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EXHIBIT 10-8 PAGE 1
SPIEGEL. INC.
0000 XXXXX XXXX
XXXXXXX XXXXX. ILLINOIS
60515-5432
(000) 000-0000
EXECUTIVE OFFICE
December 1, 1997
Xx. Xxxx Xxxxxxx
Xxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxxx:
This letter sets forth the terms of your company's participation in the Spiegel
Specialty Catalog Reverse Syndication Marketing Program. The use of the words
"you" and "your" in this Contract/Letter of Agreement ("the Agreement") shall
mean your company as listed above and any division or other subsidiary or
affiliate operating pursuant to the terms and conditions of this Agreement.
1. SUBMISSION OF SAMPLE AND FINAL MEDIA
You agree to timely submit samples of promotional media and/or
telemarketing program (together "Media") in advance of any
printing or telemarketing for Xxxxxxx'x review and written
approval. No changes may be made in the Media after such
approval by Xxxxxxx. You will furnish 75 pieces of the
approved Media to Spiegel.
2. ORDER ACCEPTANCE AND PROCESSING
You will accept and fill all orders for the purchase of the
goods and services, if any, described in the Media (such
purchase is herein referred to as a "Sale") by persons in
whose name an FCNB Preferred(R) Charge Account has been
opened, and any other authorized users thereof, or by persons
using any other methods of payment, for example, other
bankcards, debit cards, checks, etc. (for purposes in the
Agreement all foregoing persons making a purchase or order
shall be defined as "Accountholders"), subject to the
following conditions:
a. For mail orders, you must receive from the Accountholder
the order form from the Media or a memorandum (such order
form or memorandum is herein referred to as an "Order
Form") indicating the Accountholder's desire to purchase
the goods and accompanying service, if any, described in
the Media and containing the Accountholder's name, account
number, and signature;
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b. For phone orders, you must maintain a record or
memorandum indicating the Accountholder's request to
purchase the goods and accompanying services, such
record or memorandum to contain the Accountholder's
name and account number only; and
c. All orders charged to a FCNB Preferred(R) Charge
account require authorization from the Spiegel FCNB
Preferred(R) Charge Credit Department, except for
those orders from Accountholders who have already
been identified by Spiegel for you as being in a
credit-approved status. For such orders, you have
authorization to provide merchandise to the
Accountholders for up to $75 for a period not to
exceed 90 days from the date of the Selection Letter
you receive from Spiegel which is the date of the
selection of names for your promotion.
3. SALES MEMORANDUM/BILLING REGISTER
Upon shipment of goods or materials evidencing any services,
you agree to complete the form of sales memorandum (approved
by Spiegel at the inception of the program) evidencing a Sale
(such a sales listing sheet or other approved sales memorandum
is referred to herein as a "Billing Register") for all Sales,
including all check, direct debit and other charge card sales,
at the time the goods are shipped to the Accountholders. Each
sales memorandum will include: Accountholder's FCNB
Preferred(R) Charge account number; the 8 or 12-digit order
number; full Accountholder's name and address; total charge
for goods or services; delivery charge; total of all charges
(or sale, if a direct debit or check transaction); and
commission due to Spiegel. You will retain a copy of the
Billing Register and remit a copy to Spiegel, once weekly as
determined by Xxxxxxx, along with an invoice, after shipment
of the goods or materials evidencing any services to the
Accountholder.
4 Warranties and Representations
You warrant, represent, and agree that:
a. Accuracy
All representations and information made in the Media will be
accurate and correct and none will be misleading or deceptive,
nor will there be any material omissions. All goods delivered
will be as described in the Media.
b. Legal Compliance
You will comply with all applicable federal and state laws and
regulations, including, but not limited to, the
Truth-in-Lending Act, the Federal Trade Commission ("FTC")
Telemarketing Sales Rules and the FTC Mail or Telephone Order
Merchandise Rule, and all other FTC rules regulating
merchandise, warranties, and mail/phone order
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transactions. In addition, adherence to the Direct Marketing
Association's Fair Information Practices Manual should also be
observed.
c. Delivery Deadlines
All goods and services described in the Media will be
delivered within thirty (30) days after receipt of an order
from an FCNB Preferred(R) Charge Customer within such time as
specified in the Media, as communicated to the Accountholder,
or as otherwise required by law.
d. Insurance/No Infringements/Indemnification
Prior to mailing of promotional material to or prior to any
telemarketing or other promotional activity with
Accountholders, you shall name Spiegel, Inc., 0000 Xxxx Xxxx,
Xxxxxxx Xxxxx, Xxxxxxxx 00000 as an additional insured on your
comprehensive general liability insurance policy in the
minimum amount of Two Million Dollars. You shall furnish
Spiegel with a current Certificate of Insurance evidencing
such insurance upon execution of this Agreement and then once
annually upon the anniversary date of this Agreement.
You agree to defend and indemnify Spiegel against all cost,
loss, damage, fine, penalty or expense, including reasonable
attorney fees, arising from any product liability or
intellectual property claim or from any alleged or actual
violation of a state or federal law, rule or regulation
related to the products or services under the Program/Media or
the marketing, distribution or solicitation of sales under the
Program/Media including without limitation, the Federal Trade
Commission's Telemarketing Sales Rule and the Federal Trade
Commission's Mail or Telephone Order Merchandise Rule.
All goods and services described in the Media and the Media
itself do not violate any right or property interest therein
of any third party, or Spiegel, including, without limitation,
such right or property interest based upon patent, trademark,
copyright, or trade secret. You agree to defend and indemnify
and hold Spiegel, its subsidiaries, parent, and affiliates and
all of their respective directors, officers, employees and
agents ("Indemnities") harmless from and against any and all
liabilities, losses, claims, lawsuits, judgments, damages,
fines, penalties and expenses, including, without limitation,
costs and expenses of litigation and reasonable counsel fees
("Claim Obligations"), whatsoever arising from any (i)
defense, dispute, offset, claim, or counterclaim made by any
third party, or Spiegel, that any of the material in the Media
and/or the sale by you to any Accountholder of the goods
and/or accompanying services, if any, described in the Media
or delivered to any person, violates any right and/or property
interest of a third party, including, without limitation, any
such right or property interest based upon copyright, patent,
trademark, trade secret or any other intellectual property
right under any state or federal law; (ii) product liability
claim; product recall, retrofit or safety notice; or claim of
unfitness or impurity of any goods or services sold pursuant
to the transactions contemplated by this Agreement; (iii)
alleged
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or actual violation of a state or federal law, rule or
regulation related to the products or services marketed under
the Media or the marketing, distribution or solicitation of
sales under the Media including without limitation, the
Federal Trade Commission's Telemarketing Sales Rule and the
Federal Trade Commission's Mail or Telephone Order Merchandise
Rule; (iv) and all claims arising out of this Agreement,
except to the extent that the same are caused by Xxxxxxx'x
agents or employees. Xxxxxxx agrees (i) to give you prompt
notice of any claims, demands, suits, proceedings or actions
for which we intend to seek indemnification hereunder, (ii)
not to compromise or settle any claim against Spiegel for
which indemnification is sought without your prior written
consent, and (iii) that you shall have the right to select
counsel to defend any claim for which indemnification is to be
sought, such selection being subject to our approval, which
approval shall not be unreasonably withheld.
e. Taxes
You are the actual seller or vendor of the merchandise. You
agree to collect and pay any and all sales, use, or similar
taxes levied on the transactions contemplated by this
Agreement.
The warranties and representations stated above are cumulative
and are to be considered as reaffirmed and restated each time
you execute a new Addendum/Schedule.
5. SUBMISSION OF BILLING REGISTERS
No Billing Registers for FCNB Preferred(R) Charge transactions
will be presented to Spiegel for credit or payment until after
an order has been shipped to the Accountholder or their
designated shipping address. Billing Registers for all other
direct debit, check or other bankcard transactions shall be
sent to Spiegel on a weekly basis.
6. RECORD RETENTION AND AUDIT
You hereby agree that Xxxxxxx may, at any reasonable time, and
upon at least three (3) business days' notice, examine any of
your records relating to the transactions covered or
contemplated by this Agreement. You will retain original order
information and proof of shipment for three (3) years and a
microfilm copy of those records for an additional two years.
You will furnish copies of such documents to Spiegel within
two (2) working days after a request is received. You agree
that if you cannot provide such copies and the customer
disputes the sale, you will authorize a credit to the
customer's FCNB Preferred(R) Charge Account and agree to a
chargeback by Xxxxxxx to you for such disputed sales without
any credit for any adjusting commission due or paid to
Spiegel. In addition, you will retain your Purchase Order
Agreements with your supplier or manufacturer of the goods and
services described in the Media pursuant to the same document
retaining guidelines stated above. You shall make available to
Spiegel upon three business days notice, all books and records
in connection with or related to any and/or all transactions
contemplated by this Agreement and any Addenda/Schedules or
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related to any sale made pursuant to any Media.
7. MEDIA APPROVAL
You acknowledge and agree that Xxxxxxx has an absolute right
to refuse to allow you to mail any promotional material or
telemarket any program to Accountholders. In the event of such
refusal and provided that you have met all the terms and
conditions of this Agreement, Spiegel will reimburse you for
the reasonable, actual cost of the Media directly associated
with that promotion which you are unable to use for a future
promotion.
IN NO EVENT SHALL SPIEGEL BE LIABLE FOR SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS
AGREEMENT OR ANY ADDENDUM/SCHEDULE OR THE CONDUCT OF BUSINESS
CONTEMPLATED HEREIN, EVEN IF PRIOR NOTICE FROM YOU OF ANY
POSSIBLE DAMAGES HAS BEEN GIVEN TO SPIEGEL.
8. CUSTOMER SERVICE
You agree to resolve all complaints that Spiegel regards as
reasonable to the customer 5 satisfaction without cost to
Spiegel. You also agree to respond in writing or by telephone
to all Spiegel customer correspondence within five (5) working
days of receipt of such correspondence. If an Accountholder
advises in writing the reasons that the Account-holder refuses
to pay for a purchase, Xxxxxxx will promptly notify you
thereof; you must then resolve the Accountholder's claim or
complaint within thirty (30) days from the date you receive
such notification. If you do not resolve the Accountholder's
claim or complaint within thirty (30) days, you will, in
Xxxxxxx'x sole discretion, authorize a credit for this
customer.
9. MERCHANDISE RETURNS/CREDIT REGISTERS
In the event the customer returns the merchandise or cancels a
membership or subscription for whatever reason, you will
credit the customer 5 account for the complete cost of the
returned merchandise, and/or canceled membership or
subscription, if applicable, and any applicable taxes. Upon
request by a customer, you will also refund shipping and
handling charges for returning merchandise. You will not make
any refunds or adjustments with respect to FCNB Preferred(R)
Charge Sales in cash or by check. Instead, when the goods are
returned to you or an adjustment is made, you will complete a
Credit Register or other credit memorandum approved by Spiegel
at the inception of the program (such approved credit
memorandum is referred to herein as a "Credit Register"). Such
Credit Register will include the following information:
- Accountholder's FCNB Preferred(R) account
number;
- the eight or twelve-digit order number;
- full Accountholder's name and address; U
total merchandise charge;
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- delivery charge;
- total of all charges;
- commission previously paid to Spiegel;
- Bankcard account number, or other payment
method, if not Spiegel FCNB Preferred(R)
Charge.
You will remit a copy of the Credit Register to Spiegel within
five (5) business days of the date the goods are returned to
you or the adjustment is made, whichever is earlier. You will
adhere to all other bankcard charge agreements with respect to
returns for credit for Sales made with other charge cards.
10. ACCOUNTHOLDER LIST
Spiegel will furnish to you a list of FCNB Preferred(R) Charge
Accountholders ("Spiegel List") for your use in performing
your rights and obligations under this Agreement. We
understand that you may perform various "merges and purges" of
such list in accordance with normal industry practice. Such
merges and purges shall be made subject, however, to the
following:
a. List Return
You will return to Spiegel the original tape furnished to you
and any copies made by you after any such merge/purge has been
completed;
b. Merge/Purge Reports
You will send to Spiegel, upon its generation or upon
Xxxxxxx'x request, any report or documentation which
summarizes the result of any such merge and purge by you
regarding the Spiegel List;
c. Name Exclusions
Any names merged and purged because they are already on your
primary customer file when the list was furnished to you will
not be considered part of this Agreement for any purpose;
d. Name List Conflicts
Xxxxxxx must agree in writing to a merge and purge of Spiegel
List names furnished to you against any outside rented list or
any other syndication participant list procured for the same
solicitation. Xxxxxxx requires that the Spiegel List names
will have priority over any outside rented names and any other
syndication participant list; that is, the name is credited to
our list and dropped from the outside list or syndication
participant list;
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e. Use and Non-Disclosure
You agree not to disclose any name and address from the
Spiegel List, authorized users, and any "ship to" names and
addresses provided to you by Xxxxxxx or obtained as a result
of any list furnished hereunder. You will use such names
and/or addresses only in connection with Sales made in
response to the Media, and you will not make and/or maintain
such list or part thereof for any other purpose, including for
any subsequent solicitations. You will not make any names or
addresses supplied to you a part of your database. You also
agree not to sell, rent, lend or lease or otherwise give,
directly or indirectly, and such names and/or addresses to any
other person or organizations for any purpose, and you will
not allow any other person or organization to obtain or use
any such names and/or addresses. You will not offer to open an
account for or offer your own or another credit card to any
person by using such names and/or addresses developed from
Accountholder orders for the goods and accompanying service,
if any, described in the Media.
11. NO ALTERNATE PAYMENT SOLICITATION
You agree that you will not directly or indirectly by any
means solicit payment for any potential or actual sales other
than by payment to be charged to a customer's FCNB
Preferred(R) Charge account for the goods and/or services
described in the Media.
12. INCLUSION OF PAYMENT ALTERNATIVES
If you should receive an order from an Accountholder or a
non-Accountholder in connection with or as a result of the
Media, in the form of cash, check, debit card, or acceptable
charge card other than the FCNB Preferred(R) Charge, such
order shall be subject to the terms and conditions of this
Agreement.
13. CONTRACT ADDENDUM/SCHEDULE GUIDEBOOK EXHIBITS
A Schedule to this Agreement, in the form as provided in
Section XI of the Spiegel Re-verse Syndication Program
Guidebook, shall be completed and executed for each
promotional program or Media offered by you and Spiegel
pursuant to this Agreement. Such Schedule(s) shall be serially
numbered. This Agreement, together with the Schedule(s) which
may be entered into from time to time, and the Operations
Guidelines and Exhibits and Tables, copies of which have been
furnished to you in the Spiegel Reverse Syndication Program
Guidebook, shall constitute the entire Agreement between you
and Spiegel.
14. PAYMENT SCHEDULE
Any payments owed to you pursuant to this Agreement shall be
made in accordance with the Spiegel Payment Schedule, a copy
of which is within the Spiegel Reverse Syndication Program
Guidebook in Section VI.
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15. TERMINATION
This Agreement will remain in effect until terminated by
either of us on ninety (90) days written notice to the other,
except that any such promotional program or Media may be
terminated by Spiegel at any time as provided in Paragraph 7
herein above. Any termination of the Agreement shall not
affect the rights and obligations of the parties hereto
(including the duty to pay Spiegel amounts due to it
regardless of this Agreement's termination) with respect to
any promotional program or Media entered into by execution of
a Schedule prior to the termination date. Nothing in this
Agreement shall be construed to obligate you to undertake any
mailings whatsoever to the Spiegel List, or to grant us any
rights with respect to the Media except as provided above in
Paragraph 1.
16. PROPRIETARY INFORMATION
Spiegel acknowledges that the contents of the Media is
proprietary to you and agrees not to make any use of it or any
other name or mark proprietary to you without your prior
written approval. You hereby acknowledge that the Spiegel List
information is proprietary and confidential to Spiegel and
such information shall not be disclosed in any form to any
third party or used by you except as specifically authorized
in this Agreement.
17. NO ASSIGNMENT
You may not assign this Agreement or any Schedule without
Xxxxxxx'x prior written consent. Any attempt to assign or
transfer this Agreement or any Schedule by you without
Xxxxxxx'x prior written consent shall be null and void and
have no effect whatsoever.
18 NO AGENCY
This Agreement shall in no way constitute or give rise to a
partnership, joint venture, or agency between the parties,
including any manufacturer or supplier of any goods or
services. All operations and Sales made by you pursuant to any
Media are made for and on your behalf only and not as an
independent contractor nor agent of Spiegel.
19. ENTIRE AGREEMENT
This letter, together with the documents specified in
Paragraph 13, shall constitute our entire agreement, and
supersedes and replaces all other agreements, written or oral,
between the parties with regard to the subject matter covered
by this Agreement. Xxxxxxx reserves the right to amend this
Agreement from time to time on ninety (90) days written notice
to you. If any such amendment is unacceptable to you, you may
terminate this Agreement as provided in Paragraph 15.
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20 ENFORCEABILITY
If any phrase, sentence, or paragraph of this Agreement, the
Reverse Syndication Guidebook, or any Schedule shall to any
extent be held invalid, the remainder of such instrument or
the application of such provisions to persons or circumstances
other than those as to which it is held invalid shall not be
affected hereby, and all other phrases, sentences, and
paragraphs of this Agreement, the Reverse Syndication
Guidebook, or any Schedule shall be valid and enforced to the
fullest extent permitted by law.
21. CHOICE OF LAW/INJUNCTION
This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois. It is
specifically agreed that, should you breach the terms of this
Agreement (especially Paragraphs 10 and 11), the actual
damages of Spiegel may be difficult to ascertain and you waive
any procedural objection you have or may have in the future to
the entry of a permanent injunction against any telemarketing
program or any mailings to Accountholders or to names and/or
addresses on the Spiegel List, or against any use of the name
"Spiegel, Inc.," "FCNB," or "FCNB Preferred(R) Charge," in
addition to any other remedy Spiegel may seek or obtain.
If this Agreement is acceptable to you, please execute two copies of this
Agreement. Retain one copy for you file and return the other to Spiegel. This
Agreement is effective as of the date of this letter, or upon the date of any
mailing of any Media, whichever is earlier.
Very truly yours,
SPIEGEL, INC.
By: /S/
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Title: Divisional Vice President,
Customer Development
Accepted and agreed to:
By: /S/ Xxxx Xxxxxxx
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Title: Senior Vice President,
General Manager
