CONFIDENTIAL
BANKCARD MARKETING AGREEMENT
THIS AGREEMENT, made this 4th day of June, 1998, by and between
iVILLAGE, INC., a Delaware corporation having its principal office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company") and FIRST CREDIT CARD SERVICES
USA L.L.C., a Delaware limited liability company ("FCCSU-LLC") sometimes
referred to as the "Parties" and individually as a "Party". This Agreement is
made together with the BankCard Issuance and Servicing Agreement by and
between FIRST USA BANK ("FUSA") and the Company of even date herewith (the
"Issuance and Servicing Agreement").
RECITALS:
WHEREAS, FCCSU-LLC assists FUSA in connection with the ongoing
efforts of FUSA to market its various MasterCard and/or Visa consumer credit
products and related services (hereinafter referred to as "Credit Card(s)") to
the general public;
WHEREAS, this Agreement has been negotiated and executed by FCCSU-LLC
and the Company in connection with those efforts of FUSA in order to document
the terms of their agreement concerning the marketing of Credit Cards to the
officers, directors, employees, subscribers, customers and users of Company's
on-line services (the "Company Users" or "Users"), including a Credit Card
which bears the name and logo of the Company on the face thereof (the
"iVillage-branded Credit Card"), and the subsequent and immediate acquisition
of the underlying account relationships by FUSA;
WHEREAS, FCCSU-LLC has agreed, subject to the terms and conditions
hereinafter contained, to market Credit Cards, including the iVillage-branded
Credit Card, to Company Users on behalf of FUSA in the manner and to the
extent set forth in this Agreement;
WHEREAS, immediately upon the successful completion of the marketing
acquisition efforts of FCCSU-LLC as determined by FUSA and FCCSU-LLC in their
sole and absolute discretion, the underlying accounts will be immediately sold
by FCCSU-LLC to FUSA so that the account in question can then be serviced by
FUSA in accordance with its then current business practices and serviced by
FUSA in the manner contemplated by the Issuance and Servicing Agreement and in
a manner consistent with the then current business practices of FUSA;
WHEREAS, the Company is willing to endorse the offering of FUSA's
Credit Card(s) to and among the Company Users subject to the terms and
conditions contained in this Agreement and in the Issuance and Servicing
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
1. License to Use Marks.
(a) During the term of this Agreement, FCCSU-LLC shall have
the limited right and license, for the purpose of fulfilling all of the
obligations contained within this Agreement, to use the current and future
respective name, trademarks, servicemarks, copyrights and logo of the Company
(collectively, the "Marks") solely in connection with
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FCCSU-LLC's marketing of FUSA's Credit Card(s) to Company Users under this
Agreement (the "Program"). Examples of Company's current Marks are set forth
in Exhibit B attached hereto. Such right and license is restricted to the
products and services described herein and shall not apply or extend to any
other product or service. Subject to and consistent with the rules and
regulations of Visa and MasterCard, FCCSU-LLC shall comply with the standards
established by the Company with respect to the form of the Marks and their
usage.
(b) Subject to the foregoing, each of the parties hereto is
and shall remain the owner of all rights in and to its name and logo, as the
same now exist or as they may hereafter be modified, including all rights in
and to any copyright, trademark, servicemark and/or like rights pertaining
thereto. Any and all rights to Company's Marks not herein specifically granted
and licensed to FCCSU-LLC are reserved to Company. Upon the termination of
this Agreement, all rights conveyed by Company to FCCSU-LLC with respect to
the use of Company's Marks shall cease, and all such rights shall revert to
Company. Upon termination of this Agreement, FCCSU-LLC shall have no further
right to market FUSA's cardmember products using the Company Marks or to
further utilize any promotional materials containing the Company Marks.
2. Customer Lists.
(a) In the event that direct mail becomes a marketing method
used, the Parties agree to work together in conformity with any applicable
rules, regulations and/or privacy policies established to determine the method
by which FCCSU-LLC can be provided with mailing lists of the Company Users,
including names, addresses (residential and e-mail), residential telephone
numbers (where available), and all other data pertaining to Company Users, via
magnetic tape, cartridge, or any other media which is mutually agreed upon
(the "Lists"). All Lists shall be provided to FCCSU-LLC by Company at no cost
to FCCSU-LLC.
(b) FCCSU-LLC shall use the Lists provided by Company on a
basis consistent with the intent and terms of this Agreement, i.e. to market
Credit Cards on behalf of FUSA, and shall not rent, use or permit any third
party handling such Lists to use them for any other purpose. FCCSU-LLC shall
not rent or otherwise make available such Lists to any third party (except for
the purposes of fulfilling obligations under this Agreement) without the
express written consent of Company. The Lists provided by Company are and
shall remain the sole property of Company provided they have been provided to
FCCSU-LLC by Company at no expense to FCCSU-LLC, except to the extent that
such Company names are available to FCCSU-LLC from another source. FCCSU-LLC
will, subject to applicable law requiring their retention, return such Lists
to Company or destroy them upon the termination of this Agreement.
(c) FCCSU-LLC and/or its affiliates may maintain separately
all information which is submitted and/or obtained as a result of an
application for an Account relationship with a Company Users. This information
becomes a part of FCCSU-LLC's own files and shall not be subject to this
Agreement provided that, any use of such information, except for fulfilling
obligations under the Program, will not imply or suggest an endorsement by
Company.
(d) FCCSU-LLC and Company mutually agree that given the
nature of the industry, additional and/or various marketing vehicles not
specifically addressed in this Agreement may require additional User
information. As a result, subject to the established rules, regulations and
privacy policies, the Company acknowledges and agrees to use commercially
reasonable efforts to work with FCCSU-LLC for the purpose of providing
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any necessary User information as requested from time to time, including but
not limited to Lists of Users, as referenced in subsection (a) above.
3. Offering of Credit Cards by FCCSU-LLC. FCCSU-LLC shall offer
Credit Card(s) to Company Users in accordance with the following provisions:
(a) Subject to subparagraph (c) of this Xxxxxxxxx 0,
XXXXX-XXX shall, at its own expense, design and develop such marketing,
promotion and solicitation materials as it deems appropriate to promote the
Program among Company Users, and the Company shall endorse and reasonably
assist FCCSU-LLC with the administration of such promotional and solicitation
activities. FCCSU-LLC and the Company will jointly schedule and direct the
solicitation of Company Users, provided, that FCCSU-LLC reserves the right to
limit its solicitation materials to those persons deemed to be creditworthy in
accordance with FCCSU-LLC's and/or FUSA's normal credit criteria and credit
practices.
(b) In the event of any change in its Marks, the Company
shall bear and promptly reimburse FCCSU-LLC for any reasonable expenses
incurred by FCCSU-LLC in connection with the mutually agreed upon
implementation and use of the altered Marks.
(c) FCCSU-LLC shall submit to Company, for its prior
approval, samples of all marketing, promotional or solicitation materials,
printed or otherwise, which FCCSU-LLC intends to utilize to market the Program
to and among Company Users. Company shall review such materials and respond to
FCCSU-LLC's requests for approval on a timely basis. Approval by Company of
any marketing materials submitted by FCCSU-LLC for review shall not be
unreasonably withheld.
(d) On-line Offering of Credit Cards. During the initial
term of this Agreement, Company agrees to provide site integration to FUSA and
FCCSU-LLC through impressions as well as other site integration (e.g. user
registration processing, bundling and other company marketing activities) for
the purpose of providing a vehicle to market and advertise the Program (the
"Impressions"). In order to test the optimal usage of the aforementioned
Impressions and/or to take advantage of information garnered through
FCCSU-LLC's use of the Impressions, FCCSU-LLC and Company may, exchange the
allotment of Impressions (i.e. banner advertisements, popup banner
advertisements, etc.). The Company agrees that during the term of this
Agreement it shall provide no less of a marketing and advertising commitment,
(both quantity and quality) than that which was provided in the preceding
period in order to ascertain the marketing goal and Advance earned within the
prior period. In other words, if in a given three (3) month period, the
Company provided 5,000,000 Impressions in order to ascertain the marketing
goal and Advance paid for the associated period pursuant to this Agreement,
then the Company shall provide no less than 5,000,000 Impressions for the
following three (3) months and all equivalent three (3) month periods thereafter
until termination of this Agreement. Essentially, it is agreed that the
Company will provide no less of a marketing commitment and provide at least
the same quantity and quality of Impressions as that which was provided so as
to earn the Advance level ascertained. The parties agree that at the end of
each year, FCCSU-LLC and the Company will meet to review the year-to-date
performance of the Program. If at the end of the year, the Program has not
attained the anticipated goals, then the parties may adjust the marketing
program by increasing the delivery of Impressions or the manner in which the
Impressions are displayed in order to attain the anticipated goals. Company
acknowledges and agrees that Company's provision of the Credit Card
advertising is material to FCCSU-LLC's decision to enter into this transaction
with Company and that a failure to provide the minimum advertising
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commitment described herein shall be deemed a material default under Section
11(b) of this Agreement.
(e) Further, this Program shall include the ability to process
Credit Card applications on-line at Company sites provided that processing
such applications does not violate applicable laws or regulations. Company
shall provide an icon on Company's Website (the "Company Credit Card
Application Vehicle") whereby Company Users shall be connected to the Company
Credit Card Application Vehicle. Company shall work with FCCSU-LLC in the
design, development and maintenance of same.
4. [Intentionally Omitted]
5. Fees.
(a) During the term of this Agreement (including any renewal terms
as provided in Paragraph 11 hereof) and in consideration of the use of
Company's Marks, the supplying of Impressions to FCCSU-LLC, and the Company's
endorsement of the Program, FCCSU-LLC shall pay to Company certain Marketing
Fees (the "Fees") as set forth on Exhibit A attached hereto.
(b) Notwithstanding any of the above, FCCSU-LLC shall not be
obligated to pay to the Company any duplicate Fees described in Exhibit A in
the event that the Accounts on which such fees are calculated represent
substitute Accounts, including, but not limited to, Accounts which are
established due to the loss or theft of a cardmember's existing Credit Card or
Accounts which were established as a result of former joint cardmembers
requesting individual Accounts.
(c) FCCSU-LLC shall provide Company with a reconciliation report
within sixty (60) days following the end of each calendar quarter setting
forth the amount of Fees earned by Company during such calendar quarter. Any
amounts owing to Company and payable pursuant to the terms of this Paragraph
5 shall be paid to Company within sixty (60) days following the end of such
calendar quarter.
(d) FCCSU-LLC's obligation to pay any of the aforementioned Fees
to the Company shall cease immediately upon the termination of this Agreement
for any reason whatsoever, provided that such Fees shall be reconciled and
paid to the date of termination.
6. Records.
During the term of this Agreement (including any renewals), FCCSU-LLC
shall keep accurate books of account and copies of all documents and other
material related to FCCSU-LLC's obligations under this Agreement at FUSA's
principal office, including without limitation (a) Marketing Fees, (b) all
Accounts established under this Agreement. The Parties agree that within
thirty (30) days of the Company's written request, but not more frequently
than once per year, Company, by its duly authorized agents and
representatives, shall have the right, upon reasonable notice to FCCSU-LLC, to
audit such books, documents and other material from time to time and shall
have access thereto during ordinary business hours, and shall be at liberty to
make copies of such books, documents and other material, subject to such
security procedures as FCCSU-LLC may reasonably impose and subject to such
limitations as may be required under applicable rules, regulations or statutes
governing the conduct of FCCSU-LLC's business. Company shall maintain the
confidentiality of all information obtained as a result of auditing FCCSU-LLC,
and shall not reveal any such information to any third party except in
connection with any
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legal action or other proceeding implemented to enforce any rights under this
Agreement. If any audit of FCCSU-LLC's books and records reveals that
FCCSU-LLC has failed to account for and pay Marketing Fees owed, FCCSU-LLC
shall promptly pay such underpayment.
7. Relationship. Nothing in this Agreement is intended to or shall
be construed to constitute or establish an agency, joint venture, partnership
or fiduciary relationship between the parties, and neither party shall have
the right or authority to act for or on behalf of the other party.
8. Confidentially
(a) The parties acknowledge and agree that the terms of this
Agreement and all information provided to or in connection with either party's
performance under this Agreement shall be considered confidential and
proprietary information ("Confidential Information") and shall not be
disclosed to any third party without the prior written consent of the party
providing the Confidential Information ("Disclosing Party"). Confidential
Information shall include, without limitation: (i) names, addresses, and
demographic, behavioral, and credit information relating to FCCSU-LLC
Cardholders, potential FCCSU-LLC Cardholders or the Lists provided to FCCSU-LLC
pursuant to Paragraph 2; (ii) marketing materials, strategies and targeting
methods; (iii) business objectives, assets and properties; and (iv)
programming techniques and technical, developmental, cost and processing
information.
(b) The party receiving such Confidential Information ("Receiving
Party") shall use Confidential Information only for the purpose of performing
the terms of this Agreement and shall not accumulate in any way or make use of
Confidential Information for any other purpose. The Receiving Party shall
ensure that only its employees, authorized agents, or subcontractors who need
to know Confidential Information to perform this Agreement will receive
Confidential Information and that such persons agree to be bound by the
provisions of this Paragraph and maintain the existence of this Agreement and
the nature of their obligations hereunder strictly confidential.
(c) The obligations with respect to Confidential Information shall
not apply to Confidential Information that: (i) either party or its personnel
already know at the time it is disclosed as shown by their written records;
(ii) is publicly known without breach of this Agreement; (iii) either party
received from a third party authorized to disclose it without restriction;
(iv) either party, its agents or subcontractors, developed independently
without use of Confidential Information; or (v) either party is required by
law, regulation or valid court or governmental agency order or request to
disclose, in which case the party receiving such an order or request, to the
extent practicable, must give notice to the other party, allowing them to seek
a protective order.
(d) Each party agrees that any unauthorized use or disclosure of
Confidential Information may cause immediate and irreparable harm to the
Disclosing Party for which money damages may not constitute an adequate
remedy. In that event, each party agrees that injunctive relief may be
warranted in addition to any other remedies the Disclosing Party may have. In
addition, the Receiving Party agrees promptly to advise the Disclosing Party
in writing of any unauthorized misappropriation, disclosure or use by any
person of the Confidential Information which may come to its attention and to
take all steps at its own expense reasonably requested by the Disclosing Party
to limit, stop or otherwise remedy such misappropriation, disclosure or use.
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(e) Upon either Party's demand, or upon the termination of this
Agreement, the Parties shall comply with each other's reasonable instructions
regarding the disposition of Confidential Information which may include return
of any and all Confidential Information (including any copies or reproductions
thereof). Such compliance shall be certified in writing, including a statement
that no copies of confidential information have been kept.
(f) Except as necessary for its performance under this Agreement
and/or the Marketing Agreement, neither Party shall use the name of the other
Party, its affiliates or subsidiaries in connection with any representation,
publication or advertisement, or make any public statement relating to the
other Party, its affiliates or subsidiaries, without the prior full disclosure
of same to the other Party, and the prior written consent of the respective
Party, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, either Party may utilize the name of the other
Party for the purpose of advertising within any Party related advertising
portfolio (e.g. SEC filings, Q's and 1OK's), without the prior written consent
of the respective Party.
(g) Except as may be required by law, regulation or any
governmental authority, neither Party, nor any of its affiliates, shall issue
a press release or make public announcement or any disclosure to any third
party related to the transactions contemplated by this Agreement without the
prior consent of the other Party, which consent shall not be unreasonably
withheld or delayed.
(h) The obligations of this Paragraph 8 shall survive the
termination of this Agreement for a period of two (2) years.
9. Representations and Warranties.
(a) FCCSU-LLC represents and warrants that (i) it is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware and (ii) the execution and delivery by
FCCSU-LLC of this Agreement, and the performance by FCCSU-LLC of the
transactions contemplated hereby, are within FCCSU-LLC's corporate powers, have
been duly authorized by all necessary corporate action, do not require any
consent or other action by or in respect of, or filing with, any third party
or governmental body or agency (other than informational filings required by
MasterCard or Visa), and do not contravene, violate or conflict with, or
constitute a default under, any provision of applicable law or regulation or
of the charter or by-laws of FCCSU-LLC or of any agreement, judgment,
injunction, order, decree or other instrument binding upon FCCSU-LLC.
(b) The Company represents and warrants that it is a Delaware
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Company further represents and warrants that
(i) the execution and delivery by Company of this Agreement, and the
performance by Company of the transactions contemplated hereby, are within
Company's powers, have been duly authorized by all necessary action, do not
require any consent or other action by or in respect of, filing with, any
third party or any governmental body or agency, and do not contravene, violate
or conflict with, or constitute a default under, any provision of applicable
law, regulation, or under any governing documents, charter or bylaw, or any
agreement, judgment, injunction, order, decree or other instrument binding on
Company; (ii) it is not currently aware of any claims, and is not currently
involved in any litigation, challenging Company's ownership of the Marks and
(iii) it is not aware of any claims, and is not currently involved in any
litigation, challenging the Company's access to the Web
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and/or the Internet. Company represents and warrants that it has the right,
power and authority to execute this Agreement and act in accordance herewith.
10. Release and Indemnification.
(a) FCCSU-LLC shall not be responsible in any way for any
misrepresentation, negligent act or omission or willful misconduct of Company,
its affiliates, officers, directors, agents, or employees in connection with
the entry into or performance of any obligation of Company under this
Agreement. Further, Company shall indemnify, defend and hold FCCSU-LLC
harmless from and against all claims, actions, suits or other proceedings, and
any and all losses, judgments, damages, expenses or other costs (including
reasonable counsel fees and disbursements), arising from or in any way
relating to (i) any actual or alleged violation or inaccuracy of any
representation or warranty of Company contained in Paragraph 9 above, (ii) any
actual or alleged infringement of any trademark, copyright, trade name or
other proprietary ownership interest resulting from the use by FCCSU-LLC
and/or FUSA of the Marks of Company as contemplated by this Agreement, and
(iii) any negligent act or omission or willful misconduct of Company or its
directors, officers, employees, agents or assigns in connection with the entry
into or performance of this Agreement.
(b) Company shall not be responsible in any way for any
misrepresentation, negligent act or omission or willful misconduct of
FCCSU-LLC, its affiliates, officers, directors, agents, or employees in
connection with the entry into or performance of any obligation of FCCSU-LLC
under this Agreement. Further, FCCSU-LLC shall indemnify, defend and hold
Company harmless from and against all claims, actions, suits or other
proceedings, and any and all losses, judgments, damages, expenses or other
costs (including reasonable counsel fees and disbursements), arising from or
in any way relating to (i) any actual or alleged violation or inaccuracy of
any representation or warranty of FCCSU-LLC contained in Paragraph 9 above,
(ii) any act or omission of FCCSU-LLC in connection with the marketing of
Credit Card(s), and (iii) any negligent act or omission or willful misconduct
of FCCSU-LLC or its directors, officers, employees, agents or assigns in
connection with the entry into or performance of this Agreement.
11. Term/Termination
(a) Subject to the provisions of subparagraphs 11(b), (c),
(d) and (e) below, this Agreement shall be effective as of the date hereof and
shall continue for an initial term of three (3) years (the "Initial Term").
Following the Initial Term, this Agreement shall be automatically renewed for
successive renewal terms of two (2) years each (the "Renewal Term(s)") unless,
at least ninety (90) days prior to the termination of the Initial Term or the
then current Renewal Term, either party shall have notified the other in
writing of its decision not to renew this Agreement. Notwithstanding the
foregoing, the Issuance and Servicing Agreement and this Agreement shall
terminate at the same time, so that the term of this Agreement shall not be
deemed to have been extended for a Renewal Term unless the Issuance and
Servicing Agreement has also been extended for the same Renewal Term. If the
terms hereof are to be amended in connection with any Renewal Term, an
appropriate addendum shall be added hereto reflecting, as applicable, the
revised terms hereof.
(b) If there is a material default by either party in the
performance of the terms and conditions of this Agreement, and such default
shall continue for a period of thirty (30) days after receipt by the
defaulting party of written notice thereof from the nondefaulting party
(setting forth in detail the nature of such default), then this Agreement
shall terminate at the option of the non-defaulting party as of the
thirty-first (31st) day following
the receipt of such written notice. If, however, the default cannot be
remedied within such thirty (30) day period, such time period shall be
extended for an additional period of not more than thirty (30) days, so long
as the defaulting party has notified the non-defaulting party in writing and
in detail of its plans to initiate substantive steps to remedy the default and
diligently thereafter pursues the same to completion within such additional
thirty (30) day period.
(c) 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 state or federal law.
(d) In the event that any material change in any federal,
state or local law, statute, operating rule or regulation, or any material
change in any operating rule or regulation of either MasterCard or Visa makes
the continued performance of this Agreement under the then current terms and
conditions unduly burdensome, then FCCSU-LLC shall have the right to terminate
this Agreement upon ninety (90) days advance written notice. Such written
notice shall include a detailed explanation and evidence of the burden imposed
as a result of such change.
(e) In the event that of any breach of a representation or
warranty set forth in Paragraph 9 of this Agreement, the non-breaching party
shall have the right to immediately terminate this Agreement and all of its
obligations contained herein by notice to the breaching party.
(f) Upon termination of this Agreement:
(i) Company shall promptly return to FCCSU-LLC all
marketing materials that have been supplied to Company by FCCSU-LLC, if any;
(ii) Except those provisions which by their terms
shall survive, all obligations to Company shall cease after the effective date
of termination.
12. Exclusivity.
(a) During the term of this Agreement, FCCSU-LLC shall have
the exclusive right to perform the credit card marketing services contemplated
by this Agreement. Company agrees that during the term hereof it shall not by
itself or in conjunction with others, directly or indirectly, or through any
parent, affiliate or subsidiary, offer, advertise, endorse, or facilitate any
on-line processing or enter into any agreement with any Competitor for the
provision of any credit card, charge card or credit card related products or
services to Company Customers. For the purposes of this Agreement, "Competitor"
shall mean any entity (other than FUSA or FCCSU-LLC) which advertises, markets,
issues or otherwise provides access to consumer card products or any entity
which is a member of the bankcard associations now known as Visa and
MasterCard. Visa and MasterCard themselves shall not be considered Competitors
so long as they are not representing, or otherwise working on behalf of, a
bankcard association member. Further, the Company agrees that during the term
hereof it shall not by itself or in conjunction with others, directly or
indirectly, or through any parent, affiliate or subsidiary, offer, advertise,
endorse, or facilitate any marketing or advertising, of any products and/or
services, regardless of whether the products or services are in the credit
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card category, to or on behalf of any of the following: MBNA American, N.A.,
Capital One, Providian, Associates Bank, Household Credit Corporation, Metris,
U.S. Bank Corporation and Advanta (the "Specific Competitors"). Additionally,
the parties agree that any future Competitor shall be defined as any
individual, corporation, corporate division, retail site, Web site or other
entity that either derives more than fifty percent (50%) of its annual gross
revenues from the issuance of consumer card products, or is primarily known as
an issue of consumer card products. Notwithstanding the foregoing, the Company
may accept advertising (e.g. banners on a web page) from a Competitor, but not
a Specific Competitor, provided that the advertising does not include the
advertising of credit cards or charge cards, nor does the advertising enable a
Internet user to link directly to a web page that is used to process, accept,
and/or market applications for any credit card, charge card or credit card
related products or services.
(b) In the event Company desires to introduce any current new or
unaddressed product, service, property and/or entity relating to consumer
credit products and related services ("New Product") by itself or through
another entity, Company agrees to work with FCCSU-LLC, so as to negotiate in
good faith an agreement whereby FCCSU-LLC could provide some or all of its
products or services through or on behalf of the New Product.
13. Non-Competition. With respect to all Accounts established
pursuant to this Agreement, Company agrees that neither Company, nor any entity
which Company controls including any parent, affiliate or subsidiary, shall by
itself or in conjunction with others, during the term of this Agreement
(including any Renewal Term) and for a period of one (1) year following the
termination of this Agreement for any reason whatsoever, specifically target
any offer of a credit card, charge card or credit card related product to
cardmembers possessing an Account.
14. Notices. Any and all notices or other communications required
or permitted under this Agreement shall be in writing and shall be delivered
either by personal delivery; by telex, telegram, mailgram or telecopy; by
nationally recognized overnight courier service; or by certified or registered
mail, return receipt requested, addressed as follows:
If to FCCSU-LLC, to:
FIRST CREDIT CARD SERVICES USA L.L.C.
Three Xxxxxxxxx Centre
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Manager
with a copy to:
General Counsel
General Counsel
iVILLAGE INC.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with copies to:
Attention: Vice President of Finance/Legal Affairs
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or to such other person or address as either party shall have previously
designated to the other by written notice given in the manner set forth above.
Where notice requires a response in ten (10) or less business days, the notice
should be sent by hand delivery or telecopy. Notices shall be deemed given one
day after sent, if sent by telex, telegram, mailgram, telecopy or by overnight
courier; when delivered and receipted for, if hand delivered; or when
receipted for (or upon the date of attempted delivery where delivery is
refused) if sent by certified or registered mail, return receipt requested.
15. Alternative Dispute Resolution. Company and FCCSU-LLC hereby
waive their rights to resolve disputes through any court proceeding or
litigation and acknowledge that all disputes shall be resolved pursuant to
Paragraphs 16 and 17 as referenced below, except that equitable relief may be
sought pursuant to Section 8 from any court of competent jurisdiction. Both
parties represent to the other that this waiver is made knowingly and
voluntarily after consultation with and upon the advice of counsel and is a
material part of this Agreement.
16. Informal Dispute Resolution. Any controversy or claim between
Company, on the one hand, and FCCSU-LLC on the other hand, arising from or in
connection with this Agreement or the relationship of the parties under this
Agreement whether based in contract, tort, common law, equity, statute,
regulation, order or otherwise ("Dispute") shall be resolved as follows:
(a) Upon written request of either Company, on the one hand, or
FCCSU-LLC on the other hand, a duly appointed representative(s) of each party
will meet for the purpose of attempting to resolve such Dispute. Should they
be unable to resolve the Dispute, the designated representative of iVILLAGE,
INC. will meet with FCCSU-LLC's Executive Vice President of Marketing (the
"Executives") in an effort to resolve the Dispute. Said meeting shall be in
person or by telephone.
(b) The Executives shall meet as often as the parties agree to
discuss the problem in an effort to resolve the Dispute without the necessity
of any formal proceeding.
(c) Formal proceedings for the resolution of a Dispute may not be
commenced until the earlier of
i. the parties concluding in good faith that amicable
resolution through the procedures set forth in subsections
(a)-(b) hereof does not appear likely; or
ii. the expiration of a thirty-five (35) day period immediately
following the initial request to negotiate the Dispute;
provided, however, that this Paragraph will not be construed to prevent a
party from instituting formal proceedings earlier to avoid the expiration of
any applicable Statute of Limitations or to preserve a superior position with
respect to other creditors or to seek temporary or preliminary injunctive
relief. The commencement of a proceeding pursuant to this provision does not
relieve a party from the executive consultation requirement contained in this
Paragraph.
10
17. Arbitration.
(a) If the parties are unable to resolve any Dispute as contemplated
above, such Dispute shall be submitted to mandatory and binding arbitration at
the election of either Company, on the one hand, or FCCSU-LLC on the other
hand (the "Disputing Party"). Except as otherwise provided in this Paragraph,
the arbitration shall be pursuant to the Code of Procedure of the National
Arbitration Forum ("NAF'), X.X. Xxx 00000, Xxxxxxxxxxx, XX 00000, (800)
474-2371.
(b) To initiate arbitration, the Disputing Party shall notify the
other party in writing (the "Arbitration Demand") with a copy to the NAF,
which shall (i) describe in reasonable detail the nature of the Dispute, (ii)
state the amount of the claim, and, (iii) specify the requested relief. Within
fifteen (15) days after the other party's receipt of the Arbitration Demand,
such other party shall file, and serve on the Disputing Party, a written
statement (i) answering the claims set forth in the Arbitration Demand and
including any affirmative defenses of such party; (ii) asserting any
counterclaim, which shall describe in reasonable detail the nature of the
Dispute relating to the counterclaim, state the amount of the counterclaim,
and specify the requested relief.
(c) If the amount of the controversy set forth in either the claim or
counterclaim is less than $100,000, then the matter shall be resolved by a
single Arbitrator selected pursuant to the rules of the NAF.
(d) If the amount of the controversy set forth in either the claim or
counterclaim is equal to or exceeds $100,000, then the matter shall be
resolved by a panel of three arbitrators (the "Arbitration Panel") selected
pursuant to the rules of the NAF. Decisions of a majority of the members of the
Arbitration Panel shall be determinative.
(e) The arbitration hearing shall be held in such neutral location as
the parties may mutually agree or, if they cannot agree, Wilmington, Delaware.
The Arbitrator or Arbitration Panel is specifically authorized in proceeding
pursuant to Section (d) to render partial or full summary judgment as provided
for in the Federal Rules of Civil Procedure. Unless otherwise agreed by the
parties, partial or full summary judgment shall not be available in
proceedings pursuant to subsection (c) above. In the event summary judgment or
partial summary judgment is granted, the non-prevailing party may not raise as
a basis for a motion to vacate an award that the Arbitrator or Arbitration
Panel failed or refused to consider evidence bearing on the dismissed claim(s)
or issue(s). The Federal Rules of Evidence shall apply to the arbitration
hearing. The party bringing a particular claim or asserting an affirmative
defense will have the burden of proof with respect thereto. The arbitration
proceedings and all testimony, filings, documents and information relating to
or presented during the arbitration proceedings shall be deemed to be
information subject to the confidentiality provisions of this Agreement. The
Arbitration Panel will have no power or authority, under the Code of Procedure
of the NAF or otherwise, to relieve the parties from their agreement hereunder
to arbitrate or otherwise to amend or disregard any provision of this
Agreement, including, without limitation, the provisions of this Paragraph.
(f) Should an Arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Paragraph, the Arbitrator shall
be replaced pursuant to the rules of the NAF. If an arbitrator is replaced
after the arbitration hearing has commenced, then a rehearing shall take place
in accordance with this Section and the Code of Procedure of the NAF.
11
(g) At the time of granting or denying a motion of summary judgment
as provided for in (e) and within fifteen (15) days after the closing of the
arbitration hearing, the Arbitrator or Arbitration Panel will prepare and
distribute to the parties a writing setting forth the Arbitrator's or
Arbitration Panel's finding of facts and conclusions of law relating to the
Dispute, including the reasons for the giving or denial of any award. The
findings of fact and the conclusions of law along with the award, if any,
shall be deemed to be information subject to the confidentiality provisions of
this Agreement.
(h) The Arbitrator of Arbitration Panel is instructed to schedule
promptly all discovery and other procedural steps and otherwise to assume case
management initiative and control to effect an efficient and expeditious
resolution of the Dispute. The Arbitrator or Arbitration Panel is authorized
to issue monetary sanctions against either party if, upon a showing of good
cause, such party is unreasonably delaying the proceeding.
(i) Any award rendered by the Arbitrator or Arbitration Panel will
be final, conclusive and binding upon the parties and any judgment hereon may
be entered and enforced in any court of competent jurisdiction.
(j) Each party will bear a pro rata share of all fees, costs and
expenses of the Arbitrators, and notwithstanding any law to the contrary, each
party will bear all the fees, costs and expenses of its own attorneys, experts
and witnesses; provided, however, that in connection with any judicial
proceeding to compel arbitration pursuant to this Agreement or to confirm,
vacate or enforce any award rendered by the Arbitrator or Arbitration Panel,
the prevailing party in such a proceeding shall be entitled to recover
reasonable attorney's fees and expenses incurred in connection with such
proceedings, in addition to any other relief to which it may be entitled.
18. Entire Agreement/Amendment. This Agreement, including exhibits,
constitutes the entire understanding between the parties with respect to the
subject matter, and supersedes all prior written and oral proposals,
understandings, agreements and representations, all of which are merged
herein. No amendment or modification of this agreement shall be effective
unless it is in writing and executed by all of the parties hereto.
19. Non-Waiver of Default. The failure of either party to insist, in
any one or more instances, on the performance of any terms or conditions of
this Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or of the future performance of any such term or
condition, and the obligations of the non-performing party with respect
thereto shall continue in full force and effect.
20. Severability. In the event that any provision of this Agreement
shall, for any reason, be deemed to be invalid and unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect.
12
21. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware without
regard to its conflict of law principles.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
iVILLAGE, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------
(type/print name & title below line)
Xxxxxx Xxxxx
VP Finance/Legal Affairs
FIRST CREDIT CARD SERVICES USA L.L.C.
By: /s/ Xxxxxx Xxxxxxx
-------------------------
(type/print name & title below line)
Xxxxxx Xxxxxxx
F.C.C.S. CEO
13
EXHIBIT A
FEES
During the term of this Agreement and any renewal terms
thereof, FCCSU-LLC agrees to pay to Company the following in conjunction with
the marketing of the Program which is the subject of this Agreement.
1. FCCSU-LLC shall pay to Company a one-time payment in the sum of
[*] dollars. The payment shall be due to Company by FCCSU-LLC upon the display
of the first of the Impressions, scheduled for the 31st of May 1998, 1998 (the
"Launch Date") and paid within forty-five (45) days thereafter.
2. Furthermore, FCCSU-LLC shall pay to the Company four equal
quarterly payments of [*] dollars. The first quarterly payment shall be due
ninety (90) days after the Launch Date and paid within thirty (30) days
thereafter. Each additional quarterly payment of [*] dollars shall be due within
ninety (90) days of the prior quarterly payment and paid within thirty (30) days
thereafter.
3. In addition, FCCSU-LLC shall advance the following sums (the
"Advance(s)") to be offset against all amounts earned by the Company under
this Program. The Advance shall be paid as follows:
a.) Within Three (3) months after the Launch Date: If the
Company adds the following aggregate Accounts within three (3) months
after the Launch Date, then the Company will be paid the respective
Advance:
Three Months after the Accounts Attained Additional Advance:
Launch Date:
1.) [*] [*]
2.) [*] [*]
3.) [*] [*]
b.) Within Six (6) months after the Launch Date: If the
Company adds the following incremental Accounts within six (6) months
after the Launch Date, then the Company will be paid the respective
Advance:
Six Months after the Additional Accounts: Additional Advance:
Launch Date:
1.) [*] $[*]
2.) [*] $[*]
3.) [*] $[*]
All Marketing Fees earned shall be off-set against all Advances paid as a
result of the Agreement.
[*] Confidential treatment requested.
4. After the first [*] Accounts are opened, the Company shall be
paid a minimum of a $[*] Marketing Fee for every Account opened thereafter
during the term of this Agreement and during any extensions and/or renewals.
5. Furthermore, FCCSU-LLC agrees that if after the first [*]
Accounts are opened the Company's performance exceeds the below listed
projected account goal for any given quarter during the remaining term of this
Agreement, that FCCSU-LLC will retroactively increase the Marketing Fee
applicable to the quarter, and only that quarter, in accordance with the
following schedule:
QUARTERLY MARKETING FEE INCREASE:
OPENED ACCOUNTS: INCREMENTAL INCREASE:
[*] $[*]
[*] $[*]
[*] $[*]
[*] $[*]
The cumulative opened Accounts for each remaining quarter shall be
deemed to be zero (0) as of beginning of each quarter for the purpose of
establishing the Marketing Fee Incremental Increase.
For example, in the first quarter, after the opening of [*]
Accounts, the Company shall be paid a Marketing Fee of $[*] for each Account
opened. If in that first cumulative quarter, the Company opens [*] Accounts,
then the Company will be paid a $[*] incremental increase for the [*]
opened Accounts, retroactively (essentially an additional Marketing Fee of
$[*]). If in the next applicable quarter, the Company opens an incremental
[*] Accounts (for a cumulative total of [*] Accounts) then the Company
will be paid a $[*] increase for the [*] incremental opened Accounts,
retrospectively (essentially an additional Marketing Fee of $[*]).
If this Agreement is terminated by FCCSU-LLC and/or its affiliates,
then the payment of any and all future Advances, shall immediately cease.
15
[*] Confidential treatment requested.
EXHIBIT B
LICENSED MARKS
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