EXECUTION COPY
SERVICES
TRANSITION AGREEMENT
THIS
SERVICES TRANSITION AGREEMENT ("Agreement") is entered into as of
this 21 st day of December 2005 ("Effective Date") by
and between Intersections Inc. ("Intersections"), a corporation
duly organized and existing under the laws of the State of
Delaware, with offices at 14930 Bogle Drive, Chantilly, Virginia
20151, and American Express Travel Related Services Company, Inc.
("Amex"), a corporation duly organized and existing under the laws
of the State of Delaware, with offices at World Financial Center,
American Express Tower, 200 Vesey Street, New York, New York 10285
(together the "Parties," and each individually, a "Party").
WHEREAS, Intersections was formerly known as CreditComm Services
LLC;
WHEREAS,
Intersections f/k/a CreditComm Services LLC and Amex entered into
an agreement entitled "Consumer Credit Information Service
Agreement," dated March 12, 1997 ("Original Agreement"), in which
Intersections agreed to promote, sell and provide its consumer
credit information services to various parties, including existing
Amex customers;
WHEREAS,
Intersections f/k/a CreditComm Services LLC and Amex entered into
an agreement entitled "First Amendment to the Consumer Credit
Information Service Agreement," dated January 30, 1998 ("First
Amendment");
WHEREAS,
Intersections f/k/a CreditComm Services LLC and Amex entered into
an agreement entitled "Second Amendment to the Consumer Credit
Information Service Agreement," dated June 5, 1998 ("Second
Amendment");
WHEREAS,
Intersections f/k/a CreditComm Services LLC and Amex entered into
an agreement entitled "Third Amendment to the Consumer Credit
Information Service Agreement," dated February 1, 2000 ("Third
Amendment");
WHEREAS,
Intersections and Amex entered into a letter agreement amending and
modifying the Original Agreement on October 1, 2000 ("Fourth
Amendment");
WHEREAS,
Intersections and Amex entered into an agreement entitled
"Amendment to Consumer Credit Information Service Agreement," dated
June 28, 2002 ("Fifth Amendment");
WHEREAS,
Intersections and Amex entered into an untitled agreement amending
the Original Agreement on or about November 6, 2002 ("Sixth
Amendment);
WHEREAS,
Intersections and Amex entered into an agreement entitled "Seventh
Amendment to Consumer Credit Information Service Agreement," dated
November 15, 2002 ("Seventh Amendment," together with the Original
Agreement, First Amendment, Second Amendment, Third Amendment,
Fourth Amendment, Fifth Amendment, and Sixth Amendment,
collectively, the "Service Agreement");
WHEREAS,
the Service Agreement expires on December 31, 2005 and Amex does
not intend to exercise its right to renew the Service
Agreement;
WHEREAS, Intersections desires to maintain its right to service
certain customers;
WHEREAS, Amex desires to maintain its right to service certain
customers;
WHEREAS,
Intersections intends to provide Amex with certain transition
services after the expiration of the Service Agreement; and
WHEREAS,
Intersections and Amex desire to amend and clarify certain
provisions of the Service Agreement with respect to the rights and
obligations of the Parties that survive the expiration of the
Service Agreement, set forth certain understandings with respect to
the subject matter of the Service Agreement, and settle all claims
and disputes relating to the Service Agreement.
NOW,
THEREFORE, in consideration of the promises, covenants, and
agreements set forth below, the adequacy and sufficiency of which
Intersections and Amex hereby acknowledge, it is agreed as
follows:
1. Definitions . Unless
the context of a provision herein otherwise requires, words
importing the singular shall include the plural and vice-versa. The
words "include," "includes" or "including" shall mean include
without limitation, includes without limitation or including
without limitation. For the purposes of this Agreement, the
following terms shall have the meanings ascribed to them as
follows:
(a) "Affiliate" shall mean,
for a Party, another entity that is controlled by, controls, or is
under common control with, that Party.
(b) "American Express Card
Customers" shall mean those customers of the CreditAware,
CreditMatters, and Credit Secure programs within the Service who
are being billed using a credit card issued by Amex under its
American Express brand.
(c) "Business CreditAware"
shall mean the consumer credit information service being offered by
Intersections as of the Effective Date as part of the Service under
the brand name Business CreditAware.
(d) "Business CreditAware
Customers" shall mean all customers of the Business CreditAware
program within the Service regardless of how they are billed for
such service.
(e) "Competing Service" shall
mean a service, other than the Service, that provides a Person
access to his or her credit information from one or more credit
reporting agencies.
(f) "CreditAware" shall mean
the consumer credit information service being offered by
Intersections as of the Effective Date as part of the Service under
the brand name CreditAware.
(g) "CreditMatters" shall mean
the consumer credit information service being offered by
Intersections as of the Effective Date as part of the Service under
the brand name CreditMatters.
(h) "CreditSecure" shall mean
the consumer credit information service being offered by
Intersections as of the Effective Date as part of the Service under
the brand name CreditSecure.
(i) "Non-American Express Card
Customers" shall mean all customers of the CreditAware,
CreditMatters, and Credit Secure programs within the Service who
are not American Express Card Customers, including those customers
that are being billed for such services using a credit card or
payment mechanism other than a credit card issued by Amex under its
American Express brand.
(j) "Person" shall mean any
corporation, partnership, joint venture, limited liability company,
organization, entity or natural person.
(k) "Service" shall have the
same meaning as used in the Service Agreement subject to the terms,
conditions and restrictions set forth in this Agreement. For the
avoidance of doubt, the Parties agree that the Service consists of
four different branded offerings, namely, Business CreditAware,
CreditAware, CreditMatters, and CreditSecure.
(l) "Solicit" or "Soliciting"
shall mean directly or indirectly promoting, endorsing, marketing,
suggesting or inducing.
2. American Express Card
Customers .
(a) Intersections will continue to
provide CreditSecure, CreditAware and CreditMatters to the American
Express Card Customers through May 31, 2006 in accordance with the
Service Agreement except as modified by this Agreement.
Intersections will have no obligation to provide Credit Secure,
Credit Aware or Credit Matters after May 31, 2006.
(b) Prior to May 1, 2006, Amex will
not provide CreditSecure, CreditAware, CreditMatters or any
Competing Service to any Person that to its knowledge is an
American Express Card Customer, except for the Service provided by
Intersections under this Agreement, or Solicit any such Person to
receive CreditSecure, CreditAware, CreditMatters or any Competing
Service from any provider except Intersections under this
Agreement. For the purposes of this Article 2, "knowledge" shall
mean actual knowledge or notice that the Person is a subscriber to
the Service, including notice through records provided by
Intersections during the term of the Service Agreement or
thereafter.
(c) In connection with the transition
of the American Express Card Customers that is contemplated in this
Article 2, Intersections shall provide transition services at no
cost to Amex as detailed in Schedule A to this Agreement
(collectively, the "Transition Services").
(d) It is acknowledged that prior to
the Effective Date, American Express Card Customers were notified
that Intersections will no longer provide the Service to them and
that a different consumer credit information service will be
provided to such American Express Card Customers by Amex and a
designated service provider without the participation or
involvement of Intersections.
(e) CreditSecure, CreditAware and
CreditMatters are currently supported by various toll free
telephone numbers as set forth in Schedule B attached hereto (the
"800 Numbers"). Amex shall become the responsible organization for
the 800 Numbers and the Parties shall have the appropriate
telecommunications provider redirect the 800 Numbers for
CreditSecure, CreditAware and CreditMatters to a telephone operator
support service of Amex's choosing on the date the last American
Express Card Customer is transferred from Intersections to Amex (or
Amex's designated service provider), but in no event later than May
31, 2006. Both Parties will take the necessary steps and execute
any and all documents necessary to ensure the designation of
responsible organization is transferred from Intersections to Amex
by the relevant telecommunications provider no later than May 31,
2006. After the date on which Amex becomes the responsible
organization, the 800 Numbers shall be the sole property of Amex
(to the extent any protectable interest may exist in the 800
Numbers) and Amex will transfer any Non-American Express Card
Customer or Business CreditAware Customer who calls the 800 Numbers
to Intersections via telephone numbers to be designated by
Intersections to Amex in writing.
(f) As of the Effective Date and
subject to the other terms of this Agreement, Intersections shall
have no obligation to enroll any additional Persons who would be
classified as American Express Card Customers in the Service.
Intersections may, in its sole discretion, elect to enroll such
Persons in the Service on a case-by-case basis prior to April 30,
2006, however, any such election to enroll a particular American
Express Card Customer in the Service shall not be deemed a waiver
of Intersections' rights under this Section 2(f).
3. Non-American Express Card
Customers .
(a) As between Intersections and
Amex, Intersections shall have the perpetual right to provide the
Service to the Non-American Express Card Customers and Business
CreditAware Customers.
(b) Notwithstanding anything to the
contrary in the Service Agreement, Intersections shall not have any
obligations to pay commissions or any other fees to Amex in
connection with revenue received in or after January 2006 for the
provision of the Service to Non-American Express Card Customers or
the Business CreditAware Customers.
(c) Commencing on January 1, 2006,
and notwithstanding anything to the contrary in the Service
Agreement, as between Intersections and Amex, (i) Intersections
will not be restricted in any way in its relationship with the
Non-American Express Card Customers and Business CreditAware
Customers, except as set forth in Section 3(d) below; and (ii) such
Persons will be considered customers of Intersections and not
Amex.
(d) Intersections agrees not to
increase the price of the Service or Solicit Non-American Express
Card Customers to purchase other products or services for sixty
(60) days from the date of the notification mailing referenced in
Section 3(e) below. During the sixty (60) day period following the
mailing referenced in Section 3(e), Intersections will allow
Non-American Express Card Customers to cancel their subscription to
the Service if requested and the stated reason for such
cancellation is Amex's lack of future involvement with the Service.
After the expiration of the sixty (60) day period, Intersections
will have the right to cross-market and sell any other products and
services to Non-American Express Card Customers and Business
CreditAware Customers and to change the pricing and other terms of
the Service in its sole discretion. Amex's prior consent shall not
be required for any of the foregoing activities. Intersections will
not be required to disclose customer and service information of any
nature to Amex after the expiration of the sixty (60) day period
referenced above.
(e) The Non-American Express Card
Customers and Business CreditAware Customers shall be notified that
Amex will no longer be involved in the provision of the Service and
that the Service provided to such Non-American Express Card
Customers and Business CreditAware Customers will continue with
Intersections without the participation or involvement of Amex.
This notification shall be made by Intersections by mail on or
before May 31, 2006, 2006 using the mutually agreed upon customer
notification attached hereto as Schedule C.
(f) Business
CreditAware is currently supported by various toll free telephone
numbers as set forth in Schedule D attached hereto (the "Business
CreditAware 800 Numbers"). As of the Effective Date, Intersections
is and shall remain the responsible organization for the Business
CreditAware 800 Numbers. The Business CreditAware 800 Numbers shall
be the sole property of Intersections (to the extent any
protectable interest may exist in the Business CreditAware 800
Numbers).
4. No Solicitation
.
(a) Intersections will not Solicit
any Person that to its knowledge is an American Express Card
Customer to use a non-Amex billing vehicle for the payment of fees
due in connection with CreditSecure, CreditAware or CreditMatters.
For the purp
