EXTENDED SERVICE PLAN AGREEMENT
This Agreement (the "Agreement"), made and entered into
this 31st day of October, 1996, by and among Fingerhut
Corporation, Infochoice USA, Inc. (collectively
"Fingerhut"), and Metris Direct, Inc. ("Metris").
WHEREAS, Fingerhut makes available to purchasers of its
Merchandise (as defined herein), an Extended Service
Agreement (as defined below), providing coverage for defects
in materials and workmanship and for mechanical or
electrical failure of the Merchandise; and
WHEREAS, Metris desires to coordinate and manage all of
the marketing activities for Fingerhut's sales of extended
warranties or service plans to purchasers of its
Merchandise.
WHEREAS, Metris intends to either itself or through a
third party underwriter, insure and service the contractual
obligations of the Extended Service Agreements sold by
Fingerhut;
NOW THEREFORE, in consideration of the mutual promises
contained herein, the parties hereby agree as follows:
DEFINITIONS
The following terms, as used in this Agreement shall
have the following meanings whether used in the singular or
plural:
"Customer" shall mean a customer of Fingerhut who purchases
Merchandise for personal, family and household purposes
within the U.S. and its territories, where applicable.
"Extended Service Agreement" shall mean a repair or
replacement service agreement sold by Fingerhut between
Customer (as defined herein) and the applicable service plan
underwriter, and managed by Metris, covering mechanical or
electrical failure of Merchandise and defects in materials
and workmanship.
"Marketing Management Fee" shall mean the amount of the Net
Price, as set forth in Exhibit A and Schedule attached
hereto and incorporated herein by reference that Fingerhut
is required to pay Metris for coordinating and managing the
marketing programs for each Extended Service Agreement sold
under this Agreement.
"Merchandise" shall mean any new goods as identified in
Exhibit B attached hereto and incorporated herein by
reference sold by Fingerhut to a Customer during the term of
this Agreement.
"Merchandise Warranty" shall mean the warranty of the
manufacturer with respect to the Merchandise.
"Net Price" shall mean the amount Fingerhut is required to
pay Metris for each Extended Service Agreement sold under
this Agreement and shall be comprised of the Marketing
Management Fee and the Underwriting and Servicing Fee.
"Sales Price" shall mean the retail sales cash price at
which Fingerhut sells each Extended Service Agreement.
"Underwriting and Servicing Fee" shall mean the amount of
the Net Price, as set forth in Exhibit B attached hereto and
incorporated herein by reference, that Fingerhut is required
to pay Metris for performing, either itself or through a
third party underwriter and servicer, the contractual
obligations of the Extended Service Agreements sold by
Fingerhut.
ARTICLE 1. PROGRAM
Section 1.1. Service.
During the term of this Agreement, including any
renewals, Fingerhut shall sell the Extended Service
Agreement to all of its Customers who purchase Merchandise
eligible for extended service beyond the Merchandise
Warranty in accordance with this Agreement.
Section 1.2. Exclusivity.
During the term of this Agreement, Fingerhut shall
not make available to any Customer, any other agreement
providing for extended service that is competitive, similar,
or an alternative to the Extended Service Agreement offered
by Metris. Notwithstanding the foregoing, in the event
Metris notifies Fingerhut in writing of its inability to
provide an Extended Service Agreement on Merchandise,
Fingerhut may provide directly or contract with a third
party service provider to provide such Extended Service
Agreement.
Section 1.3. Coverage Under the Extended Service
Agreement.
Coverage for parts and labor for each component
protected by the Extended Service Agreement shall begin on
the date following expiration of the parts or labor
Merchandise Warranty applicable to each Merchandise
component indicated in the Merchandise Warranty. Coverage
will continue for the period shown in Exhibit B for each
product.
Section 1.4. Service Coverage.
Metris shall be responsible for the fulfillment of
the contractual obligations to the Customer, either itself
or through a third party underwriter, under each Extended
Service Agreement from the date sold to a Customer by
Fingerhut; provided however, the Merchandise covered under
the Extended Service Agreement was received by the Customer
in an undamaged state and that Metris has received the
appropriate Net Price from Fingerhut for each Extended
Service Agreement as required under Section 1.5. Fingerhut
agrees to pay the Net Price. Upon payment of the Net Price
by Fingerhut, Metris shall become contractually liable
directly to the Customer and Metris will pay the full amount
of any claim provided that such claim is within the terms of
coverage of the Extended Service Agreement and the Extended
Service Agreement is sold within a state in which Metris is
legally authorized to fulfill such obligations.
If Merchandise covered under the Extended Service
Agreement is to be replaced, Fingerhut agrees to provide the
Customer with such replacement product in accordance with
Fingerhut's product replacement policies in effect from time
to time. In such case, Metris shall reimburse Fingerhut for
the cost of such product at Fingerhut's standard cost plus
xx% to cover shipping and handling. Additionally, if
Fingerhut repairs any Merchandise covered under the Extended
Service Agreement, Metris shall reimburse Fingerhut for the
cost of such repair. All such reimbursements shall be
netted against any remittances required by Fingerhut under
Section 1.5, on a monthly basis, provided detail supporting
such reimbursement has been previously provided to and
approved by Metris. Fingerhut and Metris shall, in good
faith, mutually agree on the Sales Price of the Extended
Service Agreement.
Section 1.5. Remittances Required by Fingerhut.
(a) Fingerhut shall have the right to offer
(either directly or through third parties) the Customer
financing for the Customer's warranty purchase using any
credit offer Fingerhut or its Customers may choose, however;
Metris shall have no collection risk with respect to any
Extended Service Agreement financed by Fingerhut or a third
party.
(b) Daily, Fingerhut shall send Metris via system
data transfer the names, addresses and other information
necessary for fulfillment of all Customers who purchased
Extended Service Agreements. Within ten (10) days after the
close of each Fingerhut accounting month, Fingerhut shall
remit the sales report and other information for that month
to Metris for each such Extended Service Agreement sold and
for all cancellations; such report will also provide the net
amount due to Metris. Metris shall send Fingerhut an
invoice for the Net Price, which shall include the Marketing
Management Fee and Underwriting and Servicing Fee for all
Extended Service Agreements sold during the month for
Merchandise that has been shipped, less cancellations or
returns of such Extended Service Agreements. Terms shall be
30 days from the last day of the accounting month in which
the Extended Service Agreements were sold or cancelled.
Section 1.6. Merchandise Covered.
The list of Merchandise in Exhibit B shall
constitute the eligible goods for which an Extended Service
Agreement may be sold. The list may be amended by mutual
written agreement of the parties. Any Merchandise, other
than jewelry and furniture, that does not have a Merchandise
Warranty, shall not be eligible goods for which an Extended
Service Agreement may be sold.
Section 1.7. Records/Audits.
Both parties shall maintain records related to the
Extended Service Agreements sold under this Agreement. The
parties shall each allow its auditors or other designees to
audit performance under this Agreement. Such audits shall
be subject to reasonable notice and conducted during normal
business hours.
Section 1.8. Solicitation.
Unless Metris and Fingerhut agree to use
Fingerhut's direct mail solicitation or telemarketing media,
Metris shall develop media sources for direct mail
solicitations or telemarketing. If Metris uses Fingerhut's
direct mail solicitation and telemarketing media, Metris
shall reimburse Fingerhut for the cost of such catalog or
other mail space that it uses, and the variable cost of
telemarketing services, plus a reasonable allocation of
fixed overhead, at a combined rate per hour of telemarketing
time used, all as mutually agreed to at the beginning of
each calendar year during this Agreement by the parties to
this Agreement. Metris and Fingerhut agree to cooperate in
good faith to develop direct mail solicitations, and
telemarketing programs that meet applicable regulatory
guidelines and requirements and are designed to provide the
most cost effective use of customer service time.
Section 1.9. Ownership of Customer Names.
Metris agrees that Fingerhut has and shall have
exclusive ownership of all of its Customer names,
information, marketing methods and business practices
(collectively "Customer Names"). Metris shall not use or
provide to any other firm or entity, any names or
information developed in the term of this Agreement or
furnished to Metris by Fingerhut, for any purpose whatsoever
except as contemplated herein. Metris will hold all
customer names and information as confidential information
and will provide appropriate security measures to protect
such information from unauthorized use.
Section 1.10. Program Literature.
Neither Fingerhut, nor anyone on its behalf, shall
in any document or advertising describe the coverage offered
under the Extended Service Agreement in terms other than
those used in the Extended Service Agreement and as
otherwise approved by Metris. Metris shall notify Fingerhut
in writing of its objections to any such advertising within
ten (10) business days of receipt of the advertising from
Fingerhut. Fingerhut agrees its name may be used in any
advertising for Extended Service Agreements provided such
use is approved prior to use and does not imply that
Fingerhut has any contractual obligation under the Extended
Service Agreement.
ARTICLE 2. INDEMNIFICATION
Section 2.1. Obligations.
(a) By Metris. Metris shall be liable to and
shall defend, indemnify and hold harmless Fingerhut and its
Affiliates, and its respective officers, directors,
employees and permitted assigns from and against any and all
Losses (as hereinafter defined) incurred by reason of or
related to Metris' breach of its obligations hereunder.
(b) By Fingerhut. Fingerhut shall be liable to
and shall defend, indemnify and hold harmless Metris and its
Affiliates, and its respective officers, directors,
employees and permitted assigns from and against any and all
Losses (as hereinafter defined) incurred by reason of or
related to Fingerhut's breach of any of its obligations
hereunder.
(c) "Losses" Defined. For purposes of this
Section 2.1., the term "Losses" shall mean any liability,
damages, costs, losses and expenses, including attorneys'
fees, disbursements and court costs, reasonably incurred by
Metris or Fingerhut in connection with any threatened,
pending or adjudicated claim, demand, action, suit or
proceeding (whether civil, criminal, administrative or
investigative by an unaffiliated third party) without regard
to whether or not such Losses would be deemed material under
this Agreement.
Section 2.2. Procedures.
(a) Notice of Claims. The Parties agree that in
case any claim is made, or any suit or action is commenced
which, if not corrected, may give rise to a right of
indemnification for a Party hereunder ("Indemnified Party")
from the other Party ("Indemnifying Party"), the Indemnified
Party will give notice to the Indemnifying Party as promptly
as practicable after the receipt by the Indemnified Party of
such notice or knowledge of such claim, suit, or action. On
a best efforts basis, notice to the Indemnifying Party shall
be given no later than fifteen days after receipt by the
Indemnified Party in the event a suit or action has
commenced or thirty days under all other circumstances;
provided, however, that the failure to give prompt notice
shall not relieve an Indemnifying Party of its obligation to
indemnify except to the extent the Indemnifying Party is
materially prejudiced by such failure. The Indemnified
Party shall make available to the Indemnifying Party and its
counsel and accountants at reasonable times and for
reasonable periods, during normal business hours, all books
and records of the Indemnified Party relating to any such
possible claim for indemnification, and each Party will
render to the other such assistance as it may reasonably
require of the other in order to ensure prompt and adequate
defense of any suit, claim or proceeding based upon a
statement of facts which may give rise to a right of
indemnification hereunder.
(b) Selection of Counsel. The Indemnifying Party
shall have the right to defend, compromise and settle any
suit, claim or proceeding in the name of the Indemnified
Party to the extent that the Indemnifying Party may be
liable to the Indemnified Party under Section 2.1. above in
connection therewith; provided, however, that the
Indemnifying Party shall not compromise or settle a suit,
claim or proceeding unless it assumes the obligation to
indemnify for all Losses relating thereto. The Indemnifying
Party shall notify the Indemnified Party within ten days of
having been notified pursuant to Section 2.2.(a) of this
Agreement if the Indemnifying Party elects to assume the
defense of any such claim, suit or action and employ counsel
in a reasonable exercise of its discretion. The Indemnified
Party shall have the right to employ its own counsel if the
Indemnifying Party so elects to assume such defense, but the
fees and expenses of such counsel shall be at the
Indemnified Party's expense, unless the Indemnifying Party
shall not have employed counsel to take charge of the
defense thereof.
(c) Settlement of Claims. The Indemnified Party
may at any time notify the Indemnifying Party of its
intention to settle or compromise any claim, suit or action
against the Indemnified Party in respect of which
indemnification payments may be sought from the Indemnifying
Party hereunder, but shall not settle or compromise any
matter for which indemnification may be sought without the
consent of the Indemnifying Party. Any settlement or
compromise of any claim, suit or action in accordance with
the preceding sentence, or any final judgment or decree
entered on or in any claim, suit or action which the
Indemnifying Party did not assume the defense of in
accordance herewith, shall be deemed to have been consented
to by, and shall be binding upon, the Indemnifying Party as
fully as if the Indemnifying Party had assumed the defense
thereof and a final judgment or decree had been entered in
such suit or action, or with regard to such claim, by a
court of competent jurisdiction for the amount of such
settlement, compromise, judgment or decree.
(d) Subrogation. The Indemnified Party shall be
subrogated to any claims or rights of the Indemnifying Party
as against any other persons with respect to any amount paid
by the Indemnifying Party under this Article 2. The
Indemnified Party shall cooperate with the Indemnifying
Party, at the Indemnifying Party's expense, in the assertion
by the Indemnifying Party of any such claim against such
other persons.
(e) Indemnification Payments. Amounts owing
under this Article 2 shall be paid promptly upon written
demand for indemnification containing in reasonable detail
the facts giving rise to such liability; provided, however,
that if the Indemnifying Party notifies the Indemnified
Party within thirty (30) days of receipt of such demand that
it disputes its obligation to indemnify and the Parties are
not otherwise able to reach agreement, the controversy shall
be settled by final order entered by a court of competent
jurisdiction.
Section 2.3. Survival of Indemnification.
The provisions of this Article 2 shall expressly
survive any termination of this Agreement for five (5)
years.
ARTICLE 3. CONFIDENTIALITY
Section 3.1. Confidential Information.
Confidential Information will be kept in
confidence by such other party, including its subsidiaries,
affiliates, officers, directors, employees, agents,
consultants and contractors, 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) all trade secrets and other
confidential business information learned in the course of
performance by any party of its obligations hereunder, and
(ii) 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 or (iv) is
reasonably necessary in the opinion of counsel, to be
disclosed in the context of a legal proceeding or regulatory
investigation, provided that prior notice shall be given by
the party which furnished the information.
The provisions of this Article 3 shall expressly
survive any termination of this Agreement for five (5)
years.
ARTICLE 4. TERM AND TERMINATION
Section 4.1. 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 at law or in
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 also 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
of 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 (1)
nominated by Fingerhut, or by the Board of Directors of
Metris, nor (2) appointed by directors so nominated; or (3)
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.
Section 4.2 Event of Default.
An "Event of Default" shall be deemed to have
occurred 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 4.2, 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 4.2(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 4.2(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.
ARTICLE 5. MISCELLANEOUS
Section 5.1. Notices.
Any notice given in accordance with the provisions
of this Agreement must be in writing and sent by registered
or certified mail return receipt requested to the respective
addresses of the parties shown at the beginning of this
Agreement. Notices shall be sent to Metris and to Fingerhut
and shall be addressed as follows:
If to Metris:
Metris Direct, Inc.
Interchange Building
000 Xxxxx Xxxxxxx 000, Xxxxx 0000
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
If to Fingerhut:
Fingerhut Corporation
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President of
Marketing
With a copy to the General Counsel
Section 5.2. Applicable 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 or conflicts of laws thereof.
Section 5.3. Severability.
If any provision of this Agreement or portion
thereof is held invalid, illegal, void or unenforceable by
reason of any rule of law, administrative or judicial
provision or public policy, such provision shall be
ineffective only to the extent invalid, illegal, void or
unenforceable, and the remainder of such provision and all
other provisions of this Agreement shall nevertheless remain
in full force and effect.
Section 5.4. No Partnership or Joint Venture.
This Agreement does not create a partnership or
joint venture between the Parties, and neither Party to this
Agreement shall have any authority whatsoever to bind the
other Party to any obligation.
Section 5.5. No Third Party Beneficiaries.
Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon any person or
entity, other than the Parties and their respective
successors and assigns permitted by this Agreement, any
right, remedy or claim under or by reason of this Agreement.
Section 5.6. Captions: Counterparts.
The captions in this Agreement are for convenience
only and shall not be considered a part of or affect the
construction or interpretation of any provision of this
Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
Section 5.7. Amendments and 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. This Agreement
may only be amended or modified by a subsequent written
agreement by and among the parties hereto.
Section 5.8. 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 (in the case of Fingerhut however,
only to a subsidiary or affiliate to which the rights to
sell merchandise to Fingerhut Customers was also
transferred) upon notice to the other. Regardless of the
party to whom an assignment is made pursuant to this
Section 5.8., 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 5.8. shall be null and
void.
Section 5.9 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 or conflicts of laws thereof.
Section 5.10 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 5.11 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 5.12 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 5.13 Amendment and Modification.
This Agreement may only be amended or modified by
a subsequent written agreement mutually agreed to by and
among the parties hereto.
Section 5.14 Management Review.
(a) Unless otherwise mutually agreed to by the
parties, on or before January 1, 2001, Fingerhut and Metris
agree to evaluate the Marketing Management Fee and the
Underwriting and Servicing Fee (collectively, the "Fees") as
set forth in this Agreement and Exhibit. The purpose of
such evaluation shall be to determine the then arms-length
market rate for the Fees. The parties agree to meet and
negotiate in good faith to reach a mutual agreement on the
market rate for the Fees. Any failure by the parties to
reach mutual agreement on the market rate of the Fees as a
result of the negotiations conducted pursuant to this
subsection (a) shall not be deemed by either party to be a
breach of this Agreement and unless otherwise terminated as
provided herein, this Agreement shall remain in full force
and effect.
(b) In the event Fingerhut and Metris are unable to
agree on the then market rate for the Fees to be charged
hereunder by January 1, 2001, they agree to send out within
5 days after January 1, 2001, requests for proposals
("RFPs") to three (3) reputable companies that are in the
business of providing extended product service or extended
warranty coverage for retailers to sell to their customers
(the "Independent Providers"). The identity of the three
Independent Providers who are sent RFPs and the
assumptions/parameters to be set forth in the RFPs will be
as mutually agreed upon by Fingerhut and Metris. The
Independent Providers will be instructed to respond with bid
proposals within 5 days of receipt of the RFPs. The parties
agree to use the middle price bid proposal submitted by the
Independent Providers as the market rate for the Fees for
the services provided by Metris for the balance of the term
of this Agreement. Any failure by the parties to reach
mutual agreement on the market rate of the Fees as a result
of the failure to agree on the Independent Providers to whom
RFPs would be sent or on the assumptions/parameters of the
RFPs under this subsection (b) shall not be deemed by either
party to be a breach of this Agreement and unless otherwise
terminated as provided herein, this Agreement shall remain
in full force and effect.
(c) In the event Fingerhut and Metris are unable to
reach a mutually acceptable agreement under subsection (a)
above or to agree on the three Independent Providers or on
the assumptions/parameters to be included in the RFPs for
the procedure set forth in subsection (b) above, then the
issue of the market price of the Fees will be submitted on a
binding basis to an arbitrator selected by mutual agreement
of the parties. If the parties are unable to agree upon a
single mutually acceptable arbitrator, each party will
select one arbitrator and the two arbitrators will select a
third arbitrator. In consultation with the arbitrator(s),
the parties will select or devise an alternative dispute
resolution ("ADR") procedure by the which arbitrator(s) will
attempt to resolve the dispute. The ADR procedure will be
held in Minneapolis, Minnesota unless the parties mutually
agree on another location. The parties agree to participate
in good faith in the ADR procedure to its reasonable and
prompt (not to exceed 45 days) conclusion. The
arbitrator(s) will be required to conduct the ADR in
accordance with the rules and procedures of the American
Arbitration Association.
(d) Each party agrees that the decision of the
arbitrator(s) shall be binding on all parties. Each party
will bear equally all fees, costs and expenses of the ADR,
and each party will bear its own legal expenses, attorneys'
fees and costs of any experts and/or witnesses.
(e) The fact that arbitration has commenced will not
impair the exercise of any termination rights in accordance
with the provisions of this Agreement.
(f) The parties agree to make amendments to this
Agreement pursuant to Section 5.13 to reflect the mutually
acceptable agreements under subsection (a) or subsection (b)
above or the final decision of the arbitrator(s), as
applicable. A party's refusal to amend this Agreement to
reflect the final decision of the arbitrator(s) under
subsections (c) and (d) above shall be deemed to be a breach
of this Agreement.
IN WITNESS WHEREOF, the duly authorized
representatives of the parties have executed this Agreement
as of the day and year first above written.
FINGERHUT CORPORATION METRIS DIRECT, INC.
By: By:
Title: Title:
INFOCHOICE USA, INC.
By:
Title:
jb-19b
EXHIBIT A
I. CALCULATION AND DETERMINATION OF THE NET PRICE AND MARKETING MANAGEMENT
FEE
Upon Metris' receipt from Fingerhut of the system data
transfer information necessary for fulfillment of all
Customers who purchased Extended Service Agreements, Metris
will issue and mail or contract with a third party to issue
and mail an Extended Service Agreement to the Customer. The
Extended Service Agreements will be mailed to each Customer
within ten (10) business days of receipt of the fulfillment
information.
Metris will calculate a percentage of the Extended
Service Agreement's Sales Price to be deducted from such
price in determining the amount payable by Fingerhut to
Metris (the "Net Price") for managing the marketing programs
and for servicing and fulfilling the obligations for each
Extended Service Agreement sold under such plan or
contracting with a third party to fulfill such obligations.
From the Net Price, Metris shall calculate and deduct the
Underwriting and Servicing Fee in accordance with the fee
schedule in Exhibit B as compensation to Metris for
servicing and fulfilling the obligations for each Extended
Service Agreement sold. The amount of the Net Price
remaining after deduction for the Underwriting and Servicing
Fee shall become the Marketing Management Fee.
The percentage to be deducted from the Net Price to
determine the allocation between the fixed Underwriting and
Servicing Fee and the variable Marketing Management Fee is
to be determined based on the sales method used to solicit
the sale, and based on the effort expended by Fingerhut in
soliciting the sale using certain of its advertising or
offering media versus other media produced by Metris with
little input or effort conducted by Fingerhut or its
representatives. Such percentage schedule shall initially
be as found below, based on each sales method as further
defined below:
On-Page (Any Extended Service
Agreement plan sale or order
received by Fingerhut at the
same time as the product order
without the inbound xx%
telemarketing representative
offering the Extended Service
Agreement separately as an
addition to a customer's order.)
Add-On (An inbound or
outbound telemarketing
call made at or within
10 days of the
original product order
during which the
Fingerhut xx%
telemarketing
representative
specifically solicits
the customer for the
purchase of an
Extended Service
Agreement in addition
to their merchandise
order.)
Stand-Alone (A
telemarketing call
made by a Fingerhut or
a Metris telemarketing xx%
representative or
Metris' agent offering
an Extended Service
Agreement product
greater than 10 days
after Merchandise
purchase.
Renewal (An offer
conducted by Metris to xx%
renew Extended Service
Agreement coverage
after the original
term of the Extended
Service Agreement.)
Any offers or methods of further offering Extended
Service Agreements developed subsequent to the execution of
this contract which do not meet any of the definitions noted
above, shall be conducted under an amended percentage
schedule to be mutually agreed to by the parties based on
the sales method used to solicit the sale, and also
determined based on the effort expended by Fingerhut in
soliciting the sale using certain of its advertising or
offering methods versus other methods conducted by Metris
with minimal input or effort conducted by Fingerhut or its
representatives as noted above.
II. ADJUSTMENTS TO THE NET PRICE AND THE MARKETING
MANAGEMENT FEE
After December 31, 1996, the percentage of the Extended
Service Agreement's Sales Price to be deducted in
determining the Net Price, shall be adjusted annually, on a
calendar year basis, to reflect Fingerhut's efforts to
increase serviceable product sales thereafter. Such
adjustment shall be reflected as a reduction in the
Marketing Management Fee and shall be calculated by taking
each of the percentages in paragraph three of Section I and
increasing them by xx%, then multiplying such increased
percentages by sales method by the Sales Price for all
Extended Service Agreements sold in any calendar year in
excess of the sum of all of the Sales Prices of the Extended
Service Agreements sold in the calendar year ended December
31, 1996. However, no such increased percentages shall be
reflected until the sum of all of the Sales Prices in any
given calendar year exceed that of the calendar year ended
December 31, 1996, regardless of whether the sum of the
Sales Prices by certain sales methods exceed the sum of the
Sales Prices of that same sales method in calendar year
1996. The increase in the percentages noted above shall
only occur once and will apply thereafter only to total
Sales Price increases in excess of the base calendar year
ended December 31, 1996.
Extended Service Agreement returns or cancellation of
such agreement may only be accepted by Fingerhut under its
normal return policy terms and conditions. In accordance
therewith, Metris shall pay to Fingerhut the amount of the
Net Price paid by Fingerhut (less xx% after December 31,
1996) for any Merchandise cancelled or returned by a
Customer to Fingerhut within the relevant Merchandise
Warranty period and for which Fingerhut has given full
refund of the Sales Price to the Customer. Fingerhut will
provide Metris details in writing of any such refund within
ten business days after the calendar month in which such
refund occurs. Any such payment due from Metris will be
considered paid when Fingerhut deducts the amount of the Net
Price for such Merchandise from the next payment to be made
in accordance with the remittance provisions of Section 1.5.
In the event that a Customer cancels a Service Agreement
after the Merchandise Warranty expires, Metris shall
calculate and reimburse Fingerhut for a pro rata portion of
the Net Price less any claims incurred by such Customer and
paid by Metris (and less xx% of this amount after December
31, 1996). The pro-rata portion shall be computed by
dividing the Net Price by the term in months of the Extended
Service Agreement and then multiplying that monthly rate
times the number of months from the Extended Service
Agreement return to the original month of its expiration.
However, in no event shall the amount reimbursed exceed the
Net Price of the Customer contract.
III. ADVERTISING AND OTHER COST REIMBURSEMENTS
Metris shall reimburse Fingerhut for the advertising
cost it expends in directly offering extended service plans
through its own advertising media for the reasons previously
mentioned in Section I above. Such advertising cost
reimbursements shall be determined and calculated based on
an advertising cost standard, including both fixed and
variable costs, developed specifically for Metris' Extended
Service Agreement product offers within each sales method as
denoted in Section I above. The method and details of such
calculation, including the basis for cost reimbursement,
(i.e., orders received within each media or a flat charge
per catalog shipped or telephone call made or received)
shall be provided to Metris management in writing for their
review and approval within a reasonable time prior to the
establishment of such a charge or reimbursement.
Additionally, such standard may be adjusted periodically, in
conjunction with Fingerhut's normal adjustment of all of its
advertising cost standards, based on actual cost data and
experience with the advertising for Extended Service
Agreement products within the Fingerhut media and with prior
review and approval by Metris management. This
reimbursement will be calculated and determined monthly with
prior review and approval by Metris management and will be
deducted from the monthly payment to be made in accordance
with the remittance provisions of Section 1.5.
Metris may also periodically receive various products
and services directly from Fingerhut to assist Metris in its
management and coordination of the Extended Service
Agreement marketing programs. Such products and services
shall initially include the additional premiums provided to
a Customer in conjunction with an Add-On Extended Service
Agreement sale and printing and shipping services for the
preparation and delivery of the actual service agreements.
The provision and standard cost for such additional products
and services provided by Fingerhut to Metris shall be
mutually agreed upon by both Metris and Fingerhut prior to
such services being performed or products delivered and may
be adjusted periodically in accordance with the provisions
of the paragraph above. Reimbursement for such additional
products and services shall also be performed consistent
with the terms for advertising costs noted in the paragraph
above.
EXHIBIT B
UNDERWRITING AND SERVICING FEES
MERCHANDISE/PRICING RECOMMENDATIONS
Section I - Electronics
Audio
Product Term
Audio Components Coverage from Date
of Purchase
(Receivers, compact disc, cassette 2 Year/3
Year
decks, turntables, equalizers)
2 Component Rack "
3 Component Rack "
4 Component Rack "
5 Component Rack "
6 Component Rack "
Audio/Visual System
(With television only) "
Audio/Visual System
(With TV and VCR) "
Compact Stereo "
Portable Stereo "
Mobile Electronics
Car Stereo "
Radar Detector "
Auto Alarms "
Cellular Phones "
Police Scanners "
CB Radios "
Walkie Talkies "
Home Office
Typewriter "
Computer with or without Monitor "
Printer "
Word Processor "
Product Term
Fax Machine "
Copy Machine "
Corded Phone "
Cordless Phone "
Telephone Answering Machine "
Phone with Answering Machine "
Telephone/Answer Machine/Clock Radio "
Tape Recorder "
Paper Shredder "
Computer/Printer/Monitor "
Appliances
*Refrigerator Coverage from Date
of Purchase
2 Year/3 Year
*Compact Refrigerator "
*Freezer "
*Range "
*Microwave "
*Air Conditioner "
*Washer "
*Dryer "
*Dishwasher "
Video
*Color TV (27" or less) "
*Color TV (28" - 35") "
*Big Screen/Projection "
VCR "
Camcorder "
TV/VCR Combo "
Black & White TV "
Video Games "
Video Disc Player "
Housewares
Vacuum Cleaner "
Carpet Extractor "
Floor Polisher "
Sewing Machine "
Kitchen Electrics "
Product Term
Fans "
Clock Radios "
Personal Care Items "
Tools, Lawn and Hardware
Snowblower "
Power Tools "
Air Compressors "
Battery Chargers "
Portable Generators "
Portable Welders "
Lawn Mowers "
Snow Blowers "
Riding Lawnmower "
Electric Trimmer/Blower/Vacuum "
Gas Trimmers/Blower/Vacuums "
Cultivator "
Chainsaws "
Logsplitters "
Shredder/Chipper "
Miscellaneous
*Home Security System Coverage from Date
of Purchase
2 Year/3 Year
Musical Instruments "
Exercise Equipment "
35MM Cameras "
110 Cameras "
Polaroid Cameras "
Suntanning Canopy "
Word Finder/Xxxxxxx/Translator "
*Denotes in-home service
1) First Purchase Underwriting and Servicing Fees
Item Retail 2 Year Contract 3 Year Contract
$xx - xx xx xx
$xx - xx xx xx
$xx - xx xx xx
$xx - xx xx xx
$xx - xx xx xx
$xx - xx xx xx
$xx - xx xx xx
2) 5 Year Step-Up Appliance Underwriting and Servicing
Fees
Item 5 Year Contract Cost
Refrigerator, Freezer, Washing $xx
Machine
Refrigerator with Icemaker $xx
3) Renewal Underwriting and Servicing Fees
Item 3rd Year 4th Year 5th Year
Retail Renewal Renewal Renewal
$xx - xx xx xx xx
$xx - xx xx xx xx
$xx - xx xx xx xx
$xx - xx xx xx xx
$xx - xx xx xx xx
$xx - xx xx xx xx
$xx - xx xx xx xx
Limitations
* All Extended Service Agreements are inclusive of the
manufacturer's warranty and begin on date of purchase.
* Commercial use is excluded.
* Only those products with a manufacturer's warranty of
at least 90 days' parts and labor are eligible for extended
service.
* Products with a 2 year manufacturer's labor and parts
warranty are not eligible for a 2 year service agreement and
products with a 3 year manufacturer's labor and parts
warranty are not eligible for a 3 year service agreement.
Section II
Quality Furniture Care
Extended Service Agreement provides stain coverage for
upholstered furniture; lifting, peeling, cracking of solid
wood, veneered or laminated furniture; structural defects to
frames; warpage, breakage, or bending of metal components on
recliners and sleeper mechanisms, glass coverage on tables,
wall units and cabinets; and foam resiliency to cushions and
mattresses.
PRODUCT RETAILS UNDERWRITING AND
SERVICING FEES
$xx - $ xx $xx
xx - xx xx
xx - xx xx
xx+ xx
Term of coverage - 2 years from date of purchase.
Product Categories
Upholstered furniture End tables/soft tables
Wood furniture Recliners
Wall units/cabinets Leather furniture
Laminated furniture Mattresses
Room rugs
Section III
Quality Jewelry Care
Extended Service Agreement provides labor and materials
necessary to maintain the jewelry purchased for 2 years from
date of purchase, and if the item cannot be repaired it will
be replaced. Benefits include ring resizing, stone
tightening, prong retipping, polishing; chain and bracelet
soldering, earring and clasp repair.
UNDERWRITING AND
PRODUCT RETAILS SERVICING FEES
$ xx - $ xx $xx
xx - xx xx
xx - xx xx
xx - xx xx
xx+ xx
Product Categories
Rings - 10K/14K Necklaces
Bracelets Earrings
Broaches Chains
Pendants
