17
DATABASE ACCESS AGREEMENT
THIS AGREEMENT is made as of this 31st day of October, 1996,
by and between Metris Direct, Inc. ("Metris"), a corporation duly
organized under the laws of the State of Minnesota, with offices
at 000 Xxxxx Xxxxxxx 000, Xxxxx 0000, Xx. Xxxxx Xxxx, Xxxxxxxxx
00000 and Fingerhut Corporation ("Fingerhut"), a corporation duly
organized under the laws of the State of Minnesota with offices at
0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000.
WITNESSETH:
WHEREAS, Fingerhut (itself or through subsidiaries or
affiliates) owns a customer database and maintains such database
on its systems; and
WHEREAS, Metris is in the business of providing financial
service products and services; and
WHEREAS, Fingerhut desires to license to Metris exclusive
access to its customer database to market financial service
products (as defined herein);
NOW, THEREFORE in consideration of the mutual promises set
forth and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged by the parties, the
parties agree as follows:
I. LICENSE USAGE
Section 1.1 Grant of License. During the term of this
Agreement, including renewals, and subject to the terms and
conditions hereof, Fingerhut hereby grants to Metris and its
subsidiaries the exclusive license to use the customer lists,
models and other information related thereto described in
Exhibit A attached hereto and incorporated herein by reference
(hereinafter the "Customer Database") for the sole purpose of
marketing financial service products identified in Exhibit B
attached hereto and incorporated herein by reference ("Financial
Service Products") of Metris, its subsidiaries and unaffiliated
third parties. Such license includes the right to access the
computer systems which maintain the Customer Database; the right
to perform file selection, segmentation and modeling of the
Customer Database; the right to develop marketing lists using the
Customer Database or segments thereof for use on behalf of itself,
subsidiaries, and unaffiliated third parties; the right to append
third party demographic data for aggregate analysis and other
rights which the parties may mutually agree to in writing from
time to time. Such license does not include the right to access a
consumer name and credit report (as defined under applicable laws
and regulations) to determine such consumer's eligibility for
credit or insurance. Fingerhut reserves for itself, its
affiliates and subsidiaries, and its licensees, the right to use
the Customer Database, including the right to license the use of
the Customer Database to unaffiliated third parties; except in no
event shall Fingerhut for itself, its affiliates and subsidiaries
or its licensed third parties have the right to use the Customer
Database to offer Financial Service Products. Fingerhut and
Metris confirm that Fingerhut may continue to license use of the
Customer Database (specifically the Fingerhut Customer file) to
the unaffiliated third parties for the services identified in
Exhibit D, attached hereto and incorporated herein by reference,
on the terms and conditions as set forth in such Exhibit D.
Section 1.2 Delivery of Information. At Metris' request,
Fingerhut will provide or provide access to, on a timely basis in
accordance with Fingerhut's standard internal practices, the
Customer Database or any subset thereof, in a format as the
parties may, in good faith, agree from time to time. Fingerhut
and Metris will cooperate in good faith to ensure that Metris'
written production and solicitation deadlines are met. Throughout
the term of this Agreement, Fingerhut shall update the Customer
Database with all additions, deletions and other amendments to the
Customer Database ("Updates") made or developed by Fingerhut in
the ordinary course of its business, including, without
limitation, the addition of the name and other information related
thereto of all persons which may, from time to time, come within
the definition of the Customer Database set forth in Exhibit A,
and such Updates shall thereafter become part of the Customer
Database for purposes of this Agreement.
During the term of this Agreement, Fingerhut agrees to
maintain a backup, archival or disaster recovery copy ("Back-up
Copy") of the Customer Database. Metris shall have the right to
access such Back-up Copy in the event of (i) Fingerhut's
Bankruptcy (as defined herein), (ii) failure of Fingerhut's main
computer system, and (iii) the expiration of the cure period as
defined in Section 5.1 following an Event of Default by Fingerhut.
Section 1.3 Limits of Disclosure. Nothing in this
Agreement shall require Fingerhut to disclose to Metris (i)
confidential information received by Fingerhut from third parties,
including without limitation, customer lists from third party
sources, which confidential information Fingerhut is precluded by
written agreement from disclosing to others, or (ii) information
which Fingerhut, in its reasonable interpretation, is precluded
from disclosing under any applicable law, regulation or other
industry practices related to consumer privacy.
Section 1.4 Ownership of Behavioral Models. Fingerhut
agrees that any behavioral models or similar credit scoring
algorithms which are developed by Metris or developed by Fingerhut
expressly for or on behalf of Metris from the Customer Database
("Behavioral Models") shall be owned, unencumbered, by Metris;
Fingerhut, further agrees, that Metris has the sole right to use
of such Behavioral Models for Financial Service Products during
the term of this Agreement, including any renewals, and Metris
retains sole ownership of such Behavioral Models upon termination
of this Agreement.
II. COMPENSATION
Section 2.1 Compensation. Metris agrees to pay Fingerhut
(in immediately available funds) in accordance with the terms and
conditions set forth in Exhibit C, attached hereto and
incorporated herein by reference. Payment of the Database License
Fee shall be made by the fifteenth of the first month within each
calendar year during the Initial Term or subsequent Renewal Term.
Payment of the Solicitation Fee and the Suppress File Fee shall be
made not later than the thirtieth business day of each month
following the end of a calendar quarter for all amounts due and
owing for the immediately preceding calendar quarter. Fingerhut
and Metris agree that upon mutual written consent, Exhibit C may
be amended from time to time.
III. OWNERSHIP AND REPRESENTATIONS AND WARRANTIES
Section 3.1 Ownership of Information. Fingerhut
represents and warrants that (i) it is the owner of the entire
right, title and interest to and in the Customer Database, subject
to any licenses that have previously been granted, (ii) it is
under no legal impediment that would prevent its entering into
this Agreement or granting to Metris the licenses described
herein, (iii) the licenses granted hereby and Metris' use of the
Customer Database as described herein, will not infringe upon the
rights of any third party or violate any existing license,
agreement, arrangement or understanding of Fingerhut or any
subsidiary or affiliate of Fingerhut with any third party, (iv) it
has no knowledge of any infringement of the rights granted to
Metris pursuant to Section 1.1 above, and (v) it has not granted
any rights to any third party that conflict with the rights
granted to Metris pursuant to Section 1.1 above (except those
identified in Exhibit D).
Section 3.2 No Sale or Assignment. Except as otherwise
provided herein, nothing in this Agreement shall be construed as a
sale, assignment or other complete transfer of any title to, or
ownership of the Customer Database, including any and all trade
secrets, copyrights and proprietary rights and interests in and to
the Customer Database. Fingerhut shall retain all right, title
and interest in and to all trade secrets, copyrights and other
proprietary rights and interests in and to the Customer Database,
subject only to the license granted under this Agreement.
Section 3.3 Metris Authority. Metris hereby represents
and warrants, as of the date of this Agreement, as follows:
(a) Metris is a duly organized corporation, validly
existing, and in good standing under the laws of the
State of Delaware. Prior to its use of the Customer
Database, Metris will be duly qualified or licensed to
do business necessary and will be in good standing in
each jurisdiction in which its business or the exercise
of its rights, powers or authority under this Agreement
renders such qualification necessary.
(b) Metris has the requisite corporate power and authority
to enter into, and to carry out its obligations under
this Agreement.
(c) The execution and delivery Metris of this Agreement and
the consummation by Metris of the transactions
contemplated hereby have been duly authorized prior to
the date of this Agreement by all necessary corporate
action on its part.
(d) This Agreement has been duly executed and delivered by
Metris and constitutes a valid and binding obligation of
Metris enforceable against Metris in accordance with its
terms.
(e) Metris is not subject to, or obligated under any
provision of (i) its articles of incorporation, (ii) any
agreement, arrangement or understanding, (iii) any
license, franchise or permit, or (iv) any law,
regulation, order, judgment or decree that would be
breached or violated, or in respect of which a right of
termination or acceleration or any encumbrance on any of
its assets would be created by the execution, delivery
and performance of this Agreement by Metris, or the
consummation by Metris of the transactions contemplated
by this Agreement.
(f) No authorization, consent or approval of, waiver or
exemption by, or filing or registration with any public
body, court, third party or authority is necessary on
the part of Metris for the consummation by Metris of the
transactions contemplated by this Agreement.
Section 3.4 Fingerhut Authority. Fingerhut hereby
represents and warrants, as of the date of this Agreement, as
follows:
(a) Fingerhut is a corporation duly organized, validly
existing, and in good standing under the laws of the
State of Minnesota, and is duly qualified or licensed to
do business and is in good standing in each jurisdiction
in which its business or the exercise of its rights,
powers or authority under this Agreement renders such
qualification necessary.
(b) Fingerhut has the requisite corporate power and
authority to enter into, and to carryout its obligations
under this Agreement.
(c) The execution and delivery by Fingerhut of this
Agreement and the consummation by Fingerhut of the
transactions contemplated hereby have been duly
authorized prior to the date of this Agreement by all
necessary corporate action on its part.
(d) This Agreement has been duly executed and delivered by
Fingerhut and constitutes a valid and binding obligation
of Fingerhut enforceable against Fingerhut in accordance
with its terms.
(e) Fingerhut is not subject to, or obligated under any
provision of (i) its articles of incorporation or
bylaws, (ii) any agreement, arrangement or
understanding, (iii) any license, franchise or permit,
or (iv) any law, regulation, order, judgment or decree
that would be breached or violated, or in respect of
which a right of termination or acceleration or any
encumbrance on any of its assets would be created by the
execution, delivery and performance of this Agreement by
Fingerhut, or the consummation by Fingerhut of the
transactions contemplated by this Agreement.
(f) No authorization, consent or approval of, waiver or
exemption by, or filing or registration with any public
body, court, third party or authority is necessary on
the part of Fingerhut for the consummation by Fingerhut
of the transactions contemplated by this Agreement.
IV. CONFIDENTIALITY
Section 4.1 Confidentiality of Customer Database. All
Customer Database disclosed hereunder is confidential and
proprietary to Fingerhut. Metris, its subsidiaries, affiliates,
officers, directors, employees, agents, consultants and
contractors shall not use any of the Customer Database and the
Behavioral Models for any purpose other than as expressly
permitted hereunder. Metris shall not disclose or provide any of
such Customer Database and the Behavioral Models to any third
party, except as provided in Sections 1.1, 4.2 and 4.3 below, and
shall take all reasonable measures to limit any such disclosure by
its affiliates, subsidiaries, officers, directors, employees,
agents, contractors or consultants to a need to know basis during
the term of this Agreement. Metris agrees it will not provide
Customer Database and Behavioral Models that are proprietary to
Fingerhut to a third party without a written agreement that
prohibits, among other things, such third party from using or
disclosing the information hereunder except as permitted pursuant
to this Agreement.
Section 4.2 Other Confidential Information. This
Agreement and the transactions contemplated hereby will be kept in
confidence by such other party, including its subsidiaries,
affiliates, in accordance with its policies for maintaining the
confidence of its own information of similar content. The term
"Confidential Information" shall mean and include (i) the Customer
Database, (ii) all trade secrets and other confidential business
information learned in the course of performance by either party
of its obligations hereunder, and (iii) any information or data
which is disclosed by a party to the other party under or in
contemplation of this Agreement.
Notwithstanding the foregoing, the term
Confidential Information shall not include information which (i)
is already known to such other party when received, (ii)
thereafter becomes generally obtainable by a party other than as a
result of an unauthorized disclosure by the party taking advantage
of this clause, or (iii) is required by law, regulation or court
order to be disclosed by such party, provided that in the case of
this clause prior notice of such disclosure has been given to the
party which furnished such information, when legally permissible,
and that such other party which is required to make the disclosure
uses its best efforts to provide sufficient notice to permit the
party which furnished such information to take legal action to
prevent the disclosure.
Section 4.3 Required or Requested Information. If Metris
is required to disclose any information contained in the Customer
Database to any regulatory or governmental agency, department or
other regulatory entity or court of law, Metris may not disclose
such information without the prior written approval of Fingerhut,
and gives all available information and assistance to enable
Fingerhut to take the measures (consistent with requirements of
applicable laws and regulations) that, in its sole discretion, it
deems appropriate or necessary to protect the Customer Database
from disclosure. Sections 4.1 and 4.2 shall survive any
termination of this Agreement for five (5) years.
Metris or Fingerhut shall not be obligated to
disclose to the other any information which is required by
applicable law to be kept confidential or is otherwise prohibited
from disclosure by applicable federal or state laws and
regulations or would cause either party, in its reasonable
interpretation, to be deemed a credit reporting agency as defined
under applicable state or federal law.
V. EVENT'S OF DEFAULT AND REMEDIES
Section 5.1 Event of Default. An "Event of Default" shall
be deemed to occur upon the occurrence of any of the following:
(a) A material breach of a representation, agreement,
covenant or other obligation of any of the parties to
this Agreement (any such breach is herein referred to as
a "Material Breach"); provided, however, that no Event
of Default shall be deemed to have occurred unless and
until a non-breaching party provides the breaching party
with written notice of such Material Breach, describing
in reasonable detail the nature of such Material Breach,
and (i) the breaching party shall have had an
opportunity to cure such Material Breach (which is
capable of being cured) within sixty (60) days after
such notice (unless such Material Breach is with respect
to a monetary matter, the cure of which requires only
the payment of a specified amount of money pursuant to
the terms of this Agreement, in which case the breaching
party shall have an opportunity to cure within five (5)
business days after such notice), (ii) the breaching
party does not cure such Material Breach within the
applicable time period, or, if such Material Breach,
other than a Material Breach relating to a monetary
matter, cannot reasonably be cured within sixty days,
but is curable, the breaching party does not; (x)
undertake to cure such Material Breach within such sixty
day period and (y) after such sixty day period,
diligently and continuously use all reasonable efforts
to cure, and (iii) the notifying party thereafter
declares an Event of Default. In respect of clause (ii)
of this Section 5.1(a), such extended cure period shall
continue so long as the parties hereto reasonably agree
that the actions being taken by the breaching party are
reasonably expected to cure such Material Breach.
(b) If, at any time within twelve (12) months following the
expiration of any cure period provided in Section 5.1(a)
above, there shall occur a Material Breach (the "Second
Material Breach") and such Second Material Breach is of
the same nature as the Material Breach (the "First
Material Breach") by the breaching party that gave rise
to such cure period, then an Event of Default shall be
deemed to have occurred upon the delivery of notice of
such Second Material Breach to the breaching party by
the notifying party referred to in Section 5.1(a) and
upon such notifying party declaring an Event of Default.
(c) If there shall occur a "Bankruptcy," as hereinafter
defined, of either Party, the non-Bankruptcy party may
declare an Event of Default. For purposes of this
Agreement, the term "Bankruptcy" shall mean (i) the
entry of a decree or order for relief by a court of
competent jurisdiction in any involuntary case under any
bankruptcy, insolvency or similar law now or hereafter
in effect and such decree or order shall not be vacated,
set aside or stayed within ninety (90) days after its
entry, (ii) the entry of a decree or order appointing a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar agent for any substantial part
of the assets or property of such party and such decree
or order shall not be vacated, set aside or stayed
within ninety (90) days after its entry, (iii) the
ordering of the winding up or liquidation of the affairs
of a party and such order shall not be vacated, set
aside or stayed within one hundred twenty (120) days
after its entry, (iv) the filing of a petition in any
such involuntary bankruptcy case, which petition remains
undismissed for a period of ninety (90) days or which is
not dismissed or suspended pursuant to Section 305 of
Title 11 of the United States Code (or any corresponding
provision of any future United States Bankruptcy law),
(v) the commencement of a voluntary case under any
bankruptcy, insolvency or similar law now or hereafter
in effect, (vi) the consent to the entry of an order for
relief in an involuntary case under any such law or to
the appointment of or taking possession of any
substantial part of the assets or property by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar agent, or (vii) the making of
any general assignment for the benefit of creditors.
Section 5.2 Remedies. Each of the parties hereto shall be
liable to the other for damages arising out of or in connection
with any breach of this Agreement, subject to the duty of the non-
breaching party to take all reasonable actions in order to
mitigate such damages. The parties agree that in no event shall
any party to this Agreement be liable to the other for punitive,
indirect, special or consequential damages arising out of a breach
of this Agreement. It is understood and agreed to by the parties
that monetary damages may not be a sufficient remedy for breach
with respect to their respective obligations under this Agreement.
Accordingly, the non-breaching party shall, to the extent
permitted by law or equity, be entitled to seek specific
performance and injunctive or other equitable relief as a remedy
for any breach of, or Event of Default under this Agreement. The
remedies described in this Section 5.2 shall not be deemed to be
the exclusive remedies for any breach of, or Event of Default,
under this Agreement, but shall be in addition to all other
remedies available to the parties at law or equity, subject to the
limitations with respect to damages set forth above in this
Section 5.2.
VI. INDEMNIFICATION
Section 6.1 Indemnification by Fingerhut. Fingerhut shall
indemnify, hold harmless and defend Metris, its officers,
directors, partners, employees, agent or permitted assigns of
Metris from and against any and all losses, claims, damages,
liabilities, whether joint or several, expenses (including legal
fees and expenses), judgments, fines and other amounts paid in
settlement, incurred or suffered by any such person(s) in
connection with any threatened, pending or completed claim,
demand, action, suit or proceeding (whether civil, criminal,
administrative or investigative, and whether formal or informal)
by an unaffiliated third party arising out of or in connection
with any breach or alleged breach of this Agreement by Fingerhut;
including without limitation any claim or allegation that (i) any
Customer Database provided to Metris constitutes an infringement
of any copyright, (ii) the Customer Database provided to Metris
contains, embodies or incorporates any trade secret or proprietary
information of any third party. In the event the Customer
Database is held to infringe and its use is enjoined, the sole
obligation of Fingerhut (and the exclusive remedy of Metris) shall
be as provided pursuant to Sections 6.1 and 6.3.
Section 6.2 Indemnification by Metris. Metris shall
indemnify, hold harmless and defend Fingerhut, and each person
that is a stockholder, officer, director, partner, employee or
agent of Fingerhut, from and against any and all losses, claims,
damages, liabilities, whether joint or several, expenses
(including legal fees and expenses), judgments, fines and other
amounts paid in settlement incurred or suffered by any such
person(s) in connection with any threatened, pending or completed
claim, demand, action, suit or proceeding (whether civil,
criminal, administrative or investigative, and whether formal or
informal) by an unaffiliated third party arising out of or in
connection with any breach or alleged breach of this Agreement by
Metris.
Section 6.3 Rights Upon Indemnification. The rights of
the parties hereto to be indemnified pursuant to this Agreement
shall be governed by the following:
(a) Within a reasonable time (not to exceed 30 days from
receipt) after receipt by an indemnified party of notice
of any claim or the commencement of any action which may
result in a claim for indemnification pursuant to
Sections 6.1 or 6.2, an indemnified party will notify in
writing the indemnifying party thereof within a
reasonable time thereafter; the omission to so notify
any indemnifying party will relieve it of any liability
for indemnification thereunder as to the particular item
for which indemnification may then be sought (except to
the extent that the failure to give notice shall not
have been prejudicial to such indemnifying party), but
not from any other liability which it may have to any
indemnified party.
(b) An indemnified party shall have the right (i) to employ
separate counsel chosen by it in any action as to which
indemnification may be sought under any provision of
this Agreement and to participate in the defense
thereof, or (ii) to the extent that it may wish, jointly
with any other indemnified party, to assume the defense
of any such action with counsel reasonably satisfactory
to the indemnifying party, but the fees and expenses of
such counsel shall be at the expense of such indemnified
party unless; (x) the indemnifying party has agreed in
writing to pay such fees and expenses, (y) the
indemnifying party has failed to employ counsel and
assume the defense thereof without reservation and
employ counsel within a reasonable period of time after
being given the notice required above, and as a
consequence thereof, the indemnified party is required
to employ separate counsel to protect its rights, or (z)
the named parties to any such action (including any
impleaded parties) include both such indemnified party
and the indemnifying party and such indemnified party
shall have been advised by its counsel that
representation of such indemnified party and the
indemnifying party by the same counsel would be
inappropriate under applicable standards of professional
conduct (whether or not such representation by the same
counsel has been proposed) due to actual or potential
conflict of interest between them. It is understood,
however, that the indemnifying party shall, in
connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction, arising out of the same general
allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate
counsel (in addition to any local counsel) at any time
for all such indemnified parties having actual or
potential differing interests with the indemnifying
party.
(c) The indemnifying party shall not be liable for any
settlement of any such action effected without its
written consent, which consent shall not be unreasonably
withheld, but if settled with such written consent, or
if there be a final judgment against any indemnified
party in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified parties
to the extent provided above from and against any loss,
claim, damage, liability or expense by reason of such
settlement or judgment.
(d) The indemnification obligations set forth in Sections
6.1, 6.2 and 6.3 shall survive the termination this
Agreement.
VII. TERM AND TERMINATION
Section 7.1 Term and Termination. This Agreement shall
take effect upon the date first written above, and shall remain in
effect for seven (7) years ("Initial Term"). Thereafter, this
Agreement will automatically renew for one term of three (3) years
("Renewal Term") unless either Party provides written notice to
the other, not less than twelve (12) months prior to the end of
the Initial Term or Renewal Term, of its intent to terminate this
Agreement. Either Party may terminate this Agreement reserving
all other remedies and rights hereunder in whole or in part and
otherwise available in law or equity, upon the occurrence of an
Event of Default, as defined herein. Upon the occurrence of an
Event of Default, the non-defaulting Party may terminate this
Agreement by giving notice of its intent to terminate. Such
written notice shall describe the Event of Default. Fingerhut
shall have the right to terminate this Agreement by written notice
to Metris upon the occurrence of a Change of Control (as defined
below) with respect to Metris. A "Change in Control" shall be
deemed to have occurred if (a) any person or group (within the
meaning or Rule 13d-5 of the Securities Exchange Act of 1934 as in
effect on the date hereof) other than Fingerhut shall own directly
or indirectly, beneficially or of record, shares representing more
than 25% of the aggregate ordinary voting power represented by the
issued and outstanding capital stock of Metris; (b) a majority of
the seats (other than vacant seats) on the board of directors of
Metris shall at any time be occupied by persons who were neither
(i) nominated by Fingerhut, or by the board of directors of
Metris, nor (ii) appointed by directors so nominated; or (c) any
person or group other than Fingerhut shall otherwise directly or
indirectly have the power to exercise a controlling influence over
the management or policies of Metris.
VIII. MISCELLANEOUS PROVISIONS
Section 8.1 Additional Actions and Documents. Each of the
parties hereto agrees to take or cause to be taken such further
actions, to execute, acknowledge, deliver and file or cause to be
executed, acknowledged, delivered and filed such further documents
and instruments, and to use all reasonable efforts to obtain such
consents, as may be necessary or as may be reasonably requested in
order to fully effectuate the purposes, terms and conditions of
this Agreement.
Section 8.2 Notice. All notices, demands, requests or
other communications which may be or are required to be given
pursuant to this Agreement shall be in writing and shall be
personally delivered, mailed by first class, registered or
certified mail, postage prepaid, or sent by electronic or
facsimile transmission, addressed as follows:
(a) If to Metris:
Metris Companies Inc.
Interchange Building
000 Xxxxx Xxxxxxx 000, Xxxxx 0000
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
(b) If to Fingerhut:
Fingerhut Corporation
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President
With a copy to the General Counsel
Each party may designate by notice in writing a new address
to which any notice, demand, request or communication may
thereafter be so given, served or sent. Each notice, demand,
request or communication which shall be delivered, mailed or
transmitted in the manner described above shall be deemed
sufficiently given, served, sent or received for all purposes at
such time as it is delivered to the addressee or at such time as
delivery is refused by the addressee upon presentation.
Section 8.3 Severability. Whenever possible, each
provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law, but if one or
more of the provisions of this Agreement is subsequently declared
invalid or unenforceable, such invalidity or unenforceability
shall not in any way affect the validity or enforceability of the
remaining provisions of this Agreement (unless those provisions
which are invalidated or unenforceable are clearly material and
inseparable from such other provisions). In the event of such
declaration of invalidity or unenforceability, this Agreement, as
so modified, shall be applied and construed so as to reflect
substantially the intent of the parties and achieve the same
economic effect as originally intended by the terms hereof. In
the event that the scope of any provision to this Agreement is
deemed unenforceable by a court of competent jurisdiction, the
parties agree to the reduction of the scope of such provision as
such court shall deem reasonably necessary to make such provision
enforceable under the circumstances.
Section 8.4 Survival. It is the express intention and
agreement of the parties hereto that all covenants, agreements,
statements, representations, warranties and indemnities made in
this Agreement shall survive the execution and delivery of this
Agreement.
Section 8.5 Waivers. Neither the waiver by any party
hereto of a breach of or a default under any of the provisions of
this Agreement, nor the failure of any party hereto, on one or
more occasions, to enforce any of the provisions of this Agreement
or to exercise any right, remedy or privilege hereunder shall
thereafter be construed as a waiver of any such provisions,
rights, remedies or privileges hereunder. Any of the terms,
covenants, representations, warranties, or conditions hereof may
be waived only by a written instrument executed by the party
waiving compliance.
Section 8.6 Exercise of Rights. No failure or delay on
the part of any party hereto in exercising any right, power or
privilege hereunder and no course of dealing among the parties
hereto shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies
herein expressly provided are cumulative and not exclusive of any
other rights or remedies which any party hereto would otherwise
have at law or in equity or otherwise.
Section 8.7 Binding Effect. Subject to any provisions
hereof restricting assignment, this Agreement shall be binding
upon and shall inure to the benefit of the parties and their
respective successors and permitted assigns.
Section 8.8 Entire Agreement. This Agreement contains the
entire agreement among the parties hereto with respect to the
matters contained herein, and supersedes all prior oral or written
agreements, commitments or understandings with respect to the
matters provided for herein.
Section 8.9 Pronouns. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identity of the Person may
require.
Section 8.10 Headings. Section headings contained in this
Agreement are inserted for convenience of reference only, shall
not be deemed to be a part of this Agreement for any purpose, and
shall not in any way define or affect the meaning, construction or
scope of any of the provisions hereof.
Section 8.11 Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes
relating thereto, shall be governed by and construed in accordance
with the internal laws of the State of Minnesota without giving
effect to the principles of conflicts of laws thereof.
Section 8.12 Execution In Counterparts. To facilitate
execution, this Agreement may be executed in as many counterparts
as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures
of all Persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or
on behalf of, each party, or that the signatures of the Persons
required to bind any party, appear on one or more of the
counterparts. All counterparts shall collectively constitute a
single agreement. It shall not be necessary in making proof of
this Agreement to produce or account for more than the number of
counterparts containing the respective signatures of, or on behalf
of all of the parties hereto.
Section 8.13 Assignment. No party to this Agreement shall
have the right to assign or otherwise transfer its rights or
obligations under this Agreement, except with the prior written
consent of the other; notwithstanding, either party may assign or
otherwise transfer its rights or obligations under this Agreement
to a subsidiary or affiliate upon notice to the other. Regardless
of the party to whom an assignment is made pursuant to this
Section 8.13, the assignee shall, as a condition to such
assignment, by written undertaking satisfactory to the other,
represent and warrant that the assignment was made in accordance
with all applicable laws and regulations and assume and agree to
be bound by the terms, provisions and conditions of this Agreement
to the same extent as the assignor; provided, however, that no
such assignment shall relieve the assignor of its obligations
(which shall be primary and which may be discharged in whole or in
part by the assignee) under this Agreement, to the extent
applicable. Any unauthorized assignment and any assignment made
in contravention of this Section 8.13 shall be null and void.
Section 8.14 No Agency. This Agreement shall not be deemed
expressly or by implication to create an agency, employee, or
servant relationship between or among any of the parties hereto,
or any affiliates of the parties hereto for any purpose
whatsoever.
Section 8.15 Force Majeure. No party shall be liable for
any failure of or delay in the performance of this Agreement for
the period that such failure or delay is due to acts of God,
public enemy, war, strikes or labor disputes, or any other cause
beyond the parties' reasonable control; it being understood that
lack of financial resources is not to be deemed a cause beyond a
party's control. Each party shall notify the other parties
promptly of the occurrence of any such cause and carry out this
Agreement as promptly as practicable after such cause is
terminated; provided, however, that the existence of any such
cause shall not extend the term of this Agreement.
Section 8.16 Time. Time is to be considered of the essence
for the purposes of this Agreement.
Section 8.17 Amendment and Modification. This Agreement
may only be amended or modified by a subsequent written agreement
by and among the parties hereto.
Section 8.18 Adherence To Applicable Law. In connection
with the performance of their respective obligations and the
exercise of their respective rights hereunder, each of the parties
hereto agrees, on behalf of itself and its subsidiaries or
affiliates, to comply in all material respects with all applicable
state, federal and local laws and regulations.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the date first set forth above.
FINGERHUT CORPORATION
By:
Its:
METRIS DIRECT, INC.
By:
Its:
jb-6d
EXHIBIT A
CUSTOMER DATABASE
Customer Database includes information solely of Fingerhut's which
relates to its transactions or experiences with all of its
customers (including all past and current customers [name,
address, telephone and account numbers] as well as prospective
customers). The Customer Database does not include any
information of third parties which Fingerhut does not have by
contract or otherwise the right to provide to Metris. The
Customer Database also includes but is not limited to, as updated
from time to time, the following:
* Credit or behavioral data (including but not limited to
customer payment histories, behavior scores, fraud, deceased, bad
debt and other collection data),
* All existing or developed models (including algorithms and
documentation) that derive credit scores related to such datas;
* Demographic (including promotional database) data and models;
* Attitudinal data (such as order level purchasing
preferences); and
* Psychographic data (including customer surveys).
EXHIBIT B
FINANCIAL SERVICE PRODUCTS
Insurance Products* Brokerage Services (real
estate, financial, insurance)
Warranty or Extended Service Auto Lending/Leasing
Plans
Tax Preparation Services Equity Loans, Mortgages
Deposit Products Bank Credit Cards
Investment Services Secured Bank Cards
(Annuities, Mutual Funds, Prepaid Cards
CDs)
Car Buying Services Smart Cards
Debit Cards
Consumer Loans (other than Co Branded Cards, Credit Card
closed end installment or Registration
revolving credit loans to Private label cards (that are
Fingerhut customers for the in competition with the
exclusive Fingerhut private label card)
purchase of merchandise) Auto Clubs
Credit Enhancement Products
Affinity Bank Credit Cards
Travel Services
Student Loans Mobile Home Financing
Mail Grams
Travelers Checks, Money Orders
*except for any Insurance products offered within the closed-end
installment loan coupon book or credit insurance which is directly
tied to a revolving credit balance owed directly to Fingerhut or
its wholly owned subsidiaries or the wholly owned subsidiaries of
its parent.
Fingerhut confirms that it will endorse the [name omitted]
product until such time as Metris no longer offers
the xxx product. In the event Metris requests Fingerhut's
endorsement of other Financial Service Products, the parties agree
to cooperate in good faith to develop a mutually agreed Fingerhut
endorsed product.
EXHIBIT C
COMPENSATION
Metris shall pay Fingerhut a non-refundable Database License Fee
as set forth below:
1996 $xxx
1997 $xxx
1998 $xxx
1999 $xxx
2000 $xxx
2001 $xxx
2002 $xxx
In addition to the Database License Fee, Metris shall pay
Fingerhut a Solicitation Fee and Suppress File Fee as set forth
below:
Solicitation $xxx per consumer name mailed from the Customer
Fee: Database solely for solicitation by Metris on
behalf of unaffiliated third parties to sell
Financial Services Products as set forth in
Exhibit B.
Suppress File $xxx for each consumer name obtained from a third
Fee: party that is matched to the Fingerhut suppress
file solely for purposes of elimination from a
solicitation.
The above fees terminate upon termination of this agreement.
EXHIBIT D
Mailer
[names omitted]
Fingerhut and Metris agree that Fingerhut may continue to license
the use of the Customer Database to the above identified companies
until December 31, 1996. Thereafter, Fingerhut shall either (a)
assign its contract with such company to Metris or (b) terminate
its agreement with such company effective January 1, 1997.
Until December 31, 1996, Fingerhut agrees to pay to Metris xx% of
revenues it receives from the above named companies to license use
of the Customer Database.
