Exhibit 10.1
REDACTED VERSION
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS EXHIBIT, MARKED BY [****], HAS BEEN OMITTED BECAUSE SIGNET JEWELERS LIMITED HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO SIGNET JEWELERS LIMITED IF PUBLICLY DISCLOSED.
SECOND AMENDED AND RESTATED CREDIT CARD PROGRAM AGREEMENT
by and between
STERLING JEWELERS INC.,
ZALE DELAWARE, INC.,
COMENITY BANK
AND
COMENITY CAPITAL BANK
Table of Contents
Page
1.1 Generally 1
1.2 Miscellaneous 19
ARTICLE II CONTINUATION OF THE PROGRAM 20
2.1 Credit Program 20
2.2 Exclusivity 20
2.3 Mobile Technology 22
2.4 [****] 23
2.5 [****] 23
2.6 [****] 23
2.7 [****] 23
ARTICLE III PROGRAM MANAGEMENT AND ADMINISTRATION 23
3.1 Program Objectives 23
3.2 Committees 23
3.3 Program Relationship Managers; Program Team 31
3.4 Firewalls 32
ARTICLE IV PROGRAM OPERATIONS 33
4.1 Operation of the Program 33
4.2 Certain Responsibilities of the Company 33
4.3 Certain Responsibilities of the Bank 34
4.4 Ownership of Accounts; Account Documentation 36
4.5 Branding of Accounts/Company Credit Cards/Credit Card Documentation/Solicitation Materials 37
4.6 Underwriting and Risk Management 39
4.7 Cardholder Terms 40
4.8 Program Website; Mobile Apps 41
4.9 Sales Taxes 43
4.10 Value Propositions; Loyalty Programs 43
4.11 Program Competitiveness 44
4.12 [****] 44
4.13 [****] 44
4.14 [****] 44
ARTICLE V MARKETING 44
5.1 Promotion of Program 44
5.2 Flex Fund Commitment 44
5.3 Communications with Cardholders 45
5.4 Additional Marketing Support 46
5.5 Approved Ancillary Products 46
5.6 Marketing Plan 47
5.7 [****] 48
5.8 [****] 48
ARTICLE VI CARDHOLDER INFORMATION 48
6.1 Customer Information 48
6.2 Cardholder Data 49
6.3 Shopper Data; Qualified Signet Customer List 51
ARTICLE VII OPERATING STANDARDS 53
7.1 Reports 53
7.2 Servicing 54
7.3 Service Level Standards 56
7.4 Program Features, Functionality and Technology 57
7.5 Systems; Secure Protocols 57
7.6 Company Disaster Recovery Plan 58
ARTICLE VIII MERCHANT SERVICES 59
8.1 Transmittal and Authorization of Charge Transaction Data 59
8.2 POS Terminals 59
8.3 In-Store Payments 59
8.4 Settlement Procedures 59
8.5 The Bank’s Right to Charge Back 59
8.6 Exercise of Chargeback 60
8.7 No Merchant Discount 60
ARTICLE IX PROGRAM ECONOMICS 60
9.1 Company Compensation 60
9.2 The Bank’s Responsibility for Program Operation 60
9.3 [****] 61
9.4 [****] 61
ARTICLE X INTELLECTUAL PROPERTY 61
10.1 Licensed Marks 61
10.2 Termination; Ownership; and Infringement 62
10.3 Intellectual Property 63
ARTICLE XI REPRESENTATIONS, WARRANTIES AND COVENANTS 64
11.1 General Representations and Warranties of the Company 64
11.2 General Representations and Warranties of the Bank 65
11.3 No other Representations or Warranties 67
11.4 General Covenants of the Company 67
11.5 General Covenants of the Bank 68
ARTICLE XII ACCESS AND AUDIT 70
12.1 Access to Facilities, Books and Records 70
12.2 Audit Rights 70
12.3 Relevant Laws Compliance 70
12.4 Governmental Authority Supervision 71
ARTICLE XIII CONFIDENTIALITY 71
13.1 General Confidentiality 71
13.2 Use and Disclosure of Confidential Information 72
13.3 Unauthorized Use or Disclosure of Confidential Information 73
13.4 Return or Destruction of Confidential Information 73
ARTICLE XIV RETAIL PORTFOLIO ACQUISITIONS AND DISPOSITIONS 73
14.1 Retailer that Operates a Credit Card Business 73
14.2 Conversion of Purchased Accounts 74
14.3 No Other Company Obligations 74
14.4 Retail Portfolio Dispositions 75
ARTICLE XV EVENTS OF DEFAULT; RIGHTS AND REMEDIES 75
15.1 Events of Default. 75
15.2 Defaults by the Bank 75
15.3 Defaults by the Company 76
15.4 Remedies for Events of Default 77
ARTICLE XVI TERM/TERMINATION 77
16.1 Term 77
16.2 Termination by the Company Prior to the End of the Initial Term or a Renewal Term 77
16.3 Termination by the Bank Prior to the End of the Initial Term or a Renewal Term 78
ARTICLE XVII EFFECTS OF TERMINATION 78
17.1 General Effects 78
17.2 The Company’s Option to Purchase the Program Assets 78
17.3 Fair Market Value 79
17.4 Rights of the Bank if Purchase Option Not Exercised 80
ARTICLE XVIII INDEMNIFICATION 81
18.1 Company Indemnification of the Bank 81
18.2 Bank Indemnification of the Company 82
18.3 Procedures 83
18.4 Notice and Additional Rights and Limitations 84
18.5 LIMITATION OF LIABILITY 84
ARTICLE XIX MISCELLANEOUS 85
19.1 Precautionary Security Interest 85
19.2 Securitization 85
19.3 Assignment 85
19.4 Sale or Transfer of Accounts 85
19.5 Subcontracting 86
19.6 Amendment 86
19.7 Non-Waiver 86
19.8 Severability 86
19.9 Venue 86
19.10 Governing Law 86
19.11 Specific Performance 87
19.12 Notices 87
19.13 Further Assurances 88
19.14 No Joint Venture 88
19.15 Press Releases 88
19.16 [****] 88
19.17 Third Parties 88
19.18 Force Majeure 88
19.19 Entire Agreement 89
19.20 Binding Effect 89
19.21 Counterparts/Facsimiles 89
19.22 Survival 89
SECOND AMENDED AND RESTATED CREDIT CARD PROGRAM AGREEMENT
This Second Amended and Restated Credit Card Program Agreement is executed and, except as otherwise set forth herein, effective as of September 4, 2026 (the “Effective Date”), by and among Sterling Jewelers Inc., a Delaware corporation (“Sterling”), Zale Delaware, Inc., a Delaware corporation (“Zale” and, together with Sterling, the “Company”), Comenity Bank, a Delaware state-chartered bank (“Comenity Bank”), and Comenity Capital Bank, a Utah state-chartered industrial bank (“Comenity Capital Bank” and, together with Comenity Bank, the “Bank”), each of the foregoing referred to herein as a “Party” and, collectively, the “Parties”.
W I T N E S S E T H:
WHEREAS, Sterling and Comenity Bank are parties to that certain Amended and Restated Credit Card Program Agreement, dated May 14, 2021, pursuant to which Comenity Bank issues certain Company Credit Cards (the “Sterling Program Agreement”);
WHEREAS, Zale and Comenity Capital Bank are parties to that certain Amended and Restated Private Label Credit Card Program Agreement, dated May 14, 2021, pursuant to which Comenity Capital Bank issues certain Company Credit Cards (the “Zale Program Agreement”);
WHEREAS, the Parties desire to continue the programs established under the Sterling Program Agreement and the Zale Program Agreement in accordance with the terms and conditions set forth herein, which amends and restates the Sterling Program Agreement and the Zale Program Agreement in their entirety (the programs established in accordance with the Sterling Program Agreement and the Zale Program Agreement and continued pursuant to this Agreement, collectively, the “Program”); and
WHEREAS, the Parties hereto agree that the goodwill associated with the Company Licensed Marks (as hereinafter defined) contemplated for use hereunder is of substantial value that is dependent upon the maintenance of high quality services and appropriate use of the Company Licensed Marks pursuant to this Agreement.
NOW, THEREFORE, in consideration of the terms, conditions and mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
1.1 Generally. The following terms shall have the following meanings when used in this Agreement:
“Advertising Guide” means the guidance set forth in the Bank’s disclosure tool and agreed to by the Parties concerning certain frequently used Bank Program Materials or Company Program Materials (including customer service communications templates), as in effect on the Effective Date, as the same may be amended from time to time by mutual agreement of the Managers pursuant to Section 4.5(d) hereof.
1
“Account” means an open-ended credit account linked to a Company Credit Card and usable solely for the purpose of financing the purchase of Goods and Services (and all fees and charges relating thereto) through any Company Channel and for financing any other charges that may be made using such Company Credit Card pursuant to the terms of the relevant Credit Card Agreement.
“Account Documentation” means any and all documentation relating to the Accounts, to the extent reflected in individual Account files, including Credit Card Documentation, electronic payment authorization agreements, checks or other forms of payment with respect to the Accounts, notices to Cardholders, electronic payment authorization agreements, adverse action notices, change of terms notices, other notices, correspondence, memoranda, documents, stubs, instruments, certificates, agreements, magnetic tapes, disks, hard copy formats or other computer-readable data transmissions, microfilm, electronic or other copy of any of the foregoing, and any other written, electronic or other records or materials of whatever form or nature, arising from or relating or pertaining to any of the foregoing to the extent related to the Program; provided that Account Documentation shall not include (i) Solicitation Materials, (ii) the Company’s or any of its Affiliates’ register tapes, invoices, sales or shipping slips, delivery receipts or (iii) other receipts or other indicia of the sale of Goods and Services, any reports, analyses or other documentation prepared by the Company or its Affiliates for use in the retail business operated by the Company and its Affiliates, regardless of whether derived in whole or in part from the Account Documentation.
“Acquired Portfolio Issuer” has the meaning set forth in Section 14.1(a) hereof.
“Acquired Portfolio Program Agreement” has the meaning set forth in Section 14.1(a)(i) hereof.
“Affected Party” has the meaning set forth in Section 6.2(d) hereof.
“Affiliate” means, with respect to any Person, each Person that controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
“AI Technology” has the meaning set forth in Schedule 4.14.
“Agreed Preferences” has the meaning set forth in Section 9.4(b) hereof.
“Agreement” means this Second Amended and Restated Credit Card Program Agreement, together with all of its schedules and exhibits, as amended, supplemented or otherwise modified from time to time.
“Amortization Period” means the period beginning on January 1, 2026 and ending at the end of the Initial Term. As of the Effective Date, there were one hundred twelve (112) months remaining in the Amortization Period.
“Annual Periodic Review Period” means each Fiscal Year.
2
“Applicable Law” means, with respect to any Party, any United States federal, state or local law (including common law), statute, rule or regulation, or any written interpretation of a Governmental Authority thereunder applicable to or binding upon such Party, or any Applicable Order with respect to such Party, or any guidance, directive or instruction, directed to or binding on such Party or generally binding on participants in the Party’s industry from a Governmental Authority (whether or not published), as any of the foregoing may be amended and in effect from time to time during the Term, including, to the extent applicable to such Party, (i) the Truth in Lending Act and Regulation Z; (ii) the Equal Credit Opportunity Act and Regulation B; (iii) the Fair Debt Collection Practices Act; (iv) the Fair Credit Reporting Act; (v) the Gramm-Leach-Bliley Act; (vi) the USA PATRIOT Act; and (vii) Section 1031 of the Consumer Financial Protection Act of 2010 and other statutes, rules and regulations prohibiting unfair, deceptive or abusive acts or practices; provided, however, that in the case of any non-published guidance, directive or interpretation or other non-published item asserted by the Bank to constitute Applicable Law, the Bank shall have delivered to the Company a written or other item in reasonable detail, including the Bank’s basis for concluding such guidance, directive or interpretation or other item is binding upon the Bank (or, if the Bank is not permitted to disclose such a detailed description, a written confirmation from an officer of the Bank that such guidance, directive or interpretation is binding on the Bank and such disclosure is prohibited by Applicable Law).
“Applicable Order” means, with respect to any Person, a judgment, injunction, writ, decree or order of any Governmental Authority, in each case legally binding on that Person.
“Applicant” means a Person that has submitted an Application under the Program.
“Application” means the credit application that must be completed and submitted in order to establish an Account (including any such application submitted at the POS, by phone or via the Internet or a mobile phone or tablet).
“Approved Ancillary Products” means any Credit Card enhancement products (other than the Company Credit Cards) specified in Section 5.5(b) or approved by the Operating Committee for offering to Cardholders under the Program from time to time.
“Bank” has the meaning set forth in the preamble hereof.
“Bank Designee” has the meaning set forth in Section 3.2(b) hereof.
“Bank Event of Default” means the occurrence of any one of the events listed in Section 15.2 hereof or of any other Bank Event of Default specified in any other provision of this Agreement or an Event of Default where the Bank is the defaulting Party.
“Bank Licensed Marks” means those Trademarks of the Bank that are listed on Schedule 1.1(a), as such schedule may be amended from time to time by the Bank, and any Trademark of the Bank that (x) includes, in whole or in part, any Trademark listed on Schedule 1.1(a) or (y) is otherwise confusingly similar to or derivative of any such Trademark.
3
“Bank Material Adverse Effect” means any change, circumstance, occurrence, event or effect that, individually or in the aggregate, has had or would be reasonably expected to have a material adverse effect upon the Program or the Accounts taken as a whole or the ability of the Bank to perform its obligations pursuant to this Agreement.
“Bank Matters” has the meaning set forth in Section 3.2(f) hereof.
“Bank Program Materials” has the meaning set forth in Section 4.5(a) hereof.
“Bank Systems” means Systems owned, leased or licensed by and operated by or on behalf of the Bank or any of its Affiliates.
“Bankruptcy Code” means Title 11 of the United States Code, as amended, or any other applicable state or federal bankruptcy, insolvency, moratorium or other similar law and all laws relating thereto.
“Batch Prescreen” shall mean a process where the Bank’s offer of credit is made to certain customers prequalified by the Bank (per its criteria), in a batch mode (often but not exclusively within a direct-to-consumer environment).
“Billing Cycle” means the interval of time between regular periodic Billing Dates for an Account.
“Billing Date” means, for any Account, the last day of a Billing Cycle as of when the Account is recorded as billed.
“Billing Statement” means a summary (in electronic or paper form) of Account credit and debit transactions for a Billing Cycle including a descriptive statement covering purchases, charges, payments, calculation of payment due, past-due account information, any relevant Value Proposition information and any information required by Applicable Law.
[****]
“Business Day” means any day, other than a federal holiday, Saturday or Sunday, on which both of the Bank and the Company are open for business at their respective U.S. headquarters.
“Buy-Down Event” has the meaning set forth in Section 5.2(b)(xi).
“Cardholder” means any Person who has been issued a Company Credit Card (including, as applicable in accordance with the context of the reference herein, any Person contractually obligated under a Credit Card Agreement and any authorized user(s) of the Accounts).
“Cardholder Data” means (i) all Cardholder Lists and (ii) all personally identifiable information and all other information about a Cardholder (including authorized users and joint signatories, if available and permitted) or Applicant (A) received by or on behalf of the Bank from such Cardholder or Applicant in connection with such Cardholder’s or Applicant’s application for or use of a Company Credit Card or Account or (B) otherwise obtained by or on
4
behalf of the Bank in connection with the Program (other than from the Company or its Affiliates, except to the extent assigned by the Company to the Bank pursuant to the Purchase Agreement, it being understood that the Company may retain or obtain identical information as Shopper Data), including all transaction and experience information collected by or on behalf of the Bank with regard to each purchase charged by a Cardholder using his or her Company Credit Card. For the avoidance of doubt, information submitted by a prospective Applicant pursuant to a Prequalification Request shall not be deemed Cardholder Data except to the extent such prospective Applicant is validly determined to be a Program Eligible Applicant pursuant to the terms of this Agreement.
“Cardholder Indebtedness” means (a) all amounts owing by Cardholders with respect to Accounts, including outstanding loans, cash advances and other extensions of credit, finance charges (including accrued interest), charges for Approved Ancillary Products, late payment fees, and any other fees, charges and interest on the Accounts, in each case, whether or not posted and whether or not billed; less (b) any credit balances owed to Cardholders, any credits associated with returns, and any similar credits or adjustments with respect to the Accounts, in each case whether or not posted and whether or not billed.
“Cardholder List” means any list (whether in hardcopy, magnetic tape, electronic or other form) compiled by or on behalf of the Bank that identifies (or provides a means of differentiating) Cardholders, including any such list that sets forth the names, addresses, email addresses (as available), telephone numbers or social security numbers of any or all Cardholders to the extent such information is compiled by or on behalf of the Bank.
[****]
“CCB Merger” has the meaning set forth in Section 19.3 hereof.
“CCB Merger Costs” has the meaning set forth in Section 19.3 hereof.
“Change of Control” means, with respect to any Person (the “subject Person”):
(i) a Person or group becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (except that a Person or group shall be deemed to own all securities it has the right to acquire)), directly or indirectly, of more than fifty percent (50%) of the total voting power of the subject Person or of any Person of which the subject Person is a Subsidiary;
(ii) such subject Person (or any Person of which such subject Person is a Subsidiary) merges, consolidates, acquires, is acquired by, or otherwise combines with any other Person in a transaction in which the subject Person (or such Person of which such subject Person is a Subsidiary) is not the surviving entity or which constitutes a “merger of equals”, it being understood that a Person shall not be considered the “surviving entity” of a transaction if either (A) the members of the board of directors of the Person immediately prior to the transaction constitute less than a majority of the members of the board of directors of the ultimate parent entity of the entity surviving or resulting from the transaction or (B) securities of such Person that are outstanding
5
immediately prior to the transaction (or securities into which such securities are converted in the transaction) represent less than fifty percent (50%) of the total voting power of the ultimate parent entity of the entity surviving or resulting from the transaction;
(iii) the subject Person sells all or substantially all of its assets to a Person that is not a wholly-owned Subsidiary of the ultimate parent entity of such subject Person prior to such transaction; or
(iv) if the subject Person is the Bank, the subject Person (or any Affiliate thereof) (A) sells, transfers, conveys, assigns or terminates all or a substantial part of the Bank’s Credit Card business or any portion thereof that includes all or any portion of the Accounts or that services the Accounts, (B) enters into any definitive agreement (whether or not subject to conditions) that would upon consummation in accordance with its terms (and assuming the receipt of all approvals and satisfaction of all conditions contemplated thereby) result in any such sale, transfer, conveyance, assignment or termination; or (C) enters into any other transaction, whether through a subcontracting arrangement, change in directorships or otherwise, which has the purpose or effect of changing the Persons entitled to direct the affairs of such subject Person or any parent entity thereof or the operations relating to the conduct of the Programs to any Person other than the ultimate parent entity of the Bank prior to such transaction or any wholly-owned Subsidiary thereof.
Notwithstanding the foregoing, a Change of Control shall not be deemed to have occurred as a result of any internal transaction solely among a Party and/or one or more of its wholly-owned Subsidiaries or any Person of which a Party is a wholly-owned Subsidiary, whether through a merger, reorganization, asset transfer or otherwise.
[****]
“Charge Transaction Data” means the transaction information required to authorize, process and settle each purchase of Goods and Services or Approved Ancillary Products charged to an Account and each return of Goods and Services or Approved Ancillary Products or other adjustment for credit to an Account.
“Clean Up Call Option” means the Company’s option to purchase the Existing Receivables if the outstanding balance of Existing Receivables on the Program Purchase Date or other purchase date agreed upon by the parties, as applicable, is ten percent (10%) or less of the outstanding balance of Existing Receivables on the Closing Date.
“Closing” shall mean the closing of the transactions contemplated by the Purchase Agreement.
“Closing Date” means the date of the Closing as contemplated by the Purchase Agreement.
6
“Co-Branded Credit Card” means a Credit Card that bears a Company Licensed Mark and the trademarks, tradenames, service marks, logos and other proprietary designations of American Express, Visa International Inc., Visa U.S.A., Inc. or MasterCard International Inc., or any other payment system that is generally acceptable to sellers of goods and services.
“Collections Policies” means the policies, procedures and practices for the Program with respect to collections, account closures, charge-offs, recoveries and similar matters.
“Company” has the meaning set forth in the preamble hereof.
“Company Channels” means (i) all retail establishments, (ii) all websites, (iii) all mail order, catalog and other direct access media (including all mobile media, whether or not accessible through a website), and (iv) all other venues for in-person or e-commerce sales of Goods and Services (including, to the extent enabled for transactions on Company Credit Cards, special events, trunk shows, virtual sales and jewelry consultant outreach (i.e., customer contact from jewelry consultant via phone or email)), in each case as owned, operated, or controlled by the Company or its Affiliates from time to time.
“Company Credit Card” means a Private Label Credit Card offered or maintained pursuant to this Agreement that bears a Company Licensed Mark, including the Credit Cards listed on Schedule 1.1(f).
“Company Designee” has the meaning set forth in Section 3.2(b) hereof.
“Company Event of Default” means the occurrence of any one of the events listed in Section 15.3 hereof or an Event of Default where the Company is the defaulting Party.
“Company Licensed Marks” means Trademarks of the Company that are listed on Schedule 1.1(b), as such schedule may be amended from time to time by the Company, and any Trademark of the Company that (x) includes, in whole or in part, any Trademark listed on Schedule 1.1(b) or (y) is otherwise confusingly similar to or derivative of any such Trademark.
“Company Material Adverse Effect” means any change, circumstance, occurrence, event or effect that, individually or in the aggregate, has had or would be reasonably expected to have a material adverse effect upon the Program or the Accounts taken as a whole or the ability of the Company to perform its obligations pursuant to this Agreement.
“Company Matters” has the meaning set forth in Section 3.2(e) hereof.
“Company Program Materials” has the meaning set forth in Section 4.5(b) hereof.
“Company Systems” means Systems owned, leased or licensed by and operated by, or on behalf of, the Company or its Affiliates.
“Comparable Partner Programs” means from time to time the major Credit Card programs of the Bank or any of its Affiliates that are comparable to the Program, including in terms of [****]. As of the date hereof, the “Comparable Partner Programs” are those listed on Schedule 1.1(c). To the extent the Bank becomes the issuer or servicer with respect to any
7
Relevant Retail Program, such program shall also be a “Comparable Partner Program” for so long as the Bank acts in any such capacity. [****]
“Competitive Change” means, with respect to any proposed change to a term or condition of the Accounts set forth on Schedule 4.7(a), [****].
“Competing Credit Product” has the meaning set forth in Section 2.2(f) hereof.
“Competitive” means, with respect to the aspects of the Program referred to where such term is used in this Agreement, that such aspects are both (i) [****] and (ii) [****].
“Competitors” means those Persons set forth on Schedule 1.1(i).
“Confidential Information” has the meaning set forth in Section 13.1 hereof.
“Credit Card” means a credit card or other access device (whether tangible or intangible) pursuant to which the cardholder or authorized user may purchase goods and services through open-end revolving credit; and for the avoidance of doubt the term does not include: (i) any gift card; (ii) any debit card, smart card, stored value card, electronic or digital cash card or any other card that does not provide the holder thereof with the ability to obtain credit other than through an overdraft line or similar feature; (iii) any secured card, including any card secured by a lien on real or other property or by a deposit; or (iv) any card issued to the holder of a securities brokerage account that allows the holder to obtain credit through a margin account. For purposes of this Agreement, an intangible access device shall be deemed to “bear” a trademark if the association or identification between such trademark and the credit product accessed by such access device is similar in nature and intent to the association or identification created by imprinting such trademark on a card-accessed credit product.
“Credit Card Agreement” means each agreement between the Bank and a Cardholder governing the use of an Account, including agreements assigned to the Bank pursuant to the Purchase Agreement, together with any amendments, modifications or supplements thereto (including through issuance of a change in terms notice) and any replacement of such agreement.
“Credit Card Documentation” means, with respect to the Accounts, Prequalification Requests, all Applications, Credit Card Agreements, Company Credit Cards, POS brochures, welcome brochures, new Account membership kits, and Billing Statements relating to such Accounts, in each case, in every form, whether printed, mobile or online.
“Credit Reporting Agency” means either of Equifax or Experian.
“Critical Change Amendment” has the meaning set forth in Section 9.4(c)(iv) hereof.
“Critical Change in Applicable Law” means a change in Applicable Law that has been finally approved or adopted by the applicable Governmental Authority, whether or not such change has yet become effective (but if not yet effective, which change will become effective due solely to the passage of time and not through any further act of any Governmental Authority), that would have a material adverse effect on Program revenue to be earned by either Party.
8
“Critical Change in Applicable Law Review Period” has the meaning set forth in Section 9.4(a) hereof.
“Critical Change MDF Modification” has the meaning set forth in Section 9.4(b)(iii) hereof.
“Critical Change Mitigation Purposes” has the meaning set forth in Section 9.4(a) hereof.
“Critical Change Proposal” has the meaning set forth in Section 9.4(a) hereof.
“Critical Change Reversal” has the meaning set forth in Section 9.4(e)(ii) hereof.
“Critical Change Review Statement” has the meaning set forth in Section 9.4(e)(iii) hereof.
“Critical Change Termination” has the meaning set forth in Section 9.4(d) hereof.
“Current Providers” means, as of the Effective Date, [****], or any of their respective Affiliates.
“Dedicated Premier Flex” has the meaning set forth in Schedule 7.2.
[****].
“Disclosing Party” has the meaning set forth in Section 13.1(d) hereof.
“Discretionary Fund” has the meaning set forth in Schedule 9.1 hereof.
“Dispute” has the meaning set forth in Section 3.2(d)(ii)(D) hereof.
“Disqualified Shopper” has the meaning set forth in Schedule 2.1(a) hereof.
“Effective Date” has the meaning set forth in the preamble hereof.
“Employee Fraud” means an instance in which an employee of the Company or its Subsidiaries has committed fraud as evidenced by (i) a written or email admission of guilt by the relevant employee, (ii) a conviction of such employee for fraud in a court of law, (iii) [****] or (iv) [****].
“Event of Default” means the occurrence of any one of the events listed in Section 15.1 hereof.
“Existing Receivables” means, as applicable, (i) as of the Closing Date, the Cardholder Indebtedness purchased by the Bank on the Closing Date pursuant to the Purchase Agreement, or (ii) as of the Program Purchase Date, the Cardholder Indebtedness purchased by the Bank on the Closing Date pursuant to the Purchase Agreement that remains outstanding on the Program Purchase Date, excluding any amounts that have been charged off in accordance with the Risk Management Policies.
9
“Fair Market Value” means the value determined in accordance with the procedures specified in Schedule 17.3 hereof.
“FDIC” means the Federal Deposit Insurance Corporation.
“FICO Equivalent” means, (i) for purposes of the definition of Program Eligible Applicant and Section 4.6(d), the credit score designated as such and derived from the credit models developed by the Fair Isaac Corporation, VantageScore Solutions, LLC, or a similar model, and deployed at any Credit Reporting Agency, and (ii) otherwise the credit score determined to be used pursuant to the Risk Management Policies as in effect from time to time in accordance with this Agreement.
“Fiscal Month” means each calendar month in a Fiscal Year.
“Fiscal Quarter” means Fiscal Months 1-3, Fiscal Months 4-6, Fiscal Months 7-9, and Fiscal Months 10-12 of each Fiscal Year, as applicable.
“Fiscal Year” means the fiscal year set forth in the calendar published by the National Retail Federation setting forth the fiscal year for retailers on a 52/53 week fiscal year beginning on February 1 and ending on January 31; provided that the first Fiscal Year hereunder shall consist of the period starting on January 1, 2026 and ending on January 31, 2027.
“Flex Fund” has the meaning in Section 5.2(a) hereof.
“Flex Fund Commitment” means [****].
“Force Majeure Event” has the meaning set forth in Section 19.18 hereof.
“GAAP” means United States generally accepted accounting principles, consistently applied.
“Goods and Services” means the products and services sold, charged or offered by or through Company Channels, including accessories, delivery services, protection agreements, gift cards, shipping and handling, and work or labor to be performed for the benefit of customers of the Company Channels and any sales tax relating to the foregoing charges and to such customers in connection therewith.
“Governmental Authority” means any United States federal, state or local governmental or regulatory authority, agency, court, tribunal, commission or other entity exercising executive, legislative or judicial functions of or pertaining to government in the United States.
“High Transaction Value Programs” means the Credit Card programs of all the retailers listed on Schedule 1.1(g), excluding any such High Transaction Value Programs that become a program of the Bank or any of its Affiliates. The Company shall have the right from time to time to add to Schedule 1.1(g) additional Credit Card programs, subject to the Bank’s consent, not to be unreasonably withheld, conditioned or delayed.
10
“Hypothetical Critical Change Revenue” has the meaning set forth in Section 9.4(e)(iii) hereof.
“Indemnified Party” has the meaning set forth in Section 18.3 hereof.
“Indemnifying Party” has the meaning set forth in Section 18.3 hereof.
“Independent Appraiser” means a nationally recognized investment banking firm, valuation firm or firm of independent certified public accountants of recognized standing that is experienced in the business of appraising credit card businesses or receivables, and that is not an Affiliate of the Company or the Bank and that is not either Party’s principal auditor.
“Industry Standards” means all industry standards and certifications relating to privacy or data in the credit card industry; provided that the Payment Card Industry Data Security Standards maintained by the PCI Security Standards Council, LLC or any successor organization or entity shall apply only with respect to Co-Branded Credit Cards.
“Initial Term” has the meaning set forth in Section 16.1 hereof.
“Inserts” has the meaning set forth in Section 5.3(a) hereof.
“Instant Credit” means an Application procedure designed to open Accounts as expeditiously as possible at POS, or through online mobile or other channels, whereby the Application information is communicated to the Bank systemically at POS or during the order entry process and without a paper Application being completed by an Applicant, through the electronic submission by the Applicant of a credit card or other Bank-approved identification to facilitate the necessary credit analysis required by the Risk Management Policies.
“In-Store Payment” means any payment on an Account made to the Bank via the Company in a physical store Company Channel by a Cardholder or a person acting on behalf of a Cardholder.
“Intellectual Property” means, on a worldwide basis, all intellectual property rights, including (i) copyrights, copyrighted works and works of authorship including software; (ii) trade secrets and know-how; (iii) patents, designs, inventions, algorithms and other industrial property rights; (iv) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (v) applications, registrations, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing), but excluding trademarks, service marks, trade dress, logos, trade names, internet domain names, corporate names, social and mobile media identifiers and other source indicators and proprietary designations and the goodwill associated therewith (“Trademarks”).
“Internet Services” has the meaning set forth in Section 4.8(a) hereof.
“Key Program Management Resources” has the meaning set forth in Section 3.3(e) hereof.
11
“Knowledge” means, (i) with respect to the Company, the actual knowledge of any of the individuals listed on Schedule C-1 and (ii) with respect to the Bank, the actual knowledge of any of the individuals listed on Schedule C-2.
“Late Fee Change in Law” has the meaning set forth in Section 9.4(c)(ii) hereof.
“Late Fee Rule” has the meaning set forth in Section 4.7(a) hereof.
“Losses” has the meaning set forth in Section 18.1 hereof.
“Manager” has the meaning set forth in Section 3.3(a) hereof.
“Manager Matters” has the meaning set forth in Section 3.2(c) hereof.
“Mandatory Competitive Change” has the meaning set forth in Section 4.7(b).
“Marketing Committee” has the meaning set forth in Section 3.2(a) hereof.
“Marketing Committee Matters” has the meaning set forth in Section 3.2(c) hereof.
“Marketing Plan” means the document that outlines the objectives, targets, strategies and tactics, including marketing and promotional programs, including with respect to new account solicitation, usage and awareness programs for the applicable Fiscal Year.
“Material Forecast Variance” has the meaning set forth in Schedule 9.3 hereof.
“Net Credit Sales” means, for any date or measurement period, an amount equal to (A) gross credit sales on Accounts (including gift card sales, sales tax, delivery charges and any other amount included in the full amount charged by Cardholders) reflected in the Charge Transaction Data since the Retail Day preceding such date or the beginning of such measurement period, minus (B) the sum of credits for returned goods and cancelled services and other credits (such as concessions, discounts or down payments and adjustments) on Accounts reflected in the Charge Transaction Data since the Retail Day preceding such date or the beginning of such measurement period.
[****]
“Net Proceeds” shall mean the amount of purchases of Goods and Services on Accounts: (i) less [****]; (ii) less [****]; (iii) less [****]; (iv) plus [****]; and (v) plus or minus, as applicable, [****].
“New Mark” has the meaning set forth in Section 10.1(c) hereof.
“New Portfolio” has the meaning set forth in Section 14.1 hereof.
“Nominated Purchaser” has the meaning set forth in Section 17.2(a) hereof.
“Open Account” means an Account that has not been closed by the Bank for risk, has not been closed by the Cardholder or has not been closed by the Bank for inactivity.
12
“Operating Committee” has the meaning set forth in Section 3.2(a) hereof.
“Operating Committee Matters” has the meaning set forth in Section 3.2(c) hereof.
“Operating Procedures” means the operating procedures for the Program in effect from time to time in accordance with Section 4.1 hereof.
“Opt-in Notice” has the meaning set forth in Section 10.1(c) hereof.
“Other Enterprise Programs” means the Credit Card programs of all the retailers listed on Schedule 1.1(h), excluding any such Other Enterprise Programs that were not a program of the Bank as of April 25, 2023 that become a program of the Bank or any of its Affiliates. The Company shall have the right from time to time to add to Schedule 1.1(h) additional Credit Card programs, subject to the Bank’s consent, not to be unreasonably withheld, conditioned or delayed.
“Parent” has the meaning set forth in Section 12.3 hereof.
“Party” has the meaning set forth in the preamble hereof.
“Payment Card Industry Data Security Standards” means the Payment Card Industry Data Security Standards maintained by the PCI Security Standards Council, LLC, or any successor organization or entity.
“Payment Plans” means any “Payment Plan” set forth in Schedule 4.7(c) and any other “Payment Plan” approved by the Operating Committee in accordance with Section 4.7(c).
“Peak Sales Period” means, for any given year, October 1 through February 15 and the four (4) weeks prior to Mother’s Day in the United States (i.e., the second Sunday in May) in such year.
“Person” means any individual, corporation, business trust, partnership, association, limited liability company, joint venture, unincorporated association or similar organization, or any Governmental Authority.
“POS” means point of sale.
[****]
“Prequalification Request” means the information that must be completed and submitted in order to permit the Bank to determine whether a prospective Applicant is a Program Eligible Applicant as expeditiously as possible at POS, or through online mobile or other channels, whereby such information is communicated to the Bank systemically at POS or during the order entry process and without a paper Prequalification Request being completed by a prospective Applicant.
“Prime Rate” means the rate per annum listed in the “Money Rates” Section of The Wall Street Journal as the “prime rate”. If The Wall Street Journal ceases publication of such rate, then
13
the Prime Rate means the so-called prime rate as announced by an alternate publication to be mutually agreed by the Parties.
[****]
“Private Label Credit Card” means a Credit Card that may be used solely to finance: (i) purchases of Goods and Services through any Company Channel; and (ii) Approved Ancillary Products.
[****]
“Program” has the meaning set forth in the recitals hereof.
“Program Assets” means the Accounts (including written off Accounts to which the Bank has retained title) and copies of all Account numbers associated therewith, Account Documentation, the Cardholder List, Cardholder Data, all Cardholder Indebtedness, but to the extent set forth in Section 17.2(i), excluding the Existing Receivables except to the extent otherwise provided in such Section, all dedicated Program Toll-Free Numbers and all rights, claims, credits, causes of action and rights of set-off against third parties to the extent relating to the foregoing (in each case, whether held by the Bank or a third party). Program Assets shall not include the Shopper Data or Solicitation Materials, which Shopper Data and Solicitation Materials shall be and remain the property of the Company at all times.
“Program Decision Matters” means, collectively, Manager Matters, Marketing Committee Matters and Operating Committee Matters.
“Program Eligible Applicant” means [****].
“Program Generated Shopper Data” has the meaning set forth in Section 6.1(b) hereof.
[****]
“Program Objectives” has the meaning set forth in Section 3.1 hereof.
“Program Privacy Policy” shall mean the privacy policy and associated disclosures to be provided by the Bank to Applicants and Cardholders in connection with the Program, initially in the form set forth as Schedule 6.2(b), as the same may be modified from time to time in accordance with this Agreement.
“Program Purchase Date” has the meaning set forth in Section 17.2(c) hereof.
“Program Toll-Free Numbers” has the meaning set forth in Section 7.2(c) hereof.
[****]
“Program Website” has the meaning set forth in Section 4.8(a) hereof.
“Promotional Plan” has the meaning set forth in Schedule 4.7(c) hereof.
14
“Purchase Agreement” means the purchase and sale agreement between the Company and the Bank, dated as of May 25, 2017, pursuant to which the Bank agreed to purchase from the Company certain Credit Card accounts, associated receivables and other assets related to the Company consumer Credit Card program and assume from the Company certain liabilities related to the Company consumer Credit Card program.
“Purchase Notice” has the meaning set forth in Section 17.2(b) hereof.
“Purchased Account” means an Account existing as of the Closing Date and purchased by the Bank pursuant to the Purchase Agreement.
“Qualified Signet Customer” shall mean certain customers of the Company that the Company determines are available to be solicited for Accounts under the Program.
“Qualified Signet Customer List” means the list of Qualified Signet Customers provided from time to time by the Company to the Bank for purposes of soliciting such Persons for the Program in accordance with a Marketing Plan.
[****]
“Real-Time Prescreen” means a process where the Bank’s firm offer of credit is made to certain customers in a real-time manner, at the POS in any Company Channel at the time of a transaction.
“Receiving Party” has the meaning set forth in Section 13.1(d) hereof.
“Relevant Decision Maker” shall mean the Managers in respect of any Manager Matters, the Marketing Committee in respect of any Marketing Committee Matters and the Operating Committee in respect of all other matters, including any Operating Committee Matters.
“Relevant Laws” has the meaning set forth in Section 12.3 hereof.
“Relevant Retail Programs” means from time to time the Credit Card programs, whether or not the Bank or any of its Affiliates participate therein, [****]. Notwithstanding anything to the contrary in the foregoing provisions of this definition, as of the date hereof, the “Relevant Retail Programs” shall include the [****]. To the extent the Bank or any of its Affiliates ceases being the issuer or servicer with respect to any Comparable Partner Program, such program shall also be a “Relevant Retail Program” to the extent [****]. The Company shall have the right from time to time to add to [****] additional Credit Card programs that meet the definition set forth in the first sentence hereof (whereupon such programs shall be “Relevant Retail Programs”) [****].
“Renewal Term” has the meaning set forth in Section 16.1 hereof.
“Representative” means a Person’s employees, officers, directors, accountants, consultants and advisors (including outside counsel).
15
“Retail Day” means any day on which a physical retail store owned or operated by the Company or any of its Subsidiaries is open for business.
“Retail Jeweler” means any retailer whose total sales of jewelry in the most recent fiscal year aggregated either (a) [****]; or (b) [****].
“Retail Merchant” means the Company and any of its Affiliates that accept the Company Credit Cards in accordance with this Agreement.
“Risk Management Policies” means the underwriting and risk management policies, procedures and practices applicable to the Program adopted in accordance with the terms of this Agreement, including risk management policies, procedures and practices for credit and Account openings, transaction authorization, credit line assignment, increases and decreases, over-limit decisions, Account closures and payment crediting. Notwithstanding the foregoing, Risk Management Policies does not include Collections Policies.
“Secondary Program” has the meaning set forth in Section 2.2(b) hereof.
“Second-Look Program” has the meaning set forth in Section 2.2(b) hereof.
“Security Incident Costs and Expenses” has the meaning set forth in Section 6.1(d) hereof.
“Security Incident” has the meaning set forth in Section 6.1(d) hereof.
“Service Providers” means, with respect to a Person, the unaffiliated vendors, service providers and subcontractors utilized by such Person in connection with the performance of services and obligations provided under this Agreement. For the avoidance of doubt, neither Party (nor such Party’s respective Affiliates or Service Providers) shall be deemed to be a Service Provider of the other Party for purposes of this Agreement.
“Settlement File” means the daily file containing Charge Transaction Data submitted by the Company to the Bank each Retail Day pursuant to Section 8.4.
“Shopper” means any Person who makes purchases of Goods and Services or otherwise uses, enters or accesses Company Channels or otherwise contacts or is contacted by the Company or its Affiliates in connection with their retail operation (whether or not such Person makes any purchases).
“Shopper Data” means (i) all personally identifiable information, and all other information (including information recorded on a tokenized, aggregated or anonymized basis) regarding a prospective or actual Shopper that was obtained by or on behalf of the Company or its Affiliates prior to the Closing Date, or is obtained by or on behalf of the Company following the Closing Date, including all transaction, search, experience and purchase information obtained in connection with (A) [****], or (B) [****], in each case in clause (A) or (B), whether such information is obtained by the Company and its Affiliates from the Bank or otherwise, (ii) any personally identifiable information regarding a Shopper that is otherwise obtained by (or on
16
behalf of) the Company or any of its Affiliates at any time (including prior to the date hereof) and (iii) for any Cardholder or any Person who has applied for a Company Credit Card [****].
[****]
“Solicitation Materials” means documentation, materials, artwork, copy, brochures or other written or recorded materials, in any format or media (including television, radio and internet), used to promote or identify the Program to Cardholders and potential Cardholders, including direct mail solicitation materials and coupons and solicitation materials contained on the Program Website or other mobile applications used in connection with the Program.
[****]
“Special Condition” means any Applicable Order or any other requirement of Applicable Law binding on or applicable to the Bank or any of its Affiliates and affecting [****].
“Specifications Book” means the publication reflecting the Bank’s requirements for the design, form and non-customizable content of certain cardholder communications as delivered by the Bank to the Company prior to the Effective Date; provided that any changes to such publication following the Effective Date shall be applied by the Bank consistently to all of its Comparable Partner Programs and shall not release the Bank from any of its obligations under this Agreement or remove customizability or materially reduce the Company’s ability to reflect the Company’s brand look and feel and messaging as compared to the Specifications Book as of the Effective Date.
“Sterling” has the meaning set forth in the preamble hereof.
“Steering Committee” has the meaning set forth in Section 3.2(a) hereof.
“Sterling Program Agreement” has the meaning set forth in the recitals hereof.
“Sterling Program” means the credit card program established under the Sterling Program Agreement.
“Subsidiary” when used with respect to any Person, means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its board of directors or similar governing body (or if there are no such voting interests, more than fifty percent (50%) of the equity interest of which) is owned directly or indirectly by such first Person or by another Subsidiary of such Person.
“Systems” means, with respect to any party, software, databases, computers, hardware, systems and networks owned, leased, licensed or operated by such party or its Affiliates or on behalf of such party or its Affiliates by third parties engaged by such party or its Affiliates; provided that, a System shall not be a System of a particular party if access to or permission to use such System must be granted by the other party or its Affiliates.
“System Unavailability” has the meaning set forth in Section 7.1(c) hereof.
17
[****]
“Tender Share” means the amount of purchases in Company Channels made with Company Credit Cards relative to other forms of payment.
“Term” means the Initial Term and each Renewal Term.
“Termination Period” means the period (i) beginning with (a) in the case of termination pursuant to Section 16.2 or 16.3, the date of any notice of termination, or (b) in the case of termination pursuant to Section 16.1, the date that is eighteen (18) months prior to the expiration date and ending on either (i) the date the Program Assets are purchased pursuant to Section 17.2, if the Company or a Nominated Purchaser purchases the Program Assets, or (ii) the date that either (A) the Company delivers written notice to the Bank of its election not to purchase the Program Assets or (B) the right of the Company to purchase the Program Assets expires in accordance with the terms of this Agreement.
“Trademark Style Guide” means any rules or guidelines of the Company or the Bank provided to the other party governing the other party’s use of the providing party’s Trademarks.
“Trademarks” has the meaning set forth in the definition of “Intellectual Property” in Section 1.1 hereof.
“Transaction” means any purchase, exchange or return of (i) Goods and Services through a Company Channel, or (ii) Approved Ancillary Products, in each case using an Account.
“Unamortized Signing Bonus” means, as of any time of determination, the portion of the Signing Bonus payable pursuant to Schedule 9.1 multiplied by a fraction, the numerator of which is the number of full months that remain in the Amortization Period as of such time of determination and the denominator of which is one hundred twenty (120).
“Unapproved Matter” has the meaning set forth in Section 3.2(d)(ii)(B) hereof.
“Unilateral Critical Change Amendment” has the meaning set forth in Section 9.4(c)(iv) hereof.
“United States” means the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and all United States territories.
“Value Proposition” means any loyalty, promotional, discount or reward program offered to Cardholders or segments of Cardholders in respect of Transactions.
[****]
“Zale” has the meaning in the preamble hereof.
“Zale Program” means the credit card program established under the Zale Program Agreement.
18
“Zale Program Agreement” has the meaning in the recitals hereof.
1.2 Miscellaneous.
(a) As used herein, references to:
(i) the preamble or the recitals, Sections or Schedules refer to the preamble, recitals, Sections or Schedules to this Agreement,
(ii) any agreement (including this Agreement) refer to the agreement as amended, modified, supplemented, restated or replaced from time to time,
(iii) any statute or regulation refer to the statute or regulation as amended, modified, supplemented or replaced from time to time,
(iv) any Governmental Authority include any successor to the Governmental Authority;
(v) this Agreement means this Agreement and the Schedules hereto; provided that, in the event of any conflict between this Agreement and the Schedules, this Agreement shall govern;
(vi) references to any Section in this Agreement include references to any Schedule attached thereto;
(vii) the plural number shall include the singular number (and vice versa);
(viii) “herein,” “hereunder,” “hereof” or like words shall refer to this Agreement as a whole and not to any particular section, subsection or clause contained in this Agreement;
(ix) “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; and
(x) “$” or “dollars” shall be deemed references to United States dollars.
(b) The table of contents and headings contained in this Agreement are for reference purposes only and do not limit or otherwise affect any of the provisions of this Agreement.
(c) Unless the context otherwise requires, the word “or” when used in this Agreement will be deemed to have the inclusive meaning represented by the phrase “and/or.”
(d) Unless otherwise explicitly set forth herein, any consent or approval that may be given by a Party hereunder may be given or withheld in such Party’s sole and absolute discretion.
(e) Unless specified as Business Days, Retail Days, Fiscal Months or Fiscal Years, all references herein to days, months or years shall be deemed references to calendar days, calendar months or calendar years.
19
(f) Unless otherwise expressly specified herein, any payment that otherwise would be due on a day that is not a Business Day shall be deemed to be due on the first Business Day thereafter.
(g) This Agreement is the product of negotiation by the Parties having the assistance of counsel and other advisers. It is the intention of the Parties that this Agreement not be construed more strictly with regard to one party than with regard to the other.
(h) Unless otherwise expressly specified herein, references to the “Bank” shall include Comenity Bank and Comenity Capital Bank; provided that (i) where the context requires, prior to the effective date of the CCB Merger, references to the “Bank” shall refer only to the applicable Bank entity (Comenity Bank or Comenity Capital Bank, as applicable, as indicated on Schedule 1.1(f)), and (ii) following the effective date of the CCB Merger, all references to the “Bank” shall refer solely to Comenity Capital Bank. References to the “Company” shall include Sterling and Zale. Notwithstanding the foregoing, (A) prior to the effective date of the CCB Merger, neither Comenity Bank nor Comenity Capital Bank shall be liable for any breach of, or failure to perform, the other bank’s other obligations under this Agreement with respect to the Company Credit Cards issued by such other bank (as indicated on Schedule 1.1(f)); and (B) Sterling and Zale shall each be entitled to recover any Losses or other damages suffered by any of their respective Affiliates arising under or in connection with this Agreement. From and after the effective date of the CCB Merger, Comenity Capital Bank (as successor-in-interest to Comenity Bank) shall be responsible to the Company for all liabilities of Comenity Bank under this Agreement that arise out of or relate to facts, circumstances or occurrences that occurred prior to such effective time.
ARTICLE II
CONTINUATION OF THE PROGRAM
CONTINUATION OF THE PROGRAM
2.1 Credit Program.
(a) General. As of the Effective Date, the Bank shall continue to offer and issue the Company Credit Cards on the terms set forth in this Agreement. The Bank shall continue to cause Instant Credit procedures, Real-Time Prescreen and Batch Prescreen procedures to be available for use in the Program, and the Company shall make Prequalification Requests available for use in the Program wherever Instant Credit procedures are available. Immediately upon receipt of a Prequalification Request, the Bank shall determine whether the prospective Applicant submitting such Prequalification Request meets the criteria for a Program Eligible Applicant and (i) if such prospective Applicant meets the criteria for a Program Eligible Applicant and is not a Disqualified Shopper, the Bank shall inform the Company to request the prospective Applicant to complete an Application and (ii) if such prospective Applicant does not meet the criteria for a Program Eligible Applicant and is not a Disqualified Shopper, the Bank shall inform the Company that the Company may request the prospective Applicant to submit an application for a Credit Card to be issued pursuant to the Secondary Program or Second-Look Program. The Bank shall promptly open a new Account and issue a new Company Credit Card with respect to each Application submitted by a Program Eligible Applicant approved in accordance with the credit criteria set forth in the Risk Management Policies and Applicable Law. To the extent approved in accordance with the terms of this Agreement, the Program shall
20
include and the Bank shall be permitted to offer such Approved Ancillary Products and other payment products as may be incorporated in the Program in the future.
(b) Secondary Program. If the Bank receives a Prequalification Request from a prospective Applicant that does not meet the criteria for a Program Eligible Applicant, the Bank will immediately inform the Company of its decision so that the Company may forward the name and address of the non-prequalified prospective Applicant to the issuer in a Secondary Program or Second-Look Program in accordance with Section 2.2(b); provided, however, that if such prospective Applicant is determined by the Bank to be a Disqualified Shopper, then the Bank shall issue an adverse action notice to such Person in accordance with Applicable Law and the Company shall not forward the name and address of the Disqualified Shopper for consideration for the Secondary Program or any Second-Look Program. [****].
2.2 Exclusivity.
(a) General. Except as otherwise provided in Section 2.1(a) or this Section 2.2, from the Effective Date through the end of the Term and, subject to Section 17.1, the Termination Period, the Company agrees that [****]; provided that nothing in this Agreement shall restrict the Company or any of its Subsidiaries from (i) negotiating and entering during the Term into an agreement with a [****].
(b) Secondary Credit Card Program. Notwithstanding Section 2.1 and Section 2.2(a), the Bank acknowledges that (i) the Company may, from time to time, maintain a program for issuing, either directly by the Company or through an Affiliate or pursuant to an agreement with a third party, Credit Cards using the Company Licensed Marks to Applicants that do not meet the criteria for Program Eligible Applicants as defined herein (and (A) during the pendency of any Bank Systems failure, issuing Credit Cards using the Company Licensed Marks to any Applicants, regardless of whether such Applicants qualify as Program Eligible Applicants and (B) in the event a prospective cardholder elects to apply directly for a Credit Card under the Secondary Program, issuing Credit Cards using the Company Licensed Marks to any Applicants, regardless of whether such Applicants qualify as Program Eligible Applicants) (each such program referred to in the foregoing subsection (i), a “Secondary Program”) and (ii) the Company and its Subsidiaries shall have the right at any time during the Term to establish one or more additional programs offered by the Company directly or through one or more third parties for issuing Credit Cards, including co-branded or Private Label Credit Cards, or an installment or other closed-end loan product, using the Company Licensed Marks to Program Eligible Applicants whose Applications have been declined by the Bank or closed with zero balance by the Bank for any reason (each such program referred to in the foregoing subsection (ii), a “Second-Look Program,” it being understood that the Secondary Program issuer shall also act as a Second-Look Program issuer); provided that, if, at any given time, the Company does not have a Secondary Program, the Company may instead offer the Second-Look Program to Applicants that do not meet the criteria for Program Eligible Applicants as defined herein. For clarity, the Parties agree that the Secondary Program may include multiple secondary or tertiary (e.g., “Lease-to-Own”) providers. Subject to the restrictions and limitations set forth in Article X and Article XIII on the use of the Bank Licensed Marks and the use or disclosure of Confidential Information, at the Company’s reasonable discretion, to the extent permitted by Applicable Law, the Secondary Program or any Second-Look Program may be similar or identical to the Program
21
in its terms, features, positioning and appearance; provided that the Company shall use commercially reasonable efforts to ensure that the positioning and appearance of the Secondary Program and any Second-Look Program are sufficiently distinct to avoid customer confusion as to which financial institution is underwriting and providing credit for the Secondary Program or any Second-Look Program (and the Company shall consider in good faith the Bank’s reasonable requests designed to achieve the foregoing). To the extent permitted by Applicable Law, the Bank shall [****].
(c) Retail Portfolio Acquisition. Notwithstanding Section 2.2(a), the Bank’s sole rights with respect to Credit Card portfolios acquired by the Company and its Subsidiaries during the Term, including New Portfolios, are set forth in Article XIV hereof.
(d) International Products. For the avoidance of doubt, this Agreement does not restrict in any way the Company’s rights with respect to (i) any Credit Card, whether or not bearing a Company Licensed Mark, in any country, territory or jurisdiction outside of the United States or (ii) any activities primarily directed at any Person whose primary residence is not in the United States.
(e) Other Products. Except to the extent expressly set forth in this Section 2.2 and Section 4.10(c), the Company and its Affiliates shall not be restricted in any way with respect to any activities or payment products. For the avoidance of doubt, the Company, its Subsidiaries and its Affiliates shall be free to do any of the following at any time:
(i) issue, offer or market, whether itself or through an agreement with a third party, any payment products not expressly covered in Section 2.2(a) (e.g., the Company and its Affiliates shall not be restricted from taking any action with respect to (A) general purpose credit cards (including without limitation, American Express Card, MasterCard, Visa, or Discover) or any other form of payment not bearing a Company Licensed Mark, gift cards, charge cards, pre-paid cards, smartcards or stored value cards, whether or not bearing a Company Licensed Mark, (B) debit cards, (C) prepaid cards, (D) installment loans (other than Private Label Credit Cards) or (E) payment plans (e.g., those offered by Affirm, Klarna, and PayPal Credit), in each case, regardless of form factor (e.g., card, virtual, mobile, etc.));
(ii) promote acceptance of or accept any form of payment or payment product (including for the avoidance of doubt mobile payment devices) in any Company Channel; and
(iii) subject to Section 4.10(c), participate in rewards programs and promotions by card associations or other Persons for cards not branded with any of the Company Licensed Marks (e.g., American Express Membership Rewards) including, but not limited to, general purpose Credit Cards, internet-only payment products, or internet-only or mobile payment products such as e-wallet, in any sales channel.
(f) Competing Credit Products. In the event the Company desires to enter into discussions with any third Person regarding the issuance of any (i) Co-Branded Credit Card, or (ii) open-end credit, installment financing (including “buy now, pay later” products), lease-to-
22
own, or closed-end loan product that does not bear a Company Licensed Mark, other than any of the Company’s consumer financing or payment offerings with the Current Providers as of the Effective Date (each product described in clauses (i) and (ii), a “Competing Credit Product”), [****].
(g) Prominence. [****].
2.3 Mobile Technology. The Company and the Bank intend to be innovative and market-leading with respect to the methods or devices used to access Accounts, including mobile phones or tablets. In the event the Company shall determine it would be beneficial for the Company Credit Cards to participate in one or more mobile payments initiatives used in Company Channels, whether operated by the Bank, the Company or third parties, [****]. Notwithstanding the foregoing, the Parties acknowledge that Cardholders may be able to elect to have their Company Credit Cards participate in a mobile payments initiative, without the Company’s or the Bank’s consent. Subject to the foregoing provisions of this Section 2.3, nothing in this Agreement shall require the Company to participate, or restrict the Company from participating, in any mobile payments initiative, which shall be in the Company’s sole discretion.
2.4 [****].
2.5 [****].
2.6 [****].
2.7 [****].
ARTICLE III
PROGRAM MANAGEMENT AND ADMINISTRATION
PROGRAM MANAGEMENT AND ADMINISTRATION
3.1 Program Objectives. In performing its responsibilities with respect to the management and administration of the Program, each Party shall be guided by the following Program objectives (the “Program Objectives”):
(a) to continue to make credit available to Shoppers in all Company Channels and credit tiers of Program Eligible Applicants currently served by the Company through the economic cycle to the maximum extent possible;
(b) to maintain best-in-class servicing for the Program that maximizes value to the Bank and maintains and enhances the service experience for Shoppers;
(c) to maintain visibility into and influence over risk management and other key program policies in a manner that benefits each of the Company and the Bank consistent with Applicable Law and the terms of this Agreement;
(d) to drive incremental value to the Program using the capabilities of both the Company and the Bank;
(e) to use capabilities and technologies that, with respect to the Program, create a Competitive experience for the Company, its associates, and its customers;
(f) to operate the Program in a manner that provides each Party with a reasonable return; and
23
(g) to seamlessly integrate with the Company’s strategic marketing plan and promotional cadence.
3.2 Committees.
(a) Establishment of Committees. The Company and the Bank hereby establish three (3) committees to, in addition to the Managers (described in Section 3.3(a) below), oversee and review the conduct of the Program pursuant to this Agreement and perform any other action that, pursuant to any express provision of this Agreement (including Section 3.2(d)(ii)(D)), requires the committee’s action: (i) a Steering Committee (the “Steering Committee”), (ii) an Operating Committee (the “Operating Committee”) and (iii) a Marketing Committee (the “Marketing Committee”).
(b) Composition of Committees. The Steering Committee shall consist of four (4) members, of whom two (2) members shall be designated by the Company and two (2) shall be designated by the Bank. The Operating Committee shall consist of eight (8) members, of whom four (4) members shall be designated by the Company and four (4) members shall be designated by the Bank. The Marketing Committee shall consist of six (6) members, of whom three (3) members shall be designated by the Company and three (3) members shall be designated by the Bank. One (1) of each Party’s designees to the Marketing Committee shall be the Program Manager. Any member designated to any such committee by the Company is herein referred to as a “Company Designee” and any member designated to any such committee by the Bank is herein referred to as a “Bank Designee”. As of the Effective Date, the Company Designees and Bank Designees to the Steering Committee, Operating Committee and the Marketing Committee will have the titles specified in Schedule 3.2(b). Each Party shall at all times have as one of its designees on the Operating Committee the Person with overall responsibility for the performance of the Program within his or her respective corporate organization, which in the case of the Bank, shall be the Chief Client Officer of the Credit Card business of the Bank. The Bank and the Company may each substitute its designees to the Operating Committee or the Marketing Committee from time to time so long as its designees continue to satisfy the above requirements; provided that each Party shall provide the other Party with as much prior notice of any such substitution as is reasonably practicable under the circumstances.
(c) Certain Functions of the Managers and Committees.
(i) The Managers shall:
(A) review collection strategies and collection metrics, changes to which shall be made only in accordance with Section 4.6(g);
(B) review customer service, collections and other servicing performance and reporting aspects of the Program against SLAs and other requirements of this Agreement;
(C) review compliance with Applicable Law, the Risk Management Policies, the Collections Policies, Operating Procedures and other Program operations and procedures;
24
(D) subject to Section 4.5(a) and Section 7.2(e), review and approve the design, form and content of Credit Card Documentation and Solicitation Materials, and any changes thereto, with the design, form and non-customizable content of such Credit Card Documentation and Solicitation Materials subject to the Specifications Book;
(E) manage the day-to-day operation of the Program; and
(F) carry out such other tasks as are assigned to it by this Agreement or jointly by the Parties.
The items referred to in clauses (A) through (F) above are collectively referred to herein as “Manager Matters”.
(ii) The Operating Committee shall:
(A) evaluate and approve (or fail or decline to approve) any changes to the Operating Procedures that would result in [****]; provided, however, that the Bank may institute temporary changes to the Operating Procedures (other than chargebacks) to mitigate exigent fraud perpetration without such evaluation and approval by the Operating Committee upon notification to the Operating Committee of such temporary changes with any such temporary changes being reversed immediately after the threat of such fraud perpetration has been contained, unless the Operating Committee approves such changes for implementation on a permanent basis;
(B) evaluate and approve (or fail or decline to approve) changes to the Account terms set forth on Schedule 4.7(a), and the terms of Approved Ancillary Products; and review changes to any other Account terms;
(C) review changes to the Collections Policies to the extent provided in Section 4.6(g) and review and approve changes to the Risk Management Policies. Notwithstanding the foregoing, the Bank may institute temporary changes to the Risk Management Policies to mitigate exigent fraud perpetration without such evaluation and approval by the Operating Committee upon notification to the Company’s Manager and the Operating Committee of such temporary changes, with any such temporary changes being reversed immediately after the threat of such fraud perpetration has been contained, unless the Operating Committee approves such changes for implementation on a permanent basis;
(D) evaluate and approve (or fail or decline to approve) new Credit Cards or Approved Ancillary Products (including the terms and conditions and pricing of such products or services), and the policies (and any changes thereto) governing the type of Company Credit Card to be issued to Persons applying for Company Credit Cards, or other payment products, as part of the Program;
25
(E) review changes to the Program Privacy Policy; provided that the Program Privacy Policy shall comply with the requirements of Section 6.2(g);
(F) evaluate and approve (or fail or decline to approve) ongoing new product and Value Proposition development;
(G) review actual and projected Program performance;
(H) evaluate and approve (or fail or decline to approve) changes to the SLAs applicable to the Program;
(I) benchmark and assess the Program relative to Comparable Partner Programs and present thought leadership and prioritized Program enhancement opportunities to the Managers;
(J) [****];
(K) evaluate and approve any changes to the chargeback provisions set forth on Schedule 8.5;
(L) discuss in advance and approve (such approval not to be unreasonably withheld, conditioned, or delayed) any proposal to use any offshore location for Program servicing functions that will involve freeform, real-time, direct interactive contact, including texting, calls and chat, between such Person and any Cardholder or customer of the Company; provided, that, [****];
(M) [****];
(N) [****];
(O) [****];
(P) [****]; and
(Q) carry out such other tasks as are assigned to it by this Agreement or jointly by the Parties.
The items referred to in clauses (A) through (Q) above are collectively referred to herein as “Operating Committee Matters”.
(iii) The Marketing Committee shall:
(A) review, approve and implement any Marketing Plans;
(B) coordinate and review the marketing activities (including review of the design and operation of Program Websites) and marketing performance for the Program through oversight of the implementation of Marketing Plans;
26
(C) evaluate ongoing new product and Value Proposition development for recommendation to the Operating Committee;
(D) monitor performance of marketing initiatives;
(E) establish and approve (or fail or decline to approve) additional marketing initiatives and terms for employees of the Company and its Affiliates;
(F) direct ongoing research and in-market testing in order to maximize relevance, appeal and productivity of Account acquisition and usage development programs;
(G) determine and allocate the distribution of the Program Investment Fund; and
(H) carry out such other tasks as are assigned to it by this Agreement or jointly by the Parties.
The items referred to in clauses (A) through (H) above are collectively referred to herein as “Marketing Committee Matters”.
(d) Proceedings of Committees.
(i) Meetings and Procedural Matters.
(A) Annual Steering Committee Meeting. The Steering Committee shall meet (in person or by video conference) once annually to review Program performance and discuss the strategic direction of the Program. Except to the extent expressly provided in this Agreement, the Steering Committee shall determine the frequency, place (in the case of meetings in person) and agenda for its meetings, the manner in which meetings shall be called and all procedural matters relating to the conduct of meetings and the approval or disapproval of matters thereat.
(B) Quarterly Operating Committee Meetings. The Operating Committee shall meet (in person or by video conference) not less frequently than quarterly to review and discuss, among other things, Operating Committee Matters. Any member of the Operating Committee may call a special meeting by delivery of at least five (5) Business Days’ prior notice to all of the other members of the Operating Committee, which notice shall specify the purpose for such meeting and contain all materials which are the subject of such meeting. Except to the extent expressly provided in this Agreement, the Operating Committee shall determine the frequency, place (in the case of meetings in person) and agenda for its meetings, the manner in which meetings shall be called and all procedural matters relating to the conduct of meetings and the approval or disapproval of matters thereat.
27
(C) Monthly Marketing Committee Meetings. The Marketing Committee shall meet (in person or by video conference) not less frequently than monthly to review and discuss, among other things, Marketing Committee Matters; provided that, unless otherwise agreed by all Marketing Committee members, not less than fifty percent (50%) of the meetings per year shall be in person at the Company’s facilities, and the Marketing Committee shall meet not less than three (3) times per year. In addition, any member of the Marketing Committee may call a special meeting by delivery of at least five (5) Business Days’ prior notice to all of the other members of the Marketing Committee, which notice shall specify the purpose for such meeting and contain all materials which are the subject of such meeting. Except to the extent expressly provided in this Agreement, the Marketing Committee shall determine the frequency, place (in the case of meetings in person) and agenda for its meetings, the manner in which meetings shall be called and all procedural matters relating to the conduct of meetings and the approval or disapproval of matters thereat. In the case of any regularly scheduled meeting of the Marketing Committee or Operating Committee, any materials which are the subject of such meeting shall be distributed to all members of the Marketing Committee no later than thirty-six (36) hours prior to the time of such meeting and to all members of the Operating Committee no later than five (5) Business Days prior to date of such meeting. The Managers shall operate in accordance with Section 3.3(a).
(ii) Actions.
(A) As it relates to Program Decision Matters, except as provided otherwise below with respect to Company Matters and Bank Matters, all decisions of the Relevant Decision Maker shall be unanimous decisions, with each Party having one vote (which may be allocated to any designee of such Party on such committee (and which designee may be changed with respect to any matter under consideration without prior notice to the other Party so long as only one designee of each Party shall vote on each matter), in the case of Operating Committee Matters or Marketing Committee Matters, or by unanimous approval of the Managers in the case of Manager Matters. A quorum, consisting of at least two (2) members (or permitted substitutes or delegates) from each of the Bank and the Company, must be present to transact business at any meeting of any committee.
(B) If the Relevant Decision Maker fails to approve any Program Decision Matter by the required unanimous approval of each Party’s voting committee member, or the Managers, as the case may be (an “Unapproved Matter”) within ten (10) Business Days after the relevant initial vote, or in the case of the Managers, the date of disagreement concerning a Manager Matter, then, in the case of an Unapproved Matter which is a Manager Matter or a Marketing Committee Matter, the Operating Committee shall in good faith attempt to resolve such matter. If after ten (10) Business Days, the Unapproved Matter remains unresolved by the Operating Committee, or in the case of an Unapproved Matter which is an Operating Committee Matter, the Operating
28
Committee shall refer such Unapproved Matter to the Steering Committee. The Steering Committee shall promptly meet to review and discuss such Unapproved Matter and shall in good faith attempt to resolve such Unapproved Matter within ten (10) Business Days after receiving notice thereof. If after ten (10) Business Days the Unapproved Matter remains unresolved by the Steering Committee, the failure to obtain the unanimous approval of the Steering Committee shall constitute a deadlock. In the event of a deadlock, the final decision shall rest with the Company in the case of Company Matters and with the Bank in the case of Bank Matters. If a deadlock should occur with respect to an Unapproved Matter that is neither a Company Matter nor a Bank Matter, such Program Decision Matter shall remain open and the then-current practice shall continue until the Parties mutually agree otherwise. For the avoidance of doubt, any resolution of an Unapproved Matter by the Operating Committee or Steering Committee in accordance with this Section 3.2(d)(ii)(B) shall be deemed to be the action and approval of the Relevant Decision Maker for purposes of this Agreement.
(C) Notwithstanding anything to the contrary contained herein, the Bank shall not override any vote of the Company Designees of any Relevant Decision Maker in a way that would result in any aspect of the Program being more onerous or less beneficial to the Cardholders, the Program or the Company than Comparable Partner Programs unless (i) the Bank’s position on the issue is required by Applicable Law and (ii) the Bank adopts and certifies to the Company that it has adopted, the same position with respect to each of its and its Affiliates’ other Credit Card programs and portfolios that are similarly impacted by such Applicable Law or to which such Applicable Law could similarly be applied.
(D) Any disagreement, controversy, dispute or claim arising out of or relating to this Agreement regarding any matter other than a Program Decision Matter, including any dispute regarding the interpretation of any provision of this Agreement with respect to the performance by either party hereunder (any such disagreement, controversy, dispute or claim, a “Dispute”), shall not be subject to the provisions of Section 3.2(d)(ii)(B), but shall be instead subject to the provisions of this Section 3.2(d)(ii)(D). Any Dispute among the Parties (including any dispute regarding any amount payable hereunder) shall be submitted to the Operating Committee. The Operating Committee shall in good faith attempt to resolve such matter. If the Operating Committee fails to resolve the Dispute by unanimous agreement of each Party’s voting Operating Committee member within thirty (30) Business Days after such Dispute is submitted, then the Operating Committee shall refer such Dispute to the Steering Committee. The Steering Committee shall promptly meet to review and discuss the Dispute and shall in good faith attempt to resolve such Dispute within thirty (30) Business Days after receiving notice thereof. If after thirty (30) Business Days the Dispute remains unresolved by the Steering Committee, the Parties shall be free to exercise all legal and equitable rights in respect of such Dispute. Upon resolution of a Dispute by the Operating Committee or Steering Committee relating to a payment to be made pursuant to this Agreement, the Party responsible for such
29
payment shall make such payment (in such amount as determined by the Operating Committee or Steering Committee, as applicable) no later than five (5) Business Days following such resolution plus interest at the Prime Rate on any amount due computed from and including the date such amount should have been paid pursuant to this Agreement through and excluding the date of payment. This provision shall not limit either Party’s right to obtain any provisional remedy, including, without limitation, specific performance or injunctive relief from any court of competent jurisdiction, as may be necessary, in the aggrieved Party’s sole discretion, to protect its rights under this Agreement or to institute formal proceedings prior to the expiration of the dispute resolution period referred to in this Section 3.2(d)(ii)(D) to avoid the expiration of any applicable limitations period or to preserve a superior position with respect to other creditors.
(e) Company Matters. Subject to prior review through the processes set forth in Section 3.2(d)(ii)(B), the Company shall have the ultimate decision making authority with respect to any Unapproved Matters in respect of the following matters (the “Company Matters”), subject in all respects to all other applicable provisions of this Agreement governing such matters (regardless of whether those provisions are specifically identified in this Section 3.2(e)):
(i) the look, feel, marketing content and design, and changes thereto, of Company Credit Cards, Credit Card Documentation, the Program Website, [****] any Program related social media pages or “apps,” Solicitation Materials or other communications to Cardholders, Bank Program Materials, Company Program Materials, and Account Documentation (except for other content thereof, form and content or the content of any Value Proposition materials that is required to comply with Applicable Law and the use therein of Bank Licensed Marks) and collateral aesthetics of any of the foregoing, subject in each case to the requirements imposed by the Specifications Book and format requirements imposed by Bank System limitations applicable uniformly to the Bank’s Comparable Partner Programs;
(ii) [****];
(iii) except as otherwise provided [****];
(iv) the approval of any [****];
(v) [****];
(vi) the addition of any [****];
(vii) any changes to [****];
(viii) [****] (other than as required to comply with Applicable Law or to service the Accounts);
(ix) any changes to [****];
(x) the terms and provisions of [****];
30
(xi) the [****];
(xii) the content of any [****];
(xiii) [****];
(xiv) [****];
(xv) [****]; and
(xvi) [****].
(f) Bank Matters. Subject to prior review through the processes set forth in Section 3.2(d)(ii)(B), the Bank shall have the ultimate decision making authority with respect to any Unapproved Matters in respect of the following matters (the “Bank Matters”), subject in all respects to all other applicable provisions of this Agreement governing such matters (regardless of whether those provisions are specifically identified in this Section 3.2(f)):
(i) changes to [****];
(ii) changes in [****];
(iii) changes to [****];
(iv) subject to [****];
(v) the [****];
(vi) any changes to [****];
(vii) except as otherwise provided [****];
(viii) with respect to [****];
(ix) the content of [****];
(x) the terms and conditions of [****];
(xi) the content of [****]; and
(xii) [****].
3.3 Program Relationship Managers; Program Team.
(a) The Company and the Bank shall each appoint one full-time employee as a dedicated Program relationship manager (each, a “Manager”). The Managers shall exercise day-to-day operational oversight of the Program, including the review, execution and/or approval (or disapproval) of all Manager Matters, and coordinate the partnership efforts between the Company and the Bank, shall report to the designees on the Marketing Committee and Operating Committee of the Party appointing such Manager and shall conduct their Program
31
responsibilities in accordance with the actions and decisions of the Operating Committee made in compliance with the provisions of this Agreement. Managers will collaborate to determine regular meeting dates, reporting requirements, management processes, and critical business issues that should be brought to the Operating Committee in accordance with Section 3.2(d)(ii)(B). The Managers shall evidence approval of any Manager Matter by a writing signed by each Manager. The Managers shall also execute the annual business plan for the Program. The Company and the Bank shall endeavor to provide stability and continuity in the Manager positions and each Party’s other Program personnel.
(b) The Manager of the Company as of the Effective Date is set forth in Schedule 3.3.
(c) The Manager of the Bank as of the Effective Date is set forth in Schedule 3.3. The Bank’s Manager’s [****]. The Company shall have the right to require replacement of the Bank’s Manager in the event that the Company is dissatisfied with the Bank’s Manager’s performance; provided, however, at the Bank’s request, for a period deemed reasonable by the Company before exercising this right, the Company shall cooperate with the Bank’s efforts to address the Company’s concerns without such replacement. With respect to future Bank Manager candidates, the Bank shall seek to propose candidates with substantial Program relevant experience, including experience with the retail businesses, private label credit card programs, ecommerce initiatives, comparable customer demographics and loyalty programs. [****]. The Bank shall regularly consult with the Company regarding the performance of the Bank’s Manager and shall consider in good faith any issues of concern raised by the Company with respect to the Bank’s Manager.
(d) The Bank shall maintain a Program team having Competitive expertise and experience and meeting the requirements and specifications set forth in Schedule 3.3. No member of the Bank’s Program team shall be reassigned to any program operated by the Bank or any of its Affiliates pursuant to any agreement or arrangement with any Comparable Partner Program, including those listed in Schedule 1.1(c), without the approval of the Company, until one (1) year following the expiration or termination of this Agreement.
(e) Each Party shall designate employees throughout the Term to support the Program with experience, expertise, authority and availability to support the Program and enable such Party to perform its obligations under this Agreement. Each Party shall ensure that its designated personnel and relevant cross-functional teams are commensurate with the size, scope and operational needs of the Program and are reasonably available during normal working hours to meet with the other Party as reasonably necessary to support strategic initiatives and the day-to-day operation of the Program; provided that such meetings shall not unreasonably interfere with the ordinary day-to-day responsibilities of such personnel. Without limiting the foregoing, the Bank shall make available to the Program the dedicated resources identified on Schedule 3.3(e) (the “Key Program Management Resources”). The Bank shall endeavor to provide stability and continuity in its Key Program Management Resources and shall notify the Company promptly if any Key Program Management Resources ceases to serve in such role. The Bank shall regularly consult with the Company regarding the performance of its Key Program Management Resources. If the Bank fails to provide the required headcount set forth in Schedule 3.3(e) or any Key Program Management Resource materially fails to perform its obligations under this Agreement, the Bank shall, within thirty (30) days after notice from the Company,
32
provide and implement a remediation plan reasonably designed to restore compliance. If the Bank fails to timely provide such remediation plan or restore compliance in accordance therewith, the Company may refer such failure to the dispute resolution process set forth in Section 3.2.
3.4 Firewalls.
(a) Except as otherwise approved by the Company in writing, the [****].
(b) The Bank shall not use any Confidential Information of the Company for the benefit of any other product or program owned or operated by the Bank or any of its Affiliates except as expressly approved by the Company in writing after the date of this Agreement.
ARTICLE IV
PROGRAM OPERATIONS
PROGRAM OPERATIONS
4.1 Operation of the Program.
(a) Each of the Parties hereto shall perform its obligations under this Agreement (i) in compliance with the terms and conditions of this Agreement, the Operating Procedures and other policies, procedures and practices, adopted pursuant to this Agreement, (ii) in good faith, (iii) in accordance with Applicable Law and (iv) in a manner consistent with the Program Objectives.
(b) The Operating Procedures applicable to the operation of the Program shall be those in effect immediately prior to the Effective Date, together with the supplemental operating procedures attached hereto as Schedule 4.1. Changes to the Operating Procedures shall be made in accordance with Section 3.2(c)(ii)(A); provided, however, that prior to making any changes to the Operating Procedures, the Bank shall (i) provide reasonable advance written notice to the Company of any such changes and (ii) consult with the Company regarding the expected impact to the Program. Notwithstanding anything herein, no changes to the Operating Procedures shall be applied retroactively or enforced prior to completion of a (x) reasonable consultation between the Bank and the Company and (y) implementation period sufficient for each Party to implement any such change in a commercially reasonable manner, except, in the case of (x) or (y), in circumstances where changes are required to be made immediately in order to comply with Applicable Law; provided that, in such circumstances, (A) the Bank shall provide notice to the Company as soon as reasonably practicable, together with an explanation of the legal basis for such change, (B) the Company shall have the right to discuss with the Bank, and the Bank shall give due consideration to, alternative approaches that achieve compliance with Applicable Law with less impact on the customer experience following implementation of such change, and (C) the Bank shall apply such changes to the Operating Procedures consistently across its other credit card programs that are similarly impacted by such Applicable Law.
(c) The Bank shall maintain Operating Procedures that are (i) no less favorable to the Company or the Program in the aggregate than the operating procedures the Bank maintains for any Comparable Partner Programs and (ii) consistent with the Operating Procedures that have been tailored to the Program as of the Effective Date, except as otherwise modified in accordance with this Agreement.
33
4.2 Certain Responsibilities of the Company. In addition to its other obligations set forth elsewhere in this Agreement, the Company agrees that during the Term and continuing until the end of the Termination Period it shall either itself, through Affiliates, or through Service Providers approved, where applicable, in accordance with this Agreement:
(a) in accordance with the Marketing Plan, solicit new Accounts through display in Company Channels of Solicitation Materials and of Applications provided by the Bank, and, to the extent set forth herein, provide a link to the Program Website and otherwise administer all marketing initiatives in the Company Channels in accordance with such Marketing Plan;
(b) develop, implement and administer the Marketing Plan in accordance with this Agreement;
(c) in accordance with Section 4.6(a), utilize Instant Credit and, to the extent approved by the Operating Committee, Real-Time Prescreen procedures in Company Channels in which the Bank makes such Instant Credit available, and provide Prequalification Requests wherever Instant Credit is available;
(d) receive In-Store Payments, subject to reimbursement from the Bank for the processing of such payments as provided in this Agreement;
(e) process authorized Transactions in accordance with this Agreement and the Operating Procedures;
(f) maintain adequate Systems and other equipment and facilities necessary for carrying out the Company’s obligations under this Agreement;
(g) train the Company’s or the Bank’s personnel regarding Company-specific policies or brand-specific elements of the Program (e.g., culture, loyalty, and value proposition);
(h) share with the Bank seasonal marketing plans, or such portions thereof as are reasonably necessary for the purpose of allowing the Bank to comply with its obligations hereunder (including for clarity, its obligations in Schedule 7.3); and
(i) ensure the compliance of all Retail Merchants, other than the Company, with the obligations of the Company under the provisions hereof.
4.3 Certain Responsibilities of the Bank. The Bank shall [****] either itself, through Affiliates, or through Service Providers approved, where applicable, in accordance with this Agreement, the services, materials and personnel necessary to operate the Program and to maintain, administer, service and collect on the Company Credit Cards issued pursuant hereto, in accordance with this Agreement and the Operating Procedures and any Marketing Plan in effect from time to time. In furtherance of the foregoing, in addition to its other obligations set forth elsewhere in this Agreement, the Bank agrees that during the Term and continuing until the end of the Termination Period it shall:
(a) cooperate in the development and administration of the Marketing Plan, implement its obligations under the Marketing Plan in Bank channels (including the Bank’s website and mobile application, if applicable) and solicit new Accounts in all channels (without
34
limiting the Company’s obligations in Section 4.2(a)), including all solicitation provided for in the Marketing Plan;
(b) review and process Prequalification Requests and Applications in accordance herewith and in accordance with the Risk Management Policies and the Operating Procedures;
(c) prepare, process and deliver an adequate supply of Bank Program Materials in accordance with the terms of this Agreement;
(d) comply (and cause its applicable Affiliates to comply) with the terms of the Credit Card Agreements, the Program Privacy Policy and all Cardholder opt-ins and opt-outs;
(e) implement pre-screened Application programs in accordance with the Marketing Plans;
(f) maintain call centers and call center personnel necessary and adequate to respond to inquiries from Cardholders, including in accordance with Section 4.11(a) and Schedule 7.3, and with operating hours for the call centers related to the Program as set forth in Schedule 7.3; address billing related claims and adjustments (including by making finance charge and late fee reversals), establish new Accounts, authorize transactions, and assign, increase and decrease credit lines, all in accordance with the terms of this Agreement, the Risk Management Policies and the Operating Procedures;
(g) authorize or deny requests for authorization of transactions initiated with Company Credit Cards in accordance with this Agreement and the Risk Management Policies, including through real-time, immediate Application decisioning and extension of credit to qualifying Persons for real-time purchases by such Persons;
(h) extend credit on newly originated and existing Accounts and fund Cardholder Indebtedness in accordance with this Agreement and the Risk Management Policies;
(i) undertake required credit bureau reporting;
(j) process authorized Transactions, remittances from Cardholders and credit balance refunds in accordance with the Operating Procedures and Applicable Law;
(k) maintain adequate Systems, and other equipment and facilities necessary or appropriate for carrying out the Bank’s obligations under the Program, including satisfaction of the online and POS response time requirements, System uptime requirements and System maintenance procedures (and limitations thereon) specified in this Agreement;
(l) train the Company’s and the Bank’s personnel regarding the Program, including by (A) developing training materials, (B) promptly reviewing and providing feedback on any training materials submitted by the Company for the Bank’s review; and (C) conducting direct training sessions for Company management and sales training personnel on an annual basis or more frequently as requested by the Company;
35
(m) ensure that the Bank Program Materials, the Solicitation Materials and any other documentation used in connection with the Program, including, in each case, the design thereof, comply with the requirements of Applicable Law except with respect to any aspect thereof that has been determined at the direction of the Operating Committee based on the Company’s exercise of its right to break a deadlock with respect to an Unapproved Matter based on the status of that Unapproved Matter as a Company Matter;
(n) provide all necessary support services to ensure the Program is fully operational in accordance with Applicable Law and the requirements of this Agreement;
(o) provide field support, including activities (including associate training) related to new stores, and special events and sharing best practices on in-store execution;
(p) handle collection and recovery efforts in respect of Accounts and the servicing of Accounts in accordance with the Bank’s policies and practices applicable to the Program from time to time, the terms of this Agreement, including the Program Objectives, and Applicable Law;
(q) provide a Manager of the Bank dedicated exclusively to the Program to the extent set forth in Section 3.3 and provide other customer-facing personnel to the extent set forth in Section 7.2(d); and
(r) actively participate in the Company’s peak and holiday sales planning, monitoring and support meetings.
4.4 Ownership of Accounts; Account Documentation.
(a) Except to the extent of the Company’s ownership of the Company Licensed Marks and its option to purchase the Program Assets under Section 17.2 hereof, and without limiting the Company’s right to review and approve the form and content of the Credit Cards and Bank Program Materials pursuant to Section 4.5 hereof, the Bank shall be the sole and exclusive owner of all Accounts and Account Documentation and shall have all rights, powers, and privileges with respect thereto as such owner; provided that the Bank shall exercise such rights consistent with the provisions of this Agreement and Applicable Law. All purchases of goods and services in connection with the Accounts and the Cardholder Indebtedness shall create the relationship of debtor and creditor between the relevant Cardholder and the Bank, respectively. The Company acknowledges and agrees that (i) it has no right, title or interest (except for its right, title and interest in the Company Licensed Marks and the option to purchase the Program Assets under Section 17.2) in or to, any of the Accounts or Account Documentation or any proceeds of the foregoing, and (ii) the Bank extends credit directly to Cardholders. As between the Company and the Bank, [****].
(b) Except as expressly provided herein, the Bank shall be entitled to (i) receive all payments made by Cardholders on Accounts, (ii) retain for its account all Cardholder Indebtedness and all other fees and income authorized by the Credit Card Agreements and collected by the Bank with respect to the Accounts and Cardholder Indebtedness, and (iii) retain for its account all income from selling Approved Ancillary Products as shall have been authorized by Section 5.5(b) or approved by the Operating Committee in connection with the
36
approval of the offering of such Approved Ancillary Products. For the avoidance of doubt, the Company shall retain all revenues it receives from all Inserts (other than any Inserts promoting the Company Credit Cards or Approved Ancillary Products that the Company may permit to be produced and distributed in accordance with the Marketing Plan).
(c) The Bank shall fund all Cardholder Indebtedness on the Accounts.
(d) The Bank shall have the exclusive right to effect collection of Cardholder Indebtedness and shall notify Cardholders to make payment directly to it in accordance with its instructions. The Company grants to the Bank a limited power of attorney (coupled with an interest) to sign and endorse the Company’s name upon any form of payment that may have been issued in the Company’s name in respect of any Account. The Bank shall, and shall ensure that any third party collectors, minimize the usage of the Company Licensed Marks or other names or marks of the Company in any collections efforts.
(e) Notwithstanding the foregoing, the Company shall, on behalf of the Bank, accept payments made with respect to an Account in a physical store Company Channel as provided in Section 8.3.
4.5 Branding of Accounts/Company Credit Cards/Credit Card Documentation/Solicitation Materials.
(a) Bank Program Materials.
(i) The Bank shall be responsible for designing (subject to the Company’s design requirements to the extent not inconsistent with requirements imposed by the Specifications Book and format requirements imposed by Bank System limitations applicable uniformly to the Bank’s and its Affiliates’ partnership credit card portfolios), developing, preparing, producing and delivering, [****], all Credit Card Documentation, the Program Privacy Policy, all servicing communications and all required legal disclosures used in connection with the Program (collectively, the “Bank Program Materials”). Subject to Applicable Law, (1) the Company shall have final approval rights over [****], and as between the parties, shall own all rights in same.
(ii) The Bank shall replace any lost, stolen or mutilated Credit Cards at the Cardholder’s request.
(iii) At the Company’s request, the Bank shall, to the extent permitted by Applicable Law and consistent with the Bank’s card issuance policies and the Specifications Book, each applied consistently to the Bank’s and its Affiliates’ private label card programs, reissue a Company Credit Card to each Cardholder meeting criteria specified in the Marketing Plan or determined by the Operating Committee (which may include shopping behavior, customer profiles or geographic location), in each case in replacement of such Cardholder’s then-existing Credit Card. Notwithstanding the provisions of Section [****].
(iv) In the event the Parties launch a Co-Branded Credit Card, the Bank shall, at the Company’s request, provide Co-Branded Credit Cards that are in compliance with
37
the specifications developed by EMVCo for the secure acceptance and processing of Credit Cards; provided that, if the specifications developed by EMVCo become prevalent features in Comparable Partner Programs in the aggregate, the Bank shall incorporate such specifications at the request of the Company in the Company Credit Cards even in absence of launch of a Co-Branded Credit Card; and provided, further, that the Company shall [****].
(v) Subject to Section 4.5(d) and Section 7.2(e), the Bank shall (A) provide the Company’s Manager an opportunity to review the design, format, marketing content and other content specific to the Program and the look and feel of all Bank Program Materials and [****] provided, further, that with respect to Bank Program Materials other than those of a type referred to in Schedule 4.5(a)(v), the Bank’s obligation to permit review of Bank Program Materials other than those of a type referred to in Schedule 4.5(a)(v) shall be limited to [****]. The Company’s Manager shall review and respond to any request by the Bank to review Bank Program Materials in [****]; provided, however, that with respect to servicing communications, the Bank shall use its reasonable best efforts to provide the [****]. Any disagreements with respect to format, design or content of the Bank Program Materials subject to the Company’s approval shall be resolved in accordance with Section 3.2.
(b) Company Program Materials.
(i) Except as otherwise provided in the Marketing Plan, the Company shall be responsible for designing, developing, preparing and producing (subject to the Bank’s rights with respect thereto pursuant to Section 3.2(f), and subject to the requirements imposed by the Specifications Book and format requirements imposed by Bank System limitations applicable uniformly to the Bank’s Comparable Partner Programs), and for the systemic transmission of data to support the delivery to the Bank of, all Company Inserts, Solicitation Materials and advertising copy and scripts (collectively the “Company Program Materials”); provided that the Bank shall be responsible for ensuring that all Company Program Materials comply with Applicable Law and the Operating Procedures except with respect to any aspect thereof that has been determined at the direction of the Operating Committee based on Company’s exercise of its right to break a deadlock with respect to an Unapproved Matter based on the status of that Unapproved Matter as a Company Matter.
(ii) Subject to Section 4.5(d), the Company shall provide the Bank’s Manager an opportunity to review (and, to the extent provided in clause (i) above, approve) all Company Program Materials, including for compliance with Applicable Law and the Operating Procedures, and the Bank’s Manager shall review such Company Program Materials in a timely manner (but in no event later than five (5) Business Days from receipt by the Bank) and taking into account the Company’s production calendar. Any disagreements with respect to the format, design or content of the Company Program Materials shall be resolved in accordance with Section 3.2.
(c) In the event that pursuant to the review process for Bank Program Materials and Company Program Materials, as applicable, the Bank’s Manager or the Company’s Manager
38
identifies any changes to the Bank Program Materials or Company Program Materials, the other Manager shall either cause such changes to be made to such Bank Program Materials or Company Program Materials, as applicable, or, if the Managers are unable to resolve any dispute with regard to such Bank Program Materials or Company Program Materials, either Manager may refer any disagreement regarding such proposed changes to the dispute resolution processes of Section 3.2.
(d) The Company and the Bank agree that all Bank Program Materials or Company Program Materials addressed in the Advertising Guide and produced by the Company or the Bank, as applicable, shall conform with the requirements of the Advertising Guide, except as otherwise approved by the Bank or the Company. The Advertising Guide will establish the parameters of when such designated Company Program Materials or Bank Program Materials can be utilized. Once the Bank approves uses of Company Program Materials or Bank Program Materials, including as set forth in the Advertising Guide, through the end of the Term, they may be re-used by the Company for [****] without being re-submitted for the Bank’s review, provided that the Company does not change the Company Program Materials or Bank Program Materials in any way, including the purpose for which the Company Program Materials or Bank Program Materials are used, and subject to changes in Applicable Law that, in the Bank’s sole discretion, would necessitate additional review and approval by the Bank, it being understood that the Bank shall notify the Company of any changes in Applicable Law that would necessitate such additional review and approvals. In accordance with the Advertising Guide and the preceding sentence, the Company or the Bank shall be entitled to disseminate Company Program Materials or Bank Program Materials that are addressed in and comply with the Advertising Guide [****]. The Advertising Guide will be [****] and Company Program Materials or Bank Program Materials shall be modified to conform with any changes thereto.
4.6 Underwriting and Risk Management.
(a) The Bank shall accept or reject any Application based solely upon application of the credit criteria contained in the then-current Risk Management Policies and in accordance with Applicable Law and the definition of “Program Eligible Applicants”. Upon satisfaction by an Applicant of the applicable credit criteria set forth in the Risk Management Policies, Applicable Law and the definition of “Program Eligible Applicant”, the Bank shall promptly establish an Account for such Applicant. [****].
(b) The Parties agree that the Risk Management Policies shall be designed and administered to optimize and, where commercially reasonable, increase approval rates and expand credit limits over the Term, while maintaining credit performance, and to achieve such other risk management, credit availability and Program performance goals, in each case, as may be mutually determined by the Parties from time to time. The Bank shall operate the Program in compliance with the Risk Management Policies and Collections Policies, as such Risk Management Policies and Collections Policies may be amended from time to time in accordance with the provisions of this Agreement. The material elements of the Risk Management Policies in effect as of the Effective Date are attached hereto as Schedule 4.6(b). [****]. In connection with any proposed change to the Risk Management Policies, unless otherwise agreed by the Company, the Bank shall deliver to the Company all of the following information relating to each such proposed change [****]:
39
[****].
(c) The Bank shall not implement or require the Company to implement any significant change to the Risk Management Policies [****]; provided, however, that the Bank may in any event implement a change required by Applicable Law at any time such Applicable Law becomes effective (or in the case of any Applicable Law already in effect, at any time such Applicable Law is determined to be required to be applied to the Bank or the Program). The Bank shall notify the Company in writing at least [****] to a change to the Risk Management Policies required by Applicable Law, unless the Bank is required by Applicable Law to implement such change in less than [****] the date on which the Bank first becomes aware that such a change will likely be required, in which case the Bank shall provide the Company with notice as soon as practicable following the date the Bank becomes aware such change will likely be so required.
(d) The Bank shall comply with the requirements of [****] with respect to the [****] referred to in such Schedule [****].
(e) The Bank shall perform all commercially reasonable functions in accordance with the Risk Management Policies to minimize fraud in the Program due to lost, stolen or counterfeit cards and fraudulent applications. The Company agrees to use commercially reasonable efforts to cooperate with the Bank in such functions. [****].
(f) [****].
(g) The Bank shall handle all stages of collections of Accounts in accordance with the Collections Policies. [****].
(h) [****]
(i) [****].
(j) [****].
4.7 Cardholder Terms.
(a) Cardholder Terms. The terms and conditions of the Accounts as of the Effective Date shall be set forth on Schedule 4.7(a).
(b) [****].
(c) Payment Plans. Subject to changes thereto as may be approved by the Relevant Decision Maker pursuant to Article III, throughout the Term and Termination Period, the Bank shall, at its own expense, offer the “Payment Plans” as provided in Schedule 4.7(c) (except for any merchant discount to be funded by the Company pursuant to this section and without limiting Company’s obligations in respect of costs of Solicitation Materials produced by the Company). The Bank may not unilaterally cease to offer or otherwise discontinue any such Payment Plan unless otherwise agreed by the Parties in writing or such change is approved by the Operating Committee or required by Applicable Law. [****]. The Bank shall notify the Company in writing at least thirty (30) days prior to any notification to Cardholders of any
40
change to the features, terms or conditions of the Payment Plans required by Applicable Law, unless the Bank is required by Applicable Law to implement such change in less than thirty (30) days from the date on which the Bank first becomes aware that such a change will likely be required, in which case the Bank shall provide the Company with notice as soon as practicable following the date the Bank becomes aware such change will likely be so required. The Company and the Bank may each propose that one or more new Payment Plans not listed in Schedule 4.7(c) shall be incorporated into the Program, which proposals shall be subject to the approval of the Operating Committee.
4.8 Program Website; Mobile Apps.
(a) Program Website. The Bank shall continue to maintain (and upgrade and enhance, to include any new technology or features that are used among Comparable Partner Programs), at the Bank’s expense, a Competitive Company-branded website, which shall include a mobile-optimized website for access through mobile (including smartphone and tablet) devices (and mobile applications), providing internet services for Cardholders and potential Cardholders with the look and feel consistent with the Company’s website subject to the Specifications Book (the foregoing, the “Program Website”). All written marketing content of the Program Website (other than content thereon constituting copies of or links to Bank Program Materials) shall be deemed Solicitation Materials subject to review and approval of the Marketing Committee in accordance with the provisions of Section 4.5. The Bank shall cause the Program Website to be accessed primarily by means of links from the Company’s website or links displayed by Internet search engines, as described in the immediately following sentence, to be inaccessible from Bank-branded websites, and to contain or otherwise be associated with only such material and links as shall be approved by the Marketing Committee from time to time. For clarity, Bank communications with Cardholders regarding billing, payment or servicing matters may include links to the Program Website in furtherance of such matters. The Company’s website will provide links to the Program Website on: (i) its home page, (ii) its check-out page, and (iii) such other pages of its website as the Marketing Committee shall determine from time to time. The Program Website shall also include links back to the Company’s website on the Program Website home page and such other pages as the Marketing Committee shall determine from time to time. The Program Website shall include the following functions, any other features and functionality as are made available by the Bank or its Affiliates on the program websites of any other private label or private label and co-branded credit card programs (but with respect to private label and co-branded credit card programs, only those features and functionality relevant to the private label component thereof) for which the Bank is issuer or servicer (which features and functionality shall be provided to the Company as soon as reasonably practicable after becoming available to such other programs, unless otherwise elected by the Company), and such other functions as may be approved by the Marketing Committee from time to time (the Program Website and such functionality, collectively, the “Internet Services”):
(i) Applications. The Program Website shall permit prospective Applicants to access and submit a Prequalification Request, to access an Application upon valid determination in accordance with the terms hereof of the prospective Applicant’s status as a Program Eligible Applicant, to complete and submit the Application online and receive real-time approvals of such Application in accordance with the Risk Management Policies and Operating Procedures and shall operate such that once an Application is
41
approved online, the related Account shall be immediately available for use online and in all Company Channels. Prequalification Requests submitted online that are submitted by prospective Applicants that the Bank validly determines in accordance with the terms hereof do not meet the criteria of Program Eligible Applicants shall be made available in real time to the Company for submission to a Secondary Program provider. In the case the Bank validly determines in accordance with the terms hereof that a Prequalification Request submitted online was submitted by a Disqualified Shopper, then the Bank will not deliver a real-time decline but shall instead notify such Disqualified Shopper that there are no prequalified offers available and the Bank shall subsequently issue an adverse action letter to such Shopper. Applications submitted online (A) that are declined in accordance with the Risk Management Policies and Operating Procedures shall be made available in real-time to the Company and, subject to Section 2.2(b), any Second-Look Program providers, and (B) that are otherwise not approved in accordance with the Risk Management Policies will not receive real-time declines but shall instead be notified that their Application requires further review. The Program Website shall only make proactive offers of credit to potential Cardholders if such potential Cardholders are Program Eligible Applicants that have already been pre-approved in accordance with the Risk Management Policies through a pre-screening process; provided that the Program Website shall only make proactive offers of credit at such times and in such manner and through use of such Solicitation Materials as the Company has previously approved in writing.
(ii) Cardholder Customer Service. From and after the Effective Date, the Program Website shall provide to Cardholders at least the functionality described in Schedule 4.8(a)(ii)(A). Within a commercially reasonable time and no later than one year after the Company’s request, the Program Website shall provide to Cardholders the enhanced functionality described on Schedule 4.8(a)(ii)(B).
(iii) Program Website Integration. From and after the Effective Date, the Bank shall integrate its Systems interfaces with any relevant digital Company Channels, including the Company’s websites and mobile applications, to deliver a seamless customer experience for the Program Website and any Program-related mobile experience. In addition, [****].
(b) Performance Standards. The Bank shall provide the Internet Services free, in all material respects, from programming errors and defects in workmanship and materials that impact functionality, accuracy or security of the Internet Services or the ability of Cardholders to use the Internet Services and in accordance with Industry Standards. The Bank shall conform the Program Website to the performance capabilities, characteristics, functions and other standards generally applicable to leading private label Credit Card program websites in addition to those expressly required under this Agreement, and the Internet Services shall be consistent with the Comparable Partner Programs.
(c) Customer Privacy. The Bank shall ensure that a hyperlink to the Program Privacy Policy is clearly and prominently posted on the top or bottom of every page of the Program Website.
42
(d) Server Condition. The Bank shall host the Program Website on a server located in the United States that is in the sole control of the Bank and/or its Affiliates and shall cause the Program Website to (i) be in good operating condition, (ii) contain sufficient operating capability to allow access to the Program Website in compliance with Schedule 7.3, and (iii) operate within the servicing standards set forth in Schedule 7.3.
(e) Program Website Maintenance. During the Term of this Agreement and continuing until the end of the Termination Period, the Bank shall:
(i) ensure that the Program Website is at all times solely under the control of the Bank and/or its Affiliates (subject to the Company’s rights under this Agreement) and is hosted solely on a server described in Section 4.8(d) and shall notify the Company in advance in writing if it intends to change the server hosting the Program Website; and
(ii) ensure that the Bank or its Affiliates at all times owns all Systems used in connection with the Internet Services, or has the right to use the same; and ensure that the Internet Services and such Systems and Bank-owned content and the operation thereof do not infringe or violate any Intellectual Property or other rights of any third party.
(f) Mobile Access to Program Website(g) . The Bank shall use commercially reasonable efforts to cause the Program Website and all Internet Services to be fully accessible from all industry-standard internet browsers accessed on mobile devices, smartphones and tablets (including those run on iOS or Android software) and to (i) be in good operating condition, (ii) contain sufficient operating capability to allow access to such Program Website as required by Schedule 7.3.
4.9 Sales Taxes
. The Company will pay when due any sales or similar taxes due and payable by it relating to the sale of Goods and Services financed on Accounts. The Parties agree that recoveries of sales or similar taxes that were imposed on the sale of Goods and Services attributable to any Account that the Bank reasonably determines to be non-collectable during the Term [****].
4.10 Value Propositions; Loyalty Programs.
(a) General. Subject to the terms and conditions hereof, the Company shall have sole discretion as to whether to offer a Value Proposition to Cardholders. The Company shall develop the design, format, and terms and conditions of the Value Proposition in consultation with the Bank’s Manager and as approved by the Operating Committee; provided that, without limitation of the foregoing, the Bank’s Manager shall have a minimum of thirty (30) days to review and comment on all such elements of the Value Proposition and, if such Value Proposition includes elements that are specific to the Company Credit Cards (e.g., points accelerators for Credit Card spend), the Bank shall establish compliance related monitoring and data sharing provisions reasonably acceptable to the Parties. The Company shall have ultimate decision-making authority with respect to the Value Proposition and may make any modifications thereto as the Company may determine from time to time. For the avoidance of doubt, the Bank may not make any changes to any element of a Value Proposition without the Company’s prior written approval; provided that the Company shall be responsible for ensuring,
43
at its own cost, that the Value Proposition complies with Applicable Law. Subject to Article XVIII, the Bank shall bear no liabilities arising under the Value Proposition.
(b) Value Proposition Support. The Bank shall be responsible for accounting and servicing of all rewards under other Value Propositions associated with the Program, as well as value proposition testing (and reporting the results of such testing to the Company) as may be reasonably requested by the Company from time to time; and in the event that the Company makes modifications to the Value Propositions, the Bank shall also provide, at its sole cost and expense, functionality to support such modifications; provided, however, that such accounting servicing and other such modifications shall require functionality that is compatible with the Bank’s then existing capabilities available to other clients of the Bank.
(c) Other Programs. The Company and its Affiliates shall be free, in their sole discretion, to offer, establish, maintain, modify or participate in any loyalty or rewards program of any type, and any promotion thereof, whether or not related to or integrated with Company Credit Cards; provided that (i) the Company Credit Cards shall be the most potentially advantageous means of participating in such loyalty or rewards program, compared to any other payment method or payment type, in the aggregate over time and (ii) the value offered by any such loyalty or rewards program offered by the Company to customers shall at all times be either (A) made available to Cardholders, or (B) no more favorable than the value offered by the Value Proposition.
4.11 Program Competitiveness.
(a) Customer Experience. The Bank shall use commercially reasonable efforts to ensure that the Bank and its Affiliates perform their obligations hereunder at all times in such a way as to ensure a level of customer service to Cardholders and a consumer experience to Applicants and Cardholders that is consistent with the Company’s brand. The Bank represents that the SLAs set forth on Schedule 7.3 are, as of the date of this Agreement, competitive in the aggregate with the customer service level standards provided to the Comparable Partner Programs as of such date. Without limiting the foregoing, the Bank shall perform its obligations hereunder (x) with no less than a reasonable degree of care and diligence, and (y) with no less care and diligence than that degree of care and diligence employed by the Bank and its Affiliates with respect to its obligations relating to the Comparable Partner Programs. The Bank and its Affiliates and Service Providers shall perform their respective service obligations hereunder at all times in such a way as not to disparage or embarrass the Company or its name or brands.
(b) [****].
44
4.12 [****].
4.13 [****].
4.14 [****].
ARTICLE V
MARKETING
MARKETING
5.1 Promotion of Program. In accordance with the Marketing Plan, the Company and the Bank shall cooperate with each other and actively support and promote the Program to both existing and potential Cardholders.
5.2 Flex Fund Commitment.
(a) [****].
(b) The Flex Fund shall be used, in accordance with the Marketing Plan, by the Company and its Affiliates, and to the extent approved by the Marketing Committee, the Bank, and its Affiliates, to cover the cost (which cost may include amounts paid by either Party to Service Providers, including temporary employees or consultants engaged in marketing activities including the activities listed below) of such marketing of the Program as the Company and its Affiliates shall elect from time to time, which marketing may include the following:
[****].
(c) The Company shall deliver to the Bank from time to time, an invoice reflecting amounts expended by the Company and eligible for reimbursement through the Flex Fund. The Bank shall reimburse the Company for such invoiced expenses subject to the limits set forth in Section 5.2(d).
(d) [****].
(e) For the avoidance of doubt, the Flex Fund Commitment shall not be used to fund the following activities, which shall be funded by the Bank or the Company, as stated below.
[****].
5.3 Communications with Cardholders.
(a) Company Inserts. The Company and its Affiliates shall have the exclusive right to communicate with Cardholders (except for the Bank’s servicing messages and any message required by Applicable Law) through use of inserts, onserts, fillers and bangtails (which, to the extent applicable, shall be included on all paper billing envelopes) (collectively, “Inserts”), including Inserts selectively targeted for particular segments of Cardholders, in any and all Billing Statements (including electronic Billing Statements) and envelopes, subject to production requirements contained in the Operating Procedures, the Bank’s System limitations, the Specifications Book, and Applicable Law. [****]. The Bank shall provide the Company with as much advance notice as reasonably practicable regarding the Bank’s intent to use any such Inserts, and the frequency of any such Bank Inserts shall (i) comply with Applicable Law and (ii) be no greater than the frequency with which the Bank uses comparable inserts in Comparable Partner Programs. Except as otherwise provided in the Marketing Plan, and except for Inserts
45
required by the Bank for servicing or Applicable Law (which shall be paid for by the Bank), the Company shall be responsible for the content and look and feel of, and the cost of preparing and printing, any such Inserts; provided that the Company may not use or permit the use of Inserts to promote or advertise the financial products of any entity other than the Bank or its Affiliates; provided, further, however, that product warranties shall not constitute financial products. If the insertion of Inserts in particular Billing Statements would increase the postage costs for such Billing Statements, the Company agrees to either pay for the incremental postage cost (provided in proportion to the weight of such Inserts relative to the weight of all inserts in such Billing Statements) or prioritize the use of Inserts to avoid postage cost over-runs. The Bank’s Manager shall provide the Company with as much advance notice as reasonably practicable regarding the inclusion of a particular Insert in particular Billing Statements. The Company shall be entitled to deliver Insert materials to the Bank no later than fourteen (14) Business Days prior to the Bank’s mailing date for inclusion in a mailing. The Company shall retain all revenues it receives from all Inserts (other than any Inserts promoting the Company Credit Cards or Approved Ancillary Products that the Company may permit to be produced and distributed in accordance with the Marketing Plan).
(b) Billing Statement Messages. Except for the Bank’s servicing messages and as otherwise required by Applicable Law, the Company and its Affiliates shall have the exclusive right to use Billing Statement (including electronic Billing Statement) messages and Billing Statement envelope and return envelope (or electronic mail) messages in each Billing Cycle to communicate with Cardholders, subject to production requirements contained in the Operating Procedures, the Bank’s System limitations, the Specifications Book, and Applicable Law; provided that the Company may not use Billing Statement messages to promote or advertise the financial products of any entity other than the Bank or its Affiliates. Such messages shall be included at no cost to the Company. Notwithstanding the foregoing, any Billing Statement messages required by Applicable Law and any servicing messages to be included as Billing Statement messages shall take precedence over the Company’s and its Affiliates’ messages. The Bank shall provide the Company with as much advance notice as reasonably practicable regarding the Bank’s intent to use the Billing Statement for any of such messages by the Bank. The Company shall be entitled to deliver Billing Statement materials to the Bank no later than five (5) Business Days prior to the Bank’s mailing date for inclusion in a mailing. The Bank shall, at no cost to the Company, provide the ability to deliver customized Billing Statement messages (in paper and electronic Billing Statements) to Cardholders, including differentiated messages to Cardholders in the Billing Statements delivered in any single Billing Cycle on the basis of criteria such as shopping behavior, customer profiles or geographic location.
5.4 Additional Marketing Support.
(a) Upon the request of the Company from time to time, the Bank shall perform the following marketing functions [****]:
[****].
In the event that any change in Applicable Law would result in the compliance by the Bank of any of its obligations pursuant to this Section 5.4(a) being deemed a “consumer reporting agency” for purposes of the Fair Credit Reporting Act, the Bank shall not be required to take such actions affected by such change in Applicable Law that would so result in the Bank being
46
deemed a “consumer reporting agency.” In such an event, the Bank shall take all actions reasonably requested by the Company and permitted by Applicable Law in order to permit the performance of the marketing functions herein without delay and in a manner that would not cause the Bank to be considered a consumer reporting agency.
(b) Following the Effective Date, [****].
5.5 Approved Ancillary Products.
(a) Except for the Approved Ancillary Products and the Company Credit Cards, the Bank and its Affiliates shall not offer (except as directed by the Company) any goods or services to Cardholders or through the Program. From time to time, the Bank may propose to the Company to solicit Cardholders for products or services other than the foregoing. If the Company agrees in writing to permit such solicitation, such solicitation shall only be permitted on the terms (including terms relating to the compensation of the Company with respect thereto) agreed by the Company in writing.
(b) The Bank shall be permitted to offer its proprietary debt cancellation feature to Cardholders as an Approved Ancillary Product. The Bank acknowledges and agrees that the issuer of the Secondary Program or any Second-Look Program may offer its own debt cancellation product solely to its own customers and that such product may be similar or identical to the Bank’s product in its terms, features, positioning and appearance.
5.6 Marketing Plan.
(a) For each Fiscal Year of the Program (other than Fiscal Year 2027, for which a Marketing Plan has already been agreed to by the Parties), the Bank shall develop, in consultation with the Company’s Manager (and such other individuals designated by the Company), a proposed Marketing Plan for the following Fiscal Year of the Program, which (together with any modifications thereto approved by the Parties) shall be submitted for approval by the Marketing Committee on or before the ninetieth (90th) day prior to the end of the Fiscal Year prior to the Fiscal Year covered by the Marketing Plan, and such proposed Marketing Plan so submitted, with any modifications thereto approved by the Marketing Committee pursuant to Article III, shall be the “Marketing Plan” for the Fiscal Year covered thereby.
(b) Each Marketing Plan shall outline, for each Company Channel, all programs, and shall include at least the following information for each program:
(i) [****];
(c) [****].
(d) [****].
(e) Changes to the Marketing Plan may be proposed by either Party and considered for approval or disapproval by the Marketing Committee pursuant to the provisions of Article III.
(f) [****].
47
5.7 [****].
5.8 [****].
ARTICLE VI
CARDHOLDER INFORMATION
CARDHOLDER INFORMATION
6.1 Customer Information.
(a) All sharing, use and disclosure of Cardholder Data and Shopper Data under this Agreement shall be subject to Applicable Law, the Program Privacy Policy, and the provisions of this Article VI. The Parties acknowledge that the same or similar information may be contained in the Cardholder Data and the Shopper Data, and a Party’s right to use or disclose Cardholder Data or Shopper Data shall be without regard to any additional restrictions in the other definitions. By way of example and not limitation, if a Cardholder makes a purchase of Goods and Services with a Company Credit Card, the Company may use and disclose the Shopper Data relating to that purchase for all purposes permitted with respect to Shopper Data hereunder, notwithstanding that such information may also constitute Cardholder Data, and absent such classification as Shopper Data, would be subject to restrictions governing Cardholder Data or Account Documentation. Notwithstanding anything to the contrary in this Agreement, the fact that any information constituting Shopper Data is the same as information constituting Cardholder Data shall not limit any of the Company’s rights in and to, or impose any obligations in respect of, the Shopper Data as set forth in Section 6.3.
(b) Each Party agrees that any unauthorized use or disclosure of Cardholder Data by either Party or Shopper Data by the Bank or Shopper Data that is identical to Cardholder Data and that was provided by Applicants or Cardholders in connection with the Program (“Program Generated Shopper Data”) would cause immediate and irreparable harm for which money damages would not constitute an adequate remedy. In that event, the Parties agree that injunctive relief shall be warranted in addition to any other remedies a party may have.
(c) The Company and the Bank shall each establish and maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of the Cardholder Data, the Bank to the extent it possesses Shopper Data, and the Company to the extent it possesses Program Generated Shopper Data, in each case, designed to meet all requirements of Applicable Law, including, at a minimum, maintenance of an information security program that is designed to: (i) ensure the security and confidentiality of the Cardholder Data, and, with respect to the Bank to the extent it possesses Shopper Data, and the Company to the extent it possesses Program Generated Shopper Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Cardholder Data and, with respect to the Bank to the extent it possesses Shopper Data, and the Company to the extent it possesses Program Generated Shopper Data; (iii) protect against unauthorized access to or modification, destruction, disclosure or use of the Cardholder Data and, with respect to the Bank to the extent it possesses Shopper Data, and the Company to the extent it possesses Program Generated Shopper Data; and (iv) ensure the proper disposal of Cardholder Data and, with respect to the Bank to the extent it possesses Shopper Data, and the Company to the extent it possesses Program Generated Shopper Data. Additionally, such security measures shall meet current Industry Standards and shall be at least as protective as those used by each Party to protect its other confidential
48
customer information but in no event less than a reasonable standard of care. Each Party will ensure that any third party to whom it transfers or discloses Cardholder Data or, with respect to the Bank to the extent it possesses Shopper Data, or the Company to the extent it possesses Program Generated Shopper Data, signs a written contract with the party transferring or disclosing such data to the third party in which such third party agrees to substantively the same privacy and security provisions as those in this Agreement and agrees that the owner of such data is a third-party beneficiary thereof for the purposes of protecting such data. Information transferred by one Party on behalf or at the direction of the other will be considered information transferred by the Party requesting or directing the transfer. The Bank shall treat Shopper Data and the Company shall treat Program Generated Shopper Data as if it were its own “customer information” or “personally identifiable information” collected by the Bank for purposes of Applicable Law or Industry Standards, and any administrative, technical and physical safeguards, and the provisions of this Section 6.1, applicable to the Cardholder Data shall be similarly applied by the Bank to the Shopper Data and the Company to Program Generated Shopper Data.
(d) [****].
(e) Each Party shall, subject to Applicable Law, promptly provide to the other Party a complete list of any Persons who have requested to be on the respective Party’s “do not call” and/or “do not mail” lists (or other similar lists). Upon receipt of such lists, the Bank shall promptly comply with such requests with respect to its solicitation of Company Credit Cards and Approved Ancillary Products, and the Company shall promptly comply with such requests with respect to its telemarketing and other solicitations with respect to the Program.
6.2 Cardholder Data.
(a) As among the Parties hereto, the Cardholder Data shall be the property of and exclusively owned by the Bank. The Company acknowledges and agrees that, subject to its rights pursuant to Section 17.2, it has no proprietary interest in the Cardholder Data.
(b) The Program Privacy Policy applicable to the Cardholder Data is attached as Schedule 6.2(b) hereto. Any modifications to the Program Privacy Policy shall be approved by the Operating Committee, provided that the Program Privacy Policy shall comply with Applicable Law at all times and shall not provide for any reduction in the access to, or disclosure or use of Cardholder Data by the Company and its Affiliates as compared with the Program Privacy Policy in effect on the Effective Date.
(c) The Bank may use the Cardholder Data in compliance with Applicable Law and the Program Privacy Policy [****].
(d) The Bank shall not, directly or indirectly, sell, transfer, or rent (or permit others to do same), the Cardholder Data, and shall not, directly or indirectly, disclose the Cardholder Data, except for disclosure in compliance with Applicable Law and the Program Privacy Policy solely:
[****].
49
(e) Subject to Applicable Law and the Program Privacy Policy, the Bank shall provide the Company with unlimited access, through the Bank’s data analysts, to all Cardholder Data obtained by the Bank in connection with the Program, which includes at least the items listed below as set forth in greater detail on Schedule 6.2(e). In addition, subject to Applicable Law, and as reasonably requested by the Company, [****]:
[****].
(f) [****].
(g) [****].
(h) The Company may disclose the Cardholder Data in compliance with Applicable Law and the Program Privacy Policy solely:
(i) to its Service Providers authorized in accordance with this Agreement solely on a “need to know” basis in connection with a permitted use of the Cardholder Data pursuant to Section 6.2(g), [****];
(ii) to its Affiliates and its and their Representatives on a “need to know” basis in connection with a permitted use of the Cardholder Data pursuant to Section 6.2(g); [****];
(iii) to any Governmental Authority with authority over the Company or its Affiliates, or their respective Service Providers [****]; or
(iv) as otherwise permitted by Applicable Law and the Program Privacy Policy; [****].
(i) With respect to the sharing, use and disclosure of the Cardholder Data following the termination of this Agreement:
(i) the rights and obligations of the Parties under this Section 6.2 shall continue through any Termination Period and, if applicable, any interim servicing period pursuant to Section 17.2(h);
(ii) if the Company exercises its purchase rights under Section 17.2, the Bank shall transfer its right, title and interest in the Cardholder Data to the Company or its Nominated Purchaser as part of such transaction, and the Bank’s right to use and disclose the Cardholder Data shall terminate upon the termination of the Termination Period and, promptly following such termination of the Termination Period, the Bank shall return or destroy all Cardholder Data and shall certify such return or destruction to the Company upon request; provided, however, that, if the Bank is obligated to retain any Cardholder Data pursuant to requirements of Applicable Law or the Bank’s disaster recovery plan, or internal retention policies, the Bank shall maintain the strict confidentiality and security of such Cardholder Data and shall not use such Cardholder Data for any other purpose; provided further, that if the Bank is performing interim servicing for the Nominated
50
Purchaser pursuant to Section 17.2(h), the Bank may continue to use Cardholder Data to the extent necessary to perform such servicing; and
(iii) if the Company provides notice that it shall not exercise its purchase rights under Section 17.2, or otherwise fails to exercise its option within the time period specified in Section 17.2, the Company’s right to use and disclose the Cardholder Data shall terminate, and the restrictions hereunder on the Bank’s use and disclosure of Cardholder Data shall terminate, except that in no event may the Bank or any of its Affiliates disclose Cardholder Data to any retailer or use Cardholder Data in any way for the benefit of any retailer or retail credit card program or in any manner inconsistent with the limitations on the Bank’s rights to dispose of the Program Assets pursuant to Section 17.4. The foregoing provisions shall in no way be construed as to extend the Bank’s rights to use the Company Licensed Marks, the Company’s name or any Intellectual Property of the Company, all of which rights shall be expressly limited as set forth in Article X and shall terminate as set forth in Section 17.4(c).
6.3 Shopper Data; Qualified Signet Customer List.
(a) The Bank acknowledges that the Company and its Affiliates gather information about actual and prospective purchasers of Goods and Services and that the Company and its Affiliates have rights to use and disclose such Shopper Data independent of the Program, and the Company and its Affiliates shall not be subject to any limitations (including any limitations set forth in this Article VI or otherwise set forth in this Agreement) in respect of their right to use and disclose such Shopper Data notwithstanding that such Shopper Data may also include Cardholder Data or information contained in or derived therefrom. As between the Company and the Bank, all the Shopper Data shall be owned exclusively by the Company. The Bank acknowledges and agrees that it has no proprietary interest in the Shopper Data. To the extent the Bank is the direct recipient of such data, it shall provide such data to the Company in such format and at such times as shall be specified in accordance with this Agreement. The Bank shall cooperate in the maintenance of the Shopper Data and other data, including by incorporating in the Application and Credit Card Agreement provisions mutually agreed to by the Parties pursuant to which Applicants and Cardholders shall agree that they are providing their identifying information and all updates thereto and all transaction data from Company Channels to both the Bank and the Company and its Affiliates. For the avoidance of doubt, and without limiting any other Shopper Data that may from time to time exist, the following information shall be deemed Shopper Data:
(i) for any customer who has applied for a Company Credit Card, regardless of the channel through which such Application was completed or submitted (1) the customer’s name, address, email address, telephone number, social security number and all other commercially reasonable information supplied on the Application or prescreened response submitted by the customer (including any such information with respect to any authorized user or joint obligor in the case of a joint account); and (2) an indication of whether or not the customer has been approved for a Company Credit Card;
(ii) for any Cardholder, (1) the Cardholder’s name, address, email address, telephone number, social security number and Account number; (2) any reported change to any of the foregoing information; and (3) Cardholder transaction and experience data
51
in the Company Channels at a detailed, line-item level that provides all detail provided to the Company and its Affiliates prior to the Effective Date; provided that such additional details referred to in clause (3) continue to be received through the Company Channels; and
(iii) for any customer that accesses the Company’s website or mobile Company Channels, any personally identifiable information obtained in connection with such access (including information that is obtained by utilizing the foregoing information or any other Shopper Data).
In the event that any change in Applicable Law would result in the compliance by the Bank of any of its obligations pursuant to this Section 6.3(a) being deemed a “consumer reporting agency” for purposes of the Fair Credit Reporting Act, the Bank shall not be required to take such actions affected by such change in Applicable Law that would so result in the Bank being deemed a “consumer reporting agency.” In such an event, the Bank shall take all actions reasonably requested by the Company and permitted by Applicable Law in order to permit the delivery of the information referred to in this Section 6.3(a) in a manner that would not cause the Bank to be considered a consumer reporting agency.
(b) Subject to compliance with Applicable Law, the Company’s privacy policies, the Marketing Plan and such criteria (including format) as may be mutually agreed to from time to time, the Company may from time to time make available to the Bank, free of charge, a Qualified Signet Customer List. As between the Company and the Bank, any Qualified Signet Customer List shall be owned exclusively by the Company. The Bank acknowledges and agrees that it has no proprietary interest in any Qualified Signet Customer List.
(c) The Bank shall not use, or permit to be used, directly or indirectly, the Shopper Data, other than to transfer such data to the Company to the extent received by the Bank. Notwithstanding the foregoing, the Bank may use any Qualified Signet Customer List in compliance with Applicable Law solely for purposes of soliciting customers listed in such Qualified Signet Customer List for Accounts or as required by Applicable Law.
(d) The Bank shall not, directly or indirectly, sell, transfer, or rent (or permit others to do same) the Shopper Data, and shall not, directly or indirectly, disclose the Shopper Data, except for disclosure in compliance with Applicable Law solely:
(i) to its Service Providers authorized in accordance with the Agreement solely on a “need to know” basis in connection with a permitted use of the Shopper Data or Qualified Signet Customer List pursuant to Section 6.3(c), provided that each such Service Provider agrees in a written agreement reasonably satisfactory to the Company to (a) maintain all such Shopper Data or Qualified Signet Customer List as strictly confidential and not to use or disclose such information to any Person other than the Bank or the Company, except as required by Applicable Law or any Governmental Authority with authority over such Service Provider (after giving the Bank and the Company prior notice and an opportunity to defend against such disclosure); (b) maintain an information security program that is designed to meet all requirements of Applicable Law, including, at a minimum, all requirements set forth in Section 6.1(c); and (c) notify promptly the
52
Bank and the Company of any unauthorized disclosure, use, or disposal of, or access to, such Shopper Data or Qualified Signet Customer List and to cooperate with the Bank and the Company in any investigation thereof and remedial action with respect thereto; and provided, further, that the Bank shall be responsible for the compliance of each such Service Provider with the terms of this Section 6.3;
(ii) to its Affiliates and its and their Representatives on a “need to know” basis in connection with a permitted use of the Shopper Data or Qualified Signet Customer List pursuant to Section 6.3(c); provided that the Bank communicates the confidential nature of the Shopper Data and Qualified Signet Customer List, such Persons are bound (by agreement or their professional responsibilities) to maintain the confidentiality of the Shopper Data and Qualified Signet Customer List in accordance with the provisions of this Agreement, and the Bank shall be responsible for the compliance by each such Person with the terms of this Section 6.3; or
(iii) to any Governmental Authority with authority over the Bank or its Affiliates or their respective Service Providers in connection with the Program (A) in connection with an examination of the Bank; or (B) pursuant to a specific requirement to provide the Shopper Data or Qualified Signet Customer List by such Governmental Authority or pursuant to compulsory legal process; provided that the Bank seeks the full protection of confidential treatment for any disclosed Shopper Data or Qualified Signet Customer List, as the case may be, to the extent available under Applicable Law governing such disclosure, and with respect to clause (B), to the extent permitted by Applicable Law, the Bank (1) provides at least ten (10) Business Days’ prior notice of such proposed disclosure to the Company if reasonably possible under the circumstances, and (2) seeks to redact the Shopper Data or Qualified Signet Customer List to the fullest extent possible under Applicable Law governing such disclosure.
(e) [****].
ARTICLE VII
OPERATING STANDARDS
OPERATING STANDARDS
7.1 Reports.
(a) Within ten (10) Business Days following the end of each Fiscal Month, or such other time as may be specified in Schedule 7.1(a) or such other time as agreed by the Parties with respect to particular reports, the Bank shall provide to the Relevant Decision Maker and the Company the reports specified in Schedule 7.1(a) (which reports shall be reported on a Fiscal Month, calendar month or cycles-basis, as may be specified in Schedule 7.1(a) or such other time as agreed upon by the Parties).
(b) The Bank shall report to the Company new Account authorization and approval rates, referral rates, credit sales, Payment Plan sales, credit limit assignments and such other information as set forth on Schedule 7.1(b), in each case in accordance with Schedule 7.1(b), on a daily basis.
53
(c) In addition to the reports required pursuant to Sections 7.1(a) and (b), the Bank will fulfill the Company’s other reasonable ad hoc reporting requests as soon as practicable following such request.
(d) To the extent set forth on Schedule 7.1(a), certain reports to be provided pursuant to this Section 7.1 (other than to the extent the parties agree otherwise with respect to information delivered pursuant to Section 7.1(c)) shall be provided through secure e-mail.
7.2 Servicing.
(a) The Bank shall be solely responsible for customer service and for the administration of the Program at the Bank’s expense in accordance with the terms of the Credit Card Documentation and this Agreement (including Section 4.11(a)), Schedule 7.2, and the SLAs set forth in Schedule 7.3 (as such standards may be amended from time to time by the Operating Committee), including the following servicing and administrative functions: Prequalification Request processing, Application processing, customer service to Cardholders, statement, payment processing, transaction authorization and processing and collections. To the extent not otherwise provided in this Agreement or the Operating Procedures, including the SLAs described on Schedule 7.3, the Bank shall service the Accounts under the Program in a manner in which, and in any event no worse than, the Bank, in the aggregate, services its other Comparable Partner Programs.
(b) The Bank shall dedicate such trained personnel as are necessary or appropriate for servicing the Accounts in accordance with Schedule 7.3, including a management-level individual reasonably acceptable to the Company within the Bank’s customer-service operation who (under the direction of the Bank’s Manager) will act as a liaison between the Parties and respond to the Company’s questions or concerns. The Bank shall maintain adequate computer and communications Systems and other equipment and facilities necessary or as appropriate for servicing the Accounts in accordance therewith, and, without limiting any other provisions of this Agreement with respect to Systems changes, without the Company’s approval, the Bank shall not make any changes to such Systems, equipment and facilities, or to any servicing processes or procedures that will negatively impact Cardholders or the Company’s processes, procedures or Systems, in each case during any Peak Sales Period. The Bank shall maintain a disaster recovery plan that complies with Applicable Law and Industry Standards and have in place sufficient back-up Systems, equipment, facilities and trained personnel to implement such disaster recovery plan so as to perform its obligations to Cardholders pursuant to the Credit Card Documentation and service the Accounts continuously through a disaster in a manner consistent with such plan. The Bank shall provide the Company with a summary of such plan upon request and with written guidance regarding how the Company can facilitate implementation of the Bank’s disaster recovery plan with respect to the Company. The Bank will test its disaster recovery plan no less frequently than annually, make the results of such test available upon request by the Company and will promptly initiate such plan upon the occurrence of a disaster or business interruption. The Bank shall give the Program no less priority in its recovery efforts than is given to any other of the Bank’s or its Affiliates’ other credit card programs or portfolios.
(c) As of the Effective Date and throughout the remainder of the Term and continuing throughout the Termination Period, the Bank shall maintain a dedicated toll-free customer service telephone number for the Program and all other telephone numbers as provided in the
54
Operating Procedures (such telephone numbers, collectively the “Program Toll-Free Numbers”), in each case at the Bank’s expense, which numbers shall be part of the Program Assets. As of the Effective Date and throughout the remainder of the Term and continuing throughout the Termination Period, the Bank shall provide dedicated live telephonic customer service [****], in English and Spanish, upon the scheduled dates and times set forth in Schedule 7.2.
(d) Except as otherwise approved by the Operating Committee, the Bank shall ensure that, [****].
(e) At the Company’s request from time to time, the Bank shall use commercially reasonable efforts to provide copies of customer service policies, scripts and form correspondence relating to the Program, and the Bank shall use commercially reasonable efforts to incorporate comments made by the Company (subject to Bank System limitations applicable uniformly to the Bank’s Comparable Partner Programs and the Specifications Book, and, notwithstanding any other provision hereof; provided that the Bank shall have no obligation to alter disclosures that are uniform among Comparable Partner Programs for purposes of legal or regulatory consistency).
(f) Subject to Section 4.4(d), customer service shall be Company branded to the extent practicable; provided, however, that the Bank shall have the right to take whatever steps and make such disclosures necessary to ensure that the Bank is understood by the Cardholders to be the creditor on the Accounts.
(g) Upon the Company’s reasonable written request from time to time, the Bank shall permit the Company and its Representatives to visit its servicing facilities related to the Program, during normal business hours with reasonable advance notice, for the purpose of informing the Company regarding the Bank’s performance of its servicing obligations hereunder, and the Bank shall use commercially reasonable efforts to facilitate the Company’s review of the Bank’s servicing activities, and shall make personnel of the Bank reasonably available to assist the Company and its Representatives as reasonably requested. In conducting such visits, the Company shall comply with security and privacy policies established by the Bank and shall seek to minimize interference with the Bank’s normal business operations.
(h) Notwithstanding any arrangement whereby the Bank provides services set forth herein through an Affiliate or Service Provider, the Bank shall remain obligated and liable to the Company for the provision of such services without diminution of such obligation or liability by virtue of such arrangement. The Parties agree that [****].
(i) If the Bank receives a Cardholder complaint regarding the quality or delivery of Goods and Services, the Bank shall refer such complaint to the Company in accordance with the Operating Procedures, and in the case of complaints or inquiries made by telephone to the Bank’s customer service centers, the Bank shall attempt to make such referrals via a “warm transfer” to the Company’s customer service unit; provided, however, that if no Company customer service agent is available to answer the call within twenty (20) seconds, the Bank may release the call into the Company IVR. The Company will ensure its IVR systems provide the Bank’s customer service agents with a prompt when the twenty (20) seconds have elapsed.
55
(j) Subject to the following sentence and Section 7.2(g), the Company and the Bank will jointly observe (as applicable) and score inbound/outbound telephone customer contacts that the Bank has with Cardholders. A Bank representative shall accompany the Company’s representative during the observations. For clarity, customer contacts for collections are excluded from this Section 7.2(j).
(k) Upon the Company’s written request from time to time, the Bank will allow the Company and its Representatives to observe customer service (including collections) telephone calls by either (i) in person at Bank facilities, permitting the Company and its Representatives to observe such calls side-by-side with Bank personnel by being patched into live calls or (ii) in person at Bank facilities, side-by-side with Bank personnel, providing access to recordings of such calls selected at random by the Company. In each case, such observations shall be conducted in a manner compliant with the Bank’s security policies as consistently applied. Bank acknowledges that the foregoing is consistent with its security policies. Such observations may be conducted by the Company on any day and at any time during normal business hours and in accordance with the Bank’s security policies as consistently applied; provided that such observations shall not unreasonably interfere with the Bank’s normal business operations.
(l) The Bank shall include the Company, including key Company stakeholders selected by the Company, in its annual brand satisfaction surveys. In addition, upon the Company’s written request from time to time, but no more than twice per Fiscal Year, the Bank shall, as promptly as practicable, coordinate with the Company to arrange and conduct interviews with a reasonable number of key Company stakeholders (as identified on a list to be provided by the Company), at mutually agreed times, for the purpose of gathering feedback regarding, among other things, customer satisfaction, in-store execution, operational friction points and opportunities to improve the Program. The Bank shall summarize the feedback received from such interviews and, as promptly as practicable following completion of the applicable interviews, provide the Company with a written report identifying key themes, recommended action items and any proposed remediation or improvement plan. Following the Company’s receipt of such report, the Parties shall meet and review such feedback in good faith and, to the extent appropriate, agree upon and implement any remediation or improvement plan reasonably necessary to address material issues identified through such interviews; provided that no such remediation or improvement plan shall supersede or limit any other provision of this Agreement.
(m) The Parties shall work together in good faith from time to time throughout the Term to evaluate potential offshoring opportunities that are reasonably expected to reduce costs while maintaining service levels, compliance performance and customer satisfaction at levels equal to or better than those delivered prior to the Effective Date. Any such offshoring arrangement shall be subject to approval in accordance with Section 3.2(c)(ii)(L).
7.3 Service Level Standards.
(a) The Bank shall report to the Company monthly, in a mutually agreed upon format, the Bank’s performance under each of the SLAs set forth on Schedule 7.3. Concurrent with such reporting, if the Bank fails to meet any SLA, without limiting the consequences for SLA failures set forth on Schedule 7.3, the Bank shall (i) report to the Company the reasons for the SLA failure(s), (ii) identify the actions required to address the SLA failure(s) and share such
56
actions with the Company. The Bank shall promptly take any action reasonably necessary to correct and prevent recurrence of such failure(s).
(b) The provisions of Schedule 7.3 shall apply in the event of a failure to meet any SLAs as set forth in Schedule 7.3.
(c) The Bank shall maintain real-time monitoring and technical controls sufficient to detect in real time if any System necessary to authorize or process credit transactions becomes unavailable or fails to meet applicable response times (any such event, a “System Unavailability”). During any Peak Sales Period, the Bank shall (i) immediately notify the Company upon becoming aware of any fact, occurrence or issue that may result in any System Unavailability, (ii) as promptly as practicable take all steps necessary, including using commercially reasonable efforts to implement temporary fixes, to prevent or resolve such System Unavailability and (iii) while working to prevent or resolve any System Unavailability, provide the Company with regular updates on the status of the Bank’s remediation efforts until the System Unavailability is fully resolved. In the event of any System Unavailability during a Peak Sales Period, the Bank shall, within thirty (30) days following the remediation of such System Unavailability, deliver to the Company a written corrective-action plan describing the root cause of such System Unavailability and a plan for implementing a permanent fix to prevent recurrence. The Bank shall implement such plan promptly and provide performance updates at least weekly until the permanent fix has been fully implemented.
7.4 Program Features, Functionality and Technology.
(a) The Bank shall continue to support and make available the features, functionality and technology of the Program that are available as of the Effective Date, including those features, functionality and technology set forth on Schedules 7.4(a)(i), 7.4(a)(ii) and 7.4(a)(iii). In addition, the Bank shall ensure that the features, functionality and technology for the Program (including reporting, analysis, modeling and account management features and functionality) are (i) at least equivalent to the features, functionality and technology that the Bank offers to its retail partners and cardholders with respect to the Comparable Partner Programs and (ii) no less functional than is customary.
(b) The Parties shall [****].
(c) The Bank shall use commercially reasonable efforts to include interfaces to support additional credit data feeds; provided that the Company notifies the Bank of any such additional credit data feeds and provides the Bank with reasonable time after such notice to implement interfaces to support such additional credit data feeds.
7.5 Systems; Secure Protocols.
(a) The Company and the Bank shall maintain at its own expense during the Term the Systems and related interfaces necessary to (i) administer the Program and service Cardholders and Accounts in accordance with the requirements of this Agreement and (ii) permit the acceptance of all Company Credit Cards in all Company Channels as to which such acceptance is required by the Company in accordance with this Agreement. The Bank agrees to provide technical personnel with expertise sufficient to support such Systems.
57
(b) Each Party shall cooperate in good faith with the other Party in connection with a Party’s reasonable request from time to time to implement, modify, enhance, or terminate a System and/or related interface (a “Systems Change”). Neither Party shall make any Systems Change that would render them incompatible in any material respect with the other Party’s or its Affiliates’ Systems or require the other Party or its Affiliates to make their own Systems Change (including any POS terminals) or reduce or restrict interfacing or System feeds, in any such case without the prior approval of the Operating Committee. Subject to the preceding sentence, and subject to such future modifications and upgrades as the Company or the Bank may make from time to time and which do not introduce interfaces or protocols other than those already in use in Company Channels, the Bank will not make any material Systems Change with respect to the Program without the prior review of the Operating Committee. Unless otherwise approved by the Operating Committee with the approval of the Company’s representatives thereon, any Systems Change by the Bank shall be consistent with Systems Changes made with respect to its Comparable Partner Programs, and no such Systems Change shall be implemented in a manner that imposes out-of-pocket costs on the Company that the Company determines in good faith are not commercially reasonable in relation to the benefit to be obtained by the Company in connection with such System Change without the Company’s consent, unless such costs are fully reimbursed by the Bank. The Bank shall ensure that the Company is afforded sufficient time to implement any such Systems Change in a commercially reasonable manner.
(c) Subject to, and without limiting, Section 7.5(b), in the event the Bank proposes a Systems Change that would result in the Bank Systems being unable to support any of the features and functionality set forth on Schedules 7.4(a)(ii) and 7.4(a)(iii), the Bank shall (1) notify the Company as soon as reasonably practicable of such proposed Systems Change and the features and functionality impacted by such Systems Change, (2) discuss and consider in good faith the Company’s reasonable views regarding such Systems Change and (3) [****]; provided that, for the avoidance of doubt, the Bank shall ensure that all the features and functionality set forth on Schedule 7.4(a)(i) are available on Bank Systems at all times. Subject to the foregoing sentence, the Bank may update those features and functionalities set forth on Schedules 7.4(a)(ii) and 7.4(a)(iii) to reflect any Systems Change by the Bank, in which case, the Operating Committee will discuss any other necessary changes.
(d) The Parties shall use secure protocols for the transmission of data from the Bank and its Affiliates, on the one hand, to the Company and its Affiliates, on the other hand, and vice versa.
7.6 Company Disaster Recovery Plan. Each Party shall maintain a disaster recovery plan that complies with Applicable Law and Industry Standards and have in place sufficient back-up Systems, equipment, facilities and trained personnel to implement such disaster recovery plan so as to perform its obligations under this Agreement continuously through a disaster in a manner consistent with such plan.
ARTICLE VIII
MERCHANT SERVICES
MERCHANT SERVICES
8.1 Transmittal and Authorization of Charge Transaction Data. The Bank shall authorize or decline Transactions on a real time basis as provided in the Operating Procedures,
58
including transactions involving split-tender or down-payments, including on Goods and Services for later delivery. If any Retail Merchant is unable to obtain authorizations for Transactions for any reason, such Retail Merchant may complete such Transactions without receipt of further authorization as provided in the Operating Procedures. As set forth in the Operating Procedures, the Company shall collect Charge Transaction Data and shall prepare and deliver a Settlement File to the Bank on each Retail Day.
8.2 POS Terminals. The Retail Merchants shall maintain POS terminals capable of processing Company Credit Card and Account transactions as maintained immediately prior to the Effective Date. To the extent that the Retail Merchants are required to make changes to any POS terminal (including hardware and software), Internet or mobile apps in order to support Prequalification Requests, process Applications, process Transactions and transmit Charge Transaction Data under this Agreement as a result of any change or modification to any Bank System or as a result of any requirement of Applicable Law applicable to the Bank, [****].
8.3 In-Store Payments. The physical store Company Channels shall be permitted to accept In-Store Payments from Cardholders on their Accounts in accordance with the Operating Procedures, the Risk Management Policies and any procedures required under Applicable Law. The Bank hereby grants to each of the Company and any Retail Merchant who can accept In-Store Payments a limited power of attorney (coupled with an interest) to sign and endorse the Bank’s name upon any form of payment that may have been issued in the Bank’s name in respect of any Account. The Operating Procedures shall set forth the manner in which such In-Store Payments shall be processed (it being understood that such procedures shall provide for credit toward the applicable open-to-buy limits of the respective Account in accordance with Schedule 7.2). The Company shall notify the Bank upon receipt of In-Store Payments and the Company shall include the Charge Transaction Data related to such In-Store Payments in the Settlement File in respect of the day immediately following such receipt on the same basis as other Charge Transaction Data. The Company shall issue receipts for such payments in compliance with Applicable Law.
8.4 Settlement Procedures
. On [****], the Company will submit to the Bank no later than [****]. The Bank will initiate a wire transfer to the Company of immediately available funds to the Company’s designated settlement accounts by [****] an amount equal to [****]. If any [****], the Bank will process the Settlement File for payment [****]. The Company shall be responsible for allocating such payment amount to all Company Channels [****] (it being agreed that the Bank has no obligation to accept Charge Transaction Data directly from, or make payments to, any Person other than the Company).
8.5 The Bank’s Right to Charge Back. The Bank shall have the right to charge back to the Company the amount of the Charge Transaction Data paid by the Bank pursuant to Section 8.4 pursuant to the provisions set forth on Schedule 8.5. Notwithstanding anything herein, to the extent the Operating Procedures contain any policies, procedures or guidelines relating to chargebacks, such chargeback policies, procedures or guidelines shall be subject to the chargeback rights and limitations set forth in Section 8.5, Section 8.6 and Schedule 8.5. In the event of any conflict or inconsistency between any such chargeback policies, procedures or guidelines, on the one hand, and the provisions of Section 8.5, Section 8.6 and Schedule 8.5, on the other hand, Section 8.5, Section 8.6 and Schedule 8.5 shall control.
59
8.6 Exercise of Chargeback. If the Bank exercises its right of chargeback as set forth in Section 8.5, the Bank shall set off all amounts charged back against any sums due to the Company under this Agreement (first from the amount due to the Company pursuant to Section 8.4). If any such amount is not covered by the amount due to the Company pursuant to Section 8.4, only then may the Bank demand payment from the Company for the amount of such chargeback, solely to the extent not covered by the amount due to the Company pursuant to Section 8.4. In any event, the Bank shall not be permitted to recover a charge back in excess of the relevant Charge Transaction Data paid by the Bank pursuant to Section 8.4. In the event of a chargeback pursuant to this Article VIII, upon payment in full of the related amount by the Company, the Bank shall immediately assign to the Company, without any representation, warranty or recourse, (i) all right to payments of amounts charged back in connection with such Cardholder charge, and (ii) any security interest granted by the Company under Section 19.1. The Bank shall cooperate fully in any effort by the Company to collect the chargeback amount, including by executing and delivering any document necessary or useful to such collection efforts.
8.7 No Merchant Discount. Except as expressly provided otherwise in Section 4.7(c) and Schedule 4.7(c), none of the Company, its Affiliates or the Retail Merchants shall [****].
ARTICLE IX
PROGRAM ECONOMICS
PROGRAM ECONOMICS
9.1 Company Compensation.
(a) Payments. The Bank shall pay the Company the compensation set forth in Schedule 9.1 at such times as specified in such schedule. Such amounts shall be paid to the Company regardless of whether any amounts are disputed by the Bank or the Company. The Bank or the Company may invoke the dispute resolution procedures set forth herein following payment of the amounts set forth in the applicable settlement sheet.
(b) Other Payments. The Bank will make the other payments to the Company in the amounts set forth in Schedule 9.1 at such times as specified in such schedule.
(c) Form of Payment. All payments pursuant to this Section 9.1 shall be made by wire transfer of immediately available funds to an account designated in writing by the Company unless otherwise agreed upon by the Parties in writing.
9.2 The Bank’s Responsibility for Program Operation. Except as otherwise expressly specified in this Agreement, the Bank shall be responsible for all costs of operating the Program; provided, however, each Party shall bear its own costs and expenses in connection with fulfilling its obligations and exercising its rights hereunder unless otherwise provided herein.
60
9.3 [****].
9.4 [****].
ARTICLE X
INTELLECTUAL PROPERTY
INTELLECTUAL PROPERTY
10.1 Licensed Marks.
(a) Grant of License to Use the Company Licensed Marks. Subject to the terms and conditions of this Agreement, the Company hereby grants to the Bank a non-exclusive, royalty-free, non-transferable, non-sublicensable (except as set forth herein) right and license to use the Company Licensed Marks solely in connection with the creation, establishment, marketing and administration of, and the provision of services related to, the Program. All uses of the Company Licensed Marks shall require the prior written approval of the Company and shall be in accordance with this Agreement and any Trademark Style Guide or other rules as may be delivered by the Company to the Bank from time to time. To the extent the Bank delegates any of its rights or obligations hereunder to any authorized Affiliate and/or authorized Service Provider in accordance with the terms and conditions of this Agreement, the Bank may sublicense its rights in the Company Licensed Marks hereunder to such authorized Persons solely for purposes of facilitating such delegation; provided that such Person shall agree to comply with all of the terms and conditions of the use of the Company Licensed Marks hereunder (and shall designate the Company as a third party beneficiary of such agreement) and the Bank shall remain liable for such Person’s failure to so comply. Except as expressly set forth in this Section 10.1, the rights granted pursuant to this Section 10.1 are solely for use of the Bank and may not be sublicensed without the prior written approval of the Company.
(b) Grant of License to Use the Bank Licensed Marks. Subject to the terms and conditions of this Agreement, the Bank hereby grants to the Company a non-exclusive, royalty-free, non-transferable, non-sublicensable (except as set forth herein) right and license to use the Bank Licensed Marks solely in connection with the creation, establishment, marketing and administration of, and the provision of services related to, the Program. All uses of the Bank Licensed Marks shall require the prior written approval of the Bank and shall be in accordance with this Agreement and any Trademark Style Guide or other rules as may be delivered by the Bank to the Company from time to time. To the extent the Company delegates any of its rights or obligations hereunder to any authorized Affiliate and/or authorized third party, in accordance with the terms and conditions of this Agreement, the Company may sublicense its rights in the Bank Licensed Marks hereunder to such authorized Persons solely for purposes of facilitating such delegation; provided that such Person shall agree to comply with all of the terms and conditions of the use of the Bank Licensed Marks hereunder (and shall designate the Bank as a third party beneficiary of such agreement) and the Company shall remain liable for such Person’s failure to so comply. Except as expressly set forth in this Section 10.1, the rights granted pursuant to this Section 10.1 are solely for use of the Company and may not be sublicensed without the prior written approval of the Bank.
(c) New Marks. If the Company or any of its controlled Affiliates of Parent determines (whether or not such determination is publicly announced) to adopt a Trademark (other than the acquisition of any Trademark acquired in connection with any acquisition or
61
business combination governed by Article XIV, which shall not be subject to this Section 10.1(c)) other than a Company Licensed Trademark and the Company determines to issue in the United States a Credit Card bearing such Trademark (a “New Mark”), the Company shall promptly offer the Bank the exclusive right to issue in the United States a Credit Card bearing such New Mark, either as part of the Program or subject to such material legal and financial terms and conditions as may be proposed by the Bank reasonably and in good faith and set forth in a term sheet proposal. The Bank shall have not less than thirty (30) days from its receipt of such offer to consider the offer and give notice to the Company that the Bank wishes to negotiate a definitive agreement therefor (“Opt-in Notice”). If the Bank delivers an Opt-in Notice to the Company, then the Parties will negotiate in good faith for a period of up to sixty (60) days, and either amend this Agreement to incorporate the New Mark-branded Credit Cards or document and execute a new definitive agreement for such Credit Cards. If the Bank does not timely deliver an Opt-in Notice, or notifies the Company of its intention not to do so, or if the negotiations do not result in such an amendment or new definitive agreement, then the Company or any of its Affiliates may request proposals from Credit Card issuers other than the Bank or its Affiliates to offer or issue in the United States a Credit Card bearing the New Mark, but the Company may enter into an agreement for the offer or issuance of such a Credit Card only on terms that are no more favorable in the aggregate, with respect to economics, servicing and risk management, to such other issuer than the most favorable terms offered by the Bank to the Company.
10.2 Termination; Ownership; and Infringement.
(a) Termination of Licenses. The licenses granted in Section 10.1 shall terminate at the end of the Termination Period; provided that (i) if the purchase option under Section 17.2 is exercised (and the Company or its Nominated Purchaser thus owns the Program Assets) then such licenses shall continue for a six (6) month period following the Termination Period to the extent necessary for winding down the operation of the Program in a manner consistent with the terms of this Agreement and with past practice and (ii) if the purchase option is not exercised (and the Bank thus continues to own the Program Assets) then Section 17.4(c) shall govern the Bank’s use of the Company Licensed Marks. Upon the termination of the licenses granted in Section 10.1, all rights in the Company Licensed Marks and Bank Licensed Marks granted thereunder shall revert to the Company and the Bank, respectively, and each Party shall: (i) discontinue immediately all use of the Company Licensed Marks and Bank Licensed Marks (as applicable); and (ii) destroy all unused Company Credit Cards, Applications, Account Documentation, Solicitation Materials, periodic statements, materials, displays, advertising and sales literature and any other items or program collateral, in each case, bearing any of the Company Licensed Marks and Bank Licensed Marks. Notwithstanding anything herein, each Party shall have the right at all times after the Termination Period to use the other Party’s Trademarks (i) in a non-trademark or “fair use” manner (provided that such use does not convey or suggest or is not reasonably likely to suggest that the Parties are still participating in the Program) or as required by Applicable Law; or (ii) on any archival legal documents, business correspondence and similar items that are not consumer-facing.
(b) Ownership of the Licensed Marks. The Parties acknowledge that each Party shall retain exclusive ownership of its Trademarks. Neither Party shall contest nor take any other action which would adversely affect the other Party’s exclusive ownership of its trademarks or
62
the value, validity, reputation or goodwill associated therewith, and any and all goodwill arising from use of the Company Licensed Marks by the Bank or the Bank Licensed Marks by the Company shall inure to the benefit of the Company or the Bank, respectively. Nothing herein shall give the Parties any proprietary interest in or to the other Party’s Trademarks.
(c) Infringement by Third Parties. Each Party shall use reasonable efforts to notify the other Party in writing, promptly upon acquiring Knowledge of any infringing or unauthorized use of the other Party’s Trademarks that are being licensed under this Article X by any third party in the United States. If any of the trademarks licensed under this Article X is infringed, the owner of such Trademark has the sole right (but not the obligation) to prosecute same, and the other Party shall reasonably cooperate with and assist in such prosecution.
10.3 Intellectual Property.
(a) Each Party shall solely own all of its Intellectual Property (i) that existed as of the Effective Date and (ii) that it develops or creates independently of the other Party during the Term. Unless the Parties agree otherwise in writing, the Company shall solely own all Intellectual Property rights in any creation of or improvement to the look, feel, content, design and collateral aesthetics of the Company Credit Cards, Credit Card Documentation, the Program Website, Solicitation Materials and any other communications to Cardholders created by either Party, except for Bank Licensed Marks that appear on any of the foregoing. Unless the Parties agree otherwise in writing, each Party shall solely own all Intellectual Property relating to any software or other technology developed by it or its Affiliates or developed for it or its Affiliates at its direction or expense, to facilitate the Program and/or to fulfill its obligations, including all Intellectual Property relating to software and software modifications developed with the other Party’s assistance, in response to the other Party’s request, or to accommodate the other Party’s special requirements. Subject to the terms and conditions of this Agreement, each Party grants and agrees to grant to the other Party a non-exclusive, royalty-free, non-transferable, non-sublicensable (except as set forth herein) license to and under all other Intellectual Property (other than Trademarks, which are governed by Section 10.1) owned by such Party that is used in connection with the Program solely in connection with the creation, establishment, marketing and administration of, and the provision of services related to, the Program. To the extent the Parties delegate any of their rights or obligations hereunder to any authorized Affiliate and/or authorized third party or to the extent the services of an authorized third party are required in connection with the Parties’ participation in the Program, in accordance with the terms and conditions of this Agreement, the Parties may sublicense their rights to and under the other Party’s Intellectual Property to such authorized Person; provided that such Person shall agree to comply with all of the terms and conditions of this Section 10.3 (with the owner of the Intellectual Property a third party beneficiary of such agreement); provided, further, that the sublicensing Party shall remain liable for such Person’s failure to so comply. The licenses granted under this Section 10.3(a) shall terminate at the end of the Termination Period.
(b) Joint Intellectual Property. The Parties shall not develop or create any Intellectual Property that shall be deemed to be jointly owned unless they mutually agree in writing in advance that such Intellectual Property shall be jointly owned.
63
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS
REPRESENTATIONS, WARRANTIES AND COVENANTS
11.1 General Representations and Warranties of the Company. The Company makes the following representations and warranties to the Bank as of the Effective Date:
(a) Corporate Existence. The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; (ii) is duly licensed or qualified to do business and is in good standing as a foreign corporation in all jurisdictions in which the conduct of its business or the activities in which it is engaged makes such licensing or qualification necessary, except to the extent that its non-compliance would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; and (iii) has all necessary licenses, permits, consents or approvals from or by, and has made all necessary filings and registrations with, all Governmental Authorities having jurisdiction, to the extent required for the ownership, lease or conduct and operation of its business, except to the extent that the failure to obtain such licenses, permits, consents or approvals or to make such filings or registrations would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Authorization; Validity. The Company has all necessary corporate power and authority to (i) execute and enter into this Agreement, and (ii) perform the obligations required of the Company hereunder and the other documents, instruments and agreements relating to the Program and this Agreement executed by the Company pursuant hereto. The execution and delivery by the Company of this Agreement and all documents, instruments and agreements executed and delivered by the Company pursuant hereto, and the consummation by the Company of the transactions specified herein, have been duly and validly authorized and approved by all necessary corporate actions of the Company. This Agreement (i) has been duly executed and delivered by the Company, (ii) constitutes the valid and legally binding obligation of the Company, and (iii) is enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, receivership or other laws affecting the rights of creditors generally and by general equity principles including those respecting the availability of specific performance).
(c) Conflicts; Defaults; Etc. The execution, delivery and performance of this Agreement by the Company, its compliance with the terms hereof, and consummation of the transactions specified herein will not (i) conflict with, violate, result in the breach of, constitute an event which would, or with the lapse of time or action by a third party or both would, result in a default under, or accelerate the performance required by, the terms of any contract, instrument or agreement to which the Company or any of its Subsidiaries is a party or by which they are bound, or to which any of the assets of the Company or any of its Subsidiaries are subject; (ii) conflict with or violate the articles of incorporation or by-laws, or any other equivalent organizational document(s), of the Company or any of its Subsidiaries; (iii) breach or violate any Applicable Law or Applicable Order, in each case, applicable to the Company or any of its Subsidiaries; (iv) require the consent or approval of any other party to any contract, instrument or commitment to which the Company or any of its Subsidiaries is a Party or by which it is bound; or (v) require any filing with, notice to, consent or approval of, or any other action to be taken
64
with respect to, any Governmental Authority, except, in the cases of clauses (i) and (iii)-(v), for such conflicts, breaches, defaults, violations or failures to obtain such consents or approvals or make or obtain such filings, notices, consents and approvals as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) No Litigation. No action, claim, litigation, proceeding, arbitration or investigation is pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, at law, in equity or otherwise, by or before any Governmental Authority, which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(e) Compliance with Laws. Except to the extent that any of the following would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is in compliance with all requirements of Applicable Law relating to the Program Assets and neither the Company nor any of its Subsidiaries is subject to any order, directive or restriction of any kind issued by any Governmental Authority that restricts in any respect the Company’s ability to perform its obligations under the Program.
(f) The Company Licensed Marks. The Company has the right, power and authority to grant the rights to use the Company Licensed Marks expressly granted herein.
11.2 General Representations and Warranties of the Bank. The Bank hereby makes the following representations and warranties to the Company as of the Effective Date:
(a) Corporate Existence. The Bank (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and (ii) is duly licensed or qualified to do business and is in good standing as a foreign entity in all jurisdictions in which the conduct of its business or the activities in which it is engaged, or proposes to engage pursuant to this Agreement, makes such licensing or qualification necessary, except to the extent that its non-compliance would not reasonably be expected to have, individually or in the aggregate, a Bank Material Adverse Effect. The Bank has all necessary licenses, permits, consents or approvals from or by, and has made all necessary filings and registrations with, all Governmental Authorities having jurisdiction, to the extent required for the ownership, lease or conduct and operation of its business and the Program pursuant to this Agreement, except to the extent that the failure to obtain such licenses, permits, consents or approvals or to make such filings or registrations would not reasonably be expected to have, individually or in the aggregate, a Bank Material Adverse Effect upon the Bank, the Program, the Accounts, Cardholder Indebtedness or the Bank’s ability to perform its obligations under this Agreement.
(b) Authorization; Validity. The Bank has all necessary corporate or similar power and authority to (i) execute and enter into this Agreement, and (ii) perform the obligations required of the Bank hereunder and the other documents, instruments and agreements relating to the Program and this Agreement executed by the Bank pursuant hereto. The execution and delivery by the Bank of this Agreement and all documents, instruments and agreements executed and delivered by the Bank pursuant hereto, and the consummation by the Bank of the transactions specified herein, have been duly and validly authorized and approved by all necessary corporate or similar actions of the Bank. This Agreement (i) has been duly executed and delivered by the Bank, (ii) constitutes the valid and legally binding obligation of the Bank,
65
and (iii) is enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, receivership or other laws affecting the rights of creditors generally and by general equity principles including those respecting the availability of specific performance).
(c) Conflicts; Defaults; Etc. The execution, delivery and performance of this Agreement by the Bank, its compliance with the terms hereof, and the consummation of the transactions specified herein will not (i) conflict with, violate, result in the breach of, constitute an event which would, or with the lapse of time or action by a third party or both would, result in a default under, or accelerate the performance required by, the terms of any contract, instrument or agreement to which the Bank or any of its Subsidiaries is a party or by which they are bound, or to which any of the assets of the Bank or any of its Subsidiaries are subject; (ii) conflict with or violate the articles of incorporation or by-laws, or any other equivalent organizational document(s), of the Bank or any of its Subsidiaries; (iii) breach or violate any Applicable Law or Applicable Order, in each case, applicable to the Bank or any of its Subsidiaries; (iv) require the consent or approval of any other party to any contract, instrument or commitment to which the Bank or any of its Subsidiaries is a Party or by which it is bound; or (v) require any filing with, notice to, consent or approval of, or any other action to be taken with respect to, any Governmental Authority, except, in the cases of clauses (i) and (iii)-(v), for such conflicts, breaches, defaults, violations or failures to obtain such consents or approvals or make or obtain such filings, notices, consents and approvals as would not reasonably be expected to have, individually or in the aggregate, a Bank Material Adverse Effect.
(d) No Litigation. No action, claim, litigation, proceeding, arbitration or investigation is pending or, to the Knowledge of the Bank, threatened against the Bank or any of its Subsidiaries, at law, in equity or otherwise, by or before any Governmental Authority, which would reasonably be expected to have, individually or in the aggregate, a Bank Material Adverse Effect.
(e) Compliance with Laws.
(i) Except to the extent that any of the following would not reasonably be expected to have, individually or in the aggregate, a Bank Material Adverse Effect,
(A) the Bank and its Subsidiaries are in compliance with all requirements of Applicable Law relating to its Credit Card business; and
(B) neither the Bank nor any of its Subsidiaries is subject to any capital plan or supervisory agreement, cease-and-desist or similar order or directive or memorandum of understanding between it and any Governmental Authority with authority over the Bank or issued by any such Governmental Authority, nor has any of them adopted any board resolutions at the request of any such Governmental Authority.
(ii) Neither the Bank nor any of its Subsidiaries is subject to any order, directive or restriction of any kind issued by any Governmental Authority that restricts in any respect its operation of its Credit Card business; and the Bank is not aware of any fact
66
or circumstance that would in any way delay or impede its ability to perform all of its obligations under the Program.
(f) Servicing Qualifications. The Bank is licensed and qualified in all jurisdictions necessary to service the Accounts in accordance with all Applicable Laws, except where the failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Bank Material Adverse Effect.
(g) Bank Licensed Marks. The Bank has the right, power and authority to grant the rights to use the Bank Licensed Marks expressly granted herein.
(h) FDIC Insurance. The Bank’s deposit accounts are insured by the FDIC to the fullest extent permitted by Applicable Law, and to the Knowledge of the Bank, no proceeding is contemplated to revoke such insurance.
11.3 No other Representations or Warranties. Except as expressly set forth in Sections 11.1 and 11.2, neither the Bank nor the Company has made or makes any other express or implied representations, or any express or implied warranty.
11.4 General Covenants of the Company.
(a) Litigation. The Company shall notify the Bank in writing if it receives written notice of any litigation, investigation or other claim pending or, to the Knowledge of the Company, threatened before any Governmental Authority to which the Company or any of its Subsidiaries is party that, if adversely determined, would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Reports and Notices. The Company shall provide the Bank with a notice specifying the nature of any Company Event of Default, or any event which, with the giving of notice or passage of time or both, would constitute a Company Event of Default, or any development or other information with respect to the Company or its Subsidiaries which is likely to have a Company Material Adverse Effect. Notices pursuant to this Section 11.4(b) relating to Company Events of Default shall be provided within two (2) Business Days after the Company has Knowledge of the existence of such default. Notices relating to all other events or developments described in this Section 11.4(b) shall be provided promptly after the Company has Knowledge of the existence of such event or development. A failure to provide any required notice pursuant to this Section 11.4(b) shall not be considered a separate or independent Company Event of Default.
(c) Applicable Law/Operating Procedures. The Company shall at all times during the Term and continuing until the end of the Termination Period (A) comply in all material respects with Applicable Law affecting its rights and obligations under this Agreement and be responsible for compliance with Applicable Law of any aspect of the Program that was imposed by the Company on the Bank in accordance with the Company’s breaking of a deadlock with respect to any element of operations because such element of operations was an Unapproved Matter that was a Company Matter, and (B) comply in all material respects with its obligations pursuant to the Operating Procedures. Except as otherwise provided herein, the Company shall retain any applicable liability for compliance with law pertaining to its business as a retailer (including laws with respect to the sale of illegal Goods and Services and state laws designed to prevent unlawful
67
gambling). Notwithstanding the foregoing, the Company shall have no liability hereunder for a failure to comply with requirements of Applicable Law related to the Credit Cards or Accounts or their solicitation, associated documentation or servicing or maintenance if the Bank is required to, but has not notified the Company of such requirement of Applicable Law.
(d) Disputes with Cardholders. The Company shall reasonably cooperate with the Bank in a timely manner (but in no event less promptly than required by Applicable Law) to attempt to resolve all disputes with Cardholders. If the Company receives a Cardholder complaint regarding the Cardholder’s Account or Company Credit Card, the payment for any Goods and Services or Ancillary Products purchased with a Company Credit Card or otherwise financed on an Account, any of the Payment Plans, or the Value Proposition, the Company shall refer such complaint to the Bank in accordance with the Operating Procedures.
11.5 General Covenants of the Bank.
(a) Litigation. The Bank shall notify the Company in writing if it receives written notice of any (i) litigation, investigation or other claim pending or, to the Knowledge of the Bank, threatened before any Governmental Authority to which the Bank or any of its Subsidiaries is party that, if adversely determined, would reasonably be expected to have, individually or in the aggregate, a Bank Material Adverse Effect or (ii) any action, order or directive by or agreement with a Governmental Authority that the Bank is permitted to disclose under Applicable Law and that has had or would reasonably be expected to have a Bank Material Adverse Effect. The Bank shall use commercially reasonable efforts to obtain permission to make any such disclosure.
(b) Reports and Notices. The Bank shall provide the Company with a written notice specifying the nature of any Bank Event of Default, or any event which, with the giving of notice or passage of time or both, would constitute a Bank Event of Default, or any development or other information which is likely to have a Bank Material Adverse Effect. Notice pursuant to this Section 11.5(b) relating to Bank Events of Default shall be provided within two (2) Business Days after the Bank has Knowledge of the existence of such default. Notices relating to all other events or developments described in this Section 11.5(b) shall be provided promptly after the Bank obtains Knowledge of the existence of such event or development.
(c) Applicable Law/Operating Procedures.
(i) The Bank shall at all times during the Term and continuing until the end of the Termination Period (A) comply in all material respects with Applicable Law affecting its rights and obligations under this Agreement, (B) comply in all material respects with the Risk Management Policies, Collections Policies and Operating Procedures and (C) ensure that the operation of the Program does not contravene or conflict with Applicable Law or the rights of third parties; provided that the Bank shall have no responsibility for the compliance of the Program with Applicable Law with respect to, and no liability for, any element of such operations that was imposed by the Company on the Bank in accordance with the Company’s breaking of a deadlock with respect to such element of operations because such element of operations was an Unapproved Matter that was a Company Matter.
68
(ii) The Bank shall provide the Company with reasonable advance notice of any changes in Applicable Law that would apply to the Company as a result of its participation in the Program (or if advance notice is not practicable, the Bank shall give such notice as soon as practicable, and in such event the Company shall not be responsible for complying with such changes unless and until a reasonable time after receipt of such notice so as to permit the Company to achieve such compliance); provided, however that in no event shall the Company be relieved of its indemnification obligations set forth in subsection (i) of Section 18.1(g).
(d) Books and Records. The Bank shall keep adequate records and books of account with respect to the Accounts and Cardholder Indebtedness in which proper entries, reflecting all of the Bank’s financial transactions relating to the Program, are made in accordance with GAAP and the requirements of this Agreement. The Bank shall keep adequate records and books of account with respect to its activities, in which proper entries reflecting all of the Bank’s financial transactions are made in accordance with GAAP. All of the Bank’s records, files and books of account shall be in all material respects complete and correct and shall be maintained in accordance with good business practice and Applicable Law.
(e) Servicing Qualifications. The Bank shall at all times during the Term and continuing until the end of the Termination Period remain licensed and qualified in all jurisdictions necessary to service the Accounts in accordance with all Applicable Laws, except where the failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Bank Material Adverse Effect.
(f) Conflicts of Interest. The Bank shall establish and maintain appropriate business standards, procedures and controls designed to ensure that the Bank shall perform and conduct its operations in a manner consistent with the Program Objectives and in such a way as not to disparage or embarrass or otherwise adversely affect the Company and its Affiliates.
(g) Charter and FDIC Insurance. The Bank shall at all times maintain its state banking charter; provided that, in the event that the Bank converts or changes its charter to a federal banking charter or to another state banking charter, the Bank shall be responsible for all of the costs of changing any credit card collateral relating to such conversion or change. The Bank shall ensure that its deposit accounts, if any, are insured by the FDIC to the fullest extent permitted under law.
(h) Disputes with Cardholders. The Bank shall cooperate with the Company in a timely manner (but in no event less promptly than required by Applicable Law) to resolve all disputes with Cardholders. If the Bank receives a Cardholder complaint regarding Goods and Services (and not relating to the use of the Cardholder’s Account or Company Credit Card to purchase such Goods and Services), or the Value Proposition, the Bank shall refer such complaint to the Company in accordance with the Operating Procedures and Section 7.2(i).
(i) Special Conditions. In the event that any Special Condition applicable to the Bank or any of its Affiliates results in the Company being required to incur out-of-pocket costs or expenses to ensure that the Program remains in compliance with Applicable Law, the same shall be reimbursed by the Bank.
69
ARTICLE XII
ACCESS AND AUDIT
ACCESS AND AUDIT
12.1 Access to Facilities, Books and Records. Each party shall permit the other party to visit its facilities related to the Program during normal business hours with reasonable advance notice. Each Party shall also permit the other Party and its Representatives to review copies of the books and records relating to the Program for reasonable purposes relating to the Program; provided that neither Party shall be required to provide access to records to the extent that (a) such access is prohibited by Applicable Law, (b) such records are legally privileged, or (c) such records relate to [****]. For the avoidance of doubt, the Company authorizes the Bank to [****] shall be reviewed with the Operating Committee.
12.2 Audit Rights
. [****] such Party, [****], may conduct (or cause a third party experienced in auditing Credit Card programs to conduct) an audit to determine whether such other Party is in compliance with all of its obligations pursuant to this Agreement. Such audit shall be conducted during [****] in accordance with generally accepted auditing standards and the auditing Party shall employ such reasonable procedures and methods as necessary and appropriate in the circumstances, minimizing interference to the extent practicable with the audited Party’s normal business operations. The audited Party shall [****] facilitate the auditing Party’s review, including [****] to assist the auditing Party and its Representatives as [****]. The audited Party shall deliver any document or instrument necessary for the auditing Party to obtain such records from any Person maintaining records for the audited Party and shall maintain records pursuant to its regular record retention policies. For purposes of this provision, the audited Party also shall [****]. Notwithstanding the generality of the foregoing, the audited Party shall not be required to provide access to records to the extent that (a) such access is prohibited by Applicable Law, (b) such records are legally privileged, (c) such records are [****].
12.3 Relevant Laws Compliance. The Parties acknowledge that: (a) each of Signet Jewelers Limited’s (“Parent”) management and the Bank’s management is now and/or in the future may be required under the Sarbanes-Oxley Act of 2002 and related regulations and (solely with respect to the Bank) the Federal Deposit Insurance Corporation Improvement Act of 1991 and related regulations (collectively, the “Relevant Laws”) to, among other things, assess the effectiveness of its respective internal controls over financial reporting and state in its report whether such internal controls are effective; (b) the independent auditors of Parent and the Bank are now and/or in the future may be required to evaluate the process used by management to make such assessment to determine whether that process provides an appropriate basis for management’s conclusions; and (c) because the Parties have entered into a significant transaction with each other as described in this Agreement, the controls used by the Parties (including, without limitation, controls that restrict unauthorized access to systems, data and programs) are relevant to Parent’s and the Bank’s evaluation of its internal controls. Having acknowledged the foregoing, and subject to the terms of this Section, each Party agrees to cooperate with Parent and the Bank, and their respective independent auditors as reasonably necessary to facilitate Parent’s and the Bank’s ability to comply with its obligations under the Relevant Laws including,
70
without limiting the generality of the foregoing, by complying with the further terms of this Section 12.3.
12.4 Governmental Authority Supervision. Each Party agrees to allow any Governmental Authority asserting supervisory authority over the other Party or such Party’s Affiliates to inspect, audit, and examine its facilities, systems, records and personnel relating to the Program and to use commercially reasonable efforts to allow any Governmental Authority asserting supervisory authority over such Party’s Service Providers to inspect, audit, and examine the facilities, systems, records and personnel relating to the Program. Each Party shall, to the extent possible and as permitted by Applicable Law or the applicable Governmental Authority, provide the other Party with reasonable advance notice of any such inspection, audit or examination. Each Party acknowledges that Governmental Authorities (or their respective representatives) have the right to (a) exercise directly the audit rights granted to the other Party under this Agreement; (b) accompany the other Party (or its representatives) when it exercises its inspection rights under this Agreement; (c) access and make copies of all internal audit reports (and associated working papers and recommendations) prepared by or for the Party or the Program; and (d) access any findings in the external audit of the Party (and associated working papers and recommendations) prepared by or for the Party that relate to the Program, subject to the consent of its external auditor.
ARTICLE XIII
CONFIDENTIALITY
CONFIDENTIALITY
13.1 General Confidentiality.
(a) For purposes of this Agreement, “Confidential Information” means any of the following: (i) nonpublic information that is provided by or on behalf of either the Company or the Bank to the other Party or its Representatives or Service Providers in connection with the Program (including information provided prior to the date hereof or the Effective Date); (ii) nonpublic information about the Company or the Bank or their Affiliates, or their respective businesses or employees, that is otherwise obtained by or on behalf of the other Party in connection with the Program, in each case including: (A) information concerning marketing plans, objectives and financial results, business systems, methods, processes, know-how, financing data, programs and products and Value Proposition terms and features and tests thereof; (B) information regarding any products offered or proposed to be offered under the Program or the manner of offering of any such products; (C) information unrelated to the Program obtained by the Company or the Bank in connection with this Agreement, including by accessing or being present at the business location of the other Party; and (D) non-public Intellectual Property such as proprietary technical information and source code developed in connection with the Program; (iii) the terms and conditions of this Agreement; and (iv) the Marketing Plan. The provisions of this Article XIII governing Confidential Information shall not govern Cardholder Data or Shopper Data, which shall be governed by the provisions of Article VI.
(b) The restrictions on disclosure of Confidential Information under this Article XIII shall not apply to information received or obtained by the Company or the Bank, as the case may be, that: (i) is or becomes generally available to the public other than as a result of disclosure in breach of this Agreement or any other confidentiality obligations; (ii) is lawfully received on a
71
non-confidential basis from a third party authorized to disclose such information without restriction and without breach of this Agreement; (iii) is required to be publicly disclosed by Applicable Law or applicable stock exchange rules; provided that the Party subject to such Applicable Law or applicable stock exchange rules shall consult with the other Party with respect to such filing or disclosure; and provided, further, that such information shall be disclosed only to the extent required by such Applicable Law and shall otherwise remain Confidential Information; or (iv) is developed by the Company or the Bank, as the case may be, without the use or knowledge of any proprietary, non-public information provided by the other Party under, or otherwise made available to such Party as a result of, this Agreement. Nothing herein shall be construed to permit the Receiving Party (as defined below) to disclose to any third party any Confidential Information that the Receiving Party is required to keep confidential under Applicable Law.
(c) The terms and conditions of this Agreement and the Marketing Plan and all of the items referred to in clauses (A) through (B) of Section 13.1(a) shall each be the Confidential Information of the Company and the Bank and each of the Parties to this Agreement shall be deemed to be a Receiving Party of each of them.
(d) If the Company, on the one hand, or the Bank, on the other hand, receives Confidential Information of the other Party (“Receiving Party”), the Receiving Party shall do the following with respect to the Confidential Information of the other Party (“Disclosing Party”): (i) keep the Confidential Information of the Disclosing Party confidential in accordance with the nondisclosure requirements of this Agreement; (ii) treat all Confidential Information of the Disclosing Party with the same degree of care as it accords its own Confidential Information, but in no event less than a reasonable degree of care; and (iii) implement and maintain commercially reasonable physical, electronic, administrative and procedural security measures, including commercially reasonable authentication, access controls, virus protection and intrusion detection practices and procedures, to protect such Confidential Information.
13.2 Use and Disclosure of Confidential Information.
(a) Each Receiving Party shall use and disclose the Confidential Information of the Disclosing Party only for the purpose of performing its obligations or enforcing its rights with respect to the Program or as otherwise expressly permitted by this Agreement, and shall not accumulate in any way or make use of such Confidential Information for any other purpose; provided that, subject to Section 17.2(e), notwithstanding any other provision hereof, the Parties may not disclose the terms of this Agreement in the exercise of their rights under Section 2.2(a), Section 2.2(b), other than the terms relating to the processing of Prequalification Requests, or in connection with the exercise of their rights under Article XIV or Article XVII.
(b) Each Receiving Party shall: (i) limit access to the Disclosing Party’s Confidential Information to those Representatives, service providers, the Waterfall Option providers (to the extent approved by the Bank pursuant to Section 2.4) or vendors, prospective purchasers (and their respective Representatives) who have a reasonable need to access such Confidential Information, in connection with the Program, a potential sale of Program Assets or any assets of the Company and its Affiliates, a potential merger, consolidation, acquisition or other transaction or financing arrangement involving the Company and its Affiliates, or pursuant to the Company’s exercise of its purchase option hereunder or implementation or operation of the
72
Waterfall Option, in each case in accordance with the terms of this Agreement, (ii) ensure that any Person with access to the Disclosing Party’s Confidential Information agrees to be bound by a confidentiality agreement consistent with the restrictions set forth in this Article XIII and (iii) be liable to the Disclosing Party for any unauthorized use of or access to its Confidential Information by any of the above persons.
(c) The Bank shall not share or allow access to information about Program marketing strategy, acquisition strategy, Company Credit Card usage, and use of Systems that is unique to the Program and that does not include general expertise or know-how with Bank employees who are dedicated to, or spend a majority of their time in respect of, any Relevant Retail Program.
13.3 Unauthorized Use or Disclosure of Confidential Information. Each Receiving Party agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party will cause immediate and irreparable harm to the Disclosing Party for which money damages will not constitute an adequate remedy. In that event, the Receiving Party agrees that equitable or injunctive relief (including specific performance) may be warranted in addition to any other remedies the Disclosing Party may have. In addition, the Receiving Party agrees promptly to advise the Disclosing Party by telephone and in writing of any unauthorized disclosure or use of the Confidential Information of the Disclosing Party by the Receiving Party or any Person to whom the Receiving Party shall have disclosed such information which may come to the Receiving Party’s attention, and to take all steps at the Receiving Party’s expense reasonably requested by the Disclosing Party to remedy same.
13.4 Return or Destruction of Confidential Information. Following the end of the Termination Period (or the interim servicing period pursuant to Section 17.2(h) to the extent sharing of Confidential Information continues during the Termination Period in accordance with this Agreement), the Receiving Party shall cease using and promptly, at Receiving Party’s option, return to Disclosing Party or arrange for the destruction of any and all of the Disclosing Party’s Confidential Information in any media (including any electronic or paper copies, reproductions, extracts or summaries thereof); provided, however, the Receiving Party in possession of tangible property containing the Disclosing Party’s Confidential Information may retain, subject to the terms of this Agreement, (a) Confidential Information (i) that a Receiving Party, its Service Providers or their respective Representatives are required to retain by Applicable Law or documented, internal retention policies, or (ii) that are automatically retained as part of a computer back-up, recovery or similar archival or disaster recovery system or form; provided, such copies are not intentionally accessed except where required or requested by Applicable Law or where disclosure is otherwise permitted under this Agreement, or (b) that a Receiving Party’s or its Service Providers’ Representatives that are accounting firms retain in accordance with policies and procedures implemented by such persons in order to comply with Applicable Law or professional rules or standards. Such return or destruction shall be certified in writing, including a statement that no copies of Confidential Information have been kept, except as provided herein.
73
ARTICLE XIV
RETAIL PORTFOLIO ACQUISITIONS AND DISPOSITIONS
RETAIL PORTFOLIO ACQUISITIONS AND DISPOSITIONS
14.1 Retailer that Operates a Credit Card Business. If the Company or any of its Subsidiaries acquires, is acquired by, or otherwise combines with (including by merger, consolidation or other business combination) a retailer that directly or through an Affiliate or unaffiliated Person issues a Credit Card in the United States and following such acquisition such Credit Card will bear a Company Licensed Mark (such Credit Card accounts, the “New Portfolio”), then without limiting any termination rights the Company may have in connection with such transaction, the Company shall comply with this Article XIV in connection therewith. The Company shall notify the Bank of such transaction as soon as practicable, which may, in the Company’s sole discretion, be prior to or after the Company’s purchase of such retailer, and the following shall apply:
(a) Retailer that Operates a New Portfolio. If the acquired retailer owns and operates the New Portfolio itself or through an Affiliate, the Company may, in its discretion, continue to operate the New Portfolio. If the Company determines, in its discretion, to use a third-party issuer to serve as the issuer for the New Portfolio, the Company shall [****].
(b) Retailer that has a New Portfolio with another Issuer. If the New Portfolio is issued through an unaffiliated Person (other than the Bank or any of its Affiliates) (such unaffiliated Person the “Acquired Portfolio Issuer”), the following shall apply:
(i) [****].
(ii) If the Acquired Portfolio Program Agreement is terminable in accordance with its terms, then the following shall apply:
[****].
(c) Retailer that has a New Portfolio with the Bank. If the Company or any of its Subsidiaries acquires a New Portfolio issued by the Bank, [****].
(d) Nothing in this Section 14.1 shall require the Company to breach, or cause a breach of, the terms of any existing agreement relating to such acquired retailer, program or New Portfolio.
(e) If the Company does not sell such New Portfolio to the [****].
14.2 Conversion of Purchased Accounts.
(a) If the Bank acquires any Credit Card portfolio pursuant to Section 14.1(a) or Section 14.1(b) or if the Company elects to integrate any such acquired portfolio pursuant to Section 14.1(c), [****].
(b) Each Party shall [****], unless the Parties otherwise agree to modify such terms and conditions.
(c) [****].
74
14.3 No Other Company Obligations. Except as set forth in this Article XIV, the Company shall have no obligation to include in the Program any Credit Card portfolios acquired in connection with any merger, consolidation, acquisition or other transaction or otherwise cause them to be transferred to the Bank. Except to the extent included in the Program in accordance with this Article XIV, an acquired portfolio may be operated free of the exclusivity restrictions set forth in this Agreement, including, for the avoidance of doubt, if the Company acquires, whether by purchase or otherwise, another retailer with a consumer Credit Card program that the Company does not seek to re-brand with a Company Licensed Mark.
14.4 Retail Portfolio Dispositions. Nothing in this Agreement shall be deemed to require the Company to maintain any Company Channel, in whole or in part, or prevent the Company from ceasing to operate any Company Channel, in whole or in part. In the event that the Company arranges for the disposition of any group of retail establishments that are separately identifiable (e.g., a retail establishment representing a particular geographical location, branding strategy, product type or other separately identifiable feature) or any Company Channel other than its physical store channel, the Company may [****].
ARTICLE XV
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
15.1 Events of Default.
The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an Event of Default by a Party hereunder:
(a) Such Party shall fail to make a payment of any amount due and payable pursuant to this Agreement (other than the settlement of amounts due in respect of Charge Transaction Data addressed in Section 15.2(a) below) and such failure shall remain unremedied for a period of three (3) Business Days after the non-defaulting Party shall have given written notice thereof.
(b) Except with respect to noncompliance with Sections 4.6(d), and 7.3 (which are addressed in Schedule 4.6(d) and 16.2(k), respectively), such Party shall fail to perform, satisfy or comply with any material obligation, condition, covenant or other provision contained in this Agreement, and such failure shall remain unremedied for a period of thirty (30) days after the dispute resolution process in Section 3.2(d)(ii)(D) is exhausted without resolution (provided that the other Party shall have first given written notice of such failure specifying the nature of such failure in reasonable detail), provided that, if such failure cannot be cured in a commercially reasonable manner within such time, such failure shall not constitute an Event of Default if the defaulting Party shall have initiated and diligently pursued a cure within such time and such cure is completed within ninety (90) days from the date the dispute resolution process in Section 3.2(d)(ii)(D) is exhausted without resolution.
(c) Any representation or warranty by such Party contained in this Agreement shall not be true and correct in any respect as of the date when made, and the Party making such representation or warranty shall fail to cure the event giving rise to such breach within thirty (30) days after the other Party shall have given written notice thereof specifying the nature of such breach in reasonable detail, provided that, if such failure cannot be cured in a commercially reasonable manner within such time, such breach shall not constitute an Event of Default if the
75
defaulting Party shall have initiated a cure within such time and such cure is completed within ninety (90) days from the date of written notice regarding such breach.
15.2 Defaults by the Bank. The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an event of default by the Bank hereunder:
(a) The Bank fails to settle Charge Transaction Data and make payment in full therefor within two (2) Business Days of the time that such settlement payment is due pursuant to Section 8.4.
(b) The Bank shall no longer be solvent or shall fail generally to pay its debts as they become due.
(c) Any regulatory authority having jurisdiction over the Bank shall order the appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of the Bank or of any substantial part of its properties, or order the winding-up or liquidation of the affairs of the Bank.
(d) Either (i) the Bank shall (A) consent to the institution of proceedings specified in paragraph (c) above or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of such entity or of any substantial part of its properties, or (B) take corporate or similar action in furtherance of any such action; or (ii) a decree or order by a court having jurisdiction (1) for relief in respect of the Bank pursuant to the Bankruptcy Code or any other applicable bankruptcy or other similar law, (2) for appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of the Bank or of any substantial part of its properties, or (3) ordering the winding-up or liquidation of the affairs of the Bank shall, in any such case, be entered, and shall not be vacated, discharged, stayed or bonded within sixty (60) days from the date of entry thereof.
(e) [****].
15.3 Defaults by the Company. The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an event of default by the Company hereunder:
(a) The Company shall no longer be solvent or shall fail generally to pay its debts as they become due.
(b) A petition under the Bankruptcy Code or similar law shall be filed against the Company and not be dismissed within sixty (60) days.
(c) A decree or order by a court having jurisdiction (i) for relief in respect of the Company pursuant to the Bankruptcy Code or any other applicable bankruptcy or other similar law, (ii) for appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of the Company or of any substantial part of its properties, or (iii) ordering the winding-up or liquidation of the affairs of the Company shall, in any such case, be entered, and shall not be vacated, discharged, stayed or bonded within sixty (60) days from the date of entry thereof.
76
(d) The Company shall (i) file a petition seeking relief pursuant to the Bankruptcy Code or any other applicable bankruptcy or other similar law, (ii) consent to the institution of proceedings pursuant thereto or to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) of the Company or any substantial part of its properties, or (iii) take corporate or similar action in furtherance of any such action.
15.4 Remedies for Events of Default.
(a) In addition to any other rights or remedies available to the Parties at law or in equity, upon the occurrence of a Company Event of Default or a Bank Event of Default, the non-defaulting Party shall be entitled, in addition to its termination rights under Article XVI, to collect from the defaulting Party any amount indisputably in default plus interest based on the Prime Rate.
ARTICLE XVI
TERM/TERMINATION
TERM/TERMINATION
16.1 Term. This Agreement shall continue in full force and effect until December 31, 2035 (the “Initial Term”) unless earlier terminated as provided herein. The Parties may mutually agree to renew the Agreement following the Initial Term for successive two (2) year terms; provided that the Parties shall agree to such renewal one (1) year prior to the end of the Term (each, a “Renewal Term”). If the Parties fail to agree to any such Renewal Term, the Agreement shall expire at the end of the Term.
16.2 Termination by the Company Prior to the End of the Initial Term or a Renewal Term. In addition to the other termination rights expressly provided for pursuant to other Sections of this Agreement, the Company may terminate this Agreement upon written notice prior to the end of the Initial Term or any Renewal Term:
(a) upon written notice upon the occurrence of a Bank Event of Default;
(b) [****];
(c) [****];
(d) [****];
(e) upon notice if the Bank shall fail to perform, satisfy or comply with any obligation, condition, covenant or other provision contained in this Agreement for a period of not less than thirty (30) days due to a Force Majeure Event and such failure shall either have a Bank Material Adverse Effect or materially diminish the benefits of the Program to the Company;
(f) [****];
(g) [****];
(h) [****];
(i) [****];
77
(j) [****];
(k) [****]; and
(l) [****].
16.3 Termination by the Bank Prior to the End of the Initial Term or a Renewal Term
. The Bank may terminate this Agreement upon written notice prior to the end of the Initial Term or any Renewal Term (i) after the occurrence of a Company Event of Default, or (ii) if the Company shall fail to perform, satisfy or comply with any obligation, condition, covenant or other provision contained in this Agreement for a period of not less than thirty (30) days due to a Force Majeure Event and such failure shall either have a Company Material Adverse Effect or materially diminish the benefits of the Program to the Bank. [****].
ARTICLE XVII
EFFECTS OF TERMINATION
EFFECTS OF TERMINATION
17.1 General Effects.
(a) In the event of a notice of termination or non-renewal of this Agreement, [****]; provided that the obligations of the Company and its Affiliates in Section 2.2 shall cease to be of any further force and effect if at any time following notice of termination or non-renewal of this Agreement by either Party, the Bank ceases to accept Credit Card Applications or extend credit under the Credit Cards or comply with Section 4.6 in connection with the Accounts. [****].
(b) [****], all obligations of the Parties under this Agreement shall cease, except that the provisions specified in Section 19.22 shall survive.
17.2 The Company’s Option to Purchase the Program Assets.
(a) If this Agreement expires or is terminated by either Party for whatever reason, the Company, directly or through an Affiliate, has the option to purchase, or arrange the purchase by a third party nominated by the Company (a “Nominated Purchaser”), of the Program Assets from the Bank on customary terms and conditions; provided, however, that in all cases, the purchase price of the Program Assets shall be the greater of (i) Fair Market Value determined in accordance with Section 17.2(d) and Section 17.3 or (ii) the par value of the Accounts and Cardholder Indebtedness to be purchased on the Program Purchase Date.
(b) The purchase option is exercisable by the Company serving notice (the “Purchase Notice”) by the later of [****].
(c) If the Company exercises its purchase option, then [****]. The date on which both the consummation of the transactions contemplated by the purchase and sale agreement and the conversion of the Program Assets are completed shall be the “Program Purchase Date.” [****].
(d) If this Agreement is terminated by either Party, the purchase price for the Program Assets purchased, payable on the Program Purchase Date, shall be equal to the Fair Market
78
Value of the Accounts and Cardholder Indebtedness determined in accordance with Section 17.3; provided that if this Agreement is terminated by the Company pursuant to Section 16.2(b), then the purchase price so payable shall be the greater of the Fair Market Value and the par value of the Accounts and Cardholder Indebtedness to be purchased on the Program Purchase Date.
(e) The Parties will use commercially reasonable efforts to minimize transition costs. Following the provision by either Party of notice of termination or non-renewal of this Agreement or the occurrence of an event that gives rise to a right of termination, or at any time during [****], the Bank shall provide (i) the Company and its prospective or actual Nominated Purchasers with Program-related data of the type [****], (ii) the Company and its prospective or actual Nominated Purchasers access to information relating to the Program Assets and the performance of the Program, including, [****].
(f) Each Party shall be responsible for [****].
(g) After the Program Purchase Date, the Bank shall have no further rights in or to any Cardholder Data. If the purchase option is not exercised, following the end of the Termination Period, subject to the Bank’s rights in Section 17.4, in no event shall the Bank solicit any Cardholder for any loan, product or service on the basis of such Person’s status as a Cardholder or any other information obtained in connection with the Program without the Company’s prior consent.
(h) If the Company exercises its right to purchase, or to select a Nominated Purchaser to purchase, the Program Assets, [****].
(i) Existing Receivables.
(i) Except as provided in this Section, the Existing Receivables may not be purchased by the Company or the Nominated Purchaser.
(ii) The Company or the Nominated Purchaser may elect to exercise the Clean Up Call Option with the exercise of the right to purchase the other Program Assets. If the Company or the Nominated Purchaser elects to exercise the Clean Up Call Option pursuant to this Section, then the purchase price thereof shall be the same as for the other Program Assets, as set forth in Section 17.2(d).
17.3 Fair Market Value. Upon receipt of the Purchase Notice, if applicable, the Parties shall enter into good faith negotiations to determine the Fair Market Value of the Accounts and Cardholder Indebtedness for a period of thirty (30) days based on (i) the assumption that the Company (or its successor) will continue to be a going concern as a retailer and (ii) the additional assumptions set forth in Schedule 17.3. In the event that the Parties do not reach agreement on the Fair Market Value of the Accounts and Cardholder Indebtedness during such period, the Bank and the Company (or its Nominated Purchaser, if applicable) shall each retain, at their own cost, an Independent Appraiser who together shall select a third Independent Appraiser. The Bank and the Company (or its Nominated Purchaser, if applicable) shall each pay fifty percent (50%) of the costs associated with the third Independent Appraiser. The Parties shall provide such information to the Independent Appraisers as is necessary to permit each of the Independent
79
Appraisers to provide a valuation of the Accounts and Cardholder Indebtedness; provided, however, that the information provided to all Independent Appraisers shall be identical and there shall be no ex parte communication between a Party and an Independent Appraiser. Such appraisals shall be performed on the basis of the assumptions set forth in Schedule 17.3. The Fair Market Value shall be the average of the two (2) closest valuations received from the Independent Appraisers; provided, however, if the median valuation is within plus or minus twenty (20%) of the mean of the three (3) valuations, the Fair Market Value shall be the mean. The Fair Market Value determined in accordance with this Section 17.3 shall be final and binding on the Parties and enforceable in any court having jurisdiction pursuant to this Agreement. None of the Independent Appraisers can be compensated based on the outcome of their appraisal or the outcome of the Fair Market Value process.
17.4 Rights of the Bank if Purchase Option Not Exercised.
(a) If this Agreement expires or is terminated and the Company gives written notice that the Company shall not exercise its option referred to in Section 17.2 or otherwise fails to exercise its option within the time period specified in Section 17.2, the Company shall have no further rights whatsoever in the Program Assets. In such event, the Bank shall have the right on or after the expiration or termination of this Agreement to:
(i) [****];
(ii) subject to Applicable Law, notify Cardholders that the Bank shall cease providing credit under the Accounts and require repayment of all amounts outstanding on all Accounts until all associated receivables have been repaid and, solely for identification purposes, use the Company’s name (but not stylized mark) in connection with liquidating the remaining Accounts until the last Account is liquidated; provided that the foregoing use is subject to the terms and conditions of this Agreement;
(iii) [****]; or
(iv) any combination of (i), (ii), and (iii).
(b) [****].
(c) The Company hereby grants and agrees to grant to the Bank a non-exclusive, royalty-free, non-transferable, non-sublicensable license to use the Company Licensed Marks (i) for up to one hundred and eighty (180) days after the Company gives written notice that the Company shall not exercise its option referred to in Section 17.2 or after the time period for the Company to exercise such option shall have expired solely to the extent necessary to exercise its rights under this Section 17.4 and (ii) for up to one hundred eighty (180) days after such written notice or expiration solely to the extent necessary to identify the Accounts in connection with the billing and collection thereof and as otherwise required by Applicable Law, after which time the Bank shall no longer use any of the Company Licensed Marks (or any other trademarks or source indicators confusingly similar thereto).
80
ARTICLE XVIII
INDEMNIFICATION
INDEMNIFICATION
18.1 Company Indemnification of the Bank. From and after the Effective Date, the Company shall indemnify and hold harmless the Bank, its Affiliates, and their respective officers, directors and employees from and against and in respect of any and all losses, liabilities, damages, costs and expenses of whatever nature, including reasonable attorneys’ fees and expenses (collectively, “Losses”), which are caused or incurred by, result from, arise out of or relate to the following:
(a) the Company’s, its Affiliates’ or any of its or their employees’ or Service Providers’ negligence, recklessness or willful misconduct (including acts and omissions) relating to the Program;
(b) any breach by the Company, any of its Affiliates, or any of its or their Service Providers of any of the terms, covenants, representations, warranties or other provisions contained in this Agreement;
(c) any actions or omissions by the Bank taken or not taken (i) at the Company’s written request or written direction pursuant to this Agreement, except where the Bank would have been otherwise required to take such action (or refrain from acting) absent such request or direction of the Company (it being understood that neither this exception nor any request or direction of the Company shall in any way relieve the Bank of, or in any way alter, the Bank’s express obligations under this Agreement) or (ii) at the direction of the Operating Committee based on the Company’s exercise of its right to break a deadlock with respect to an Unapproved Matter based on the status of that Unapproved Matter as a Company Matter;
(d) fraudulent acts by the Company, or any of its Affiliates, or its or their employees or Service Providers, in connection with the Program (except to the extent charged back pursuant to Section 8.5);
(e) any failure by the Company or its Affiliates to satisfy any of their obligations to third parties with respect to the sale by them to such third parties of Goods and Services;
(f) any element of any Company Credit Cards, Credit Card Documentation, the Program Website, any Program related social media pages or “apps,” Solicitation Materials or other communications to Cardholders, Bank Program Materials, Company Program Materials, or Account Documentation that was (i) modified by the Company in contravention of this Agreement or (ii) included therein at the direction of the Operating Committee at the express direction of the Company pursuant to its right to break a deadlock based on the fact that the inclusion of such element was an Unapproved Matter that was approved as a Company Matter;
(g) the failure of the Company to comply with Applicable Law in connection with the Program or the Operating Procedures, unless such failure was the result of (i) any action taken or not taken by the Company at the request or direction of the Bank or in accordance with the Operating Procedures or (ii) was the result of a violation of any Applicable Law as to which the Bank shall have failed to advise the Company as required pursuant to Section 11.5(c)(ii) hereof;
81
(h) the Company’s Inserts or Billing Statement messages (other than any such Inserts or Billing Statement messages governed by clause (f) above);
(i) allegations by a third party that the use or publication of the Company Licensed Marks as permitted herein or any materials or documents provided by the Company (other than Account Documentation or Solicitation Materials, which are governed by clause (f) above) constitutes: (i) libel, slander, and/or defamation; (ii) invasion of rights of privacy or rights of publicity; (iii) breach of contract or tortious interference; (iv) trademark infringement or dilution or (v) unfair competition;
(j) [****];
(k) any loyalty or reward program offered by the Company, and the offering and administration of any Value Proposition by the Company, except to the extent of the Bank’s administrative obligations under Section 4.10 or to the extent that the element of the loyalty or reward program resulting in the Loss was approved by the Operating Committee at the direction of the Bank pursuant to its right to break a deadlock because such element was an Unapproved Matter that is a Bank Matter; and
(l) [****].
18.2 Bank Indemnification of the Company. From and after the Effective Date, the Bank shall indemnify and hold harmless the Company, its Affiliates and their respective officers, directors and employees from and against and in respect of any and all Losses which are caused or incurred by, result from, arise out of or relate to the following:
(a) the Bank’s, its Affiliates’ or any of its or their employees’ or Service Providers’ negligence, recklessness or willful misconduct (including acts and omissions) relating to the Program;
(b) any breach by the Bank, any of its Affiliates, or any of its or their Service Providers of any of the terms, covenants, representations, warranties or other provisions contained in this Agreement or any Credit Card Agreement;
(c) any actions or omissions by the Company taken or not taken at the Bank’s written request or direction pursuant to this Agreement, except where the Company would have been otherwise required to take such action (or refrain from acting) absent such request or direction of the Bank (it being understood that neither this exception nor any request or direction of the Bank shall in any way relieve the Company of, or in any way alter, the Company’s express obligations under this Agreement);
(d) fraudulent acts by the Bank, or any of its Affiliates, or its or their agents or employees or Service Providers, in connection with the Program;
(e) any failure by the Bank to satisfy any of its obligations to (i) Cardholders or other third parties with respect to the Program or the Accounts, whether pursuant to the Credit Card Agreements or otherwise or (ii) any other third parties in connection with its provision of other products and services to such third parties;
82
(f) any element of any Company Credit Cards, Credit Card Documentation, the Program Website, any Program related social media pages or “apps,” Solicitation Materials or other communications to Cardholders, Bank Program Materials, Company Program Materials, or Account Documentation, including that the same fail to comply with Applicable Law, except to the extent the Losses with respect thereto are indemnifiable by the Company pursuant to Section 18.1(f);
(g) (i) the failure of the Program to comply with Applicable Law, except if such failure was the result of an action imposed by the Operating Committee at the direction of the Company pursuant to its right to break a deadlock because such action was an Unapproved Matter that was a Company Matter or (ii) the failure of the Bank to comply with Applicable Law in connection with the Program or the Risk Management Policies, Collections Policies or Operating Procedures;
(h) the Bank’s Inserts or Billing Statement messages;
(i) allegations by a third party that the use or publication of the Bank Licensed Marks as permitted herein or any materials or documents provided by the Bank constitutes: (i) libel, slander, and/or defamation; (ii) invasion of rights of privacy or rights of publicity; (iii) breach of contract or tortious interference; (iv) trademark infringement or dilution or (v) unfair competition;
(j) [****];
(k) any Approved Ancillary Products offered to Cardholders by the Bank under the Program; and
(l) [****].
18.3 Procedures.
(a) In case any claim is made, or any suit or action is commenced, against a Party (the “Indemnified Party”) in respect of which indemnification may be sought by it under this Article XVIII, the Indemnified Party shall promptly give the other Party (the “Indemnifying Party”) notice thereof and the Indemnifying Party shall have the right to assume control of and defend, in the name of the Indemnified Party, any claim of which it has received such notice, by giving written notice to the Indemnified Party given not later than twenty (20) days after the delivery of the applicable notice from the Indemnified Party, to assume, at the Indemnifying Party’s expense, the defense thereof, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party under this Section 18.3 for any attorneys’ fees or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, except to the extent set forth in Section 18.3(b).
(b) The Indemnified Party shall have the right to employ its own counsel if the Indemnifying Party elects to assume such defense, but the fees and expenses of such counsel shall be at the Indemnified Party’s expense, unless (i) the employment of such counsel at the
83
Indemnifying Party’s expense has been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable notice or, having elected to assume such defense, thereafter ceases its defense of such action, or (iii) the Indemnified Party has reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party), in any of which events the attorneys’ fees and expenses of counsel to the Indemnified Party shall be borne by the Indemnifying Party.
(c) The Indemnified Party or Indemnifying Party may at any time notify the other of its intention to settle or compromise any claim, suit or action against the Indemnified Party in respect of which payments may be sought by the Indemnified Party hereunder, and (i) the Indemnifying Party may settle or compromise any such claim, suit or action solely for the payment of money damages for which the Indemnified Party will be released and fully indemnified hereunder, but shall not agree to any other settlement or compromise without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (it being agreed that any failure of an Indemnified Party to consent to any settlement or compromise involving relief other than monetary damages shall not be deemed to be unreasonably withheld), and (ii) the Indemnified Party may not settle or compromise any such claim, suit or action without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld and the Indemnifying Party will have no obligation to pay the monetary amount of any such settlement or compromise entered into by the Indemnified Party without the Indemnifying Party’s prior written consent.
(d) The Indemnifying Party shall promptly notify the Indemnified Party if the Indemnifying Party desires not to assume, or participate in the defense of, any third party claim, suit or action.
18.4 Notice and Additional Rights and Limitations.
(a) If an Indemnified Party fails to give prompt notice of any claim being made or any suit or action being commenced in respect of which indemnification under this Article XVIII may be sought, such failure shall not limit the liability of the Indemnifying Party except to the extent the Indemnifying Party’s ability to defend the matter was actually prejudiced by such failure to give prompt notice.
(b) This Article XVIII shall govern the obligations of the Parties with respect to the subject matter hereof but shall not be deemed to limit the rights that either Party might otherwise have at law or in equity.
18.5 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR [****].
84
ARTICLE XIX
MISCELLANEOUS
MISCELLANEOUS
19.1 Precautionary Security Interest. The Company and the Bank agree that this Agreement contemplates the extension of credit by the Bank to Cardholders and that the Company’s submission of Charge Transaction Data to the Bank shall constitute assignment by the Company of any and all right, title and interest in such Charge Transaction Data and the Cardholder Indebtedness reflected therein. However, as a precaution in the event that any Person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, the Company hereby grants to the Bank a first priority present and continuing security interest in and to the Acquired Assets (as defined in the Purchase Agreement), whether now existing or hereafter created or acquired. In addition, the Company agrees to take any reasonable action requested by the Bank, at the Bank’s expense, to establish the first lien and perfected status of such security interest. Upon the termination or expiration of this Agreement, the Bank shall execute such releases and file such notices as the Company may request to evidence the termination of the security interest provided for in this Section 19.1.
19.2 Securitization.
(a) The Bank shall have the right to securitize the Cardholder Indebtedness or any part thereof by itself or as part of a larger offering at any time. Such securitization shall not affect the Company’s rights or the Bank’s obligations hereunder. The Bank shall not securitize the Cardholder Indebtedness in any manner that may encumber the Company’s rights hereunder to purchase Program Assets free and clear of any lien or other interest created pursuant to such securitization. All uses of the Company Licensed Marks in any securitization document shall be made in accordance with Section 10.1 and with the prior written approval of the Company, which approval may not be unreasonably withheld.
(b) In the event the Company elects to purchase the Program Assets pursuant to Section 17.2 and the Bank has securitized or participated any of the Cardholder Indebtedness included therein that is included in the Program Assets, the Bank shall take such actions as are necessary to remove such Program Assets from such securitization or otherwise terminate all interests and liens created in the Program Assets pursuant to such securitization and to transfer such Program Assets free and clear of all such interests and liens to the Company or its Nominated Purchaser.
19.3 Assignment
. None of the Company, on the one hand, or the Bank, on the other hand, shall assign this Agreement or any of its rights hereunder without the prior written consent of the other Party; provided that, effective as of the effective date of the merger of Comenity Bank with and into Comenity Capital Bank (the “CCB Merger”), the aspects of this Agreement that are applicable to Comenity Bank shall be deemed assigned to Comenity Capital Bank, and the Company hereby consents to such assignment. [****].
19.4 Sale or Transfer of Accounts. Except as pursuant to Section 17.2 to the Company or its designee, or solely with respect to Cardholder Indebtedness pursuant to Section 19.2, the Bank shall not sell or transfer in whole or in part any Accounts other than in the ordinary course
85
for written-off Accounts that have been written-off by the Bank in accordance with the then-current Risk Management Policies to purchasers who agree to abide by Bank’s standard policies for debt purchasers generally.
19.5 Subcontracting. Except as otherwise provided in this Agreement, it is understood and agreed that, in fulfilling its obligations under this Agreement, either Party may, following the below procedures, utilize its Affiliates or other Persons to perform functions in fulfilling its obligations under this Agreement, and such Affiliates or Persons shall comply with the terms of this Agreement. The applicable Party shall be responsible and liable for functions performed by such Affiliates or other Persons to the same extent the Party would be responsible and liable if it performed such functions itself. [****].
19.6 Amendment. Except as provided herein, this Agreement may not be amended, supplemented or otherwise modified except by a written instrument signed by the Bank and the Company.
19.7 Non-Waiver. No delay by a Party hereto in exercising any of its rights hereunder, or partial or single exercise of such rights, shall operate as a waiver of that or any other right. The exercise of one or more of a Party’s rights hereunder shall not be a waiver of, or preclude the exercise of, any rights or remedies available to such Party under this Agreement or at law or in equity. Any waiver by a Party shall only be made in writing and executed by a duly authorized officer of such Party.
19.8 Severability. In case any one or more of the provisions contained herein shall be invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and this Agreement shall be reformed, construed and enforced as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein and there had been contained herein instead such valid, legal and enforceable provisions as would most nearly accomplish the intent and purpose of such invalid, illegal or unenforceable provision.
19.9 Venue. Each Party hereby irrevocably submits to the jurisdiction of the United States District Court for the Southern District of New York or, if such federal jurisdiction is unavailable, in the state courts of the State of New York located in the borough of Manhattan over any action arising out of this Agreement, and each Party hereby irrevocably waives any objection which such Party may now or hereafter have to the laying of improper venue or forum non conveniens. Each Party agrees that a judgment in any such action or proceeding may be enforced in other jurisdictions by suit on the judgment or in any manner provided by law. Any and all service of process and any other notice in any such suit, action or proceeding with respect to this Agreement shall be effective against a Party if given as provided herein.
19.10 Governing Law. This Agreement and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts made to be performed within such State and applicable federal law. By way of clarification, the Parties recognize and agree that the Program itself, including without limitation all matters related to the Accounts, the Credit Card Agreements and Account Documentation, to the extent related to the relationship between the Cardholders and Comenity Capital Bank, shall be governed by the laws of the State of Utah.
19.11 Specific Performance. The Parties agree that money damages would not be a sufficient remedy for any breach of Article VI, X or XIII or the failure of a Party to perform any
86
of its material obligations hereunder, and that, in addition to all other remedies, each Party will be entitled to seek specific performance and to seek injunctive or other equitable relief as a remedy for any such breach or failure to perform its material obligations hereunder. Each Party waives any requirements for the securing or posting of any bond in connection with such remedy.
19.12 Notices. Any notice, approval, acceptance or consent required or permitted by a Party under this Agreement shall be in writing to the other Party and shall be deemed to have been duly given when delivered in person, when received via overnight courier, when sent by facsimile (with written confirmation of transmission), or when posted by United States registered or certified mail, with postage prepaid, addressed as follows:
If to the Company: | Signet Jewelers Ltd. 375 Ghent Road Akron, OH 44333 Attention: Jeremy D. Rine, Vice President and Associate General Counsel Email: jeremy.rine@signetjewelers.com | ||||
With a copy to: | Signet Jewelers Ltd. 375 Ghent Road Akron, OH 44333 Attention: Joan Hilson, Chief Financial Officer Email: Joan.Hilson@signetjewelers.com | ||||
With a copy to: | Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attention: Ben Schaye, Esq.; Matthew Nemeroff, Esq. Email: ben.schaye@stblaw.com; matthew.nemeroff@stblaw.com | ||||
If to the Bank: | Comenity Capital Bank 12921 South Vista Station Boulevard Draper, UT 84020 Attn: President | ||||
With a copy to: | Comenity Capital Bank c/o Bread Financial Payments, Inc. P.O. Box 182936 Columbus, OH 43218 Attn: Legal Department | ||||
19.13 Further Assurances. The Company and the Bank agree to produce or execute such other documents or agreements as may be necessary or desirable for the execution and implementation of this Agreement and the consummation of the transactions specified herein and
87
to take all such further action as the other Party may reasonably request in order to give evidence to the consummation of the transactions specified herein.
19.14 No Joint Venture. For all purposes, including federal and state tax purposes, nothing contained in this Agreement shall be deemed or construed by the Parties or any third party to create the relationship of principal and agent, or a partnership, joint venture or any association between the Company and the Bank, and no act of either Party shall be deemed to create any such relationship. The Company and the Bank each agree to such further actions as the other may reasonably request to evidence and affirm the non-existence of any such relationship.
19.15 Press Releases. The Company, on the one hand, and the Bank, on the other hand, each shall obtain the prior written approval of the other Party with regard to the content, timing and distribution of (i) any press releases announcing the execution of this Agreement or the transactions specified herein and (ii) any subsequent press releases concerning this Agreement or the transactions specified herein. The foregoing notwithstanding, it is understood that neither Party shall be required to obtain any prior consent, but shall consult with each other to the extent practicable, with regard to public disclosures required by Applicable Law or the applicable rules and regulations of any stock exchange.
19.16 [****].
19.17 Third Parties. Except for the Indemnified Parties with respect to indemnity claims pursuant to Article XVIII, the Parties do not intend: (a) the benefits of this Agreement to inure to any third party; or (b) any rights, claims or causes of action against a Party to be created in favor of any Person or entity other than the other Party.
19.18 Force Majeure
. If performance of any service or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of labor disputes, strikes, acts of God, floods, lightning, severe weather, shortages of materials, rationing, utility or communication failures, earthquakes, war, revolution, civil commotion, acts of public enemies, blockade or embargo or any other act, which are beyond the reasonable control and foreseeability of a Party (each, a “Force Majeure Event” (it being understood that a change in Applicable Law shall not be deemed a Force Majeure Event)), then such Party shall be excused from such performance to the extent of and during the period of such Force Majeure Event. A Party excused from performance pursuant to this Section 19.18 shall give the other Party prompt written notice of the occurrence of such Force Majeure Event and shall exercise all reasonable efforts to continue to perform its obligations hereunder, including by implementing its disaster recovery and business continuity plan as provided in Section 7.2(b), and shall thereafter continue with reasonable due diligence and good faith to remedy its inability to so perform except that nothing herein shall obligate either Party to settle a strike or other labor dispute when it does not wish to do so. To the extent that either party is unable to maintain continuity of the services through such Force Majeure Event, it will make commercially reasonable efforts to procure an alternate source of the services in order to fulfill its obligations hereunder at its own cost.
19.19 Entire Agreement
. This Agreement (a) amends and restates the Sterling Program Agreement and the Zale Program Agreement, each of which shall cease to be effective as of the Effective Date,
88
and (b) supersedes any other agreement, whether written or oral, that may have been made or entered into by the Company and the Bank (or by any officer or employee of any such Parties) relating to the matters specified herein, and constitutes the entire agreement by the Parties related to the matters specified herein; provided that the Sterling Program Agreement and the Zale Program Agreement shall continue to govern the applicable Parties’ respective rights and obligations with respect to any events occurring in connection with the Program prior to the Effective Date.
19.20 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
19.21 Counterparts/Facsimiles. This Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument, but in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Any facsimile or PDF emailed version of an executed counterpart shall be deemed an original.
19.22 Survival. Upon the expiration or termination of this Agreement, the Parties shall have the rights and remedies described herein. Upon such expiration or termination, all obligations of the Parties under this Agreement shall cease, except that the obligations of the Parties pursuant to Article VI (Cardholder Information), Section 8.5 (The Bank’s Right to Charge Back), Article X (Intellectual Property), Article XII (Access and Audit), Article XIII (Confidentiality), Article XVII (Effects of Termination), Article XVIII (Indemnification), Section 19.1 (Precautionary Security Interest), Section 19.9 (Venue) and 19.10 (Governing Law) shall survive the expiration or termination of this Agreement.
[Remainder of Page Intentionally Left Blank]
89
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed as of the Effective Date.
COMENITY BANK
By: /s/ Baron Schlachter
Name: Baron Schlachter
Title: President
Name: Baron Schlachter
Title: President
COMENITY CAPITAL BANK
By: /s/ Bruce Bowman
Name: Bruce Bowman
Title: President
Name: Bruce Bowman
Title: President
STERLING JEWELERS INC.
By: /s/ Joan M. Hilson
Name: Joan M. Hilson
Title: Chief Operating and Financial Officer
Name: Joan M. Hilson
Title: Chief Operating and Financial Officer
ZALE DELAWARE, INC.
By: /s/ Joan M. Hilson
Name: Joan M. Hilson
Title: Chief Operating and Financial Officer
Name: Joan M. Hilson
Title: Chief Operating and Financial Officer
[Signature Page to Second Amended and Restated Credit Card Program Agreement]
SCHEDULES TO SECOND AMENDED AND RESTATED
CREDIT CARD PROGRAM AGREEMENT
CREDIT CARD PROGRAM AGREEMENT
| List of Schedules | |||||
| Schedule 1.1(a) | Bank Licensed Marks | ||||
| Schedule 1.1(b) | Company Licensed Marks | ||||
| Schedule 1.1(f) | Company Credit Cards | ||||
| Schedule 3.2(b) | Committee Composition | ||||
| Schedule 3.3 | Managers and Program Team | ||||
| Schedule 4.5(a)(v) | Certain Bank Program Materials | ||||
| Schedule 6.2(b) | Program Privacy Policy | ||||
| Schedule 7.2(i) | IVR Functionality | ||||
| Schedule 7.3 | SLAs | ||||
| Schedule 7.4(a)(i) | Program Features and Functionality | ||||
| Schedule 8.5 | Chargeback Policies | ||||
| Schedule C-1 | Company Individuals with Knowledge | ||||
| Schedule C-2 | Bank Individuals with Knowledge | ||||
Schedule 1.1(a)
Bank Licensed Marks
Bank Licensed Marks
1. Bread
2. Bread Financial
3. Bread Pay
4. Comenity Capital Bank
5. Comenity
6. Comenity Servicing
7. Account Assure
Schedule 1.1(b)
Company Licensed Marks
Company Licensed Marks
MARK | REGISTRATION NUMBER (if applicable) | ||||
| BANTER | Reg. No. 7185516, 7185517, 7185518 | ||||
| BANTER BY PIERCING PAGODA | common law | ||||
 | common law | ||||
BLUE NILE | Reg. No. 5511215 and 2559555 | ||||
 | Reg. No. 6673869 and 7032266 | ||||
 | App. No. 99908201 | ||||
DIAMONDS DIRECT | Reg. No. 4971466 | ||||
 | Reg. No. 5275819 | ||||
 | Reg. No. 5275818 | ||||
 | Reg. No. 5275820 | ||||
 | Reg. No. 5275823 | ||||
| EVERY KISS BEGINS WITH KAY | Reg. No. 2602439 | ||||
| GORDON’S JEWELERS | Reg. No. 1637241 | ||||
 | common law | ||||
| JARED | Reg. No. 7613156 | ||||
| JARED THE GALLERIA OF JEWELRY | Reg. No. 1872975 | ||||
 | common law | ||||
JARED JEWELERS | Reg. No. 8265457 | ||||
 | common law | ||||
 | Reg. No. 8245421 | ||||
 | Reg. No. 8266793 | ||||
| JARED VAULT | Reg. No. 4964482 | ||||
 | common law | ||||
| KAY | Reg. No. 0748204 | ||||
| KAY JEWELERS | Reg. No. 2222703 | ||||
 | common law | ||||
| KAY JEWELERS OUTLET | Reg. No. 3327324 | ||||
  | common law | ||||
YOUR LOVE. OUR PASSION. | Reg. No. 4984800 | ||||
| ZALES | Reg. No. 1364390 | ||||
 | Reg. No. 1351098 | ||||
| ZALES THE DIAMOND STORE | Reg. No. 2774796 | ||||
 | Reg. No. 1050371 | ||||
| ZALES OUTLET | Reg. No. 2662867 | ||||
| ZALES THE DIAMOND STORE OUTLET | Reg. No. 2296939 | ||||
 | common law | ||||
Company Licensed Marks shall also include Trademarks of the Company’s regional brands that, prior to the date hereof, have been converted to any of the Company Licensed Marks listed in the table above.
Schedule 1.1(f)
Company Credit Cards
Company Credit Cards
Sterling Credit Cards | 1. Jared Preferred+ 2. KAY Jewelers/Kay Outlet+ 3. Sterling Family of Jewelers+ | ||||
Zale Credit Cards | 4. Zales Jewelers* 5. Zales Outlet* 6. GEM Account* 7. Gordon’s Jewelers* 8. Banter* | ||||
[****] | 9. [****] | ||||
[****] | 10. [****] | ||||
*Denotes a Company Credit Card issued by Comenity Capital Bank.
+Denotes a Company Credit Card issued by Comenity Bank (until the CCB Merger).
Schedule 3.2(b)
Committee Composition
Committee Composition
Steering Committee
Company Designees Titles
President, Jewelry Services
VP Financial Services or Payments & Relationship Management
Bank Designee Titles
Head of Partnerships
SVP, Chief Revenue Officer
Operating Committee
Company Designees Titles
Chief Financial Officer
President, Jewelry Services
SVP Financial Services or Payments & Relationship Management
VP Financial Services or Payments & Relationship Management
Director Financial Services or Payments & Relationship Management
Marketing leader
Technology leader
Care leader
Bank Designee Titles
Chief Revenue Officer
Chief Client Officer
General Manager, Client Partnerships
VP, Finance
Technology leader
Risk leader
Marketing leader
Care leader
Marketing Committee
Company Designee Titles
VP, Marketing
Director, Marketing
Manager, Marketing
VP, Payments
Director, Payments
Senior Manager, Payments
Manager, Payments
Bank Designee Titles
General Manager, Client Partnerships
Account Manager, Client Partnerships
Manager, Client Marketing
Senior Manager, Client Marketing
The Bank and the Company may each include subject matter experts in committee discussions as needed to assist with a particular issue.
Schedule 3.3
Managers and Program Team
Managers and Program Team
Company Manager
Vice President, Payments & Relationship Management
Bank Manager
[****]
Schedule 4.5(a)(v)
Certain Bank Program Materials
Certain Bank Program Materials
1. Credit Card plastics
2. Credit Card carrier and envelope
3. Welcome kit
4. Billing statement
5. Billing envelope
6. Application
7. Credit Card Agreement
8. Real-Time Prescreen letterhead
All other Bank Program Materials that are customizable as set forth in the Specifications Book.
Schedule 6.2(b)
Program Privacy Policy
Program Privacy Policy
`
| FACTS | WHAT DOES BREAD FINANCIAL DO WITH YOUR PERSONAL INFORMATION? | ||||
| Why? | Financial companies choose how they share your personal information. Federal law gives consumers the right to limit some, but not all, sharing. Federal law also requires us to tell you how we collect, share, and protect your personal information. Please read this notice carefully to understand what we do. | ||||
| What? | The types of personal information we collect, and share, depend on the product or service you have with us. This information can include: Social Security number and income Account balances and transaction history Credit history and credit scores | ||||
| How? | All financial companies need to share customers’ personal information to run their everyday business. In the section below, we list the reasons financial companies can share their customers’ personal information; the reasons Bread Financial chooses to share; and whether you can limit this sharing. | ||||
| Reasons we can share your personal information | Does Bread Financial share? | Can you limit this sharing? | ||||||
For our everyday business purposes— such as to process your transactions, maintain your account(s), respond to court orders and legal investigations, or report to credit bureaus | Yes | No | ||||||
For our marketing purposes— to offer our products and services to you | Yes | No | ||||||
| For joint marketing with other financial companies | Yes | No | ||||||
For our affiliates’ everyday business purposes— information about your transactions and experiences | Yes | No | ||||||
For our affiliates’ everyday business purposes— information about your creditworthiness | Yes | Yes | ||||||
| For our affiliates to market to you | Yes | Yes | ||||||
| For nonaffiliates to market to you | Yes | Yes | ||||||
| To limit our sharing | Comenity Bank (Credit Card) customers: Call 1-800-220-1181 (TDD/TTY 1-800-695-1788) Comenity Capital Bank (Credit Card) customers: Call 1-877-287-5012 (TDD/TTY 1-888-819-1918) Bread Pay (Loans) customers: Visit your Member Portal under “My Account” or call 1-844-992-7323 Bread Savings (Deposit) customers: Call 1-833-755-4354; dial 7 for a representative. For operator relay assistance, first dial 711 Please note: If you are a new customer, we may begin sharing information that you can limit 30 days from the date we sent this notice. When you are no longer our customer, we continue to share your information as described in this notice. However, you can contact us at any time to limit our sharing. | ||||
Questions? | Call 1-866-423-1097 or visit www.breadfinancial.com | ||||
| Page 2 | |||||
| Who we are | |||||
| Who is providing this notice? | This privacy notice is provided by the Bread Financial Holdings, Inc. family of companies, including Comenity Bank and Comenity Capital Bank. These companies do business under brand names such as “Bread Pay,” “Bread Loans,” and “Bread Savings”. | ||||
| What we do | |||||
| How does Bread Financial protect my personal information? | To protect your personal information from unauthorized access and use, we use security measures that comply with federal law. These measures include computer safeguards and secured files and buildings. | ||||
| How does Bread Financial collect my personal information? | We collect your personal information, for example, when you open an account or provide account information give us your income information use your credit or show your driver’s license We also collect your personal information from others, such as credit bureaus, affiliates, or other companies. | ||||
| Why can’t I limit all sharing? | Federal law gives you the right to limit only sharing for affiliates’ everyday business purposes—information about your creditworthiness affiliates from using your information to market to you sharing for nonaffiliates to market to you State laws and individual companies may give you additional rights to limit sharing. See below for more on your rights under state law. | ||||
| What happens when I limit sharing for an account I hold jointly with someone else? | Your choices will apply to everyone on your account. | ||||
| Definitions | |||||
| Affiliates | Companies related by common ownership or control. They can be financial and nonfinancial companies. Our affiliates include companies with a Bread or Comenity name; financial companies such as Comenity Bank, Comenity Capital Bank, and nonfinancial companies such as Bread Financial Holdings, Inc. and its subsidiaries which offer servicing assistance to the banks and third parties. | ||||
| Nonaffiliates | Companies not related by common ownership or control. They can be financial and nonfinancial companies. Nonaffiliates we share with can include financial service providers, retailers, direct marketers, publishers, and nonprofit organizations. | ||||
| Joint marketing | A formal agreement between nonaffiliated financial companies that together market financial products or services to you. Our joint marketing partners may include lenders and insurance companies. | ||||
| Other important information | ||
| We also will comply with more restrictive state laws to the extent that they apply; for example, Vermont or California. | ||
Schedule 7.2(i)
IVR Functionality
IVR Functionality
Cardholder Care IVR
(English – Natural Language Understanding (NLU) and Directed Dialogue speech recognition)
(Spanish – touchtone only)
Obtain general account information
o Balance (current as of today and previous statement balance)
o Available Credit
o Credit Limit
o Previous Statement Balance
Payment information
o Due date
o Amount Due
Minimum due
Total due
o Last payment received
Received date
Payment amount
o Make a payment and provide confirmation number
Recent Activity
o Last 10 transactions
o Activity since previous billing statement
Report card lost or stolen
Request additional card
Request a refund (paper check or ACH)
FAQs
o Web help
o Payment address
o Written inquiry address
Make Account Changes (only available in NLU speech application)
o Change mailing address
o Change last name
o Change or add phone number
o Add authorized buyer
o Obtain Cardholder income
Request a credit limit increase (will process and if applicable approve the requested limit)
Request Fax
o Zero balance letter
o Closed account confirmation letter
Account Center information sent via email or SMS text (only available in NLU speech application)
o Send token ID for password resets
o Send URL to Account Center login page
Close Account
Exit IVR (ability to get a live agent)
Route to Company, Secondary Program partner based on customer selection
Route to Secondary Program partner based on entry of account number*
Store Services IVR (Touchtone only)
Account Lookup
Phone for approval
Call center / decline POS message
Request additional card
Report card lost/stolen
Obtain Account summary information
Process Applications
Card Activation IVR (Touchtone only)
Activate a new card
Capture mobile phone number & consent
[****].
Schedule 7.3
SLAs
SLAs
| SERVICE | SERVICES STANDARD MEASUREMENT AND REQUIREMENT [****] | ||||
| Cardholder and store Service | |||||
| General Credit Cardholder Service | [****] | ||||
| Abandoned Rate | [****] | ||||
| Correspondence | |||||
| [****] | |||||
| Regular Mail | [****] | ||||
| [****] | |||||
| [****] | |||||
| [****] | |||||
| Transaction Posting | |||||
| [****] | |||||
| [****] | |||||
| Card Issuance | |||||
| New Cards | [****] | ||||
| Card Replacements | [****] | ||||
| Statement Production | |||||
| Mailing | [****] | ||||
| On-Line Availability | [****] | ||||
| Prequalification Requests | |||||
| Prequalification Requests | [****] | ||||
| [****] | |||||
| Payment Processing | |||||
| [****] | |||||
| [****] | |||||
| [****] | |||||
| Technology and Systems | |||||
| Program Website Uptime | [****] | ||||
| Authorization processing | [****] | ||||
| [****] | |||||
| Application processing | [****] | ||||
| [****] | |||||
| Interactive Voice Response (IVR) | [****] | ||||
| Account Lookup | [****] | ||||
| [****] | |||||
Rules for Interpreting SLAs
Response time for Application related inquiries relates to those Applicants which [****] in the measurement of the SLAs.
Response times for authorization requests relate to those requests processed solely by Bank’s host. Authorization requests [****] in the measurement of the SLAs.
[****]
No SLA will be deemed [****] during such period.
Availability and uptime calculations shall exclude [****]. In addition, the Bank shall [****].
No SLA will be deemed [****].
In the event of [****].
[****].
[****].
Consequences for [****]
[****]
Schedule 8.5
Chargeback Policies
Chargeback Policies
The Bank shall have the right to charge back to the Company the amount of the Charge Transaction Data paid by the Bank pursuant to Section 8.4 if with respect to the related Transaction the Cardholder refuses to pay the charge based on:
[****]
Schedule C-1
Company Individuals with Knowledge
Company Individuals with Knowledge
1. Chief Financial Officer
2. Senior Vice President Credit Operations
Schedule C-2
Bank Individuals with Knowledge
Bank Individuals with Knowledge
1. Bank President
2. Chief Client Officer