REFERRAL CAMPAIGN
AGREEMENT
This REFERRAL CAMPAIGN AGREEMENT (this “
Agreement ”), dated as of June 4, 2009 (the
“ Effective Date ”), for participation in a
short-term referral campaign (the “ Campaign ”)
is made by and between Advanta Bank Corp. , a Utah
industrial bank, (“ Advanta ”,
“you”, “your” and words of similar meaning)
and American Express Travel Related Services Company, Inc. ,
a New York Corporation (“ American Express ”),
on behalf of its division, OPEN from American Express (“
OPEN ”). “We”, “us”,
“our” and words of similar meaning mean American
Express.
WHEREAS, Advanta has elected to cease issuing
small business credit cards and providing credit to small business
credit accounts;
WHEREAS, Advanta desires to provide alternative
credit solutions to the small business customers to whom Advanta
issued a credit card other card-based financing option for
commercial use by such small business accounts (each such
individual, entity or account a “ Business Customer
”; any reference to Advanta’s Business Customers shall
be deemed to include former Business Customers of
Advanta.);
WHEREAS, American Express desires to make
available to certain of Advanta’s Business Customers an
invitation to apply for an OPEN Card Account, as defined in
Schedule B (the “ Invitation ”) and Advanta
desires to communicate the Invitation to such Business Customers;
and
WHEREAS American Express desires that, on an
exclusive basis, as specified in Sections 1.2, 1.3 and 1.6
below, Advanta, on behalf of American Express, extend the
Invitation to such Business Customers, as provided
herein.
NOW THEREFORE, in consideration of the
parties’ respective covenants and agreements set forth below
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
1.1 Beginning
on June 4, 2009 and continuing until the date that is sixty
(60) calendar days thereafter or such earlier time as the
Campaign shall be terminated by OPEN (the “ Referral
Window ”), Advanta shall, on an exclusive basis (as
specified in Sections 1.2 and 1.3), use commercially
reasonable efforts to notify the Target Population (as defined in
Schedule B) and only the Target Population, via marketing
channels described in Schedule A (the “ Communication
Channels ”) that such Business Customers in the Target
Population have been selected to receive the Invitation, all
strictly in compliance with the manner, method, scripts and
verbiage approved in advance by you and American Express and shall
refer Business Customers who express interest in the Invitation to
American Express for consideration (such notification and referral
campaign, together with any communications undertaken by American
Express pursuant to Section 1.4, the “ Campaign
”). Notwithstanding the preceding sentence or any other
provision of this Agreement (including Schedule A), Advanta
has no duty to use every
Communication
Channel to communicate the Invitation to each Business Customer in
the Target Population and may, with the express prior consent of
American Express, communicate the Invitation to only a subset of
the Target Population. Advanta may only discuss and communicate the
Invitation during the Referral Window and may only discuss and
communicate the Invitation to the Target Population;
Advanta’s authorization to communicate the Invitation expires
on the last day of the Referral Window. Advanta is providing
referral services only and is not authorized hereunder to, and
hereby covenants that it will not, discuss or describe any products
or services issued by Amex or its parent or Affiliates, except as
explicitly authorized by American Express.
1.2 In no event
and under no circumstances may Advanta discuss or communicate the
Invitation along with any invitation to apply for, offer to
receive, or the like with respect to any charge card, credit card,
debit card or other payment network, device or process, other than
such a card or other payment network, device or process that is
issued, sold or made available by any entity other than American
Express, its parent or an affiliate thereof.
1.3 Advanta
shall not, at any time during the Referral Window (and, as to any
Business Customer in the Tier 1 Target Population, until the
one-year anniversary of the Effective Date), communicate to the
Target Population any invitation to apply for, offers to receive,
or the like with respect to any charge card, credit card, debit
card or other payment network, device or process, other than such a
card or other payment network, device or process that is issued by
American Express or any person controlled by, controlling or under
common control with (each such person an “ affiliate
”) American Express, provided that Advanta may continue to
market merchant card acceptance services on behalf of First Data
Merchant Services Corporation (FDMS), pursuant to its agreement
with FDMS.
1.4 Subject to
the terms of this Agreement, including, but not limited to,
Section 4.8 below, at any time during the Referral Window and
ten (10) calendar days thereafter, American Express may use
the Business Customer Information to communicate the Invitation to
Business Customers in the Target Population.
1.5 Each party
shall only communicate the Invitation and use distribution
materials, including, without limitation, telephone scripts, e-mail
messages and direct mail collateral (collectively, “
Campaign Materials ”), that is pre-approved by both
parties and the same may be used only in strict compliance with the
written instructions of OPEN (with respect to communication to be
made by Advanta) or Advanta (with respect to communication to be
made by American Express), as applicable, with respect thereto. You
and American Express each have the right, each in its sole and
absolute discretion, to approve or disapprove any proposed Campaign
Materials and communications. In the event that either party
desires to modify any Campaign Materials proposed by the other
party, such party shall communicate such desired modifications to
the other party within one (1) business day after such
party’s receipt of any such proposed Campaign Materials and
both parties shall mutually agree on the Campaign Materials to be
used within one (1) business day following such party’s
notification to the other party of its desired
modifications.
1.6 In no event
and under no circumstances may Advanta share or disclose the
Business Customer Information of the Target Population to issuers
of charge cards, credit cards, debit cards or to payment network or
payment processors except for the servicing of Advanta accounts.
Notwithstanding anything to the contrary in this Agreement, no
provisions of this Agreement shall limit or constrain
Advanta’s use of any Business Customer Information that
American Express is obligated to return or destroy pursuant to
Section 8.7 from and after the time such obligation
arises.
1.7 If we
determine, in our sole discretion, that your website is unsuitable
for the Campaign, we may revoke your authorization to use your
website Communication Channel in connection with the Campaign
and/or to terminate this Agreement upon Notice to you. As used in
the preceding sentence, websites unsuitable for the Campaign
include, without limitation, websites that, in American
Express’s sole judgment:
(iii) are
otherwise offensive,
(iv) are
defamatory or libelous,
(v) promote violence or contains hate
speech,
(vi) are
aesthetically unpleasing, or
(vii) target a non-U.S. based
audience.
3. YOUR
RESPONSIBILITIES IN CONNECTION WITH THE CAMPAIGN
3.1 You shall
conduct the Campaign as provided in this Agreement. You shall
create, implement and execute a customized,
“high-touch” communication strategy with respect to the
Tier 1 Target Population identified on Attachment 2 to
Schedule B and American Express shall reasonably cooperate in
such strategy, all subject to American Express’s prior
approval, as provided herein. All communications in connection with
the Campaign shall include a disclosure to the Business Customers
that, if they accept the Invitation, Advanta may share certain
information about such Business Customers and their Advanta
accounts with American Express in order to process the
application.
3.2 Except as
otherwise expressly provided in this Agreement, you will be solely
responsible for all of your Campaign Materials and communications.
Unless expressly agreed by American Express in its sole and
absolute discretion, recorded message calls shall not refer to
American Express or use any branding, names, domain names,
trademarks, trade names, trade dress or logos (“ Marks
”) belonging to American Express (“ American Express
Marks ”). We
disclaim all
liability for such materials and communications, except to the
extent that the same, and your use thereof, is in strict compliance
with that which has been pre-approved and pre-authorized by us and
are not changed by you. You are also responsible for notifying us
of any problems with your participation in the Campaign in
accordance with the terms of this Agreement. American Express (or a
designee) will respond in normal course to all concerns upon
notification.
3.3 You shall
not seek to acquire prospects for American Express by representing
that you can maintain, accept or refer applications for any
American Express products or services. Other than your specific
duties under this Agreement, you shall refrain from any activities
that could be reasonably construed as you acting as an official
American Express representative, including, but not limited to,
sending e-mail (except to the extent expressly required and/or
permitted hereby) about American Express, its products or services;
maintaining, accepting or referring American Express card
applications; or collecting personal information in conjunction
with any application for an OPEN Card Account. In the event that
you engage in any of the activities described in this
Section 3.3, American Express may terminate this Agreement by
Notice to you and the parties agree that American Express may seek
immediate injunctive relief against, and monetary damages from,
you.
3.4 Subject to
Section 3.2, you shall change or modify content and/or
creative features of Campaign materials communications that
describe American Express products or services upon notification
by, and strictly in accordance with the specifications provided by
American Express by Notice to you. American Express shall not
request any such changes that are inconsistent with this Agreement
or the Campaign. If you continue to use such Campaign materials or
communications after such Notice and fail promptly to make the
changes or modifications required by such Notice or if you make
change to the Campaign communications other than those prescribed
by or consented to by American Express in its sole and absolute
discretion, American Express maintains the right to terminate this
Agreement by Notice to you and you shall have the obligation to
indemnify, as provided in Section 10 below. American Express will
use commercially reasonable efforts to provide Notice at least one
(1) business day prior to the effective date of any such
change or modification.
3.5 On the
Effective Date, Advanta shall disclose to American Express the
information listed on Schedule D with respect to the
Target Population (the “Business Customer Information”)
and, subject to the provisions of this Agreement, Advanta hereby
authorizes American Express to communicate the Invitation directly
to the Target Population. In disclosing the Business Customer
Information pursuant to this Agreement, you shall comply with your
privacy policies as well as applicable privacy and data security
laws. You shall honor all applicable opt-out elections made by your
customers and shall not disclose to us any information that you are
not permitted or authorized to disclose.
3.6 Advanta
shall be responsible for all of its costs related to its
communication of the Invitation to the Target Population,
including, without limitation all costs in connection with its
activities via the approved Advanta communication channels. Advanta
shall not, and hereby covenants and agrees that it will not, offer
to any of its customers any incentive whatsoever beyond the value
proposition of the OPEN Cards for which customers are referred in
connection
with the
Campaign or applications by its Business Customers for an OPEN
Card, provided that Advanta may make normal servicing or
collections adjustments (such as the waiver of fees) for its
customers in the context of servicing Advanta accounts, even though
Advanta may communicate an Invitation during such servicing,
provided that such adjustments are not conditioned on the
customer’s application for, or receipt or use of, an OPEN
Card Account. In the event that you materially violate your
covenant in the immediately preceding sentence as to any Business
Customer, you will forfeit all Referral Fees hereunder as to that
Business Customer.
3.7 Advanta
shall assign a unique source code to each Communication Channel and
to each other marketing channel that the parties mutually agree to
include in the Campaign. Advanta shall maintain, at its expense,
one or more webpages accessed by one or more unique urls in the
advanta.com domain, each of which will identify and record Business
Customer in the Target Population who visits such website as a
Business Customer in the Target Population who accessed the
Invitation. Within seven (7) calendar days following the end
of each calendar month of the term of this Agreement, Advanta shall
provide to American Express in electronic format reasonably
acceptable to American Express reports with respect to the
performance of the Campaign, including Advanta Communication
Channel traffic from the Target Population and the number of
Business Customers in the Target Population who accessed
Invitations.
3.8 In order to
use your website Communication Channel to participate in the
Campaign, your website must contain a privacy statement
substantially similar to the privacy policy contained in Schedule
F.
3.9 As between
the parties, you will be solely responsible for the development,
operation and maintenance of your website.
3.10 No more
than one (1) time (but including follow up investigations on
items identified in such audit) within the nine (9) month
period following the Effective Date, Advanta shall allow a third
party approved by Advanta, which consent shall not be unreasonably
withheld, conditioned or delayed, on behalf of American Express, at
American Express’s cost, to inspect and audit the applicable
books and records of Advanta to reconcile the unique Advanta
customer identification numbers that appear on Schedule B with
the Business Customer Information. Any such audit shall be
conducted upon reasonable advance Notice and during normal business
hours and pursuant to such third party’s written agreement
with American Express to maintain the confidentiality of
information audited (or pursuant to professional duties to similar
effect). If American Express becomes aware of any violation by such
third party of such confidentiality obligations, it shall promptly
notify Advanta and take all reasonable steps required to prevent
further breach and disclosure; provided, however, that American
Express shall be liable for any breach by such agent of, or failure
by such third party to comply with such obligation and that such a
breach or failure to comply by such agent will be deemed a breach
of this Agreement by American Express. Advanta shall cooperate with
any such audit. Upon American Express’s request, Advanta
shall provide, within a reasonable period, documentation and
information necessary for American Express to answer inquiries of
auditors and regulatory authorities. Notwithstanding anything to
the contrary in this Agreement, any disclosure of or access to
confidential or personally identifiable information is subject to
Advanta privacy policies, provided that Advanta represents and
warrants that its privacy policies will not materially impede or
impair and effective audit.
4. OUR RIGHTS
AND RESPONSIBILITIES
4.1 American
Express shall assign unique source codes to the approved
Communication Channels that may be used in connection with
Campaign. American Express shall use commercially reasonable
efforts to maintain, at its expense, one or more unique toll-free
telephone numbers and one or more webpages accessed by one or more
unique urls, each of which will identify and record each submitted
application as referred by you pursuant to the Campaign (provided
that such identification shall not establish the submitted
application as having been submitted by a Business Customer in the
Target Population) and shall use commercially reasonable efforts to
maintain the accessibility of such telephone numbers and websites
throughout the Referral Window and ten (10) days thereafter.
American Express shall have the sole right and responsibility for
processing all applications made by Business Customers. You
acknowledge that all agreements relating to applications by
Business Customers shall be between American Express and the
Business Customer. Business Customers who apply for, and receive,
OPEN Card Accounts through the Campaign will be deemed to be
customers of American Express. Accordingly, all applicable American
Express rules, policies, and operating procedures concerning
customer applications, customer service, customer data, and product
transactions will apply to those customers with respect to their
OPEN Card Account(s). We may change our policies and operating
procedures at any time. For example, we will determine the prices
to be charged for products marketed under this Campaign in
accordance with our own pricing policies.
4.2 With
respect to the OPEN Card Accounts in connection with the
Campaign:
(i) All communications discussing OPEN
products will indicate that American Express Bank, FSB (“
AEFSB ”) or an affiliate thereof is the issuer of such
OPEN Cards.
(ii)
(a) AEFSB will accept or reject any application for an OPEN
Card Account based solely upon application of AEFSB’s credit
criteria, in its sole discretion.
(b) Upon satisfaction by an
applicant of AEFSB’s applicable credit criteria, AEFSB shall
establish an OPEN Card Account for, and issue an OPEN card to, each
qualifying applicant.
(c) Except as otherwise
provided herein, after referring a Business Customer to American
Express, Advanta will not participate or attempt to participate in
the credit application process.
(iii) AEFSB shall own, maintain and service
the OPEN Card Accounts and shall extend credit with respect to all
OPEN Card Accounts, and Advanta shall have no obligations or
responsibilities for or be considered a creditor or service
provider with respect to any OPEN Card Account for any purpose
whatsoever. As between Advanta and American Express, American
Express (or an affiliate thereof) shall be solely responsible for
the
establishment,
maintenance and servicing of the OPEN Card Accounts, and shall be
solely responsible for all credit and fraud losses on the OPEN Card
Accounts. American Express may cancel or suspend credit privileges
of any OPEN Card Account customer if American Express determines
such action is warranted in accordance with its applicable credit
policies and procedures. American Express (or its affiliate) shall
be permitted to transfer ownership of the OPEN Card Accounts in
connection with the securitization and other financing conducted in
the ordinary course of its business. The parties acknowledge that
AEFSB is the issuer of the OPEN Card Accounts under this Agreement
and that nothing in this Section 4.2 or otherwise in this
Agreement or anywhere else shall be deemed to imply in any way that
Advanta, directly or indirectly, issues OPEN Card Accounts in
connection with the Campaign or otherwise directly or indirectly
issues OPEN card products. American Express (or its affiliate)
shall have the sole discretion to delete, add or amend the features
and benefits of the OPEN Card Accounts.
4.3 American
Express (or its affiliate) shall perform all functions and services
that are required to establish, maintain and administer the OPEN
Card Accounts. American Express (or its affiliate) will apply its
standard servicing standards in all circumstances, including but
not limited to, when making credit-line adjustments, re-pricing the
terms of an OPEN Card Account, authorizing transactions at the
point of sale that involve credit limit overrides, that are
generally consistent in all material respects the servicing
standards applied to OPEN Card Accounts not referred by
Advanta.
4.4 Except as
otherwise expressly provided in this Agreement, American Express
shall be responsible for its costs related to opening and operating
the OPEN Card Accounts, including, but not limited to,
credit-bureau costs, pre-screening and post-screening costs,
credit-authorization costs, card-production costs, processing,
servicing, administration, compliance, billing and collection
costs, the cost of funding the card receivables and credit and
fraud losses on the OPEN Card Accounts.
4.5 American
Express will not, and is not obligated to, make any
representations, warranties, or other statements concerning you,
your communication channels, any of your products or services, or
any of your policies, procedures and practices.
4.6 Except as
otherwise expressly provided in this Agreement, American Express
will be solely responsible for all of its Campaign Materials and
communications. Advanta disclaims all liability for such materials
and communications, except to the extent that the same, and your
use thereof, is in strict compliance with that which has been
pre-approved and pre-authorized by you and are not changed by
us.
4.7 American
Express shall comply with Advanta’s privacy policies, and
applicable privacy and data security laws in dealing with the
Business Customer Information. Except as provided in Section 4.8,
American Express shall not use the Business Customer Information
except to identify Business Customers in the Target Population, to
communicate with them pursuant to Section 1.4, to evaluate
their applications for OPEN Card Accounts, to service OPEN Card
Accounts opened in connection with the Campaign, and to determine
Advanta’s entitlement to a Referral Fee. Without limiting the
foregoing, except as provided in Section 1.4, American Express
shall not allow any third party to access or use the Business
Customer Information, other than service providers acting on its
behalf to perform actions that would be permitted under this
Section 4.7 if conducted by American Express
directly.
4.8 (i) If
American Express opens an OPEN Card Account for a Business Customer
in the Target Population and is obligated to pay a Referral Fee (or
has a right of set-off against a Referral Fee in accordance with
Section 16.9) with respect thereto (subject to the fulfillment
of the requirement in Section 1(iii) or Section 2(iv), as
applicable, of Schedule B), it may thereafter use any Business
Customer Information as to that Business Customer in any manner
permitted by Advanta’s privacy policy or American
Express’s privacy policy, as applicable, and applicable law
in perpetuity.
(ii) American Express may also use any
Business Customer Information as to any Business Customer in the
Tier 1 Target Population (as defined in Schedule B) in any
manner permitted by Advanta’s privacy policy and applicable
law in perpetuity.
4.9 No more
than one (1) time (but including follow up investigations on
items identified in such audit) within the nine (9) month
period following the Effective Date, American Express shall allow a
third party approved by American Express, which consent shall not
be unreasonably withheld, conditioned or delayed, on behalf of
Advanta, at Advanta’s cost, to inspect and audit the
applicable books and records of American Express relating to the
calculation of Referral Fees, and the handling and use of Business
Customer Information. Any such audit shall be conducted upon
reasonable advance Notice and during normal business hours and
pursuant to such third party’s written agreement with Advanta
to maintain the confidentiality of information audited (or pursuant
to professional duties to similar effect). If you become aware of
any violation by such third party of such confidentiality
obligations, you shall promptly notify American Express and take
all reasonable steps required to prevent further breach and
disclosure; provided, however, that you shall be liable for any
breach by such agent of, or failure by such third party to comply
with such obligation and that such a breach or failure to comply by
such agent will be deemed a breach of this Agreement by you.
American Express shall cooperate with any such audit. Upon
Advanta’s request, American Express shall provide, within a
reasonable period, documentation and information necessary for
Advanta to answer inquiries of auditors and regulatory authorities.
Notwithstanding anything to the contrary in this Agreement, any
disclosure of or access to confidential or personally identifiable
information is subject to American Exp
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