[We have omitted portions of this Exhibit pursuant to a request for
confidential treatment that we have filed pursuant to Rule 406 of the
Securities Act. We have separately filed a copy of this Exhibit with the
omitted portions intact with the Securities and Exchange Commission.]
FIRST AMENDED AND RESTATED MERCHANT AGREEMENT
BANK: Household Bank (SB), N.A. MERCHANT: Direct Focus, Inc. f/k/a Bowflex, Inc.
0000 Xxxx Xxxxxx Xxxxx 0000 XX 00xx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000 Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile No.: 000-000-0000
This First Amended and Restated Merchant Agreement ("AGREEMENT") is made and
entered into as of the 27th day of January, 1999 ("EFFECTIVE DATE"), by and
between Household Bank (SB), N.A. for itself and as assignee of Household Bank
(Nevada), N.A. (herein "HOUSEHOLD") and Direct Focus, Inc., formerly known as
Bowflex, Inc., a Washington corporation (herein "MERCHANT") and shall be
effective as of February 1, 1999. In consideration of the mutual promises,
covenants, and agreements set forth below and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Merchant and Household agree as follows:
SECTION 1. DEFINITIONS. In addition to the words and phrases defined above and
elsewhere in this Agreement, the following words and phrases shall have the
following meanings:
a. "ACCOUNT" means an account resulting from the issuance of a Card. An
Account may have more than one Card issued for it. Each Account shall be
owned by, and deemed to be the property of, Household.
b. "AFFILIATE" means any entity that is owned by, owns or is under common
control with Household or its ultimate parent or Merchant or its ultimate
parent.
c. "APPLICABLE LAW" means collectively or individually any applicable law,
rule, regulation or judicial, governmental or administrative order, decree,
ruling, opinion or interpretation.
d. "APPLICATION" means an application for an Account under the Program.
e. "AUTHORIZATION" means permission from Household to make a Card Sale.
f. "AUTHORIZATION CENTER" means the facility designated by Household as the
facility at which Card Sales are authorized.
g. "BUSINESS DAY" means any day except Saturday or Sunday or a day on which
banks are closed in the State of Illinois.
h. "CARD" means the private label credit card bearing Merchant's name and/or
logo issued by Household for the Program.
i. "CARDHOLDER" means (i) the person in whose name an Account is opened, and
(ii) any other authorized users of the Account and Card.
j. "CARDHOLDER AGREEMENT AND DISCLOSURE STATEMENT" (hereafter "Cardholder
Agreement") means the credit card agreement between Household and each
Cardholder providing for the extension of credit by Household under the
Program pursuant to which the Cardholder is issued a Card, as the same may
be revised from time to time by Household with notification to Merchant.
k. "CARD SALE" means any sale of Goods that Merchant makes to a Cardholder
pursuant to this Agreement that is charged to an Account.
l. "CHARGEBACK" means the return to Merchant and reimbursement to Household of
a Sales Slip for which Merchant was previously paid pursuant to SECTION 8
herein.
m. "CREDIT SLIP" means evidence of credit in electronic or paper form for
Goods purchased from Merchant.
n. "DISCOUNT" means the fee payable by Merchant to Household as described in
Section 3.b.(ii) hereof.
o. "GOODS" means the products described in SECTION 2 below, certain warranties
expressly authorized by Household, and related services sold by Merchant in
the ordinary course of Merchant's business to consumers for individual,
family, personal or household use.
p. "MAILED-IN APPLICATION" means any Application for a Card which is received
by Merchant or Household through the mail.
q. "OPERATING INSTRUCTIONS" means the regulatory guidelines and operating
instructions and/or procedures or written instructions designated by
Household and agreed to by Merchant, which agreement shall not be
unreasonably withheld, from time to time concerning the Program.
r. "PROGRAM" means the private label revolving credit card program promoted by
Merchant whereby Accounts will be established and maintained by Household,
Cards issued by Household to qualified consumers purchasing Merchant's
Goods, and Card Sales funded all pursuant to the terms of this Agreement.
s. "SALES SLIP" means evidence of a Card Sale in electronic or paper form for
Goods purchased from Merchant.
t. "TELEPHONE APPLICATION" means any Application for a Card which is received
from a consumer or solicited by Merchant via telephone and for which the
applicant's credit or other information required to apply for a Card is
obtained by Merchant from the applicant over the telephone.
u. "TERMINAL" means an electronic terminal or computer capable of
communicating by means of an on-line or dial-up electronic link with an
Authorization Center.
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SECTION 2. SCOPE AND PURPOSE. Merchant engages in the sale of fitness equipment
and other products. Pursuant to that certain Merchant Agreement dated February
4, 1997 ("Existing Merchant Agreement"), Household and Merchant had agreed that
Household would make financing available to customers of Merchant purchasing
Goods from Merchant. Merchant has requested Household to continue to make
financing available to consumers purchasing Goods from Merchant and Merchant has
agreed to execute this Agreement in order to continue the Program and secure its
benefit for Merchant. Household and Merchant agree that this Agreement shall
supersede and replace the Existing Merchant Agreement. Household, a credit card
bank in the business of providing revolving credit financing pursuant to a
credit card, has agreed to continue to provide financing under the Program to
individual qualified consumers purchasing Merchant's Goods pursuant to the terms
and conditions set forth in this Agreement.
a. FORMS AND CARDS. Household will provide to Merchant standard Sales Slips,
Credit Slips and other forms from time to time for use by Merchant in the
Program, which documents may be changed from time to time by Household.
Merchant agrees to pay for the combined Application and Cardholder
Agreement and Disclosure Statement and will be charged a fee for
non-standard forms and for forms in excess of normal usage. The design and
content of Cards and billing statements and the terms and conditions of
Accounts and combined Applications and Cardholder Agreement and Disclosure
Statement shall be determined by Household and are subject to change by
Household from time to time.
b. CREDIT REVIEW, OWNERSHIP OF ACCOUNTS. All completed Applications for
Accounts submitted by Merchant to Household whether mailed, telephoned or
otherwise electronically transmitted will be processed and approved or
declined in accordance with Household's credit criteria and procedures from
time to time established by Household, with Household having and retaining
all rights to reject or accept such Applications. Household will only
accept Applications for revolving credit pursuant to the credit card it
issues for individual, personal, family or household use. Household or its
Affiliates shall own the Accounts and shall bear the credit risk for such
Accounts, except as otherwise provided in this Agreement. Merchant
acknowledges and agrees that it shall have no interest whatsoever in the
Accounts. Household shall not be obligated to take any action under an
Account, including making future advances or credit available to
Cardholders. Household shall not be obligated to accept Applications for a
Card or to approve any Card Sale for consumers that do not have their
principal residence and billing address in the fifty United States and the
District of Columbia.
c. CARD PROMOTIONS, SERVICES AND ENHANCEMENTS. Household and Merchant may from
time to time mutually agree to offer to existing or potential Cardholders
special credit promotions, additional services and/or enhancements. The
terms of such promotions, services and enhancements shall be mutually
agreed upon by Household and Merchant and are subject to change or
discontinuance by Household and Merchant. In consideration of Household's
providing special credit promotions and to compensate Household for such
promotions, Merchant agrees to pay to Household for the period agreed upon
by Household and Merchant such rates, amounts and/or discounts set forth
herein. Household may deduct amounts owed to it hereunder from amounts owed
to Merchant under this Agreement.
d. MERCHANT CUSTOMER LISTS. Household acknowledges that the names and
addresses of Merchant customers provided by Merchant to Household
constitute a merchant list and customer list respectively, of Merchant in
which Merchant has proprietary rights and which Merchant regards as (and
which is acknowledged by Household to constitute) a trade secret of
Merchant. Accordingly, Household shall not use such list except with the
prior written consent of Merchant, or to carry out its obligations under
this Agreement. Merchant grants to Household the right to use such merchant
and customer lists solely for such purposes. Household shall exercise such
care with respect to such merchant and customer lists as it does with its
own trade secrets. Notwithstanding the confidentiality provisions of this
Agreement, Merchant as owner of such merchant and customer list may use
such names and addresses for any purpose.
e. CARDHOLDER LIST. Merchant agrees that Household is the owner of the
Cardholder list and that Household and its Affiliates may use such list to
solicit Cardholders for credit card products offered by Household and/or
any of its Affiliates or other types of accounts or financial products or
insurance services offered by Household and/or any of its Affiliates.
Household agrees that Merchant may solicit, at its expense the Cardholder
list for products or services offered by Merchant; provided that such
products or services, as determined by Household do not compete with the
Program, Household or its Affiliates and such solicitation does not
reference the Program. The Cardholder list shall be subject to the
confidentiality provisions of this Agreement.
SECTION 3. FEES, DISCOUNTS, CHARGES, RATES AND FUNDING. Except as otherwise
provided herein, the following consumer rate, fees, Discount and charges shall
be effective for the Initial Term of this Agreement.
a. CONSUMER RATE. The consumer rate to be charged on purchases with the Card
shall be 21.8%, subject to change from time to time by Household.
b. DETERMINATION OF FEES AND DISCOUNTS. The rate, fees, discounts and charges
described in this SECTION 3 are subject to change from time to time by
Household.
c. MERCHANT. Merchant agrees to pay Household the following fees and discounts
(some of which are more fully described in this Agreement):
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(i) "CREDIT PROMOTION DISCOUNT FEE": Household shall make certain deferred
payment and/or deferred interest credit promotion ("Credit
Promotions") available to Merchant. Each Sales Slip generated pursuant
to each credit promotion shall be subject to a Credit Promotion
discount fee as set forth herein which is a designated percentage of
the amount of each Sales slip accepted and funded by Household. Each
Sales Slip generated pursuant to non-promotional Card Sale shall be
subject to a non-promotional discount fee also as set forth herein
which is a designated percentage of the amount of each Sales Slip
accepted and funded by Household. The Credit Promotion and
non-promotional discount fees shall be collectively referred to as the
"Discount Fees".
The Credit Promotions and Discount Fees available as of the date of
this Agreement are listed below:
Promotional Period Promotional Type Discount Fee
---------------------------------------------------------------------
Regular Sale Non-Promotional Card Sale *
3 Months Same As Cash W/O Payment *
6 Months Same As Cash W/Payment *
7 Months Same As Cash W/Payment *
8 Months Same As Cash W/Payment *
9 Months Same As Cash W/Payment *
10 Months Same As Cash W/Payment *
11 Months Same As Cash W/Payment *
12 Months Same As Cash W/Payment *
(ii) "START-UP FEE": *
(iii) "FORMS FEE": *
c. ACCEPTANCE, OFFSET & FUNDING. Subject to the terms, conditions, warranties
and representations in this Agreement and provided that Merchant has
satisfied all of the conditions set forth in this Agreement, including,
without limitation, SECTIONS 4, 5, 6 AND 7, Household agrees to pay to
Merchant the amount of each valid and authorized Sales Slip presented
to Household during the term of this Agreement, less the amount of the
fees, charges, and Discounts described above in this Section, outstanding
Account balances for Sales Slips subject to Chargeback, reimbursements,
refunds, customer credits and any other amounts owed to Household under
this Agreement by Merchant. Household may also offset or recoup said
amounts from future amounts owed to Merchant under this Agreement. Any
amounts owed by Merchant to Household which cannot be paid by the aforesaid
means shall be due and payable by Merchant on demand. Any payment made by
Household to Merchant shall not be final but shall be subject to subsequent
review and verification by Household. Household's liability to Merchant
with respect to the funding of any Card Sale, Sales Slip or Credit Slip
shall not exceed the amount on the Sales Slip or Credit Slip in connection
with such transaction. In no event shall Household be liable for incidental
or consequential damages.
d. FUNDING. Funding of Sales Slips by Household to Merchant shall be made to
Merchant's account at a bank designated by Merchant. Household will use its
best efforts to make such payments on the first Business Day after receipt,
verification and processing by Household of the transmission of the
transaction data, if such transmission is received by 7:30 am Central
Standard Time; if received later than 7:30 am Central Standard Time, then
on the second Business Day after said transmission, however, in no event
shall such payments be made later than the third Business Day after receipt
of said transmission by Household.
SECTION 4. MERCHANT RESPONSIBILITIES CONCERNING CONSUMER TRANSACTIONS. Merchant
covenants and agrees that Merchant shall:
a. Honor all valid Cards without discrimination, when properly presented by
Cardholders for payment of Goods.
b. Not require, through an increase in price or otherwise, any Cardholder to
pay any surcharge at the time of sale or pay any part of any charge imposed
by Household on Merchant.
c. Not establish minimum or maximum charge amounts without Household's prior
written approval.
d. Prominently display at each of its locations, advertising and promotional
materials relating to the Card, including, without limitation, take-one
Applications for the Card and use and display such materials in accordance
with any specifications provided by Household. Such materials shall be used
only for the purpose of soliciting accounts for the Program. Any
solicitation, written material, advertising or the like relating to the
Program or the products offered pursuant to the Program shall be prepared
or furnished by Household or shall receive Household's prior written
approval. Household will charge Merchant and Merchant agrees to pay for any
such advertising and promotional materials. Any such materials shall not be
used by Merchant following termination of this Agreement.
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e. Use only the form of, or modes of transmission for, Application/Cardholder
Agreements, Sales Slips and Credit Slips as are provided by Household, and
not use any Application/Cardholder Agreements, Sales Slips, and Credit
Slips provided by Household other than in connection with a Card
transaction.
f. With respect to Telephone Applications, Merchant shall:
(i) Make sure all information requested on the Telephone Application is
complete;
(ii) Give the applicant the applicable initial disclosures at the time the
Telephone Application information is requested or such other
disclosures as may be required by Household from time to time;
(iii) Provide all information required by Household from time to time for
approval of Applications by telephone or other electronic
transmission;
(iv) Designate on the Application and/or enter into the Terminal that it
was a Telephone Application and Card Sale;
(v) Not submit to Household for funding any Sales Slip resulting from a
telephone or mail order Card Sale until not less than five (5)
Business Days after receipt by Merchant and approval by Household of
the Telephone or Mail Order Application; and
(vi) Merchant represents and warrants that in connection with telephone
solicitations, it has adopted such policies and procedures to ensure
compliance with all applicable federal and state laws, regulations or
rules relating to telemarketing and/or telephone solicitations
including but not limited to the Telephone Consumer Protection Act of
1991 ("TCPA") 42 USC 227 and 152(b); Chapter I, Title 47 of the Code
of Federal Regulations, parts 64 and 68, the Telemarketing and
Consumer Fraud and Abuse Prevention Act (TCFAPA) 15 U.S.C. Sections
6101-6108; 16 CFR Part 310 and any applicable telemarketing or
telephone solicitation laws of the state from which Merchant shall be
initiating telephone solicitations for the Card.
g. With respect to Mailed-In Applications, Merchant shall:
(i) Make sure all information requested on the Application is complete;
(ii) Provide all information required by Household from time to time for
approval of Applications by mail and legibly insert the Account number
on the Application in the designated area;
(iii) Designate on the Application and Sales Slip that it is a Mailed In
Application and Card Sale;
(iv) Merchant represents and warrants that in connection with mail-order
sales, it has adopted such policies and procedures to ensure
compliance with all applicable federal and state laws, regulations or
rules relating to mail order sales including but not limited to all
applicable requirements of Title 16 Code of Federal Regulations,
Chapter I, Subchapter D, part 435.1 ("Mail Order Rule");
(v) Not ship or deliver or cause to be shipped or delivered any Goods to a
Cardholder until not less than five (5) Business Days after receipt by
Merchant and approval by Household of the Telephone or Mailed-In
Application;
(vi) Not submit to Household for funding any Sales Slip resulting from a
telephone or mail order Card Sale until not less than five (5)
Business Days after receipt by Merchant and approval by Household of
the Telephone or Mailed-In Application; and
(vii) Send a copy of the approved Telephone or Mailed-In Application to
Household within five (5) Business Days after the date the Goods are
shipped to the Cardholder or the Sales Slip funded by Household.
h. With respect to Sales Slips Merchant shall:
(i) Enter legibly on a single Sales Slip prior to obtaining the
Cardholder's signature (1) a description of all Goods purchased in the
same transaction in detail sufficient to identify the transaction; (2)
the date of the transaction; (3) the Authorization number; and (4) the
entire amount due for the transaction (including any applicable
taxes);
(ii) REQUEST AUTHORIZATION FROM HOUSEHOLD'S AUTHORIZATION CENTER UNDER ALL
CIRCUMSTANCES. (Household may refuse to accept or fund any Sales Slip
that is presented to Household for payment more than sixty (60) days
after the date of Authorization of the Card Sale). Merchant agrees not
to divide a single transaction between two or more Sales Slips or
between a Household Sales Slip and a sales slip for another credit
provider. If Authorization is granted, legibly enter the Authorization
number in the designated area on the Sales Slip. If Authorization is
denied, not complete the transaction and follow any instructions from
the Authorization Center. Merchant shall use its best efforts, by
reasonable and peaceful means, to retain or recover a Card:
(1) if Merchant is advised to retain the Card in response to an
Authorization request; or
(2) if Merchant has reasonable grounds to believe that the Card is
counterfeit, fraudulent, or stolen. The obligation to retain or
recover a Card imposed by this Section does not authorize a
breach of the peace or any injury to persons or property, and
Merchant will hold Household harmless from any claim arising from
any injury to person or property or other breach of the peace.
(iii) Imprint legibly on the Sales Slip the embossed legends from the Card
or if the transaction is to be completed electronically or otherwise
without a Card imprint, then enter legibly on the Sales Slip
sufficient information to identify the Cardholder and Merchant,
including at least, Merchant's name, Cardholder's name, Account
number,
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expiration date and any effective date on the Card. Merchant shall be
deemed to warrant the Cardholder's true identity as an authorized user
of the Card;
(iv) Check the effective date, if any, and the expiration date on the Card;
(v) Obtain the signature of the Cardholder on the Sales Slip, and compare
the signature on the Sales Slip with the signature panel of the Card
and if identification is uncertain or if Merchant otherwise questions
the validity of the Card, contact Household's Authorization Center for
instructions. For telephone orders (TO) or mail orders (MO) only, the
Sales Slip may be completed without the Cardholder's signature and a
Card imprint, but Merchant shall, in addition to all other
requirements under this SECTION 4, enter legibly on the signature line
of the Sales Slip the letters "TO" or "MO", as appropriate, and not
deliver Goods or perform services after being advised that the "TO" or
"MO" has been canceled or that the Card is not to be honored;
(vi) IDENTIFICATION OF THE CARDHOLDER IS THE RESPONSIBILITY OF MERCHANT;
(vii) Not present the Sales Slip to Household for funding until all Goods
are delivered and all the services are performed to the Cardholder's
satisfaction. If the Card Sale is canceled or the Goods or services
canceled or returned, the Sales Slip is subject to Chargeback;
(viii) Enter the Card Sale into the Terminal and, if applicable, Household's
approval code; and
(ix) Deliver a true and completed copy of the Sales Slip to the Cardholder
at the time of delivery of the Goods.
i. CREDIT SLIPS. If Goods are returned, any Card Sale or services are
terminated or canceled, or Merchant allows any price adjustment, then
Merchant shall not make any cash refund, but shall complete and deliver
promptly to Household a Credit Slip evidencing the refund or adjustment and
deliver to the Cardholder a true and complete copy of the Credit Slip at
the time the refund or adjustment is made. Merchant shall sign and date
each Credit Slip and include thereon a brief description of the Goods
returned, services terminated or canceled, refund or adjustment made, the
date of the original Card Sale, Authorization number, Cardholder's name,
address and Account number, and the date and amount of the credit, all in
sufficient detail to identify the transaction. Merchant shall imprint or
legibly reproduce on each Credit Slip the embossed legends from the Card
and from Merchant's imprinter plate. The amount of the Credit Slip cannot
exceed the amount of the original transaction as reflected on the Sales
Slip. Merchant shall issue Credit Slips only in connection with previous
bona fide Card Sales and only as permitted hereunder.
j. Not receive any payments from a Cardholder for charges included on any
Sales Slip resulting from the use of any Card, nor receive any payments
from a Cardholder to prepare and present a Credit Slip for the purpose of
effecting a deposit to the Cardholder's Account.
k. CARDHOLDER COMPLAINTS. Merchant shall within five (5) days of receipt
provide Household with a copy of any written complaint from any Cardholder
concerning an Account.
l. RIGHT OF FIRST REFUSAL. Merchant shall actively promote the Program.
Merchant agrees to give Household right of first refusal in presenting
consumer credit Applications and/or Sales Slips. During the term of this
Agreement, Merchant shall not issue, arrange to issue, or accept, in the
fifty United States and the District of Columbia, any private label credit
card or account other than the Card, under any of Merchant's names or
logos, except with respect to Applications declined by Household. To the
extent Merchant displays other third party credit or charge card materials,
it shall display the advertising and promotional materials relating to the
Card in a manner and with a frequency equal to or greater than that
accorded any other third party credit or charge card.
m. Satisfy all other requirements designated in any Operating Instructions or
as may be required from time to time by Household. In the event there is
any inconsistency between any Operating Instructions and this Agreement,
this Agreement shall govern unless otherwise expressly indicated by
Household in any Operating Instructions.
n. Present each Sales Slip and deliver each Credit Slip to Household or such
other person designated by Household, within ten (10) Business Days after
the date of the respective sale or credit transaction.
SECTION 5. MERCHANT REPRESENTATIONS AND WARRANTIES. Merchant represents and
warrants to Household as of the Effective Date and throughout the term of this
Agreement the following:
a. That each Card Sale will arise out of a bona fide sale of Goods by Merchant
and will not involve the use of the Card for any other purpose.
b. That each Card Sale will be to a consumer for personal, family, or
household purposes.
C. That Cardholder Applications will be available to the public (i) without
regard to race, color, religion, national origin, sex, marital status, or
age (provided the applicant has the capacity to enter into a binding
contract) and (ii) not in any manner which would discriminate against an
applicant or discourage an applicant from applying for the Card.
d. That it has full corporate power and authority to enter into this
Agreement; that all corporate action required under any organization
documents to make this Agreement binding and valid upon Merchant according
to its terms has been taken; and that this Agreement is and will be
binding, valid and enforceable upon Merchant according to its terms.
e. That it is not in violation of any covenants in any debt instruments to
which it is a party as of the Effective Date of this Agreement.
5
f. Neither (i) the execution, delivery and performance of this Agreement, nor
(ii) the consummation of the transactions contemplated hereby will
constitute a violation of law or a violation or default by Merchant under
its articles of incorporation, by laws or any organization documents, or
any material agreement or contract and no authorization of any governmental
authority is required in connection with the performance by Merchant of its
obligations hereunder.
g. There are no proceedings or investigations pending, or, to the knowledge of
Merchant, threatened, before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality having
jurisdiction over Merchant or its properties: (i) asserting the invalidity
of this Agreement or seeking to prevent the consummation of any of the
transactions contemplated hereunder, or (ii) which, individually or in the
aggregate, could reasonably be expected to have a material adverse effect
on the ability of Merchant to perform its obligations hereunder.
h. Merchant has and will retain throughout the term of this Agreement all
required licenses to perform it's obligations under this Agreement.
i. Any Card Sale subject to rescission has not been rescinded.
SECTION 6. CHARGEBACKS TO MERCHANT. Merchant agrees as follows:
a. CHARGEBACKS. Any Sales Slip or Card Sale is subject to Chargeback under any
one or more of the following circumstances, and thereupon the provisions of
SECTION 6.b. below shall apply:
(i) The Application or any information on the Application or the Sales
Slip or any required information on the Sales Slip (such as the
account number, expiration date of the Card, description of Dealer or
Goods purchased, transaction amount or date) is illegible or
incomplete, or except as provided in Section 4.f., the Sales Slip or
Application is not executed by the Cardholder; or Authorization is not
obtained from Household's Authorization Center, or a valid
Authorization number is not correctly and legibly entered on the Sales
Slip; or the Sales Slip is a duplicate of an item previously paid, or
the price of the Goods or services shown on the Sales Slip differs
from the amount shown on the Cardholder's copy of the Sales Slip;
(ii) Household determines that (1) Merchant has breached or failed to
satisfy, any term, condition, covenant, warranty, or other provision
of this Agreement, including, without limitation, SECTIONS 4 AND 5
above, or of the Operating Instructions, in connection with a Sales
Slip or the transaction to which it relates, or an Application for a
Card or the opening of an Account; or (2) the Sales Slip,
Application/Cardholder Agreement or Card Sale is fraudulent or is
subject to any claim of illegality, cancellation, rescission,
avoidance or offset for any reason whatsoever, including, without
limitation, negligence, fraud, misrepresentation, or dishonesty on the
part of the customer or Merchant or its agents, employees, licensees,
or franchisees, or that the related transaction is not a bona fide
transaction in Merchant's ordinary course of business;
(iii) the Cardholder disputes or denies the Card Sale or other Card
transaction, the execution of the Sales Slip or Application/Cardholder
Agreement, or the delivery, quality, or performance of the goods,
services or warranties purchased, or the Cardholder has not authorized
the Card Sale, or alleges that a credit adjustment was requested and
refused or that a credit adjustment was issued by Merchant but not
posted to the Account; or
(iv) Merchant fails to deliver to Household the Sales Slip, Credit Slip,
Application or other records of the Card transaction within the times
required in this Agreement.
b. RESOLUTION AND PAYMENT. Merchant is required to resolve any dispute or
other of the circumstances described above in (a) of this SECTION 6 to
Household's satisfaction within fifteen (15) days of notice of Chargeback
or Merchant shall pay to Household the full amount of each Sales Slip
subject to Chargeback or the portion thereof designated by Household, as
the case may be, plus the finance charges thereon, any attorney fees
incurred by Household, and other fees and charges provided for in the
Cardholder Agreement. Upon Chargeback to Merchant of a Sales Slip, Merchant
shall bear all liability and risk of loss associated with such Sales Slip
or Account, or the applicable portion thereof, without warranty by, or
recourse or liability to, Household. Household may deduct amounts owed to
Household under this Section from any amounts owed to Merchant under this
Agreement.
c. EXCESSIVE CHARGEBACKS. If (i) the aggregate number of Sales Slips subject
to Chargeback exceeds 3.0% of the total number of Card Sales submitted by
Merchant with respect to an individual Merchant location in any calendar
quarter or (ii) the aggregate dollar amount of all Sales Slips subject to
Chargeback in any monthly billing cycle exceeds 5% of the total net
balances of all Accounts at the end of such monthly billing cycle ((i) and
(ii) are herein individually and collectively called "EXCESSIVE
CHARGEBACKS"). Excessive Chargebacks shall be deemed a material breach of
this Agreement and Household has the right, in its sole discretion, to
terminate this Agreement pursuant to SECTION 15.
d. The terms and provisions of this Section 6 shall survive the termination of
this Agreement.
SECTION 7. TAPE OR ELECTRONIC TRANSMISSION & RECORDS. Data, records and
information shall be transmitted and maintained as described below.
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a. TRANSMISSION OF DATA. In lieu of depositing paper Sales Slips and Credit
Slips with Household, Merchant shall transmit to Household, by electronic
transmission or other form of transmission designated by Household all data
required by this Agreement to appear on Sales Slips and Credit Slips. All
data transmitted shall be in a medium, form and format designated by
Household and shall be presorted according to Household's instructions. Any
errors in such data or in its transmission shall be the sole responsibility
of Merchant. The means of transmission indicated above in this Section or
other means approved by Household, shall be the exclusive means utilized by
Merchant for the transmission of Sales Slip or Credit Slip transaction data
to Household. Merchant shall use a leased line, supplied by Household, for
communicating with Household pursuant to the guidelines set forth in
SECTION 4. Household's voice Authorization Center will be available for use
for times when the leased line authorization system is not in operation.
b. RECEIPT OF TRANSMISSION. Upon successful receipt of any transmission,
Household shall accept such transmission and pay Merchant in accordance
with this Agreement, subject to subsequent review and verification by
Household and to all other rights of Household and obligations of Merchant
as set forth in this Agreement. If data transmission is by tape, Merchant
agrees to deliver upon demand by Household a duplicate tape of any prior
tape transmission, at the expense of Household, if such demand is made
within forty-five (45) calendar days of the original transmission.
C. RECORDS. Merchant shall maintain the actual paper Sales Slips, Credit
Slips, and other records pertaining to any transaction covered by this
Agreement for such time and in such manner as Household or any law or
regulation may require, but in no event less than two (2) years after the
date Merchant presents each transaction data to Household, and Merchant
shall make and retain for at least seven (7) years legible copies of such
actual paper Sales Slips, Credit Slips or other transaction records. Within
fifteen (15) days, or such earlier time as may be required by Household,
of receipt of Household's request, Merchant shall provide to Household the
actual paper Sales Slips, Credit Slips or other transaction records, and
any other documentary evidence available to Merchant and reasonably
requested by Household to meet its obligations under law (including its
obligations under the Fair Credit Billing Act) or otherwise to respond to
questions, complaints, lawsuits, counterclaims or claims concerning
Accounts or requests from Cardholders, or to enforce any rights Household
may have against a Cardholder, including, without limitation, litigation by
or against Household, collection efforts and bankruptcy proceedings, or for
any other reason. In the event Merchant fails to comply in any respect with
the provisions of this SECTION 7, Household may process a Chargeback for
each Card Sale involved pursuant to SECTION 6 above.
d. PRODUCTION. Promptly upon termination of this Agreement or upon the request
of Household, Merchant will provide Household with all original and
microfilm copies of documents required to be retained under this Agreement.
SECTION 8. PAYMENTS BY CARDHOLDER AND ENDORSEMENT. Merchant agrees that
Household has the sole right to receive payments on any Sales Slip funded by
Household. Unless specifically authorized in writing by Household, Merchant
agrees not to make any collections on any such Sales Slip. Merchant agrees to
hold in trust for Household any payment received by Merchant of all or part of
the amount of any such Sales Slip and to deliver promptly the same in kind to
Household as soon as received together with the Cardholder's name, Account
number, and any correspondence accompanying the payment and deliver same
promptly within five (5) days of receipt by Merchant. Merchant agrees that
Merchant shall be deemed to have endorsed any Sales Slip, Credit Slip, or
Cardholder payments by check, money order, or other instrument made payable to
Merchant that a Cardholder presents to Household in Household's favor, and
Merchant hereby authorizes Household to supply such necessary endorsements on
behalf of Merchant.
SECTION 9. MERCHANT CREDIT INFORMATION. Household may annually review Merchant's
financial stability. To assist Household in doing this, Merchant shall deliver
to Household no later than ninety (90) days after the end of each fiscal year,
an audited financial statement, including, without limitation, all footnotes,
and supporting materials with sufficient detail to accurately portray the
financial condition of Merchant. Merchant warrants and represents that its
credit Application and financial statements submitted to Household by or on
behalf of Merchant are true and accurate and Merchant agrees to supply such
additional credit information as Household may reasonably request from time to
time. Merchant understands that Household may verify the information on any
financial statement or other information provided by Merchant and, from time to
time, may seek credit and other information concerning Merchant from others and
may provide information regarding this Program including financial and other
information to its Affiliates or others for purposes of its asset
securitizations and sales.
SECTION 10. MERCHANT BUSINESS PRACTICES. Merchant agrees to provide adequate
services in connection with each Card Sale pursuant to standard customs and
trade practices and any applicable manufacturer's warranties, and to provide
such repairs, service and replacements and take such other corrective action as
may be required by law.
SECTION 11. CARDHOLDER ACCOUNT INFORMATION. Merchant shall not sell, purchase,
provide, or exchange Account information in the form of imprinted Sales Slips,
carbon copies of imprinted Sales Slips, mailing lists, tapes or other media
obtained by reason of a Card transaction to any third party other than to
Merchant's agents for the purpose of assisting Merchant in its business with
Household or pursuant to a government request.
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SECTION 12. CHANGE IN OWNERSHIP. Each party agrees to send the other party at
least thirty (30) days prior written notice of any change in such party's name
or location, any material change in ownership of Merchant's business or any
change in Sales Slip or Credit Slip information concerning Merchant.
SECTION 13. INDEMNIFICATION.
a. INDEMNIFICATION BY MERCHANT. Merchant shall be liable to and shall
indemnify and hold harmless Household and its Affiliates associated with
the Program and their respective officers, employees, agents and directors
from any losses, damages, claims or complaints incurred by Household or any
Affiliate of Household or their respective officers, employees, agents and
directors arising out of: (i) Merchant's failure to comply with this
Agreement or any of the Operating Instructions; (ii) any claim, dispute,
complaint or setoff made by a Cardholder with respect to anything done or
not done by Merchant in connection with Card Sales or Credit Slips; (iii)
anything done or not done by Merchant in connection with the furnishing of
any Goods, warranties or services purchased by Cardholders; (iv) the death
or injury to any person or the loss, destruction or damage to any property
arising out of the design, manufacture or furnishing by Merchant of any
Goods, warranties or services purchased by Cardholders; (v) any claim or
complaint of a third party in connection with Merchant's advertisements and
promotions relating to the Card which have not been reviewed or approved by
Household; (vi) any illegal or improper conduct of Merchant or its
employees or agents; and (vii) any claim or complaint by a consumer that
Merchant has violated the Equal Credit Opportunity Act, Truth in Lending
Act, or any other act and related Applicable Laws. Household may deduct any
amounts incurred by Household under this Section from amounts owed Merchant
under this Agreement.
b. INDEMNIFICATION BY HOUSEHOLD. Household shall be liable to and shall
indemnify and hold harmless Merchant and its subsidiaries or Affiliates and
their respective officers, employees, agents and directors from any losses,
damages, claims or complaints incurred by Merchant or any subsidiary or
affiliate of Merchant or their respective officers, employees, agents and
directors arising out of (i) Household's failure to comply with this
Agreement or any of the Operating Instructions; (ii) any claim, dispute or
complaint by a Cardholder made in good faith resulting from anything done
or not done by Household in connection with such Cardholder's Account;
(iii) any illegal or improper conduct of Household, or its employees or
agents with respect to the Card, a Card Sale, an Account or any other
matters relating to the Program; (iv) any claim, dispute, complaint or
setoff by a consumer made in good faith resulting from a violation by
Household, with respect to the Application/Agreement, of the Equal Credit
Opportunity Act, Truth in Lending Act or any other act and related
Applicable Laws and regulations; and (v) any claim, dispute or complaint of
any thirty party made in good faith in connection with advertisements and
promotions prepared by Household relating to the Card. Notwithstanding the
foregoing, the indemnification by Household shall not apply to any claim or
complaint relating to the failure of Merchant to resolve a billing inquiry
or dispute with a Cardholder where such failure was not caused by
Household.
c. NOTICE OF CLAIM & SURVIVAL. In the event that Household or Merchant shall
receive any claim or demand or be subject to any suit or proceeding of
which a claim may be made against the other under this Section, the
indemnified party shall give prompt written notice thereof to the
indemnifying party and the indemnifying party will be entitled to
participate in the settlement or defense thereof with counsel satisfactory
to indemnified party at the indemnifying party's expense. In any case, the
indemnifying party and the indemnified party shall cooperate (at no cost to
the indemnified party) in the settlement or defense of any such claim,
demand, suit, or proceeding. The terms of this SECTION 13 shall survive the
termination of this Agreement.
SECTION 14. NONWAIVER. Merchant's liability under this Agreement, including,
without limitation, its liability under SECTION 6 above, shall not be affected
by any settlement, extension, forbearance, or variation in terms that Household
may grant in connection with any Sales Slip or Account or by the discharge or
release of the obligations of the Cardholder(s) or any other person by operation
of law or otherwise. Merchant hereby waives any failure or delay on Household's
part in asserting or enforcing any right that Household may have at any time
under this Agreement or under any Account.
SECTION 15. TERM AND TERMINATION.
a. TERM. This Agreement shall be effective as of the Effective Date and shall
remain in effect for three (3) years ("INITIAL TERM"), subject to earlier
termination as set forth below. Thereafter, this Agreement shall be
automatically renewed for successive one year terms (the "RENEWAL TERM(S)")
unless and until terminated as provided herein. The termination of this
Agreement shall not affect the rights and obligations of the parties with
respect to transactions and occurrences which take place prior to the
effective date of termination, except as otherwise provided herein.
b. TERMINATION. This Agreement may be terminated:
(i) By Household or Merchant at the end of the Initial Term or the end of
any Renewal Term upon not less than ninety (90) days prior written
notice to the other;
8
(ii) By either party upon notice to the other in the event the other party
shall elect to wind up or dissolve its operation or is wound up and
dissolved; becomes insolvent or repeatedly fails to pay its debts as
they become due; makes an assignment for the benefit of creditors:
files a voluntary petition in bankruptcy, or for reorganization or is
adjudicated as bankrupt or insolvent; or has a liquidator or trustee
appointed over its affairs; and
(iii) by Household upon notice (a) if there occurs any material change in
ownership of Merchant or if a change occurs in Merchant's financial
condition as determined by Household in Household's sole discretion,
or if Merchant suspends or goes out of business or substantially
reduces its business operations or sends a notice of a proposed bulk
sale of all or part of its business; or (b) in the event Merchant
materially breaches its obligations or any warranty or representation
under this Agreement or in any Operating Instructions; or (c) if
Household has reasonable cause to believe that Merchant will not be
able to perform its obligations under this Agreement, or if Household
receives a disproportionate number of Cardholder inquiries, disputes,
or complaints; or (d) if in Household's judgment, any Applicable Law
requires that this Agreement or either party's rights or obligations
hereunder be amended, modified, waived or suspended in any respect,
including, without limitation, the amount of finance charges or fees
that may be charged or collected or the consumer rate that may be
charged on purchases with the Card.
c. TERMINATION OF CARD ACCEPTANCE. Household upon notice to Merchant may elect
to terminate the acceptance of the Card at a particular Merchant location
if at such location there are Excessive Chargebacks, high fraudulent
activity or other course of business conduct that is injurious to the
business relationship between Household and Merchant. In addition,
Household may terminate this Agreement upon thirty (30) days prior notice
to Merchant if the termination of a particular Merchant location materially
affect(s) the volume of Card Sales generated by Merchant.
d. DUTIES AND RIGHTS UPON TERMINATION. Upon termination of this Agreement,
Merchant will promptly submit to Household all Card Sales, Sales Slips,
credits and other data made through the date of termination. Household is
not liable to Merchant for any direct damages that Merchant may suffer as a
result of Household's termination of this Agreement as provided in this
Agreement. In the event this Agreement is terminated for any reason or
notice of termination is given by either party, Household may take such
other reasonable actions including but not limited to establishing and
maintaining a reserve from payments otherwise payable to Merchant to
protect Household's rights under this Agreement and to cover Chargeback
amounts and other amounts owing to Household.
e. PURCHASE REQUIREMENTS. Upon termination of this Agreement due to material
breach or termination without notice by Merchant, Merchant, its successors
and assigns shall, at Household's option and upon Household's request,
purchase or arrange to purchase by a third party, the Accounts, without
recourse to Household and without representations or warranty, express or
implied, at a price determined by Household, in Household's sole
discretion, but not less than the full amount of all of the outstanding
Account balances; the purchase to occur not later than ninety (90) days
after the effective date of termination of this Agreement and to be under
such terms and conditions as are reasonably acceptable to Household. In any
event, commencing on the effective date of termination of this Agreement,
Merchant shall pay to Household, monthly, within ten (10) days of
Household's request, a liquidation fee in the amount of $5.00 per active
Account per month until such time as the outstanding Account
balances/receivables are liquidated and paid in full or, if a purchase is
required as stated above, such purchase of all of the outstanding Account
balances is consummated and Household receives the purchase price.
SECTION 16. STATUS OF THE PARTIES. In performing their responsibilities pursuant
to this Agreement, Household and Merchant are in the position of independent
contractors, and in no circumstances shall either party be deemed to be the
agent or employee of the other. This Agreement is not intended to create, nor
does it create and shall not be construed to create, a relationship of partner
or joint venturer or an association for profit between Household and Merchant.
Any amounts ever owing by Merchant pursuant to this Agreement represent
contractual obligations only and are not a loan or debt.
SECTION 17. FORCE MAJEURE. Neither party to this Agreement shall be liable to
the other by reason of any failure in performance of this Agreement in
accordance with its terms if such failure arises out of a cause beyond the
control and without the fault or negligence of such party. Such causes may
include but are not limited to acts of God, of the public enemy or of civil or
military authority, unavailability of energy resources, system or communication
failure, delay in transportation, fires, strikes, riots or war. In the event of
any force majeure occurrence, the disabled party shall use its best efforts to
meet its obligations as set forth in this Agreement.
SECTION 18. LIMITED LICENSE. Merchant hereby authorizes Household for
purposes of this Agreement to use Merchant's name, logo, registered
trademarks and servicemarks (if any) and any other proprietary designations
("Proprietary Materials") on the Cards, Applications, periodic statements,
billing statements, collection letters or documents, promotional or
advertising materials and otherwise in connection with the Program, subject
to Merchant's periodic reasonable review of such use and to such reasonable
specifications of Merchant. Merchant represents and warrants that it has
obtained appropriate federal and state trademark registrations to protect its
interest in the use and ownership of the Proprietary Materials. Merchant
shall, indemnify, defend and
9
hold Household harmless from any loss, damage, expense or liability arising from
any claims of alleged infringement of the Proprietary Materials (including
attorneys' fees and costs). Merchant may not use any name or service xxxx of
Household or any of its Affiliates in any manner without the prior written
consent of Household.
SECTION 19. CONFIDENTIALITY. Merchant will keep confidential and not disclose to
any person or entity (except to employees, officers, partners or directors of
Merchant who are engaged in the implementation and execution of the Program) all
information, software, systems and data, that Merchant receives from Household
or from any other source, relating to the Program and matters which are subject
to the terms of this Agreement, including, but not limited to, Cardholder names
and addresses or other Account information, and shall use, or cause to be used,
such information solely for the purposes of the performance of Merchant's
obligations under the terms of this Agreement. Household will keep confidential
and not disclose to any person or entity (except employees, officers, agents or
directors of Household, its subsidiaries or affiliates who are engaged in the
implementation and execution of the Program) any information that Household
receives from Merchant which is designated confidential by Merchant. In the
event Household sells or assigns the Accounts or any portion of the Accounts
under the Program, Household may disclose any information under this provision
reasonably necessary or required to effectuate such sale or assignment. The
provisions of this SECTION 19 shall survive the termination of this Agreement.
SECTION 20. ADDITIONAL PRODUCTS & SERVICES. Household and/or any of its
Affiliates may at any time, whether during or after the term of this Agreement
and whether the Accounts are owned by Household, solicit Cardholders for any
other credit cards or other types of accounts or financial products or insurance
services offered by Household and/or any of its Affiliates.
SECTION 21. NOTICES. All notices required or permitted by this Agreement shall
be in writing and shall be sent to the respective parties; if to Household, to
the Attention of President (with a copy to the Attention of General Counsel, HRS
Law Department 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, XX 60070); if to Merchant,
to the Attention of General Counsel, Direct Focus, Inc. 0000 XX 00xx Xxxxxx,
Xxxxxxxxx, XX 00000, or such other addresses as each party may designate to the
other by notice hereunder. Said notices shall be deemed to be received when sent
to the above addresses (i) upon three (3) Business Days after deposit in the
U.S. first class mail with postage prepaid, (ii) upon personal delivery, or
(iii) upon receipt by telex, facsimile, or overnight/express courier service or
mail.
SECTION 22. AMENDMENTS AND SUPPLEMENTARY DOCUMENTS. Household may amend this
Agreement upon ten (10) days prior notice to Merchant if such modification is
reasonably determined by Household to be required by any state or federal law,
rule, regulation, governmental or judicial order, opinion, interpretation or
decision. Reference herein to "this Agreement" shall include any schedules,
appendices, exhibits, and amendments hereto. Any amendment or modification to
this Agreement must be in writing and signed by a duly authorized officer of
Household to be effective and binding upon Household; no oral amendments or
modifications shall be binding upon the parties.
SECTION 23. ASSIGNMENT. This Agreement is binding upon the parties and their
successors and assigns. Notwithstanding Merchant may not assign this Agreement
without the prior written consent of Household; any purported assignment without
such consent shall be void. Household may without Merchant's consent assign this
Agreement or any of its rights or obligations hereunder to any Affiliate of
Household at any time. In the event of such assignment, the assignee shall have
the same rights and remedies as Household under this Agreement.
SECTION 24. NONWAIVER AND EXTENSIONS. Household shall not by any act, delay,
omission, or otherwise be deemed to have waived any rights or remedies
hereunder. Merchant agrees that Household's failure to enforce any of its rights
under this Agreement shall not affect any other right of Household or the same
right in any other instance.
SECTION 25. RIGHTS OF PERSONS NOT A PARTY. This Agreement shall not create any
rights on the part of any person or entity not a party hereto, whether as a
third party beneficiary or otherwise.
SECTION 26. SECTION HEADINGS. The headings of the sections of this Agreement are
for reference only, are not a substantive part of this Agreement and are not to
be used to affect the validity, construction or interpretation of this Agreement
or any of its provisions.
SECTION 27. INTEGRATIONS. This Agreement contains the entire agreement between
the parties. There are merged herein all prior oral or written agreements,
amendments, representations, promises and conditions in connection with the
subject matter hereof. Any representations, warranties, promises or conditions
not expressly incorporated herein shall not be binding on Household or Merchant.
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SECTION 28. GOVERNING LAW/SEVERABILITY. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois. If any provision
of this Agreement is contrary to Applicable Law, such provision shall be deemed
ineffective without invalidating the remaining provisions hereof.
SECTION 29. JURISDICTION. ANY SUIT, COUNTERCLAIM, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT BY EITHER PARTY IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; AND MERCHANT HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY APPELLATE COURTS THEREOF FOR THE
PURPOSE OF ANY SUCH SUIT, COUNTERCLAIM, ACTION, PROCEEDING OR JUDGMENT (IT BEING
UNDERSTOOD THAT SUCH CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WAIVES
ANY RIGHT TO SUBMIT ANY DISPUTES HEREUNDER TO ANY COURTS OTHER THAN THOSE
ABOVE). NOTHING HEREIN SHALL PRECLUDE HOUSEHOLD FROM BRINGING AN ACTION OR
PROCEEDING RELATED TO THIS AGREEMENT IN ANY OTHER STATE OR PLACE HAVING
JURISDICTION OVER SUCH ACTION.
SECTION 30. WAIVER OF JURY TRIAL. HOUSEHOLD AND MERCHANT HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION,
SUIT, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT, ANY
RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY
IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM
ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY
SUCH ACTION, SUIT, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY; THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOUSEHOLD AND
MERCHANT ENTERING INTO THIS AGREEMENT.
IN WITNESS WHEREOF, Household and Merchant have caused their duly
authorized representatives to execute this Agreement as of the date set forth
above.
BANK: MERCHANT:
HOUSEHOLD BANK (SB), N.A. DIRECT FOCUS, INC.
By: /s/ X.X. Xxxx By: /s/ Xxx Xxxx
------------------------------- ----------------------------------
Print Name: X.X. Xxxx Print Name: Xxx Xxxx
------------------------ --------------------------
Title: Vice President Title: CFO
----------------------------- --------------------------------
ATTESTED OR WITNESSED ATTESTED OR WITNESSED
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
------------------------------- ----------------------------------
Print Name: Xxxx Xxxxxx Print Name: Xxxxxx Xxxxxx
------------------------ --------------------------
Title: Vice President Title: VP Marketing
---------------------------- -----------------------------
Merchant's Federal Tax ID #'s:
00-0000000
--------------------------------
--------------------------------
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