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.
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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 20% 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
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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.
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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
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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,
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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.
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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
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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.
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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.
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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
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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.
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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
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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: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------- ---------------------------
Title: SVP Title:
----------------------- ------------------------
INFOCHOICE USA, INC.
By: /S/ Xxxxxxx X. Xxxxxxx
--------------------------
Title: SVP
-----------------------
14
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 10%
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
15
which the Fingerhut telemarketing
representative specifically
solicits the customer for the 25%
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
representative or Metris' agent 15%
offering an Extended Service
Agreement product greater than
10 days after Merchandise
purchase.
Renewal (An offer conducted by
Metris to renew Extended Service 15%
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 10%,
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,
16
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 20% 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 20% 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
17
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.
18
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 "
19
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 "
20
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
21
1) First Purchase Underwriting and Servicing Fees
-------------------------------------------------------------------------------
ITEM RETAIL 2 YEAR CONTRACT 3 YEAR CONTRACT
-------------------------------------------------------------------------------
$79.99 - 99.99 7.00 10.00
-------------------------------------------------------------------------------
$100 - 199.99 8.00 11.00
-------------------------------------------------------------------------------
$200 - 299.99 10.00 13.00
-------------------------------------------------------------------------------
$300 - 499.99 13.00 19.00
-------------------------------------------------------------------------------
$500 - 999.99 17.00 24.00
-------------------------------------------------------------------------------
$1,000 - 2,499.99 32.00 56.00
-------------------------------------------------------------------------------
$2,500 - 4,000.00 44.00 82.00
-------------------------------------------------------------------------------
2) 5 Year Step-Up Appliance Underwriting and Servicing Fees
-------------------------------------------------------------------------------
ITEM 5 YEAR CONTRACT COST
-------------------------------------------------------------------------------
Refrigerator, Freezer, Washing Machine $35.00
-------------------------------------------------------------------------------
Refrigerator with Icemaker $45.00
-------------------------------------------------------------------------------
3) Renewal Underwriting and Servicing Fees
-------------------------------------------------------------------------------
ITEM RETAIL 3RD YEAR RENEWAL 4TH YEAR RENEWAL 5TH YEAR RENEWAL
-------------------------------------------------------------------------------
$79.99 - 99.99 7.00 15.00 20.00
-------------------------------------------------------------------------------
$100 - 199.99 8.00 16.00 21.00
-------------------------------------------------------------------------------
$200 - 299.99 10.00 18.00 23.00
-------------------------------------------------------------------------------
$300 - 499.99 13.00 25.00 31.00
-------------------------------------------------------------------------------
$500 - 999.99 17.00 49.00 69.00
-------------------------------------------------------------------------------
$1,000 - 2,499.99 32.00 79.00 99.99
-------------------------------------------------------------------------------
$2,500 - 4,000.00 44.00 119.00 139.00
-------------------------------------------------------------------------------
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.
22
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
$ 100 - $ 250 $12.00
000 - 000 00.00
000 - 0000 22.50
1001+ 27.00
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
23
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
$ 50 - $ 100 $4.50
101 - 199 4.50
200 - 299 4.50
300 - 499 4.50
500+ 4.50
Product Categories
Rings - 10K/14K Necklaces
Bracelets Earrings
Broaches Chains
Pendants
24
