard will comply with all Applicable
Laws related to the offering, approving, denying, operating and servicing and
reporting of consumer credit products, services and accounts including the
Co-Branded Accounts and Co-Branded Cards. NextCard covenants that it will not
enter into an agreement with any party related to financing the receivables of
the Co-Branded Account portfolio that would interfere with Xxxxxx.xxx's ability
to purchase the Co-Branded Account portfolio pursuant to this Agreement.
9.1.2 By Xxxxxx.xxx. Xxxxxx.xxx represents and warrants that:
(i) it is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware; (ii) the execution and delivery by
Xxxxxx.xxx of this Agreement, and the performance by Xxxxxx.xxx of the
transactions contemplated hereby, are within Xxxxxx.xxx's powers, have been duly
authorized by all necessary corporate 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, court decision,
regulation, or under any governing documents, charter or bylaw, or any
agreement, judgment, injunction, order, decree or other instrument binding on
Xxxxxx.xxx; (iii) it is not currently aware of any claims, and is not currently
involved in any litigation, challenging Xxxxxx.xxx's ownership of Xxxxxx.xxx
Marks, other than Amazon Bookstore Cooperative, Inc. v. Xxxxxx.xxx; (iv) all
intellectual property used by Xxxxxx.xxx (excluding the intellectual property
being provided by NextCard) in connection with its obligations under this
Agreement is either owned or properly licensed by Xxxxxx.xxx for the uses
contemplated hereby and that such intellectual property does not infringe the
rights of any third parties (except that, as to patents, this representation is
given only as to current knowledge); (v) the services to be provided by
Xxxxxx.xxx shall be performed in a diligent and professional manner in
accordance with Xxxxxx.xxx's obligations under this Agreement and to NextCard's
reasonable satisfaction; (vi) on or before December 31, 1999, all of
Xxxxxx.xxx's systems being used in connection with the services contemplated
hereunder will be year 2000 compliant in that all systems will provide the
following functions: (a) handle date information before, during and after
January 1, 2000, including without limitation, to accepting date input,
providing date output and performing calculations on dates or portions of dates;
(b) function accurately and without interruption before, during and after
January 1, 2000, without any change in operations associated with the advent of
the new century and any subsequent leap years; (c) respond to two-digit
year-date input in a way that resolves the ambiguity as to century in a
disclosed, defined, and predetermined manner; and (d) store and provide output
of date information in ways that are unambiguous as to century; and (vii)
Xxxxxx.xxx will comply with all Applicable Laws related to its obligations
hereunder. Xxxxxx.xxx represents and warrants
Page 22 of 42
23
that it has the right, power and authority to execute this Agreement and act in
accordance herewith.
9.1.3 By Xxxxxx.xxx, Inc. Xxxxxx.xxx,Inc. guarantees to NextCard
(but not to any third party) the performance of the obligations hereunder of
Xxxxxx.xxx, L.L.C. (the "Obligations"); provided, however, that: (a) Xxxxxx.xxx,
Inc. agrees only to act as a guarantor of the performance of the Obligations,
and not as a party thereto; (b) NextCard will include Xxxxxx.xxx, Inc. as a
party to receive notice of breach of the Obligations pursuant to Section 7.2 of
the Agreement; and (c) Xxxxxx.xxx shall have no greater obligation to perform
the Obligations than Xxxxxx.xxx, L.L.C. with respect thereto.
9.2 Indemnification
9.2.1 NextCard shall not be responsible in any way for any
misrepresentation, negligent act or omission or willful misconduct of
Xxxxxx.xxx, its affiliates, officers, directors, agents, or employees in
connection with the entry into or performance of any obligation of Xxxxxx.xxx
under this Agreement. Further, Xxxxxx.xxx shall indemnify, defend and hold
NextCard 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 Xxxxxx.xxx contained in Section 9.1 above, (ii)
any actual or alleged infringement of any trademark, copyright, trade name or
other proprietary ownership interest resulting from the use by NextCard of the
Xxxxxx.xxx Copyrights and the Xxxxxx.xxx Marks as contemplated by this
Agreement, (iii) any negligent act or omission or willful misconduct of
Xxxxxx.xxx or its directors, officers, employees, agents or assigns in
connection with the entry into or performance of this Agreement, and (iv) any
use or disclosure by Xxxxxx.xxx of the Shared Customer Data in a manner not in
accordance with Applicable Law.
9.2.2 Xxxxxx.xxx shall not be responsible in any way for any
misrepresentation, negligent act or omission or willful misconduct of NextCard,
its affiliates, officers, directors, agents, subcontractors or employees in
connection with the entry into or performance of any obligation of NextCard
under this Agreement. Further, NextCard shall indemnify, defend and hold
Xxxxxx.xxx 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, warranty, or obligation of NextCard contained in this Agreement,
(ii) any act or omission of NextCard in connection with the issuance of
Co-Branded Card(s) and/or the administration of Co-Branded Accounts which
constitutes a violation of State of California or federal banking or consumer
credit laws or regulations or applicable VISA or MasterCard rules and
regulations, (iii) any actual or alleged infringement of any trademark,
copyright, trade name or other proprietary ownership interest resulting from the
use by Xxxxxx.xxx of the NextCard Copyrights and the NextCard Marks as
contemplated by this Agreement, and (iv) any negligent act or omission or
willful misconduct of
Page 23 of 42
24
NextCard or its directors, officers, employees, agents or assigns in connection
with the entry into or performance of this Agreement.
SECTION 10
NOTICES
All notices under this Agreement shall be in writing, and shall be deemed given
when personally delivered, when sent by confirmed fax, when sent by confirmed
e-mail, or one business day after being sent by reputable overnight courier to
the address of the party to be notified as set forth in this section, or such
other address as such party last provided to the other by written notice
For NextCard: For Amazon:
[*] [*]
[*] [*]
NextCard, Inc. Xxxxxx.xxx
000 Xxxxxx Xxxxxx, 00xx Xxxxx 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
Fax: 000-000-0000 FAX: 000.000.0000
With a copy to: With a copy to:
[*] [*]
[*] [*]
NextCard, Inc. Xxxxxx.xxx
000 Xxxxxx Xxxxxx, 00xx Xxxxx 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
Fax: 000-000-0000 FAX: 000.000.0000
SECTION 11
SURVIVAL
Sections 8, 9, 10, 11, and 12 will survive any termination of this Agreement.
SECTION 12
MISCELLANEOUS
12.1 Subject to Applicable Law, neither party may disclose the terms of
this Agreement to any third party other than its financial and legal advisors
without the other party's prior written consent. For all purposes of this
Agreement, each party shall be and act as an independent contractor and not as
partner, joint venturer, or agent of the other and shall not bind nor attempt to
bind the other to any contract.
12.2 Neither party shall have any right or ability to assign, transfer,
or sublicense any obligations or benefit under this Agreement without the
written consent of the other (and any such attempt shall be void), except that a
party may assign and transfer this Agreement and its
An asterisk [*] indicates that certain information has been omitted from this
agreement pursuant to a request for confidential treatment and has been filed
separately with the Securities and Exchange Commission.
Page 24 of 42
25
rights and obligations hereunder to any third party who succeeds to
substantially all its business or assets, in which case the provisions of this
Agreement shall inure to the benefit of and be binding upon such third party and
the consent of the non-assigning party shall not be required; provided that
nothing herein shall be construed to prohibit the sale, assignment, pledge or
other hypothecation by the Issuer, of any receivable(s), including any finance
charge, fee or other obligation owed to the Issuer by any Co-Branded Account
holder.
12.3 The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of such
rights. This Agreement supersedes all proposals, oral or written, any letters of
intent, all negotiations, conversations, or discussions between or among parties
relating to the subject matter of this Agreement and all past dealing or
industry custom. No changes, modifications, or waivers are to be made to this
Agreement unless evidenced in writing and signed for and on behalf of both
parties. In the event that any provision of this Agreement shall be determined
to be illegal or unenforceable, that provision will be limited or eliminated to
the minimum extent necessary so that this Agreement shall otherwise remain in
full force and effect and enforceable.
12.4 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of law
provisions thereof. Each party acknowledges that any breach of the provisions of
this Agreement may cause the other party immediate and irreparable harm for
which there are no adequate remedies at law and will entitle such party to seek
immediate injunctive relief, in addition to any other remedies which may be
available. Any litigation pertaining to the interpretation or enforcement of
this Agreement shall be filed in and heard by the United States District Court
for the District of Delaware, and the parties hereby submit to the jurisdiction
of and waive any venue objections against such courts.
12.5 Headings herein are for convenience of reference only and shall in
no way affect interpretation of the Agreement. Unless the context clearly
requires otherwise, (a) the plural and singular members shall each be deemed to
include the other; (b) the masculine, feminine, and neuter genders shall each be
deemed to include the others; (c) "shall," "will," or "agrees" are mandatory,
and "may" is permissive; (d) "or" is not exclusive; (e) "includes" and
"including" are not limiting; and (f) "days" means calendar days unless
specifically provided otherwise. No provision of this Agreement shall inure to
the benefit of any third parties so as to constitute any such person a
third-party beneficiary of this Agreement. This Agreement shall be construed
without regard to any presumption or rule requiring construction against the
drafting party. Each of the individuals executing this Agreement on behalf of a
party individually represents and warrants that he or she has been authorized to
do so and has the power to bind the party for whom he or she is signing. The
parties hereby agree to execute such other documents and perform such other acts
as may be necessary or appropriate to carry out the purposes of this Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed to
be an original but all of which together shall constitute one and the same
instrument. Signatures executing this Agreement may be delivered by facsimile
transmission.
12.6 Each party shall pay its own costs and expenses relating to the
negotiation, execution, delivery and performance of this Agreement.
Page 25 of 42
26
12.7 Force Majeure. Neither party will be liable for non-performance
hereunder to the extent such performance is prevented by fire, earthquake,
tornado, flood, explosion, embargo, war, riot, governmental regulation or act,
act of God, act of public enemy, or by reason of any other cause beyond such
party's reasonable control. A party's obligations to perform timely will be
excused to the extent, but only to the extent, that such performance is
prevented by a force majeure event.
12.8 Limitation on Damages. In no event will either party be entitled to
recover special, punitive, incidental or consequential damages, including
damages based on lost profits or lost business opportunities, arising out of a
breach of the other party's obligations hereunder, even if the party in breach
has been advised of the possibility of such damages.
IN WITNESS WHEREOF, NextCard and Xxxxxx.xxx have caused this Agreement
to be executed by their duly authorized officers as of the date first written
above.
NextCard, Inc.
By:_________________________
Name:_______________________
Title:______________________
Xxxxxx.xxx, L.L.C.
By:_________________________
Name:_______________________
Title:______________________
Xxxxxx.xxx, Inc.
By:_________________________
Name:_______________________
Title:______________________
Page 26 of 42
27
SCHEDULE A: PRODUCT DESIGN
FEATURES BANKCARD OFFERING
Co-Branded Classic, Classic VISA or MasterCard: unsecured revolving line
Platinum and of credit.
PictureCard
Platinum VISA or MasterCard: Travel accident
insurance, auto rental insurance, medical and legal
referral and assistance, and toll-free access to the
VISA Assistance Center 24 hours a day, 365 days a
year.
PictureCard VISA or MasterCard: Build your own Classic
or Platinum card by uploading a digital image or
choosing from the online photo gallery.
No other types of Co-Branded Cards or Accounts shall
be issued to any applicant who applies for a
NextCard-branded credit card through the Origination
Web Site without Xxxxxx.xxx's prior written approval,
which it may withhold in its sole discretion.
Credit Line Classic and Platinum: [*]
Interest rate The interest rates offered are based on each
applicant's unique credit profile. Various price
points will be offered including:
Classic and Platinum: Fixed rates (between [*] and
[*]) and low introductory rates (as low as [*])
going to fixed (as low as [*]) or variable (as low
as [*] + [*]).
Fees Classic and Platinum: No annual fee and tiered late
fees (e.g. $7 if five days late, $10 if ten days late
and $15 if fifteen days late); low over-limit charges
(e.g. $10).
Service Charges Service charges for cash advances and returned
items to be charged in accordance with the standard
fees charged by NextCard in its other card programs.
Payment Terms Grace period of 25 days when previous balance is
paid in full; No grace period for balance transfers or
cash advances.
Loyalty Program See Section 4
An asterisk [*] indicates that certain information has been omitted from this
agreement pursuant to a request for confidential treatment and has been filed
separately with the Securities and Exchange Commission.
Page 27 of 42
28
SCHEDULE B
XXXXXX.XXX COMPETITORS
Refer to Section 1.2 for completion requirements for Schedule B
Page 28 of 42
29
SCHEDULE C
COMPENSATION BY NEXTCARD TO XXXXXX.XXX
1. Account Fee. During the Term, NextCard will pay [*] [*] for each
Co-Branded Account opened during the Term (the "Account Fee"). Account Fees
shall be paid within thirty (30) days after the end of each month during which
the Co-Branded Account was opened.
2. Renewal Fee. During the Term, NextCard shall pay to Xxxxxx.xxx a
renewal fee of [*] for each existing Co-Branded Account in good standing within
thirty (30) days after each such account's annual anniversary date (the "Renewal
Fee"). For purposes of this paragraph, the term "good standing" shall mean any
Co-Branded Account that on such anniversary date (i) is not [*] or more days
past due, or (ii) has had purchase activity in the preceding [*] days.
3. Guaranteed Minimum Payments. NextCard shall make guaranteed minimum
payments against the Account Fee within thirty (30) days after the end of each
month in the amounts set forth in the table below (the "Minimums"). Of each
Minimum, a dollar amount equal to [*] times the New Co-Branded Account Goal for
the given month shall be paid directly to Xxxxxx.xxx. If in any given month, the
new Co-Branded Accounts opened exceed that month's New Account Goal, then
NextCard shall pay Xxxxxx.xxx the Minimum plus the Account Fee for each
Co-Branded Account opened in excess of that month's New Account Goal. Payment of
Minimums, but not the Account Fees, shall cease upon the earlier of (i) the
termination of the Initial Term (unless the Parties agree otherwise), or (ii)
the date on which the cumulative New Co-Branded Account Goals for the Initial
Term are met (and, if such date occurs in the middle of a month during the
Initial Term, a pro-rata Minimum shall apply for such month). No Account Fees
above the monthly minimum shall be paid in any given month if the total of all
payments made in connection with this Agreement by NextCard to Xxxxxx.xxx
divided by [*] is greater than the total of all Co-Branded Accounts originated
up through the date on which such calculation is performed divided by [*]. As an
example, if the monthly account goals for a four month period were [*] each
month, and the actual accounts achieved were [*] then the payments would be for
[*] accounts respectively. As an additional example, if the monthly account
goals for a four month period were [*] each month, and the actual accounts
achieved were [*] then the payments would be for [*] accounts respectively.
4. Performance. In return for the guaranteed payments received from
NextCard, Xxxxxx.xxx agrees to deliver new co-branded accounts not to be less
than [*]% of the goal. If the actual number of new accounts achieved is less
than [*]% of the cumulative account goal during four consecutive months,
NextCard may suspend additional guaranteed payments to Xxxxxx.xxx until the
actual cumulative number of new accounts reaches [*]% of the original goal
level.
5. Notwithstanding any termination for convenience by Xxxxxx.xxx, on the
business day following the third anniversary of the Launch Date, NextCard will
pay to
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
Page 29 of 42
30
Xxxxxx.xxx a first incentive payment equal to the product of (i) [*] dollars [*]
and (ii) a fraction, the numerator of which shall be [*], and the denominator of
which shall be [*]. For example, if on the third anniversary, NextCard had
booked [*] Co-Branded Accounts but the cumulative Co-Branded Account Goal for
the first three years of the program was [*], Xxxxxx.xxx would receive a payment
of [*]. Under no circumstances may the first incentive payment by NextCard to
Xxxxxx.xxx, as calculated pursuant to the preceding formula, be greater than
[*]. Thus, if in the preceding example, NextCard books [*] accounts, the first
incentive payment would be capped at [*].
On the business day following the fifth anniversary of the
Launch Date, NextCard will pay to Xxxxxx.xxx a second incentive payment equal to
the product of (i) [*] and (ii) a fraction, the numerator of which shall be [*],
and the denominator of which shall be (A) [*] minus (B) [*]. For example, if for
years [*] and [*], NextCard books [*] Co-Branded Accounts but the cumulative
Co-Branded Account Goal for the [*] years of the program was [*], Xxxxxx.xxx
would receive a payment of [*]. Under no circumstances may the second incentive
payment by NextCard to Xxxxxx.xxx, as calculated pursuant to the preceding
formula, be greater than [*] dollars [*]. Thus, if in the preceding example,
NextCard books [*] accounts, the second incentive payment would be capped at
[*]. No payment shall be made pursuant to this paragraph if Xxxxxx.xxx has
exercised its right to terminate this Agreement due to a breach by NextCard, as
set forth in Section 7.2, and elects to purchase the Co-Branded Account
portfolio.
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
Page 30 of 42
31
New Account Marketing and Payment Schedule
THE FIRST DAY OF MONTH ONE IS CONCURRENT WITH THE "LAUNCH DATE."
YEAR 1 Month 1 2 3 4 5 6
--------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 2 Month
--------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 3 Month
--------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 4 Month
--------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 5 Month
--------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 1 Month 7 8 9 10 11 12 Total
----------------------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 2 Month
----------------------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 3 Month
----------------------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 4 Month
----------------------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
YEAR 5 Month
----------------------------------------------------------------------------------------------------------
Acct Goal
Cum. Goal
Min. Pmt [*]
An asterisk [*] indicates that certain information has been
omitted from this agreement pursuant to a request for
confidential treatment and has been filed separately with
the Securities and Exchange Commission.
Page 2 of 42
32
SCHEDULE D
CARDHOLDER AGREEMENT
Refer to Section 1.6 for completion requirements for Schedule D
33
SCHEDULE E
CUSTOMER SERVICE AND ACCOUNT SERVICE PERFORMANCE STANDARDS
GENERAL REQUIREMENTS:
- 100% of customer servicing performed in-house as long as program
growth is within plan (see Schedule C: New Account Marketing and
Payment Schedule). In the event program growth is in excess of
such plan, NextCard will implement appropriate contingency plan
subject to Xxxxxx.xxx's approval.
- Contingency plan will provide that if customer servicing must be
outsourced to a third party, NextCard will use best efforts to
ensure that 100% of the NextCard cardholder base (co-branded and
otherwise) will be outsourced before Co-Branded Accounts are
affected.
- In the event that Co-Branded Accounts must be outsourced to a
third party, all service standards will remain in effect and
will apply for any work performed by a third party. NextCard
will select and Xxxxxx.xxx will approve the selected vendor.
- NextCard and Xxxxxx.xxx will work together to evaluate the
capability of remote call and e-mail monitoring of dedicated
Xxxxxx.xxx Customer Service.
- The following processes and procedures will be developed,
approved and implemented into the training curriculum not later
than one fortnight prior to launch.
- Delineated process (to be developed by NextCard and
approved by Xxxxxx.xxx) to re-direct mail, voice, and
e-mail inquiries to/from Xxxxxx.xxx. NextCard and
Xxxxxx.xxx will work together to enable the technical
capability to accomplish routing of inquiries between
parties. NextCard will develop and xxxxxx.xxx will
approve scripts and processes to allow for redirecting
Xxxxxx.xxx specific questions within * days of launch.
- Delineated process and policy (to be developed by
NextCard and approved by Xxxxxx.xxx) to address, in
real-time, customers whose credit card application is
declined.
Page 2 of 42
An asterisk [*] indicates that certain
information has been omitted from this
agreement pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.
34
- Xxxxxx.xxx may, at its option, assist in training for Co-Branded
service representatives
- Base Level Requirements for Servicing the Co-Branded Accounts
Include:
- Dedicated Co-Branded customer service team (and Manager)
for phone and email support.
- Dedicated Co-Branded 800-number.
- Integrated Co-Branded on-line customer service platform.
- Co-Branded E-mail customer service capability.
- Co-Branded cardholder correspondence.
- NextCard will use best efforts to provide Co-Branded
customer service and support in multiple languages
during regular business hours and to be at parity with
Xxxxxx.xxx customer service language capabilities.
- Ability and agreement to conduct customer surveys as
reasonably requested by Xxxxxx.xxx.
- NextCard must maintain a "live" 24 hour-per-day, 7
day-per-week customer service telephone center.
Co-Branded calls may be blended with other calls when
the volume of calls is insufficient to justify a
dedicated group.
- For the Co-Branded Accounts, the average time for a
"live" service rep to answer a call will not exceed
* (*) seconds.
- For the Co-Branded Accounts, the average time for
customer service to respond to complaints and inquiries
submitted in writing shall be * (*) business days
from the receipt of the underlying complaint or inquiry.
- For the Co-Branded Accounts, the average time for
customer service to respond to complaints and inquiries
submitted via e-mail shall be less than * (*) hours from
the receipt of the underlying complaint or inquiry.
- Customer service personnel ratios for the Co-Branded
Accounts will be no less favorable than the following:
An asterisk [*] indicates that certain
information has been omitted from this
agreement pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.
Page 3 of 42
35
* (reps to supervisors)
* (reps to managers)
* (customers to reps)
CUSTOMER SERVICE LEVEL AGREEMENTS:
Telephone:
- METRIC 1: At least * percent (*%) of all incoming
telephone calls, which require an agent, must be answered by a
"live" service person within * (*)seconds.
- METRIC 2: The number of callers who terminate their calls prior
to completion must not exceed * percent (*%) of all incoming
calls.
- There will be * percent (*%) blockage factor associated
with incoming calls.
Mail:
- At least * (*%) of all incoming written
correspondence must be responded to within * (*) business
days following the receipt thereof (with the exception of
applicants requesting that a denial of credit be reconsidered or
other correspondence for which research is required which will
be governed by NextCard's "reconsideration/decline process").
- In all cases, notification of pending action will be given to
the customer within * (*) days of receipt.
- At least * percent (*%) of all incoming written
correspondence must be responded to within * (*) business
days following the receipt thereof by NextCard.
E-Mail:
- METRIC 3: At least * percent (*%) of all incoming
e-mail correspondence must be responded to within *
(*) hours following receipt.
An asterisk [*] indicates that certain
information has been omitted from this
agreement pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.
Page 4 of 42
36
Dispute Resolution, Complaints & Inquiries:
- At least * percent (*%) of all cardholder "disputes"
must be responded to within * (*) business days and resolved
in accordance with Association requirements.
- At least * percent (*%) of all cardholder complaints
or inquiries requiring a follow-up action will be acted upon
within * (*) business days
PLASTIC ISSUANCE, STATEMENTS & MISCELLANEOUS SERVICE:
- At least * percent (*%) of customers will be
presented with their account number on line or sent their cards
within * (*) business days after the completion of the
application (with the exception of picture cards).
- At least * percent (*%) of all Co-Branded Cards
issued in connection with an online application for credit must
be sent to their intended recipients by first class mail within
* (*) business days following the date NextCard first decides
to issue the individual Co-Branded Card in question.
- At least * percent (*%) of all Co-Branded Cards which
must be replaced due to loss, theft or damage must be sent by
first class mail to their intended recipients within * (*)
business days following the receipt by NextCard of the
underlying notice in question. And, in the case of emergency
card replacement, requests will be processed in accordance with
Visa emergency card replacement policies.
- At least * percent (*%) of all Cardholder monthly
statements must be issued monthly on an error-free basis.
- At least * percent (*%) of all Cardholder change of
address requests must be processed within *
of NextCard's receipt.
- At least * percent (*%) of all credit line increase
requests must be processed within one (*) * of NextCard's
receipt *, within * days of launch of the program.
Page 5 of 42
An asterisk [*] indicates that certain
information has been omitted from this
agreement pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.
37
CUSTOMER SERVICE LEVEL PERFORMANCE TRACKING:
- Monthly reporting package will be delivered within * (*)
business days of month's end documenting performance against
each customer service level standard along with explanation and
resolution plan to address any deviations.
- Weekly reports showing performance against the customer service
level agreements will be delivered within 48-hours of week's
end.
- If Metric 1 is less than *% but greater than *%, or Metric 2
is greater than *% but less than *%, or Metric 3 is less than
*% but greater than *%, for * (*) of * (*) consecutive
weeks, NextCard has * (*) days to bring the Metric or
Metrics to the outlined level (*% for Metric 1, *% for Metric
2, *% for Metric 3). Failure to cure within * (*) days is
a failure to perform under this Agreement. If Metric 1 is *% or
lower, or if Metric 2 is *% of greater, or Metric 3 is *% or
lower, for * (*) of * (*) consecutive weeks, this will be
considered a failure to perform under this Agreement. The
failure to meet Metric 1, 2 or 3 for * (*) of * (*)
consecutive weeks due to new Co-Branded Account application
volume in that * (*) week period exceeding new Co-Branded
Account application volume in the prior * (*) week period by a
factor of * (*), will not be considered a failure to perform
under this Agreement.
- Failure to meet * percent (*%) of all other customer
service level agreements for * (*) consecutive months will be
considered a failure to perform under this Agreement.
- Failure to meet any one of all other customer service level
agreements for * (*) consecutive months, unless changed by
NextCard and approved by Xxxxxx.xxx, will be considered a
failure to perform under this Agreement.
OPERATIONAL SERVICE LEVEL AGREEMENTS:
Co-Branded Account Origination & Customer Service Web Sites:
- Origination Web Site will have a response time to process credit
applications of not more than * (*) seconds.
- Co-Branded Web Sites will not have less than *
percent (*%) availability 24X7 (twenty-four hours a day, seven
days a week).
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An asterisk [*] indicates that certain
information has been omitted from this
agreement pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.
38
- Scheduled down-time for Co-Branded Web Sites will not exceed
industry standards.
OPERATIONAL SERVICE LEVEL PERFORMANCE TRACKING:
- Weekly reports showing performance against the operational
service level agreements will be delivered within *-hours of
week's end.
- Failure to meet any one of the operational service level
agreements for * (*) of * (*) consecutive weeks, unless
changed by NextCard and approved by Xxxxxx.xxx, will be
considered a failure to perform under this agreement
ALLOWANCE FOR INNOVATION:
- In the event that technology innovations allow for more
efficient servicing, the above minimum customer service
personnel requirements, and the customer service and account
service performance standards will be adjusted by mutual
agreement by NextCard and Xxxxxx.xxx.
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An asterisk [*] indicates that certain
information has been omitted from this
agreement pursuant to a request for
confidential treatment and has been
filed separately with the Securities
and Exchange Commission.
39
SCHEDULE F
FORM OF WARRANT
[ATTACHED SEPARATELY]
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SCHEDULE G
OPT OUT PROVISION
You agree that NextCard will share certain information relating to your
account with Xxxxxx.xxx. This information will only be shared with Xxxxxx.xxx
and will not be shared with any other party by either NextCard or Xxxxxx.xxx
without your express consent, or as otherwise required by law or to administer
your account. Use of this information by Xxxxxx.xxx will be limited to the
marketing of products and services, and will in no way be used in determining
your credit worthiness or to evaluate you for any extension of credit. You can
opt out of this information sharing by unchecking the checkbox adjacent to this
paragraph. You can also change your election at any time in the future by
visiting the Customer Service Web Site.
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SCHEDULE H: TERMS AND CONDITIONS OF LOYALTY PROGRAM
Refer to Section 4.1 for completion requirements for Schedule H
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