Business Solutions Master Agreement - ADS Alliance Data Systems Inc.
BUSINESS SOLUTIONS MASTER AGREEMENT
BETWEEN
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AND
ADS ALLIANCE DATA SYSTEMS, INC.
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BUSINESS SOLUTIONS MASTER AGREEMENT
TABLE OF CONTENTS
SECTION 1 Definitions.............................................................1
SECTION 2 Services................................................................1
SECTION 3 Commencement Date and Implementation....................................2
SECTION 4 Software and Data.......................................................2
SECTION 5 Ownership Rights of Parties.............................................3
SECTION 6 Term....................................................................3
SECTION 7 Default and Termination.................................................3
SECTION 8 Fees....................................................................4
SECTION 9 Third Party Service Providers...........................................4
SECTION 10 Liability and Indemnification...........................................5
SECTION 11 Confidentiality.........................................................5
SECTION 12 Representations, Warranties and Covenants...............................7
SECTION 13 Miscellaneous...........................................................8
SCHEDULES:
SCHEDULE 1 DEFINITIONS............................................................13
SCHEDULE 2 SAMPLE PROJECT SCHEDULE................................................15
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BUSINESS SOLUTIONS MASTER AGREEMENT
This Business Solutions Master Agreement (the "Agreement") dated the
_____ day of __________, 1999 between ADS Alliance Data Systems, Inc. ("ADS"), a
Delaware Corporation, with an office at 800 TechCenter Drive, Gahanna, Ohio
43230 and ___________________________ ("Customer"), a __________ Corporation,
with its principal executive office at
___________________________________________.
W I T N E S S E T H:
WHEREAS, Customer wishes to utilize ADS' database marketing and
consulting ("Business Solutions") services for the benefit of Customer's retail
business; and
WHEREAS, ADS desires to provide such Business Solutions services to
Customer, as Customer may request from time to time:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, ADS and Customer agree as follows:
1. DEFINITIONS. Capitalized terms in this Agreement shall have that
meaning set forth on Schedule 1, unless the context dictates otherwise.
2. SERVICES.
2.1 PROJECT SCHEDULES. Customer may from time to time request that
ADS provide certain Business Solutions services to Customer.
Each time Customer requests services from ADS, Customer and
ADS shall execute a project schedule describing the services
(the "Services") to be provided by ADS, in a form similar to
the Sample Project Schedule set forth in Schedule 2 (each
referred to herein as a "Project Schedule" and referred to
collectively herein as the "Project Schedules"). ADS will
provide to Customer the Services described in each Project
Schedule executed, from time to time, by the Parties pursuant
to this Agreement. Each Project Schedule shall set forth
therein all of the specific services to be provided by ADS and
the terms, conditions and fees relating to such Services and
shall incorporate the terms and provisions of this Agreement
by reference. Unless a Project Schedule expressly provides
otherwise, it shall be governed by the terms and conditions
described herein. In the event of a conflict between the
provisions of this Agreement and a Project Schedule, the terms
of the Project Schedule shall prevail.
2.2 CHANGES TO SERVICES. In the event Customer desires any changes
or additions to the Services, Customer will provide ADS with
written notice of such request and ADS will advise Customer
within five (5) Business Days for existing services and ten
(10) Business Days for new developmental services whether or
not ADS will develop and implement such changes and/or
additions, and if so, the estimated costs and time frame for
such development and implementation, as well as any
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fees or charges for such changes or additions. Customer shall
then advise ADS in writing whether or not to proceed with such
changes or additions.
2.3 USE OF SUBCONTRACTORS. ADS may, with Customer's prior written
consent which shall not be unreasonably withheld, subcontract
portions of the Services from time to time throughout the Term
of this Agreement.
2.4 EXCLUSIVITY/RIGHT OF FIRST REFUSAL AND SERVICING OF NEW
BUSINESS. During the Term of this Agreement, ADS will have the
right of first refusal for any new database marketing and
customer relationship management services desired by Customer,
before Customer engages any third party to perform such
services.
3. COMMENCEMENT DATE AND IMPLEMENTATION. ADS shall use its best efforts to
provide the Services to Customer according to the implementation
schedule set forth in the Project Schedule, or such other dates as the
Parties mutually agree upon in writing.However, in no event shall ADS
be liable in any manner or be required to compensate Customer for any
delay in performance under this Agreement or a Project Schedule, caused
by Customer, any third party or as a result of a Force Majeure event in
Section 13.2, and such delay shall not be deemed a default under this
Agreement or a Project Schedule. Each party shall be liable to the
other party for any reasonable costs actually incurred by the other
party as a result of a delay in the implementation (as specified and
mutually agreed to in the program design for each service) which delay
is caused solely by the other party.
4. SOFTWARE AND DATA.
4.1 SOFTWARE AND TECHNOLOGY OWNERSHIP. All software or other
technology owned, developed by or licensed to ADS (including,
but not limited to, software or other technology developed by
or licensed to ADS in response to Customer's request or to
accommodate Customer's special requirements) will remain the
exclusive property of ADS, regardless of whether or not
Customer is required to pay ADS for such software or
technology development. Nothing in this Agreement shall be
deemed to convey a proprietary interest to Customer or to any
party other than ADS in any of the software, hardware or
technology used or provided by ADS to permit or facilitate
Customer's use of the Services, or in any of the derivative
works thereof.
4.2 DATA ENTRY AND TRANSMISSION. Customer shall be responsible for
inputting and/or transmitting certain data for processing by
ADS. ADS shall not be responsible for errors in the Services
to the extent such errors result from Customer's error in
inputting and/or transmitting data or Customer's failure to
follow ADS' standards and procedures. ADS shall be entitled to
rely upon information submitted by Customer. In the event ADS
re-runs any reports for Customer due to errors by Customer in
inputting and/or transmitting data, Customer shall bear the
costs of any such re-runs.
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4.3 ADS INTELLECTUAL PROPRIETARY PROPERTY. The following shall be
deemed intellectual proprietary ADS property: ADS' Marketing
Database System and design, and ADS' unique segmentation
designs (i.e., incremental sales models) and products (i.e.,
Portrait).
5. OWNERSHIP RIGHTS OF PARTIES. Neither Party will, as a result of this
Agreement and all Project Schedules, or of performance hereunder or
thereunder, acquire any property or other right, claim or interest,
including any patent right or copyright interest, in any of the
information systems, processors, equipment, computer software, data,
intellectual property, service marks or trademarks of the other.
6. TERM. This Agreement will be effective as of the date of this Agreement
set forth on page 1 (the "Effective Date") and will continue until
terminated pursuant to Section 7).
7. DEFAULT AND TERMINATION.
7.1 DEFAULT UNDER A PROJECT SCHEDULE. In the event that a Party
materially fails to perform any of its obligations under a
Project Schedule, the other Party may give the defaulting
Party Notice of such failure. The defaulting Party shall
within ten (10) Business Days of receipt of such Notice remedy
the failure specified therein. In the event the defaulting
Party fails to remedy a failure under a Project Schedule
within such ten (10) Business Days or, for those failures
which cannot reasonably be cured within ten (10) Business
Days, fails to promptly commence curing such failure and
proceed with all due diligence to substantially cure the same,
then the other Party may give a termination Notice to the
defaulting Party and may terminate the Project Schedule.
7.2 DEFAULT UNDER THIS AGREEMENT. In the event that a Party
materially fails to perform any of its obligations under this
Agreement, the other Party may give the defaulting Party
Notice of such failure. The defaulting Party shall within
thirty (30) days of receipt of such Notice remedy the failure
specified therein. In the event the defaulting Party fails to
remedy a failure under this Agreement within such thirty (30)
days or, for those failures which cannot reasonably be cured
within thirty (30) days, fails to promptly commence curing
such failure and proceed with all due diligence to
substantially cure the same, the other Party may give a
termination Notice to the defaulting party and may terminate
this Agreement.
7.3 EVENT OF BANKRUPTCY. If an Event of Bankruptcy shall have
occurred with respect to either Party, the other Party may
give a termination Notice to the bankrupt Party and may
terminate this Agreement.
7.4 TERMINATION FOR CONVENIENCE BY EITHER PARTY. Either Party may
terminate this Agreement at any time by giving__________ days
prior written Notice to the other Party. Such Notice shall set
forth the date of termination.
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7.5 EFFECT OF TERMINATION.
7.5.1 TERMINATION BY CUSTOMER. Upon termination of this
Agreement by Customer pursuant to this Section 7, ADS
shall, at Customer's option, either, (a) immediately
cease work in respect of all Project Schedules, or
(b) conclude any work in progress in an efficient and
professional manner and assemble and deliver to
Customer any Work Product after completion thereof.
7.5.2 TERMINATION BY ADS. Upon termination of this
Agreement by ADS pursuant to this Section 7, ADS will
make every effort to conclude any work in progress in
an efficient and professional manner within the
thirty (30) days after notice, ADS will assemble and
deliver to Customer any Work Product after completion
thereof.
7.5.3 PAYMENT FOR SERVICES RENDERED. Upon termination of a
Project Schedule or this Agreement for any reason
Customer shall pay ADS for all Services performed
through (i) the date of such termination, or (ii) if
ADS concludes any work in progress after termination
of this Agreement the date such work in progress is
concluded.
8. FEES.
8.1 PAYMENT OF FEES. Customer shall pay to ADS the fees set forth
in each applicable Project Schedule according to the payment
provisions set forth in such Project Schedule.
8.2 TAXES. Customer will be responsible for payment of all sales,
use, excise, and value-added taxes, or taxes of a similar
nature, imposed by the United States, any state or local
government, or other taxing authority, on the Services being
paid for by Customer hereunder.
9. THIRD PARTY SERVICE PROVIDERS. Customer may obtain from third party
providers certain services related to and to augment or supplement the
Services. Customer may select and retain such third party providers and
will notify ADS of any change in third party providers or in the level
or nature of services provided thereby, to the extent such services
affect the Services. ADS shall have no responsibility to remedy a third
party provider's failure to provide services to Customer and if such
failure adversely affects ADS' ability to provide the Services, ADS
shall be excused from the performance of the Services or their
performance in accordance with the Service Levels, to the extent that
the Services are affected by such failure until the third party
provider or a successor chosen by Customer corrects the failure. If and
to the extent a change in Customer's third party service provider
results in actual and unavoidable costs or expenses to ADS, Customer
shall reimburse ADS for such costs and expenses incurred.
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10. LIABILITY AND INDEMNIFICATION.
10.1 NO WARRANTIES. EXCEPT AS PROVIDED HEREIN, THERE ARE NO EXPRESS
OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
RESPECTING THE SERVICES AND/OR OTHER PRODUCTS SOLD OR PROVIDED
BY ADS PURSUANT TO THIS AGREEMENT AND ALL PROJECT SCHEDULES.
THE REMEDIES SET FORTH IN THIS SECTION WITH RESPECT TO SUCH
SERVICES ARE THE SOLE REMEDIES RELATING TO ADS' LIABILITY TO
CUSTOMER FOR MONEY DAMAGES.
10.2 CUSTOMER'S INDEMNIFICATION. Customer shall indemnify and hold
harmless ADS and its Indemnitees from and against cost, loss,
liability, damage, judgment, cause of action, claim, expense,
penalty or fine, including, but not limited to, reasonable
attorneys' fees, sustained by ADS and its Indemnitees by way
of suit, claim, settlement (which shall require ADS' consent,
which shall not be unreasonably withheld) or otherwise, in a
private, third party or governmental suit, arising out of,
alleged to arise out of, or in connection with the Services
provided for in this Agreement and all Project Schedules,
provided that any and all such cost, loss, liability, damage,
judgment, cause of action, claim, expense, penalty or fine is
the result of the gross negligence or willful misconduct of
Customer, its officers, directors, or employees.
10.3 ADS' INDEMNIFICATION. ADS shall indemnify and hold harmless
Customer and its Indemnitees from and against cost, loss,
liability, damage, judgment, cause of action, claim, expense,
penalty or fine, including, but not limited to, reasonable
attorneys' fees, sustained by Customer and its Indemnitees by
way of suit, claim, settlement (which shall require Customer`s
consent, which shall not be unreasonably withheld) or
otherwise, in a private, third party or governmental suit,
arising out of, alleged to arise out of, or in connection with
the Services provided for in this Agreement and all Project
Schedules, that any and all such cost, loss, liability,
damage, judgment, cause of action, claim, expense, penalty or
fine is the result of the gross negligence or willful
misconduct of ADS, its officers, directors or employees.
11. CONFIDENTIALITY.
11.1 OBLIGATIONS OF THE PARTIES. Neither party shall disclose any
information not of a public nature concerning the business or
properties of the other Party which it learns as a result of
negotiating or implementing this Agreement and all Project
Schedules, including, without limitation, the terms and
conditions of this Agreement and the Project Schedules, trade
secrets, business and financial information, source codes,
business methods, procedures, know-how and other information
of every kind that relates to the business of either Party,
except to the extent disclosure is required by applicable law,
is necessary for the performance
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of the disclosing Party's obligation under this Agreement, or
is agreed to in writing by the other Party; provided that (i)
prior to disclosing any confidential information to any third
party, the Party making the disclosure shall give Notice to
the other Party of the nature of such disclosure and of the
fact that such disclosure will be made, and (ii) prior to
filing a copy of this Agreement and/or the Project Schedules
with any governmental authority or agency, the filing Party
will consult with the other Party with respect to such filing
and shall redact such portions of this Agreement and/or the
Project Schedules which the other Party requests be redacted,
unless, in the filing Party's reasonable judgment based on the
advice of its counsel (which advice shall have been discussed
with counsel to the other Party), the filing Party concludes
that such request is inconsistent with the filing Party's
obligations under applicable laws. Neither Party shall acquire
any property or other right, claim or interest, including any
patent right or copyright interest, in any of the systems,
procedures, processes, equipment, computer programs and/or
information of the other Party by virtue of this Agreement or
the Project Schedules. Neither Party shall use the other
Party's name for advertising or promotional purposes without
such other Party's written consent.
11.2 EXCEPTIONS. The obligations of this Section, shall not apply
to any information:
a) which is generally known to the trade or to the
public at the time of such disclosure; or
b) which becomes generally known to the trade or the
public subsequent to the time of such disclosure;
provided, however, that such general knowledge is not
the result of a disclosure in violation of this
Section; or
c) which is obtained by a Party from a source other than
the other Party, without breach of this Agreement or
any other obligation of confidentiality or secrecy
owed to such other Party or any other person or
organization; or
d) which is independently conceived and developed by the
disclosing Party and proven by the disclosing Party
through tangible evidence not to have been developed
as a result of a disclosure of information to the
disclosing Party, or any other person or organization
which has entered into a confidential arrangement
with the non-disclosing Party.
11.3 DISCLOSURE. If any disclosure is made pursuant to the
provisions of this Section, to any parent company, subsidiary,
affiliate or non-governmental third party, the disclosing
Party shall be responsible for ensuring that such parent,
subsidiary, affiliate or non-governmental third party keeps
all such information in confidence and that any
non-governmental third party executes a confidentiality
agreement provided by the non-disclosing Party. Each Party
covenants that at all times it shall have in place procedures
designed to assure that each of its employees who is given
access to the other Party's confidential information shall
protect the
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privacy of such information. Each Party acknowledges that any
breach of the confidentiality provisions of this Agreement by
it will result in irreparable damage to the other Party and
therefore in addition to any other remedy that may be afforded
by law any breach or threatened breach of the confidentiality
provisions of this Agreement may be prohibited by restraining
order, injunction or other equitable remedies of any court.
The provisions of this Section will survive termination or
expiration of this Agreement.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS.
12.1 CUSTOMER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Customer
represents, warrants and covenants the following:
12.1.1 COMPLIANCE WITH LAWS. Customer shall comply with all
applicable laws and regulations, whether federal,
state or local, in the performance of its business
and its obligations hereunder. Customer acknowledges
and agrees that Customer is solely responsible for
monitoring legal developments applicable to its
business and the Services requested by Customer, and
for interpreting and determining the requirements for
compliance with all applicable state and federal
laws. ADS shall be entitled to rely upon, without
verification, any and all information, data and
instructions at any time submitted to ADS by Customer
having to do with Customer or the Services, and ADS
shall have no responsibility or liability whatsoever
with respect to such information, data and
instructions.
12.1.2 DULY ORGANIZED. Customer is a corporation duly
organized, validly existing and in good standing
under the laws of the state of__________ . Customer
has performed all necessary corporate action to have
the appropriate authority to enter into this
Agreement and to comply with its provisions. Customer
will not, by entering into this Agreement, be in
default of any obligations pursuant to any other
agreements to which Customer is a party.
12.2 ADS' REPRESENTATIONS, WARRANTIES AND COVENANTS. ADS represents,
warrants and covenants the following:
12.2.1 COMPLIANCE WITH LAWS. ADS shall comply with all
applicable laws and regulations, whether federal,
state or local, in the performance of its business
and of its obligations hereunder.
12.2.2 DULY ORGANIZED. ADS is a corporation duly organized,
validly existing and in good standing under the laws
of the state of Delaware. ADS has performed all
necessary corporate action to have the appropriate
authority to enter into this Agreement and to comply
with its provisions. ADS will
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not, by entering into this Agreement, be in default
of any obligations pursuant to any other agreements
to which ADS is a party.
12.3 YEAR 2000 COMPLIANCE.
12.3.1 ADS' COMPLIANCE. ADS shall use commercially
reasonable efforts to ensure that software or systems
proprietary to ADS and used in the performance of the
Services hereunder shall be Year 2000 Compliant.
However, ADS shall not be responsible for (1)
software or system failures based on improvements,
enhancements, modifications or updates to, and any
inaccuracies, delays, interruptions, or errors caused
by any software or systems that are not proprietary
to ADS; (2) any inaccuracies, delays, interruptions
or errors occurring as a result of incorrect data or
data from other systems, software, hardware,
processes or third parties provided in a format that
is inconsistent with the format and protocols
established for the ADS software and systems
including date data in two-digit format, even if such
data is required for the operation of the software or
systems; and (3) any inaccuracies, delays,
interruptions or errors occurring, at no fault of
ADS, as a result of incorrect data or data from
telecommunication systems.
12.3.2 CUSTOMER'S COMPLIANCE. Customer shall use
commercially reasonable efforts to ensure that
software or systems proprietary to Customer and used
by Customer in connection with its business shall be
Year 2000 Compliant. However, Customer shall not be
responsible for (1) software or system failures based
on improvements, enhancements, modifications or
updates to, and any inaccuracies, delays,
interruptions, or errors caused by any software or
systems that are not proprietary to Customer; (2) any
inaccuracies, delays, interruptions or errors
occurring as a result of incorrect data or data from
other systems, software, hardware, processes or third
parties provided in a format that is inconsistent
with the format and protocols established for the
Customer software and systems including date data in
two-digit format, even if such data is required for
the operation of the software or systems; and (3) any
inaccuracies, delays, interruptions or errors
occurring, at no fault of Customer, as a result of
incorrect data or data from telecommunication
systems.
13. MISCELLANEOUS.
13.1 ASSIGNMENT. This Agreement shall be binding on the Parties and
their respective successors and assigns.
13.2 FORCE MAJEURE. Neither Party will be responsible for any
failure or delay in performance of its obligations under this
Agreement or any Project Schedules because of circumstances
beyond its control, including, but not limited to, acts of
God, flood, criminal acts, fire, riot, computer viruses,
computer hackers, accident,
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strikes or work stoppage, embargo, sabotage, inability to
obtain material, equipment or phone lines, government action
(including any laws, ordinances, regulations or the like which
restrict or prohibit the providing of the Services
contemplated by this Agreement), and other causes whether or
not of the same class or kind as specifically named above. In
the event a Party is unable to substantially perform its
obligations for any of the reasons described in this
Subsection, it will notify the other Party promptly of its
inability so to perform, and if the inability continues for
more than ninety (90) consecutive days, the Party so notified
may then terminate this Agreement forthwith. This provision
shall not, however, release the Party unable to perform from
using its best efforts to avoid or remove such circumstance
and such Party unable to perform shall continue performance
hereunder with the utmost dispatch whenever such causes are
removed.
13.3 NOTICES. All Notices pursuant to this Agreement must be in
writing and shall be deemed given when mailed by certified or
registered mail, return receipt requested, or sent by
receipted courier service, or delivered personally, to the
party concerned at the following address:
If to ADS:
ADS Alliance Data Systems, Inc.
800 TechCenter Drive
Gahanna, Ohio 43230
Attention: Director, Business Solutions
With a copy to: Attention: General Counsel
If to Customer:
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Attention:
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Either Party may change the address to which Notices and
communications will be sent by written Notice to the other
Party, provided that any Notice of change of address shall be
effective only upon receipt.
13.4 INTEGRATION OF PRIOR AGREEMENTS AND AMENDMENTS. This
Agreement, including its Project Schedules, constitutes the
entire agreement and understanding between the Parties and
merges all prior discussions between them, and supersedes all
prior agreements and understandings, relating to its subject
matter. This Agreement may not be amended or modified except
in writing signed by both Parties.
13.5 HEADINGS. The table of contents and headings given to the
sections and paragraphs of this Agreement are for convenience
of reference and are not to be used to interpret this
Agreement.
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13.6 SEVERABILITY. In the event that one or more provisions of this
Agreement or of any Project Schedule is held invalid, illegal
or unenforceable in any respect or on the basis of any
particular circumstances or in other jurisdictions, the
validity, legality and enforceability of such provision or
provisions under other circumstances or in other jurisdictions
and the remaining provisions will not in any way be affected
or impaired, unless the declaration of the invalidity,
illegality or unenforceability of such provision or provisions
substantially frustrates the continued performance by, or
entitlement to benefits of, either Party, in which case this
Agreement may be terminated by the affected party, without
penalty.
13.7 WAIVER. No failure or delay on the part of either Party in
exercising any power or right under this Agreement shall be
deemed to be a waiver, nor does any single or partial exercise
of any power or right preclude any other or further exercise,
or the exercise of any other power or right. No waiver by a
Party of any provision of this Agreement, or of any breach or
default, is effective unless in writing and signed by the
Party against whom the waiver is to be enforced.
13.8 APPLICABLE LAW. THIS AGREEMENT AND THE PROJECT SCHEDULES SHALL
BE GOVERNED BY AND CONSTRUED ACCORDING TO THE INTERNAL LAWS OF
THE STATE OF OHIO, REGARDLESS OF THE DICTATES OF OHIO
CONFLICTS LAW, AND THE PARTIES HEREBY SUBMIT TO EXCLUSIVE
JURISDICTION AND VENUE IN THE UNITED STATES FEDERAL DISTRICT
COURT FOR THE EASTERN DISTRICT OF OHIO, OR IN A STATE COURT
WITH COMPETENT JURISDICTION IN OHIO.
13.9 SURVIVAL. No termination of this Agreement or a Project
Schedule shall in any way affect or impair the powers,
obligations, duties, rights, indemnities, liabilities,
covenants or warranties and/or representations of the Parties
with respect to times and/or events occurring prior to such
termination, including the obligation to make payments arising
prior to the termination date. No powers, obligations, duties,
rights, indemnities, liabilities, covenants, warranties and/or
representations of the Parties with respect to times and/or
events occurring after termination shall survive termination
except for the following Sections: Section 4, Section 5,
Subsection 7.5, Section 8, Section 10 and Section 11.
13.10 MUTUAL DRAFTING. This Agreement is the joint product of ADS
and Customer and each provision hereof has been subject to
mutual consultation, negotiation and agreement of ADS and
Customer, and shall not be construed for or against any Party
hereto.
13.11 INDEPENDENT CONTRACTOR. The Parties hereby declare and agree
that ADS is engaged in an independent business, and shall
perform its obligations under this Agreement as an independent
contractor; that any of ADS' personnel performing the Services
hereunder are agents, employees, affiliates, or subcontractors
of ADS and are not agents, employees, affiliates, or
subcontractors of Customer; that ADS
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has and hereby retains the right to exercise full control of
and supervision over the performance of ADS' obligations
hereunder and full control over the employment, direction,
compensation and discharge of any and all of the ADS' agents,
employees, affiliates, or subcontractors, including compliance
with workers' compensation, unemployment, disability
insurance, social security, withholding and all other federal,
state and local laws, rules and regulations governing such
matters; that ADS shall be responsible for ADS' own acts and
those of ADS' agents, employees, affiliates, and
subcontractors; and that except as expressly set forth in this
Agreement, ADS does not undertake by this Agreement or
otherwise to perform any obligation of Customer, whether
regulatory or contractual, or to assume any responsibility for
Customer's business or operations.
13.12 NO THIRD PARTY BENEFICIARIES. The provisions of this Agreement
are for the benefit of the Parties hereto and not for any
other person or entity.
13.13 ORDER OF PRECEDENCE. In the event of any conflict or
inconsistency between or among the provisions of this
Agreement and a Project Schedule, the provisions of the
Project Schedule shall control; provided that the Agreement
and Project Schedules shall be interpreted so as to give
effect to all provisions in both to the extent reasonably
practicable. In the event of a conflict between any Project
Schedules, the terms of the latest dated Project Schedule
shall prevail.
13.14 COUNTERPARTS. This Agreement may be executed in several
counterparts all of which taken together shall constitute one
single agreement between the Parties.
13.15 CONSENTS, APPROVALS AND REQUESTS. All consents and approvals
to be given by either Party under this Agreement and the
Project Schedules shall not be unreasonably withheld and each
Party shall make only reasonable requests under this Agreement
and the Project Schedules.
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IN WITNESS WHEREOF, the parties have executed this agreement by their
duly authorized officers as of the day and year first above written.
ADS Alliance Data Systems, Inc.
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(Customer)
By: By:
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Title: Title:
------------------------- -----------------------------------
Print Name: Print Name:
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SCHEDULE 1 - DEFINITIONS
"ADS" means ADS Alliance Data Systems, Inc.
"Affiliate" means any wholly-owned subsidiary or parent company of Customer or
ADS or any other entity of which a majority is owned by Customer or ADS or by
the same entity owning Customer or ADS.
"Business Day" means any calendar day other than Saturday or Sunday and
excluding holidays then currently recognized by ADS. All times referenced in
this Agreement will be Eastern Time unless otherwise noted.
"Customer" means_____________________________________.
"Event of Bankruptcy" means, with respect to any Party, the occurrence of any of
the following events: (a) a decree or order, by a governmental authority having
jurisdiction, is entered with respect to such Party and is not vacated,
discharged, stayed or bonded within 60 days after the date of entry thereof, (i)
for relief in respect of such Party pursuant to the Bankruptcy Code, (ii)
appointing a custodian, receiver, liquidator, assignee, trustee, or sequestrator
(or similar official) of such Party or of any substantial part of its
properties, or (iii) ordering the winding-up or liquidation of the affairs of
such Party, or (b) a Person other than such Party files a petition seeking the
institution of any proceedings specified in clauses (a)(i), (ii) or (iii) in
respect of such Party, and such petition shall not be discharged or dismissed
within 60 days after the date of filing thereof, or (c) such Person (i) files a
petition seeking relief pursuant to the Bankruptcy Code, (ii) consents 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 such
Party or of any substantial part of its properties, or the winding up or
liquidation of its affairs, or (iii) takes corporate action in furtherance of
any such action.
"Indemnitee" shall mean a Party's parent, affiliates, subsidiaries and their
respective directors, officers, employees, agents, successors, shareholders and
assigns.
"Notice" means a formal communication related to, or required under any of the
provisions of this Agreement and given in accordance with the provisions of
Subsection 13.3 of the Agreement.
"Party" means either ADS or Customer.
"Parties" means ADS and Customer.
"Person" means any individual, sole proprietorship, partnership, joint venture,
trust, unincorporated organization, association, corporation, institution,
public benefit corporation, entity or Governmental Authority.
"Project Schedule (s)" shall have that meaning set forth in the recitals.
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"Services" shall have that meaning set forth in Subsection 2.1.
"Work Product" means all written reports and other documentation prepared by ADS
for Customer in connection with the Services.
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SCHEDULE 2 - SAMPLE PROJECT SCHEDULE
TO BUSINESS SOLUTIONS MASTER AGREEMENT
This Project Schedule (the "Project Schedule") is entered into between ADS
Alliance Data Systems, Inc. ("ADS") and________________("Customer").
WHEREAS, ADS and Customer have entered into a Business Solutions
Master Agreement dated___________ , 1999 (the "Agreement"), pursuant to which
the Parties contemplated execution of certain Project Schedules setting forth
the Services to be provided by ADS:
NOW, THEREFORE, ADS and Customer agree as follows:
1. DEFINITIONS. Any capitalized term not defined herein shall have the
meaning provided in the Agreement.
2. INCORPORATION OF AGREEMENT. The Parties agree that all of the terms of
the Agreement, except as specifically provided in this Project
Schedule, shall apply to this Project Schedule and are incorporated
herein.
3. EFFECTIVE DATE. The effective date of this Project Schedule shall be
the season, consisting of__________ through__________ , 1999.
4. SERVICES. ADS shall provide Customer with the following Services:
5. IMPLEMENTATION SCHEDULE. The Services shall be provided as set forth
below:
CUSTOMER SPRING 1999
<CAPTION>
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
PROGRAM TIMING SCOPE CIRCULATION PROJECT PRICE RETURN PRICE
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
6. FEES. Customer shall pay the following fees for the Services:
A base Retainer fee of $__________ to retain an ADS Business Solutions
account team to provide the Services described above. In addition, the
actual and reasonable costs for shipping and travel expenses incurred
by ADS during implementation of the Services will be directly passed
through to Customer.
ADS will bill Customer the base fee in__________ ( ) installments of
$__________ each together with any incurred shipping and travel
pass-through expenses on the 15th of each
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month beginning__________ , 1999 and continuing through__________ ,
1999. Payment is due within thirty (30) days of the invoice date.
If this retainer schedule is not signed by Customer and returned to the
Alliance Data Business Solutions Director prior to__________ , 1999,
Customer shall not receive the Retainer Price, and the Project Price
listed in the Implementation Schedule above shall apply for all
projects provided by ADS.
7. AVAILABLE PRODUCTS NOT COVERED IN THIS SCHEDULE:
8. PROJECT REPORTING. For retainer projects involving results reporting,
ADS will provide immediate results for the overall campaign, exclusive
of test panels, within ten (10) to fourteen (14) Business Days
(depending upon the last day of the promotion) after the conclusion of
the promotion period.
Spring 1999 delivery timelines will be used as a benchmark for Fall
1999 delivery timelines. The program design for each project will
specify the expected delivery date for immediate results. At the end of
the season, ADS will deliver to Customer a report which highlights the
actual delivery of each program.
9. CONFLICTS. In the event of any conflict or inconsistency between or
among the provisions of this Agreement and a Project Schedule, the
provisions of the Project Schedule shall control; provided that the
Agreement and Project Schedules shall be interpreted so as to give
effect to all provisions in both to the extent reasonably practicable.
In the event of a conflict between any Project Schedules, the terms of
the latest dated Project Schedule shall prevail.
IN WITNESS WHEREOF, the parties have executed this Project Schedule by
their duly authorized officers as of the date(s) set forth below.
ADS Alliance Data Systems, Inc.
---------------------------
(Customer)
By: By:
------------------------- ------------------------
Name: Name:
----------------------- ----------------------
Title: Title:
---------------------- ---------------------
Date: Date:
----------------------- ----------------------
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