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EXHIBIT 10.12
CYBERGOLD, INC.
A F F I N I T Y A G R E E M E N T
This Agreement is entered into as of this 20th day of November, 1998 (the
"Effective Date") by and between MBNA AMERICA BANK, N.A., a national banking
association having its principal place of business in Wilmington, Delaware
("MBNA America"), and CYBERGOLD, INC., a corporation having its principal place
of business in Berkeley, California ("CYBERGOLD") for themselves, and their
respective successors and assigns.
1. DEFINITIONS
When used in this Agreement,
(a) "Agreement" means this agreement and Schedules A, B, C and D.
(b) "Credit Card Account" means a credit card account opened by a Member in
response to marketing efforts made pursuant to the Program.
(c) "Customer" means any Member who is a participant in the Program.
(d) "Financial Service Products" means credit card programs, charge card
programs, and debit card programs (that either contain a credit feature or that
utilize a MasterCard, Visa, American Express, Novus system or other major debit
card system). The definition of Financial Service Products shall not include
private label card programs (i.e. individual store branded card program)
provided no Trademarks appear on the front/face of the credit device.
(e) "Group Incentive Program" or "GIP" means any marketing or other program
whereby CYBERGOLD conducts solicitation efforts for the Program, and the
parties mutually agree that such marketing or other program shall constitute a
GIP.
(f) "GIP Account" means a Credit Card Account opened by a Member pursuant to a
GIP in which CYBERGOLD complies with the GIP provisions of this Agreement.
(g) "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.
(h) "Member" means a member of CYBERGOLD and/or other potential participants
mutually agreed to by CYBERGOLD and MBNA America.
(i) "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.
(j) "Royalties" means the compensation set forth in Schedule B.
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(k) "Trademarks" means any design, image, visual representation, logo, service
xxxx, trade dress, trade name, or trademark used or acquired by CYBERGOLD
during the term of this Agreement.
(l) "CYBERGOLD Affiliate" means any entity controlling, controlled by or under
the common control with CYBERGOLD.
2. RIGHTS AND RESPONSIBILITIES OF CYBERGOLD
(a) CYBERGOLD agrees that during the term of this Agreement it will endorse
the Program exclusively and that neither CYBERGOLD nor any CYBERGOLD 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 issued and/or marketed in the
United States or its territories of any organization other than MBNA America;
(ii) license or allow others to license issued and/or marketed in the United
States or its territories 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 or 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, CYBERGOLD may accept
advertising from any financial institution provided that the advertisement does
not contain an express or implied endorsement by CYBERGOLD of said financial
institution or an express or implied endorsement by CYBERGOLD of the advertised
Financial Service Product.
(b) CYBERGOLD agrees to provide MBNA America with such information and
assistance as may be reasonably requested by MBNA America in connection with
the Program.
(c) CYBERGOLD authorizes, upon CYBERGOLD's approval, MBNA America to solicit
its Members by mail, direct promotion, advertisements and/or telephone for
participation in the Program.
(d) CYBERGOLD shall have the right of prior approval of all Program
advertising and solicitation materials to be used by MBNA America, which
contain CYBERGOLD'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 CYBERGOLD. In the event such costs exceed
Royalties then due CYBERGOLD, CYBERGOLD shall promptly reimburse MBNA America
for all such costs.
(e) Upon the request of MBNA America, CYBERGOLD shall provide MBNA America
with Mailing Lists free of any charge (the parties understand and agree that
any Mailing List provided by CYBERGOLD pursuant to this Agreement may not
include those names and addresses of Members who have expressly prohibited
CYBERGOLD from transferring their names and
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addresses to third parties. Upon the request of MBNA America, CYBERGOLD shall
provide MBNA America with the e-mail addresses of Customers free of any charge
(the parties understand and agree that any e-mail addresses provided by
CYBERGOLD pursuant to this Agreement may not include those e-mail addresses of
Customers who have expressly prohibited CYBERGOLD from transferring their
e-mail addresses to third parties).
(f) CYBERGOLD 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 CYBERGOLD. Notwithstanding the above, CYBERGOLD 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 CYBERGOLD. Any
correspondence (i.e., mail, e-mail, etc.) received by CYBERGOLD that is
intended for MBNA America (e.g., applications, payments, billing inquiries,
etc.) shall be forwarded to the MBNA America account executive via overnight
courier within 24 hours of receipt. All charges incurred for this service will
be paid by MBNA America.
(g) CYBERGOLD 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. CYBERGOLD shall
provide MBNA America all Trademark production materials (e.g., camera ready
art) required by MBNA America for the Program, as soon as possible but no later
than thirty (30) days after CYBERGOLD's execution of this Agreement. Nothing
stated in this Agreement prohibits CYBERGOLD 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) During the term of this Agreement and for a period after the termination
of this Agreement (as such period is set forth in Schedule D), CYBERGOLD, at
its sole cost and expense (except as otherwise provided herein), shall provide
the Customers with the benefits and services set forth in Schedule D, in
accordance with the terms and provisions contained therein.
3. RIGHTS AND RESPONSIBILITIES OF MBNA AMERICA
(a) MBNA America shall design, develop and administer the Program for the
Members.
(b) Except as otherwise provided in Section 4(a), 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 CYBERGOLD.
(c) MBNA America shall bear all costs of producing and mailing materials for
the Program.
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(d) MBNA America shall make all credit decisions and shall bear all credit
risks with respect to each Customer's account(s) independently of CYBERGOLD.
(e) MBNA America shall use the Mailing Lists (and e-mail addresses provided by
CYBERGOLD) provided pursuant to this Agreement consistent with this Agreement
and shall not permit those entities handling these Mailing Lists 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 CYBERGOLD.
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 CYBERGOLD.
4. GROUP INCENTIVE PROGRAM
(a) MBNA America shall design all advertising, solicitation and promotional
material with regard to the Program, except with respect to those materials
designed by CYBERGOLD pursuant to any GIP. In that regard, CYBERGOLD shall give
MBNA America thirty (30) days prior notice of its desire to engage in marketing
efforts regarding the Program itself, specifying that accounts generated from
such efforts will entitle CYBERGOLD to the Royalty specified in Schedule B,
subject to the other terms and conditions of this Agreement. The parties agree
to use commercially reasonable efforts to begin marketing the Program as
quickly as possible after the Effective Date. The parties understand and agree
that notwithstanding such efforts, marketing of the Program will not begin
until after December 15, 1998.
(b) All marketing materials generated as a result of such GIP programs shall
be source coded by CYBERGOLD for tracking purposes with source codes provided
by MBNA. Marketing materials or telemarketing inquiries from Members which, in
either case, do not contain or reference such coding shall not be considered
eligible for any of the GIP Royalty as set forth in Schedule B.
(c) In addition to all other rights it may have under this Agreement, MBNA
America shall have the right of prior approval of all advertising and
solicitation materials distributed by CYBERGOLD pursuant to any GIP. MBNA
America shall have approval and control of the scope, timing, content and
continuation of any GIP.
(d) All costs incurred by MBNA America in producing and mailing materials
created pursuant to any GIP or of supporting the marketing efforts of CYBERGOLD
pursuant to any GIP shall be deducted from any or all Royalty payments due
CYBERGOLD under this Agreement.
(e) CYBERGOLD shall comply with MBNA America's instructions and all applicable
laws, including, without limitation, the Truth in Lending Act and the Equal
Credit Opportunity Act, with regard to any GIP.
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(f) Subject to MBNA America's approval and the provisions in this Agreement,
CYBERGOLD shall conduct a minimum of three (3) marketing efforts to all of its
Members (excluding those Members who have expressly requested that CYBERGOLD not
correspond with such Member through e-mail) each calendar year of the Agreement.
Such marketing efforts will be conducted via e-mail solicitation and the e-mail
message will prominently feature and promote the Program. In addition, during
the term of this Agreement, CYBERGOLD agrees to prominently advertise the
Program continuously on their Website.
5. REPRESENTATIONS AND WARRANTIES
(a) CYBERGOLD 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) CYBERGOLD 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.
CYBERGOLD 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.
(c) CYBERGOLD and MBNA America each will indemnify and hold harmless the other
party, its directors, officers, agents, employees, affiliates, insurers,
successors and assigns (the "Indemnitees") from and against any and all
liability, causes of action, claims, and the reasonable and actual costs
incurred in connection therewith ("Losses"), resulting from the material breach
of this Agreement by CYBERGOLD or MBNA America, respectively as the case may be,
or its
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directors, officers or employees. CYBERGOLD will indemnify and hold harmless
MBNA America and its Indemnities from and against any and all Losses 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
that may reasonably result in the indemnification by the other party.
6. ROYALTIES.
(a) During the term of this Agreement, MBNA America shall pay Royalties to
CYBERGOLD. Royalties will not be paid without a completed Schedule C. Except as
otherwise provided in Schedule B, payment of Royalties then due shall be made
approximately forty-five (45) days after the end of the 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 CYBERGOLD
with a statement showing the number of Credit Card Accounts opened, the number
of Credit Card Accounts renewed and the number of retail purchase transactions
(excluding those transactions that relate to refunds, returns and unauthorized
transactions), made during the preceding calendar period.
(c) If during the term of this Agreement and for any Winddown Period (as such
term is defined herein), CYBERGOLD is unable or fails to fulfill its
obligations under Schedule D of this Agreement, MBNA America may, in addition to
any other right or remedy it has under this Agreement, utilize any Royalties
accrued by CYBERGOLD and otherwise payable to CYBERGOLD to perform some or all
of CYBERGOLD'S obligations set forth in Schedule, as appropriate, or to provide
the Customers with a benefit similar in quality and value to the benefits set
forth in Schedule D.
7. PROGRAM ADJUSTMENTS
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.
8. CONFIDENTIALITY OF AGREEMENT
The terms of this Agreement, any proposal, financial information and
proprietary 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 CYBERGOLD 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.
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9. TERM OF AGREEMENT
The initial term of this Agreement will begin on the Effective Date and
end on November 30, 2003. This Agreement will automatically extend at the end of
the initial term or any renewal term for successive two-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 (180) days, prior to the last
date of such term or renewal term, as applicable.
10. 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.
11. TERMINATION
(a) In the event of any material breach of this Agreement by MBNA America or
CYBERGOLD, 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 (60) days after receipt of notice, as provided herein (the
"Cure Period"), then this Agreement shall terminate sixty (60) days after the
Cure Period.
(b) If either MBNA America or CYBERGOLD 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 11(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 CYBERGOLD to the Members. Such approval shall
not be unreasonably withheld. Upon termination of this Agreement, CYBERGOLD
shall not attempt to cause the removal of CYBERGOLD's identification or
Trademarks from any person's credit devices, checks or records of any Customer
existing as of the effective 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
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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.
(f) For a one (1) year period following the termination of this Agreement for
any reason, CYBERGOLD agrees that neither CYBERGOLD nor any CYBERGOLD Affiliate
shall, by itself or in conjunction with others, directly or indirectly,
specifically target any offer of a credit or charge card or credit or charge
card related product to persons who were Customers. Notwithstanding the
foregoing, CYBERGOLD may, after termination of this Agreement, offer persons
who were Customers the opportunity to participate in another credit or charge
card program endorsed by CYBERGOLD provided the opportunity is not only made
available to such persons but rather as a part of a general solicitation to all
Members and provided further no such persons are directly or indirectly
identified as a customer of MBNA America, or offered any terms or incentives
different from that offered to all Members.
12. CUSTOMER LIST
(a) So long as CYBERGOLD continues to provide the Customers with the
enhancements that require CYBERGOLD to receive a Customer List, as defined
below, each month MBNA America shall provide CYBERGOLD with a list of
information (e.g., names and addresses) about Customers as may be mutually
agreed upon by the parties (hereinafter the "Customer List"). When used in this
Agreement, the term "Customer List" includes any whole or partial copies or
compilations of a Customer List in any form or any medium, any information
derived solely from a Customer List, and all Customer Information, as
hereinafter defined.
(b) CYBERGOLD shall return to MBNA America each Customer List, in the same
form as received by CYBERGOLD within thirty (30) days of receipt of such
Customer List. CYBERGOLD agrees that upon termination of the Agreement it
shall: (i) immediately destroy and purge from all its systems all information
within each Customer List to the extent that such information in any way
relates to MBNA America, the Program or Credit Card Accounts ("Customer
Information"), except CYBERGOLD may retain on the respective Customer's
CYBERGOLD account the merchant account transactions between the Customer's
Credit Card Account and the Customer's CYBERGOLD account ("Individual History")
(provided however that such Individual History shall continue to be governed by
this Section and the Agreement); and (ii) return or destroy within thirty (30)
days all Customer Information (excluding Individual History) that is in
tangible form, including any and all full or partial copies, or reproductions
thereof in any medium whatsoever. All destruction of Customer Lists shall be
done in strict accordance with MBNA America's then current reasonable
destruction policy.
(c) Any Customer List provided to CYBERGOLD may contain "dummy" information
(e.g., names, account information, addresses, etc.) so that unauthorized use of
a Customer List may be detained. This information will be unknown to CYBERGOLD.
A violation of this Section if conclusively proven and the damages named
hereinafter shall be deemed owed when MBNA America establishes the following:
(i) that MBNA America placed "dummy" information on the list (e.g.,
name(s), account information, address(es), etc.);
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(ii) that the "dummy" information received any mailings which were sent or
generated outside the scope of the permitted use of the Customer
List; and
(iii) that identical "dummy" information was not provided by MBNA America
or its affiliates to any third party.
(d) All Customer Lists are (i) confidential and proprietary and (ii) shall
remain the sole property of MBNA America. CYBERGOLD expressly acknowledges and
agrees that CYBERGOLD has no property right or interest whatsoever in any
Customer List. CYBERGOLD shall hold all Customer Lists in strict and absolute
confidence and shall not provide, trade, give away, barter, lend, send, sell or
otherwise disclose (collectively "transfer") any Customer List and shall not
make any copies of a Customer List of any type whatsoever except as expressly
approved in a separate writing by MBNA America. (This paragraph would prohibit,
by means of example only, transferring a list composed substantially of MBNA
America cardholders names, or target market or solicit (unless otherwise agreed
to by MBNA America) a list composed substantially of MBNA America cardholders
names). At all times CYBERGOLD shall keep in confidence and trust all Customer
Lists. CYBERGOLD further agrees that it shall not transfer any Customer List to
any other organization or individual under any circumstances, and CYBERGOLD
specifically but not by way of limitation agrees that no subcontractors and/or
affiliates shall be transferred any Customer List unless agreed to in writing by
MBNA America prior to any such transfer. (This paragraph would prohibit, by
means of example only, transferring any list of MBNA America cardholders to any
financial institution during the term of the Agreement or after the termination
of the Agreement.)
(e) CYBERGOLD shall have no authority to use the Customer List for any purpose
not expressly permitted by MBNA America to fulfill CYBERGOLD's obligations under
the Loyalty Program (as such term is defined in Schedule D) or otherwise agreed
to by MBNA America in a separate writing. CYBERGOLD shall comply with any
reasonable request of MBNA America with respect to security precautions to
maintain the security of the Customer List. CYBERGOLD agrees to secure and
safeguard the Customer List in strict accordance with the requirements of this
Section and MBNA America's instructions, as communicated by MBNA America to
CYBERGOLD from time to time. CYBERGOLD shall only permit access to the Customer
List to those employees, volunteers, agents and/or representatives of CYBERGOLD
who need such access to perform their duties for CYBERGOLD. In view of the
confidential nature of the Customer List, CYBERGOLD warrants that CYBERGOLD and
all its employees, volunteers, agents and/or representatives who work with any
Customer List shall be made aware of the obligations contained in this Section
and shall be under strict legal obligation not to copy any Customer List,
transfer any Customer List or make any other use of any Customer List other than
as specifically approved by this Section.
(1) Because the nature of the Customer List makes an evaluation of damages
after a violation of this Section impossible, then in the event that any
Customer List is handled or used in a fashion that violates this Section by
CYBERGOLD or its employees, volunteers, agents, and/or representatives, MBNA
America will be entitled to damages of twenty dollars ($20.00) for each use of
each category of information (e.g., names, addresses, etc.) used in violation of
this Section, with the amount of damages not to exceed one hundred fifty
thousand dollars ($150,000.00) per breach. In addition, CYBERGOLD agrees that
MBNA America shall be
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entitled to injunctive relief to prevent violation or further violation by
CYBERGOLD and/or its employees, volunteers, agents or representatives of this
Section, and consents to submit to jurisdiction of the courts of the State of
Delaware and of the United States of America located in the State of Delaware
for any actions, suits or proceedings arising out of or related to this Section
or the Agreement. Nothing herein shall be construed as prohibiting MBNA America
from pursuing any other remedy on account of such breach or threatened breach.
(g) In the event CYBERGOLD receives a request to disclose a Customer List
pursuant to a subpoena, order of court of competent jurisdiction or by judicial
or administrative agency or legislative body or committee, CYBERGOLD agrees to:
(i) immediately notify MBNA America of the existence, terms and circumstances
surrounding such request; (ii) consult with MBNA America on the advisability of
taking legally available steps to resist or narrow such request; and (iii) if
disclosure of such Customer List is required or deemed advisable, exercise its
best efforts to obtain an order or other reliable assurance that confidential
treatment will be accorded to such portion of the Customer List to be disclosed
which MBNA America designates.
13. MISCELLANEOUS
(a) This Agreement cannot be amended except by written agreement signed by the
authorized agents of both parties hereto.
(b) The obligations in Sections 2(h), 5(b), 5(c), 6(c), 8, 11(c), 11(d), 11(f),
12(b), 12(c), 12(d), 12(e), 12(f), 12(g), and 13(b) 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 and 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 CYBERGOLD:
CYBERGOLD, INC.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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ATTENTION: Xx. Xxxxxx Xxxxxxxx,
Vice President, Business Development
Fax #: (000) 000-0000
(2) If to MBNA America:
MBNA AMERICA BANK, N.A.
Xxxxxx Square
Wilmington, Delaware 19713
ATTENTION: Xxxxxxxx X. Xxxxx,
Vice Chairman, 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,
CYBERGOLD 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
CYBERGOLD. MBNA America may utilize the services of any third party in
fulfilling its obligations under this Agreement.
(h) MBNA America and CYBERGOLD 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 CYBERGOLD and MBNA
America, their successors and assigns, any rights or remedies under or by
reason of this Agreement.
(j) CYBERGOLD recognizes and agrees that MBNA America's goodwill and
reputation in the marketplace are valuable and intangible assets; therefore,
CYBERGOLD agrees that it shall not conduct itself or engage in any activity in
a manner which may adversely affect these assets. In the event MBNA America
determines that CYBERGOLD does not so conduct itself, MBNA America may
terminate this Agreement, effective immediately.
(k) 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,
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compliance with governmental laws, rules, regulations, delays in transit or
delivery, or any event beyond its reasonable control or without its fault or
negligence.
SIGNATURE PAGE AND SECTION 13(l) CONTINUE ON NEXT PAGE
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(l) 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 representative, has executed
this Agreement as of the Effective Date.
CYBERGOLD, INC. MBNA AMERICA BANK, N.A.
By: /s/ XXX XXXXXXXXX By: /s/ XXXX X. XXXXXXXX
------------------------------ -----------------------------------
Name: Xxx Xxxxxxxxx Name: Xxxx X. Xxxxxxxx
------------------------------ -----------------------------------
Title: CEO/President Title: SEVP
----------------------------- ----------------------------------
Date: 11/20/98 Date: 11/20/98
------------------------------ -----------------------------------
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SCHEDULE A
TERMS AND FEATURES
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
1. There is NO annual fee for the first year.
2. The current annual percentage rate will be a fixed rate of 12.99%.
3. Customers may be offered opportunities to select credit insurance
as a benefit under the Program.
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SCHEDULE B
ROYALTY ARRANGEMENT
During the term of this Agreement, MBNA America will pay CYBERGOLD a Royalty
calculated as follows, for those accounts with active charging privileges. MBNA
America may create a special class of accounts for CYBERGOLD employees under the
Program, and will not pay compensation for such designated accounts. All Royalty
payments due hereunder are subject to adjustment by MBNA America for any prior
overpayment of Royalties by MBNA America:
A. CREDIT CARD ACCOUNTS
1. $[***]* ([***]*) for each new Credit Card Account opened, which
remains open for at least [***]* consecutive days and which is
utilized by the Customer for at least one purchase or cash advance
which is not subsequently rescinded, the subject of a charge back
request, or otherwise disputed.
2. $[***]* ([***]*) for each Credit Card Account for which the annual fee
is paid by the Customer. If no annual fee is assessed by MBNA America
(other than as a result of a courtesy waiver by MBNA America), then
such royalty will be paid for each Credit Card Account which: 1) has a
balance great than zero as of the last business day of every twelfth
month after the opening of that Credit Card Account; and 2) has had
active charging privileges for each of the preceding twelve months.
3. [***]*% ([***]* percent) of all retail purchase transaction dollar
volume generated by Customers using a Credit Card Account (excluding
those transactions that (1) relate to refunds, returns and/or
unauthorized transactions, and/or (2) are cash equivalent transactions
(e.g., the purchase of wire transfers, money orders, bets, lottery
tickets, or casino gaming chips)).
B. GIP ACCOUNTS
$[***]* ([***]*) for each GIP Account opened, which remains open for at
least [***]* consecutive days and which is utilized by the Customer for at
least one purchase or cash advance during the aforementioned [***]* day
period which is not subsequently rescinded, the subject of a charge back
request, or otherwise disputed. Such GIP Accounts will not qualify for any
other opening-of-an-account Royalty.
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----------------
* Confidential Treatment Requested. Confidential portion
has been filed with the Securities and Exchange Commission.
16
SCHEDULE C
TAXPAYER IDENTIFICATION NUMBER REQUEST
FORM W-9 For Accounts Payable Use Only
To: ____________________________ Account Number: ____________ Oracle Vendor #: ________________
Please complete the following information. We are required by law to obtain this
information from you when making a reportable payment to you. If you do not
provide us with this information, your payments may be subject to 31% federal
income tax backup withholding. Additionally, you may be subject to a $50 penalty
imposed by the Internal Revenue Service under section 6723.
INSTRUCTIONS: Complete Part 1 by filling in the row of boxes that corresponds
to your tax status.
Complete Part 2 if you are exempt from 1099 reporting.
Complete Part 3 to sign and date the form, and return it to us.
PART 1 - TAX STATUS: (Complete one row of boxes)
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INDIVIDUAL: Individual's Name Individual's Social Security Number
__ __ __ - __ __ - __ __ __ __
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SOLE PROPRIETOR: Business Owner's Name Business Owner's Social Security Number Business or Trade Name
__ __ __ - __ __ - __ __ __ __
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PARTNERSHIP: Name of Partnership Partnership's Employer Identification Number Partnership's Legal Name
(Name of first partner)
__ __ __ - __ __ - __ __ __ __
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CORPORATION, Name of Corporation or entity Employer Identification Number
EXEMPT CHARITY,
OR OTHER ENTITY: __ __ __ - __ __ - __ __ __ __
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PART 2 - EXEMPTION: IF EXEMPT FROM BACKUP WITHHOLDING AND FORM 1099
REPORTING, CHECK HERE: [ ] AND CIRCLE YOUR QUALIFYING
EXEMPTION REASON BELOW.
1. Corporation
2. Tax Exempt Charity under Section 501 (a) or XXX
3. The United States or any of its agencies or
instrumentalities
4. A state, the District of Columbia, a possession of
the United States, or any of their political
subdivisions or instrumentalities
5. A foreign government or any of its political
subdivisions, agencies or instrumentalities
PART 3 - CERTIFICATION: I certify under penalties of perjury that the Taxpayer
Identification Number I have provided is correct.
Person completing this form: _________________________________ Please provide address if different:
Signature: ___________________________________________________ ____________________________________
Date: ________________________________________________________ ____________________________________
Phone: ( _____ ) _____________________________________________
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SCHEDULE D
ENHANCEMENTS
CYBERGOLD shall develop a loyalty enhancement program that encourages
participation in the Program and Credit Card Account retail purchase
transactions from the Customers (the "Loyalty Program").
Except as otherwise provided herein, CYBERGOLD agrees to provide and administer,
at its cost and expenses, the Loyalty Program generally described in this
Schedule for the Program or any other program agreed to by the parties.
MBNA America will provide the appropriate monthly reports to enable CYBERGOLD
to fulfill the requirements set forth in this Schedule D.
A. New Account Activation Enhancements for the Loyalty Program
1. If a Customer makes a retail purchase transaction on a Credit Card Account
in the first month after the Credit Card Account is opened, then CYBERGOLD
will credit $5 in CYBERGOLD dollars to the Customer's account with
CYBERGOLD and then immediately credit the Customer's Credit Card Account
$5. Said credit will appear on the Customer's Credit Card Account
within 10 calendar days after CYBERGOLD receives the necessary reports
from MBNA America.
2. If a Customer makes a retail purchase transaction on a Credit Card Account
in the second month after the Credit Card Account is opened, then
CYBERGOLD will credit $5 in CYBERGOLD dollars to the Customer's
account with CYBERGOLD and then immediately credit the Customer's Credit
Card Account $5. Said credit will appear on the Customer's Credit
Card Account within 10 calendar days after CYBERGOLD receives the
necessary reports from MBNA America.
3. If a Customer makes a retail purchase transaction on a Credit Card Account
in the third month after the Credit Card Account is opened, then CYBERGOLD
will credit $10 in CYBERGOLD dollars to the Customer's account with
CYBERGOLD and then immediately credit the Customer's Credit Card Account
$10. Said credit will appear on the Customer's Credit Card Account
within 10 calendar days after CYBERGOLD receives the necessary reports
from MBNA America.
4. MBNA America will share in [***]* of the interchange/merchant costs (up to
[***]* ($[***]*) per transaction) incurred by CYBERGOLD to process the
each of credits described in Section A.2., A.3., and A.4., above, from
each Customer's CYBERGOLD account to the Customer's Credit Card Account
through the MasterCard/Visa interchange system.
5. In the event the Customer does no have a CYBERGOLD account, CYBERGOLD will
immediately establish such an account for the Customer.
--------------
* Confidential Treatment Requested. Confidential portion
has been filed with the Securities and Exchange Commission.
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6. No change to the structure or operation of the New Account Activation
Enhancements for the Loyalty Program in this Section A or any premium
to be offered in connection therewith shall be instituted without the
mutual agreement of the parties.
7. The provisions in this Section A of Schedule D, shall survive
termination of the Agreement.
B. Ongoing Enhancements for the Loyalty Program
Each qualifying Customer shall have the opportunity to continuously participate
in ongoing enhancements for the Loyalty Program ("Ongoing Enhancements")
established, fulfilled and funded by CYBERGOLD. Said Ongoing Enhancement shall
be initially established within 60 days of the Effective Date.
1. CYBERGOLD will continuously test a variety of reward programs to
encourage use and promotion of the Program and the co-branded
CYBERGOLD/MBNA credit card. CYBERGOLD will utilize all of the
compensation paid to CYBERGOLD pursuant to Subpart 3, Schedule B
towards the funding of the Ongoing Enhancements.
2. The Ongoing Enhancements established by CYBERGOLD will also provide
rewards of no less than[***]* basis points of the compensation paid to
CYBERGOLD pursuant to Subpart A.3 of Schedule B, in the aggregate, to
the active Customers.
3. The Ongoing Enhancements may be in the form of chances to win prizes
or the establishment of a point program. The Ongoing Enhancements
will include, but are not limited to chances to win vacation trips,
computer equipment, consumer electronics, and payment of internet
services. The number of chances the Customer of a Credit Card Account
receives and the value of the prizes will depend on the level of the
Customer's Credit Card Account purchase transactions. CYBERGOLD will
shall be solely responsible for all development and fulfillment of
all Ongoing Enhancements including, but not limited to all sweepstakes
or similar promotions, and shall be responsible for all costs related
to such programs, including but not limited to, marketing,
operational and administration costs.
C. Any tax or similar reporting or remittance obligations imposed by any
authority upon the awarding of points, sweepstakes or other Ongoing
Enhancements shall be solely and exclusively the responsibility of CYBERGOLD.
D. No material change to the structure of operation of the Ongoing
Enhancements or any premium to be offered in connection therewith shall be
instituted without the mutual agreement of the parties.
E. CYBERGOLD agrees that this Schedule D, the Loyalty Program, and the
respective rights and obligations hereunder, shall be subject to, and CYBERGOLD
shall comply with, the provisions and/or requirements of all applicable state,
federal and local law.
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* Confidential Treatment Requested. Confidential portion
has been filed with the Securities and Exchange Commission.
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F. During the term of this agreement, CYBERGOLD and MBNA America on an
ongoing basis, will work together to further develop the Loyalty Program (at
CYBERGOLD's expense, unless otherwise agreed to by the parties).
G. As between CYBERGOLD and MBNA America, the parties agree that CYBERGOLD
is solely and exclusively responsible and liable for all suits, causes of
action, express or implied warranties, damages, losses and claims of negligence
or product liability arising from any and all items provided by, or sold or to
be sold by or on behalf of CYBERGOLD, or services provided or to be provided by
or on behalf of CYBERGOLD, in each case regardless of whether such items or
serves were provided for a price or free of charge.
H. CYBERGOLD must notify the Cardholders (in a format mutually agreed to by
CYBERGOLD MBNA America) of the mutual termination of the Loyalty Program, (the
termination of Loyalty Program either through the mutual Agreement by the
parties, or through the termination of the Agreement) in writing at least one
hundred and eighty (180) days prior to the effective date of the termination
("Winddown Period"). CYBERGOLD agrees to fulfill any point rewards, premiums,
sweepstakes, or other enhancements during the Winddown Period, unless CYBERGOLD
issued certificates, coupons or marketing materials that indicated CYBERGOLD
would redeem such Ongoing Enhancements for a longer period of time. CYBERGOLD
shall then redeem such Ongoing Enhancements for the time period represented to
the Customers.
I. The parties agree that if the Winddown Period of the Loyalty Program (as
described in Section H above) occurs after the termination of this Agreement,
then MBNA America agrees to pay only the following compensation after
termination of the Agreement during any period of time that Customers may be
eligible to continue to accrue points (if any) for the Ongoing Enhancements
(but not longer than 3 full calendar months after the termination of the
Program):
[***]*% ([***]* percent) of all retail purchase transaction dollar
volume generated by Customers using a Credit Card Account (excluding those
transactions that (1) relate to refunds, returns and/or unauthorized
transactions, and/or (2) are cash equivalent transactions (e.g., the
purchase of wire transfers, money orders, bets, lottery tickets, or casino
gaming chips)).
--------------------
* Confidential Treatment Requested. Confidential portion
has been filed with the Securities and Exchange Commission.
