AGREEMENT
THIS is entered into as of this 30th day of January, 2001 (the "Effective Date")
by and between MBNA AMERICA BANK, N.A., a national banking association having
its principal place of business in Wilmington, Delaware (hereinafter referred to
as 'MBNA America"), and Clip Xxxx.xxx, a Canadian corporation having its
principal place of business at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx (hereinafter referred to as "CC") for themselves, and their
respective successors and assigns.
1. DEFINITIONS
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When used in this Agreement
(a) "Agreement" means this agreement and Schedule A, B and C.
(b) "Credit Card Account" means a Credit Card Account opened by a Member in
response to marketing efforts made pursuant to the Program that has a credit
device that does not bear a trademark.
(c) "Customer" means any Member who is a participant in the Program.
(d) "Financial Service Products" means credit card programs, charge card
programs, debit card programs and travel and entertainment card programs.
(e) "Mailing Lists" means updated and current lists and/or magnetic tapes
(in a format designated by MBNA America) containing names, postal addresses and,
when available, telephone numbers of Members segmented by zip codes or
reasonably selected membership characteristics.
(f) "Member" means a customer of CC and/or other potential participants
mutually agreed to by CC and MBNA America.
(g) "Program" means those programs and services of the Financial Service
Products MBNA America agrees to offer pursuant to this Agreement to the Members
from time to time.
(h) "Royalties" means the compensation set forth in Schedule B.
(i) "Trademarks" means any design, image, visual representation, logo,
service xxxx, trade dress, trade name, or trademark used or acquired by CC
during the term of this Agreement.
(j) "CC Affiliate" means any entity controlling, controlled by or under the
common control with CC.
2. RIGHTS AND RESPONSIBILITIES OF CC
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(a) CC agrees that during the term of this Agreement it will endorse the
Program exclusively and that neither CC nor any CC Affiliate shall, by itself
or in conjunction with others directly or
indirectly (i) sponsor, advertise, aid, develop, market, solicit proposals
for programs offering, or discuss with any organization (other than MBNA
America) the providing of, any Financial Service Products of any
organization other than MBNA America ; (ii) license or allow others to license
the Trademarks in relation to or for promoting any Financial Service Products of
any entity other than MBNA America ; and (iii) sell, rent or otherwise make
available or allow others to sell, rent or otherwise make available any of its
mailing lists or information about any current of potential Members in relation
to or for promoting any Financial Service Products of any entity other than MBNA
America. Notwithstanding anything else in this Agreement to the contrary, CC
may accept advertising from any financial institution provided that the
advertisement does not contain an express or implied endorsement by CC of said
financial institution or the advertised Financial Service Product.
(b) CC agrees to provide MBNA America with such information and assistance
as may be reasonably requested by MBNA America in connection with the Program.
(c) CC authorizes MBNA America to solicit its Members by mail, direct
promotion, advertisements and/or telephone for participation in the Program.
(d) CC shall have the right or prior approval of all Program advertising and
solicitation materials to be used by MBNA America, which contain CC's Trademark;
such approval shall not be unreasonably withheld or delayed. In the event that
MBNA America incurs a cost because of a change in the Trademarks (e.g., the cost
of reissuing new credit cards), MBNA America may deduct such costs from
Royalties due CC. In the event such costs exceed Royalties then due CC, CC
shall promptly reimburse MBNA America for all such costs.
(e) Upon the request of MBNA America, CC shall provide MBNA America with
Mailing Lists free of any charge. In the event that MBNA America incurs a cost
because of a charge assessed by CC or its agents for an initial Mailing List or
an update to that list, MBNA America may deduct such costs from Royalties due
CC. CC shall provide the initial Mailing List, containing at least fifty-five
thousand (55,000) non-duplicate names with corresponding valid postal addresses
and, when available, telephone numbers, as soon as possible but no later than
thirty (30) days after CC's execution of this Agreement.
(f) CC shall only provide information to or otherwise communicate with
Members or potential members about the Program with MBNA America's prior written
approval, except for current advertising and solicitation materials provided by
MBNA America to CC. Notwithstanding the above, CC may respond to individual
inquiries about the Program from its Members on an individual basis, provided
that said responses are accurate and consistent with the then-current materials
provided by MBNA America to CC. Any correspondence received by CC that is
intended for MBNA America (e.g. applications, payments, billing inquiries, etc.)
shall be forwarded to MBNA America account execute via overnight courier within
24 hours of receipt. All charges incurred for this service will be paid by MBNA
America.
(g) CC hereby grants MBNA America and its affiliates a limited, exclusive
license to use the Trademarks solely in conjunction with the Program,
including the promotion thereof. This license shall be transferred upon
assignment of this Agreement. This license shall remain in effect for the
duration of this Agreement and shall apply to the Trademarks,
notwithstanding the
transfer of such Trademarks by operation of law or otherwise to any
permitted successor, corporation, organization or individual. Nothing stated in
this Agreement prohibits CC from granting to other persons a license to use the
Trademarks in conjunction with the providing of any other service or product,
except for any Financial Service Products.
(h) CC shall permit MBNA America to advertise the Program on its home page
and at other prominent locations within the internet site of CC. MBNA America
may establish a "hot-link" from such advertisements to another internet site to
enable a person to apply for a Credit Card Account. Any Credit Card Accounts
generated pursuant to such a "hot-link" shall entitle CC to the Royalties set
forth in Schedule B, subject to the other terms and conditions of this
Agreement. CC shall modify or remove such advertisements within twenty-four
(24) hours of MBNA America's request.
3. RIGHTS AND RESPONSIBILITIES OF MBNA AMERICA
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(a) MBNA America shall design, develop and administer the Program for the
Members.
(b) MBNA America shall design all advertising, solicitation and promotional
materials with regard to the Program. MBNA America reserves the right of prior
written approval of all advertising and solicitation materials concerning or
related to the Program, which may be developed by or on behalf of CC.
(c) MBNA America shall bear all costs of producing and mailing materials for
the Program.
(d) MBNA America shall make all credit decisions and shall bear all credit
risks with respect to each Customer's account(s) independently of CC.
(e) MBNA America shall use the Mailing Lists provided pursuant to this
Agreement consistent with this Agreement and shall not permit those entities
handling these Mailing List to use them for any other purpose. MBNA America
shall have the sole right to designate Members on these Mailing Lists to whom
promotional material will not be sent. These Mailing Lists are and shall remain
the sole property of CC. However, MBNA America may maintain separately all
information which it obtains as a result of an account relationship or an
application for an account relationship. This information becomes a part of
MBNA America's own files and shall not be subject to this Agreement; provided
however that MBNA America will not use this separate information in a manner
that would imply an endorsement by CC.
4. REPRESENTATION AND WARRANTIES
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(a) CC and MBNA America each represents and warrants to the other that as of
the Effective Date and throughout the term of this Agreement:
i. It is duly organized, validly existing and in good standing.
ii. It has all necessary power and authority to execute and deliver this
Agreement and to perform its obligations under this Agreement.
iii. This Agreement constitutes a legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, receivership,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity.
iv. No consent, approval or authorization from any third party is required
in connection with the execution, delivery and performance of this Agreement,
except such as have been obtained and are in full force and effect.
v. The execution, delivery and performance of this Agreement by such party
will not constitute a violation of any law, rule, regulation, court order or
ruling applicable to such party.
(b) CC represents and warrants to MBNA America as of the date hereof and
throughout the term of this Agreement that it has the right and power to license
the Trademarks to MBNA America for use as contemplated by this Agreement. CC
will hold MBNA America, its directors, officers, agents, employees, affiliates,
successors and assigns harmless from and against all liability, causes of
action, and claims, and will reimburse MBNA America's reasonable and actual
costs in connection therewith, arising from the Trademark license granted herein
or from MBNA America's use of the Trademarks in reliance thereon. Each party
shall promptly notify the other party in the manner provided herein upon
learning of any claims or complaints relating to such license or the use of any
Trademarks.
5. ROYALTIES
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(a) During the term of this Agreement, MBNA America shall pay Royalties to
CC. Royalties will not be paid without a completed Schedule C (W-9 Form and ET
Form). Except as otherwise provided in Schedule B, payment of Royalties then
due shall be made approximately forty-five (45) days after the end of each
calendar quarter.
(b) On or before the forty-fifth (45th) day after the end of each calendar
quarter during the term of this Agreement, MBNA America will provide CC with a
statement showing the number of Credit Card Accounts opened.
6. PROGRAM ADJUSTMENTS
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A summary of the current features of the program are set forth in Schedule A.
MBNA America reserves the right to make periodic adjustments to the Program and
its terms and features.
7. CONFIDENTIALITY OF AGREEMENT
------------------------------
The terms of this Agreement, any proposal, financial information provided by or
on behalf of one party to the other party prior to, contemporaneously with, or
subsequent to, the execution of this Agreement ("Information") are confidential
as of the date of disclosure. Such Information will not be disclosed by such
other party to any other person or entity, except as permitted under this
Agreement or as mutually agreed in writing. MBNA America and CC shall be
permitted to disclose such Information (i) to their accountants, legal,
financial and marketing advisors, and
employees as necessary for the performance of their respective duties, provided
that said persons agree to treat the Information as confidential in the above
described manner and (ii) as required by law or by any governmental regulatory
authority.
8. TERM OF AGREEMENT
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The initial term of this Agreement will begin on the Effective Date and end on
March 30, 2004. This Agreement will automatically extend at the end of the
initial term or any renewal term for successive one-year periods, unless either
party gives written notice of its intention not to renew at least ninety (90)
days, but not more than one hundred eighty (190) days, prior to the last date of
such term or renewal term, as applicable.
9. STATE LAW GOVERNING AGREEMENT
--------------------------------
This Agreement shall be governed by and subject to the laws of the State of
Delaware (without regard to its conflict of laws principles) and shall be deemed
for all purposes to be made and fully performed in Delaware.
10. TERMINATION
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(a) In the event of any material breach of this Agreement by MBNA America or
CC, the other party may terminate this Agreement by giving notice, as provided
herein, to the breaching party. This notice shall (i) describe the material
breach; and (ii) state the party's intention to terminate this Agreement. If
the breaching party does not cure or substantially cure such breach within sixty
(6) days after receipt of notice, as provided herein (the "Cure Period"), then
this Agreements shall terminate sixty (60) days after the Cure Period.
(b) If either MBNA America or CC becomes insolvent in that its liabilities
exceed its assets, or is adjudicated insolvent, or takes advantage of or is
subject to any insolvency proceeding, or makes an assignment for the benefit of
creditors or is subject to receivership, conservatorship or liquidation then the
other party may immediately terminate this Agreement.
(c) Upon termination of this Agreement, MBNA America shall, in a manner
consistent with Section 10(d) of this Agreement, cease to use the Trademarks.
MBNA America agrees that upon such termination it will not claim any right,
title, or interest in or to the Trademarks or to the Mailing Lists provided
pursuant to this Agreement. However, MBNA America may conclude all solicitation
that is required by law.
(d) MBNA America shall have the right to prior review and approval of any
notice in connection with, relating or referring to the termination of this
Agreement to be communicated by CC to the Members. Such approval shall not be
unreasonably withheld. Upon termination of this Agreement, CC shall not attempt
to cause the removal of CC's identification or Trademarks from any person's
credit devices, checks or records of any Customer existing as of the effect date
of termination of this Agreement.
(e) In the event that any material change in any applicable law, statute,
operating rule or regulation, or any material change in any operating rule or
regulation of either VISA or MasterCard makes the continued performance of this
Agreement under the then current terms and conditions unduly burdensome, then
MBNA America shall have the right to terminate this Agreement upon ninety (90)
days advance written notice. Such written notice shall include an explanation
and evidence of the burden imposed as a result of such change.
11. MISCELLANEOUS
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(a) This Agreement cannot be amended except by written agreement signed by
the authorized agents of both parties hereto.
(b) The obligations in Sections 4(b), 7, 10(c) and 10(d) shall survive any
termination of this Agreement.
(c) The failure of any party to exercise any rights under this Agreement
shall not be deemed a waiver of such right or any other rights.
(d) The section captions are inserted only for convenience and are in no way
to be construed as part of this Agreement.
(e) If any part of this Agreement shall for any reason be found or held
invalid or unenforceable by any court or governmental agency of competent
jurisdiction, such invalidity or unenforceability shall not affect the remainder
of this Agreement which shall survive and be construed as if such invalid or
unenforceable part had not been contained herein.
(f) All notices relating to this Agreement shall be in writing and shall be
deemed given (i) upon receipt by hand delivery, facsimile or overnight courier,
or (ii) three (3) business days after mailing by registered or certified mail,
postage prepaid, return receipt requested. All notices shall be addressed as
follows:
(1) If to CLIP XXXX.XXX:
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
ATTENTION: Xxxxxxxx Xxxxxx, Vice President of Marketing
Fax #: 000-000-0000
(2) If to MBNA America:
MBNA AMERICA BANK, N.A.
Xxxxxx Square
Wilmington, Delaware 19884
ATTENTION: Xx. Xxxxxxx X. Xxxxxxxx
SEVP, Business Development
Fax #: 000-000-0000
Any party may change the address to which communications are to be sent by
giving notice, as provided herein, of such change of address.
(g) This Agreement contains the entire agreement of the parties with respect
to the matters covered herein and supersedes all prior promises and agreements,
written or oral, with respect to the matters covered herein. Without the prior
written consent of MBNA America, which shall not be unreasonably withheld, CC
may not assign any of its rights or obligations under or arising from this
Agreement. MBNA America may assign any of its rights or obligations under this
Agreement to any other person without the prior written consent of CC. MBNA
America may utilize the services of any third party in fulfilling its
obligations under this Agreement.
(h) MBNA America and CC are not agents, representatives or employees of each
other and neither party shall have the power to obligate or bind the other in
any manner except as otherwise expressly provided by this Agreement.
(i) Nothing expressed or implied in this Agreement is intended or shall be
construed to confer upon or give any person other than CC and MBNA America,
their successors and assigns any rights or remedies under or by reason of this
Agreement.
(j) Neither party shall be in breach hereunder by reason of its delay in the
performance of or failure to perform any of its obligations herein if such delay
or failure is caused by strikes, acts of God or the public enemy, riots,
incendiaries, interference by civil or military authorities, compliance with
governmental laws, rules, regulations, delays in transit or delivery, or any
event beyond its reasonable control or without its fault or negligence.
(k) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, each of the parties, by its representatives, has executed
this Agreement as of the Effective Date.
CLIP XXXX.XXX
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: CEO
Date: Dec 22 2000
MBNA AMERICA BANK, N.A.
By: /s/ signed
Name: Xxxxxxx X. Xxxxxxxx
Title: Div. Pres.
Date: 1/30/01
SCHEDULE A
TERMS AND CONDITIONS
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The terms and conditions governing the Credit Card Accounts will vary depending
upon the given credit card program for which the Member applies.
SCHEDULE B
ROYALTIES
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Subject to (i) MBNA America's right to vary the Program and its terms and
features, and (ii) the applicable agreement entered into between MBNA America
and each Customer.
A. CREDIT CARD ACCOUNTS
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1). $40.00 (forty dollars) for each Credit Card Account opened, which
remains open for at least ninety (90) consecutive days, and which is utilized by
the Customer for at least one purchase or cash advance during the aforementioned
ninety (90) day period which is not subsequently rescinded, the subject of a
charge back request, or otherwise disputed.
