PRIVATE LABEL CREDIT CARD PROGRAM AGREEMENT by and between KOHLS DEPARTMENT STORES, INC. and CAPITAL ONE, NATIONAL ASSOCIATION TABLE OF CONTENTS
Exhibit 10.1
EXECUTION COPY
PRIVATE LABEL CREDIT CARD PROGRAM AGREEMENT
by and between
KOHLS DEPARTMENT STORES, INC.
and
CAPITAL ONE, NATIONAL ASSOCIATION
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS | 2 | |||
1.1 | Generally | 2 | ||
1.2 | Miscellaneous | 8 | ||
ARTICLE 2 ESTABLISHMENT OF THE PROGRAM | 9 | |||
2.1 | Generally | 9 | ||
2.2 | Credit Program | 9 | ||
2.3 | Account Terms | 9 | ||
2.4 | Change of Ownership; Reissuance of Accounts | 9 | ||
2.5 | Exclusivity | 10 | ||
2.6 | Non-Solicitation | 10 | ||
ARTICLE 3 PROGRAM MANAGEMENT | 10 | |||
3.1 | Program Objectives | 10 | ||
3.2 | Program Managers; Program Team | 11 | ||
3.3 | Management Committee | 12 | ||
3.4 | Functions of the Management Committee | 12 | ||
3.5 | Management Committee Meetings | 13 | ||
ARTICLE 4 PROGRAM OPERATION | 13 | |||
4.1 | Operating Policies; Operation of the Program | 13 | ||
4.2 | Certain Responsibilities of Kohls | 13 | ||
4.3 | Certain Responsibilities of Bank | 14 | ||
4.4 | Ownership of Accounts | 15 | ||
4.5 | Documents Developed and Used in Connection with the Program | 16 | ||
4.6 | Risk Management/Credit Standards | 17 | ||
4.7 | Exception Accounts | 17 | ||
4.8 | Program Website | 17 | ||
4.9 | Taxes | 17 | ||
4.10 | Systems | 18 | ||
ARTICLE 5 MARKETING OF THE PROGRAM | 18 | |||
5.1 | Kohls Responsibility to Market the Program | 18 | ||
5.2 | Banks Responsibility to Market the Program | 18 | ||
5.3 | Communications with Cardholders | 18 | ||
5.4 | Access to Bank Databases and Mailing Lists | 20 | ||
5.5 | Interest Free Plans/Deferred Billing | 20 | ||
ARTICLE 6 CARDHOLDER AND CUSTOMER INFORMATION | 20 | |||
6.1 | Customer Information | 20 | ||
6.2 | Qualified Kohls Customer List | 20 | ||
6.3 | Cardholder Data | 20 | ||
6.4 | Kohls Shopper Data | 20 | ||
6.5 | Data Security | 20 | ||
ARTICLE 7 OPERATING STANDARDS | 20 | |||
7.1 | Reports | 20 |
7.2 | Servicing | 21 | ||
7.3 | Customer Service | 21 | ||
7.4 | Transfer of Servicing to Bank | 22 | ||
7.5 | Bank Right to Assume Servicing | 22 | ||
7.6 | Access | 22 | ||
7.7 | Disaster Recovery Plans | 22 | ||
7.8 | Sarbanes-Oxley Compliance | 22 | ||
ARTICLE 8 MERCHANT SERVICES | 23 | |||
8.1 | Transmittal and Authorization of Charge Transaction Data | 23 | ||
8.2 | POS Terminals | 23 | ||
8.3 | In-Store Payments | 23 | ||
8.4 | Settlement Procedures | 23 | ||
8.5 | Returns of Kohls Goods and/or Services | 24 | ||
8.6 | No Merchant Discount | 24 | ||
ARTICLE 9 PROGRAM ECONOMICS | 24 | |||
9.1 | Monthly Statement to Kohls | 24 | ||
9.2 | Compensation | 25 | ||
9.3 | Renegotiation of Terms | 25 | ||
9.4 | Recoveries | 25 | ||
ARTICLE 10 LICENSING OF TRADEMARKS; INTELLECTUAL PROPERTY | 25 | |||
10.1 | The Kohls Licensed Marks | 25 | ||
10.2 | The Bank Licensed Marks | 27 | ||
10.3 | Ownership and Licenses of Intellectual Property | 28 | ||
ARTICLE 11 REPRESENTATIONS, WARRANTIES AND COVENANTS | 29 | |||
11.1 | General Representations and Warranties of Kohls | 29 | ||
11.2 | General Representations and Warranties of Bank | 31 | ||
11.3 | General Covenants of Kohls | 34 | ||
11.4 | General Covenants of Bank | 35 | ||
ARTICLE 12 CONFIDENTIALITY | 36 | |||
12.1 | General Confidentiality | 36 | ||
12.2 | Use and Disclosure of Confidential Information | 38 | ||
12.3 | Unauthorized Use or Disclosure of Confidential Information | 38 | ||
12.4 | Return or Destruction of Confidential Information | 39 | ||
ARTICLE 13 RETAIL PORTFOLIO ACQUISITIONS AND DISPOSITIONS | 39 | |||
13.1 | Retail Portfolio Acquisition | 39 | ||
13.2 | Retail Disposition | 39 | ||
ARTICLE 14 EVENTS OF DEFAULT; RIGHTS AND REMEDIES | 39 | |||
14.1 | Events of Default | 39 | ||
14.2 | Defaults by Bank | 40 | ||
14.3 | Defaults by Kohls | 40 | ||
14.4 | Remedies for Events of Default | 40 | ||
ARTICLE 15 TERM/TERMINATION | 40 | |||
15.1 | Term | 40 |
15.2 | Termination by Kohls Prior to the End of the Initial Term or a Renewal Term | 40 | ||
15.3 | Termination by Bank Prior to the End of the Initial Term or Renewal Term | 40 | ||
ARTICLE 16 EFFECTS OF TERMINATION | 40 | |||
16.1 | General Effects | 40 | ||
16.2 | Kohls Option to Purchase the Program Assets | 41 | ||
16.3 | Rights of Bank if Purchase Option not Exercised | 41 | ||
ARTICLE 17 INDEMNIFICATION | 41 | |||
17.1 | Kohls Indemnification of Bank | 41 | ||
17.2 | Banks Indemnification of Kohls | 42 | ||
17.3 | Procedures | 44 | ||
17.4 | Notice and Additional Rights and Limitations | 45 | ||
ARTICLE 18 MISCELLANEOUS | 45 | |||
18.1 | Limitation of Liability | 45 | ||
18.2 | Precautionary Security Interest | 45 | ||
18.3 | Securitization; Participation | 46 | ||
18.4 | Assignment | 46 | ||
18.5 | Sale or Transfer of Accounts | 46 | ||
18.6 | Subcontracting | 46 | ||
18.7 | Amendment | 46 | ||
18.8 | Non-Waiver | 46 | ||
18.9 | Severability | 47 | ||
18.10 | Waiver of Jury Trial and Venue | 47 | ||
18.11 | Governing Law | 47 | ||
18.12 | Captions | 47 | ||
18.13 | Notices | 47 | ||
18.14 | Further Assurances | 48 | ||
18.15 | No Joint Venture | 48 | ||
18.16 | Press Releases | 48 | ||
18.17 | No Set-Off | 48 | ||
18.18 | Conflict of Interest | 49 | ||
18.19 | Third Parties | 49 | ||
18.20 | Force Majeure | 49 | ||
18.21 | Entire Agreement | 49 | ||
18.22 | Binding Effect; Effectiveness | 49 | ||
18.23 | Counterparts/Facsimiles/PDF E-Mails | 50 | ||
18.24 | Survival | 50 | ||
18.25 | Consents | 50 |
This Private Label Credit Card Program Agreement is made as of the 11th day of August, 2010, by and between KOHLS DEPARTMENT STORES, INC. (Kohls), a Delaware corporation with its principal offices at Menomonee Falls, Wisconsin, and Capital One, National Association (Bank), a financial institution chartered under the laws of the United States with its home office at McLean, Virginia.
W I T N E S S E T H:
WHEREAS, Bank is establishing programs to extend private label card credit to qualified customers for the purchase of goods and services;
WHEREAS, Kohls is engaged, among other activities, in operating retail department stores and, together with JPMorgan Chase & Co. (Seller), a Kohls private label credit card program;
WHEREAS, in connection with the execution of this Agreement, Bank intends to enter into a purchase and sale agreement with Seller (the Purchase Agreement) pursuant to which Bank shall (a) purchase from Seller certain assets related to the Kohls private label credit card program designated in the Purchase Agreement, which shall include all private label credit card accounts established pursuant to the Kohls private label credit card program with Seller that exist on the Closing Date and associated receivables (Purchased Accounts); and (b) assume from Seller certain liabilities related to the Kohls private label credit card program with Seller designated in the Purchase Agreement, including all obligations to holders of the Kohls private label credit cards issued by Seller existing on the Closing Date in respect of the Purchased Accounts under the credit card agreements between each such cardholder and the Seller.
WHEREAS, it is a condition precedent to the obligations of the parties hereunder that Bank enters into the Purchase Agreement with the Seller;
WHEREAS, Kohls has requested that Bank establish a program pursuant to which Bank shall issue Private Label Credit Cards, which shall be accepted only by Kohls Channels; and
WHEREAS, the parties agree that the goodwill associated with the Kohls mark contemplated for use hereunder is of substantial value which is dependent upon the maintenance of high quality services and appropriate use of the mark 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, Kohls and Bank agree as follows:
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ARTICLE 1
DEFINITIONS
1.1 | Generally. |
The following terms shall have the following meanings when used in this Agreement:
Account means a Private Label Credit Card-accessed open-end credit account established in favor of a Cardholder, pursuant to which such Cardholder may finance the purchase of Goods and/or Services from Kohls Channels, subject to the terms of a Credit Card Agreement. The term Account includes Purchased Accounts.
Account Documentation means, with respect to an Account, any and all documentation relating to that Account, including Credit Card Documentation, checks or other forms of payment with respect to an Account, credit bureau reports (to the extent not prohibited from transfer by contract with the credit bureau), adverse action notices, change in terms notices, other notices, correspondence, memoranda, documents, stubs, instruments, certificates, agreements, magnetic tapes, disks, hard copy formats or other computer-readable data transmissions, any 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, whether tangible or intangible, including information 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 Kohls register tapes, invoices, sales or shipping slips, delivery and other receipts or other indicia of the sale of Goods and/or Services.
Account Terms has the meaning set forth in Section 2.3(a).
Acquiring IP Party has the meaning set forth in Section 10.3(a).
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 shall mean 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.
Agreement means this Private Label Credit Card Program Agreement, together with all of its schedules and exhibits, and, if modified, altered, supplemented, amended and/or restated, as the same may be so modified, altered, supplemented, amended and/or restated from time to time.
Applicable Law has the meaning set forth on Schedule 1.1.
Bank has the meaning set forth on page 1.
Bank Compliance Manager has the meaning set forth in Section 3.2(d).
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Bank Event of Default means the occurrence of any one of the events listed on Schedule 14.2 hereof or an Event of Default of Bank.
Bank Licensed Marks means the trademarks, trade names, service marks, logos and other proprietary designations of Bank listed on Schedule B and licensed to Kohls under Section 10.2.
Bank Nominee means each nominee representing the Bank on the Management Committee.
Bank-owned Intellectual Property has the meaning set forth on Schedule 10.3(c).
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.
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 each regular period when the Account is billed.
Billing Statement means a summary of Account credit and debit transactions for a Billing Cycle including a descriptive statement covering purchases of Goods and/or Services and a statement with only past-due account information.
Business Day means any day, other than a Saturday, Sunday or legal holiday, on which Kohls and Bank both are open for business.
Cardholder means any individual who has been issued a Credit Card regardless of the individuals place of residency.
Cardholder Data means all personally identifiable information about a Cardholder received by or on behalf of Bank (including by Kohls as servicer) in connection with the Cardholders application for or use of a Private Label Credit Card or Account or otherwise obtained by or on behalf of Bank (including by Kohls as servicer) for inclusion in a database of Cardholder information but shall not include Kohls Shopper Data.
Cardholder Indebtedness means all amounts charged and owing to Bank by Cardholders with respect to Accounts (including finance charges, late fees and other similar fees), whether or not billed, less the amount of any payments received, any credit balances owing by Bank to Cardholders, including any credits associated with returns of Goods and/or Services and similar credits and adjustments, whether or not billed.
Cardholder List means any list in electronic form that identifies or provides a means of differentiating Cardholders, including any such electronic listing that includes the names, addresses, email addresses (as available), telephone numbers or social security numbers of any or all Cardholders.
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Charge Transaction Data means the transaction information with regard to each purchase of Goods and/or Services by a Cardholder on credit and each return of Goods and/or Services or other adjustment for credit in the form of electronic information as more particularly set forth in the Operating Policies.
Closing Date has the meaning set forth on Schedule 1.1.
Co-Branded Credit Card means a credit card that bears a Kohls Licensed Mark and the trademarks, trade names, service marks, logos and other proprietary designations of VISA U.S.A., Inc., MasterCard International Inc., Discover Financial Services or any other payment system.
Confidential Information has the meaning set forth in Section 12.1(a).
Cost Allocation has the meaning set forth on Schedule 1.1.
Credit Card Agreement means the credit card agreement between Bank and a Cardholder (and any replacement of such agreement), governing the use of an Account, together with any amendments, modifications or supplements which now or hereafter may be made to such Credit Card Agreement (and any replacement of such agreement).
Credit Card Application means Banks credit application which must be completed and submitted for review to Bank by individuals who wish to become Cardholders.
Credit Card Documentation means, with respect to Accounts, all Credit Card Applications, Credit Card Agreements, Credit Cards, the Program Privacy Policy and Billing Statements relating to such Accounts.
Development Agreement has the meaning set forth in Section 10.3(b)(i).
Disclosing Party has the meaning set forth in Section 12.1(d).
Effective Date has the meaning set forth on Schedule 1.1.
Enhancement Products means the Credit Card enhancement products and services offered to Cardholders that are listed in Schedule 6.3(c), or such other Credit Card enhancement products or services that are offered to Cardholders as shall be approved by Kohls from time to time. For avoidance of doubt the Enhancement Products do not include merchandise purchased by Cardholders through Kohls Channels.
Event of Default means the occurrence of any one of the events listed on Schedule 14.1.
Federal Funds Rate means the offered rate as reported in The Wall Street Journal in the Money Rates section for reserves traded among commercial banks for overnight use in amounts of one million dollars or more, as published in the most recent Friday edition prior to any required payment or settlement date in which such offered rate is reported, and if such rate is not so reported in any Friday edition of The Wall Street Journal during the thirty day period preceding such required payment or settlement date, such offered rate as reported in another publication reasonably acceptable to parties.
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Financing Income has the meaning set forth on Schedule 1.1.
GAAP means generally accepted accounting principles, consistently applied.
Goods and/or Services means the products and services sold by or through Kohls Channels, including for personal, family, household or business purposes.
Governmental Authority means any federal, state or local domestic, foreign or supranational governmental, regulatory or self-regulatory authority, agency, court, tribunal, commission or other governmental, regulatory or self-regulatory entity.
Indemnified Party has the meaning set forth in Section 17.3(a).
Indemnifying Party has the meaning set forth in Section 17.3(a).
Initial Development Project has the meaning set forth on Schedule 10.3(c).
Initial Term has the meaning set forth in Section 15.1.
Inserts has the meaning set forth in Section 5.3(a).
In-Store Payment means any payment on an Account made in a Kohls Channel by a Cardholder or a person acting on behalf of a Cardholder.
Intellectual Property means, on a worldwide basis, other than with respect to Kohls Licensed Marks or Bank Licensed Marks, any and all: (i) rights associated with works of authorship, including copyrights, moral rights and mask-works; (ii) trade marks and service marks and the goodwill associated therewith; (iii) trade secret rights; (iv) patents, designs, algorithms and other industrial property rights; (v) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vi) applications, registrations, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
Interest Free Plans has the meaning set forth on Schedule 5.5.
IP Owner has the meaning set forth in Section 10.3(a).
Knowledge means, with respect to either Kohls or the Bank, the actual knowledge of each respective partys Manager.
Kohls has the meaning set forth on page 1.
Kohls Channels means all retail establishments owned or operated by Kohls or its Affiliates in the United States (including Licensee departments therein) and all mail order, catalog, Internet outlets (including websites operated by Kohls or its Licensees) and other direct access media within the United States that are owned or operated by Kohls, its Affiliates or its Licensees.
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Kohls Core Systems has the meaning set forth on Schedule 4.10.
Kohls Event of Default means the occurrence of any one of the events listed on Schedule 14.3 or an Event of Default of Kohls.
Kohls Licensed Marks means the trademarks, trade names, service marks, logos and other proprietary designations of Kohls or its Affiliates listed on Schedule A and licensed to Bank by Kohls or its Affiliates under Section 10.1.
Kohls Nominee means each nominee representing Kohls on the Management Committee.
Kohls Operating Policies shall mean the operating policies set forth on Schedule 4.1(a), solely to the extent applicable to the Program.
Kohls Shopper shall mean any Person who makes purchases of Goods and/or Services, whether or not he/she uses a Credit Card.
Kohls Shopper Data shall mean all personally identifiable information regarding a Kohls Shopper that is obtained by Kohls in connection with the Kohls Shopper making a purchase of Goods and/or Services including all transaction and experience information collected by Kohls with regard to each purchase made by a Kohls Shopper, including the item-specific transaction information collected about Cardholders.
Licensee(s) means any Person(s) authorized by Kohls to operate in and sell goods and/or services from Kohls Channels under the Kohls Licensed Marks.
Management Committee shall mean the committee established pursuant to Section 3.3.
Manager has the meaning set forth in Section 3.2(a).
Monthly Settlement Sheet has the meaning set forth in Section 9.1.
Net Settlement Amount has the meaning set forth in Section 8.4(b).
New Mark has the meaning set forth in Sections 10.1(b) and 10.2(b).
Nominated Purchaser has the meaning set forth on Schedule 16.2.
Operating Policies has the meaning set forth in Section 4.1(a).
Person means and includes any individual, partnership, joint venture, corporation, company, bank, trust, unincorporated organization, government or any department, agency or instrumentality thereof.
POS means point of sale.
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Prime Rate has the meaning set forth on Schedule 1.1.
Private Label Credit Card or Credit Card means a card issued by Bank to a Cardholder in connection with the Program which bears a Kohls Licensed Mark and may be used to finance purchases of Goods and/or Services.
Program means the private label credit card program established by Kohls and Bank and made available to Cardholders and qualified applicants for the purchase of Goods and/or Services through Kohls Channels, including the extension of credit, billings, collections, customer service, accounting between the parties and all other aspects of the customized credit plan specified herein and in Credit Card Agreements.
Program Assets has the meaning set forth on Schedule 1.1.
Program Net Losses has the meaning set forth on Schedule 1.1.
Program Privacy Policy shall mean the privacy policy and associated disclosures to be provided by Bank to Cardholders in connection with the Program, the initial form of which is attached hereto as Schedule 6.3(b) hereto.
Program Purchase Date has the meaning set forth on Schedule 16.2.
Program Website has the meaning set forth in Section 4.8(a).
Purchase Agreement has the meaning set forth on page 1.
Purchase Notice has the meaning set forth on Schedule 16.2.
Purchase Option has the meaning set forth on Schedule 16.2.
Purchased Accounts has the meaning set forth on page 1.
Qualified Kohls Customer shall mean customers of Kohls that Kohls determines are available to be solicited for Accounts under the Program.
Qualified Kohls Customer List means the list of Qualified Kohls Customers provided from time to time by Kohls to Bank for purposes of soliciting such Persons for the Program.
Receiving Party has the meaning set forth in Section 12.1(d).
Regulator has the meaning set forth in Section 7.6.
Regulatory SLAs have the meaning set forth on Schedule 7.3(a).
Remediation Period has the meaning set forth on Schedule 7.5.
Renewal Term has the meaning set forth in Section 15.1.
Risk Adjusted Revenue has the meaning set forth in subsection (d) of Schedule 9.2.
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Risk Management Policies has the meaning set forth on Schedule 4.6(a).
Seller has the meaning set forth on page 1.
Service Level Failure has the meaning set forth on Schedule 1.1.
Service Level Transfer Event has the meaning set forth on Schedule 7.5.
SLA means any service level set forth on Schedule 7.3(a) or Schedule 7.3(b).
Solicitation Materials means documentation, materials, artwork, copy, trademarks (excluding the Kohls Licensed Marks and the Bank Licensed Marks), copyrights and any protectible items, in any format or media (including television and radio), used to promote or identify the Program to Cardholders and potential Cardholders, including direct mail solicitation materials and coupons.
Term means the Initial Term and each Renewal Term.
Termination Period means the period beginning with the date of any notice of termination or non-renewal pursuant to Article 15 and ending on (a) the Program Purchase Date, if Kohls or its designee purchases the Program Assets or, (b) if Kohls does not exercise its Purchase Option, the later of (i) the termination or expiration of this Agreement, or (ii) the earlier of (A) Kohls written notice that it will not exercise its Purchase Option or (B) expiration of the Purchase Option.
Trademark Style Guide means any rules governing the manner of usage of trademarks, trade names, service marks, logos and other proprietary designations.
Transaction means any purchase of Goods and/or Services through a Kohls Channel using a Private Label Credit Card or Account number.
United States means the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico and any territory or possession of the United States or any political subdivision thereof.
Value Proposition means Kohls new account opening discounts, coupons, promotional card event discounts, and any other card-related promotional or rewards programs as may be established by Kohls from time to time.
Variable Rate has the meaning set forth on Schedule 1.1.
1.2 | Miscellaneous. |
As used herein,
(a) | all references to the plural number shall include the singular number (and vice versa), |
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(b) | unless otherwise specified, all references to days, months or years shall be deemed to be preceded by the word calendar, |
(c) | all references to herein, hereunder, hereinabove or like words shall refer to this Agreement as a whole and not to any particular section, subsection or clause contained in this Agreement, and |
(d) | all references to include, includes or including shall be deemed to be followed by the words without limitation. |
ARTICLE 2
ESTABLISHMENT OF THE PROGRAM
2.1 | Generally. |
Pursuant to the terms and conditions of this Agreement, Kohls and Bank shall establish and participate in the Program commencing on the Effective Date.
2.2 | Credit Program. |
Beginning as of the Effective Date, Bank shall offer Private Label Credit Cards to qualified customers in accordance with this Agreement and the Credit Card Agreement.
2.3 | Account Terms. |
(a) | As of the date of execution, the parties acknowledge that the terms and conditions for the Kohls branded private label credit card accounts issued by Seller are set forth in the second column of the table set forth on Schedule 2.3(a). Bank acknowledges that Kohls intends to transition to the terms and conditions for such accounts set forth in the third column on the table set forth on Schedule 2.3(a) prior to the Effective Date. If such transition does not occur prior to the Effective Date, in whole or in part, Bank and Kohls shall implement the terms and conditions for Accounts (Account Terms) set forth in the third column Schedule 2.3(a) via change in ownership as soon as reasonably practicable after the Effective Date. |
(b) | The parties agrees as set forth on Schedule 2.3(b) with respect to changes to Account Terms and change in terms notices. |
2.4 | Change of Ownership; Reissuance of Accounts. |
(a) | Change of Ownership. Kohls, as servicer for Bank shall prepare and send via mail or e-mail, in cases where Cardholders have opted to receive e-mail notifications and such method of notification is permissible under Applicable Law, a change in ownership notice, if any, as required by Applicable Law to each Person obligated on such Accounts. Descriptions of the terms and conditions of the Account shall be included as part of such notices to the extent required by Applicable Law. The parties further agree as set forth on Schedule 2.4(a) with respect to the change in ownership of Accounts. |
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(b) | Reissuance of Accounts. Kohls, as servicer for Bank shall reissue Private Label Credit Cards to Cardholders as reasonably determined by the parties. The parties agree as set forth on Schedule 2.4(b) with respect to the reissuance of Accounts. |
2.5 | Exclusivity. |
(a) | The parties agree as set forth on Schedule 2.5 with respect to exclusivity. |
2.6 | Non-Solicitation. |
Neither party shall specifically target, recruit, or solicit for employment any employees of the other party or its Affiliates who supports the Program during the Term and for a two (2) year period following the end of the Term. Notwithstanding the foregoing in this Section 2.6, neither party shall be precluded from hiring any such employee who: (a) responds to a general solicitation placed by a party or its Affiliates or its retained recruiting firm; or (b) has been terminated prior to commencement of employment discussions between a party or its Affiliates and such employee. Bank and Kohls and their respective Affiliates shall be entitled to specific performance of such provisions in addition to any other remedies that they may have at law or in equity.
ARTICLE 3
PROGRAM MANAGEMENT
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:
(a) | To enhance the experience of Kohls Shoppers; |
(b) | To increase retail sales of Kohls; |
(c) | To maximize Program economics while minimizing operational and funding costs and complexity; |
(d) | To leverage the Program to identify existing and potential Kohls Shoppers, develop and deepen relationships with Kohls Shoppers and finance retail sales growth; and |
(e) | To design, test and, if mutually agreed, launch additional financial products that will support the Program objectives set forth in Section 3.1(a)-(d). |
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3.2 | Program Managers; Program Team. |
(a) | Kohls and Bank shall each appoint one Program manager (each, a Manager). The Managers shall exercise day-to-day operational oversight of the Program and coordinate the efforts between Kohls and Bank. Kohls and Bank shall endeavor to provide stability and continuity in the Manager positions and each partys other Program personnel. The initial Manager for Kohls and Bank is set forth on Schedule 3.2(a). Each Manager shall sign a confidentiality agreement to ensure compliance with Article 12. |
(b) | Each Bank Manager shall have substantial relevant experience, including experience with the department store industry, comparable customer demographics and loyalty programs and has been employed by Bank for at least the twelve (12) months immediately prior to appointment. Subject to the remainder of this Section 3.2(b), Bank shall not reassign the Bank Manager for a period of at least two (2) years from the date the Manager is no longer employed in connection with the Program to any other retail department store program operated by Bank or any of its Affiliates. The appointment of a new Manager by Bank is subject to the prior approval of Kohls. Kohls shall have the right to require replacement of the Bank Manager in the event that such Bank Managers performance is unsatisfactory in the reasonable judgment of Bank. Without limiting the foregoing, Kohls shall raise any concerns it has about the Bank Manager with Bank and Kohls and Bank shall consult in good faith to address such concerns. |
(c) | Bank shall make available to Kohls without additional cost the services of employees of the Bank to support the Program. Such employees are identified on Schedule 3.2(c) and shall have the functions, qualifications and availability identified on Schedule 3.2(c). |
(d) | Bank shall appoint a compliance manager (the Bank Compliance Manager). The Bank Compliance Manager shall be Kohls single point of contact for purposes of reviewing any materials or documentation subject to Banks prior review for compliance with Applicable Law as contemplated by this Agreement and for purposes of receiving and responding to Kohls inquiries regarding its obligations under this Agreement in connection with the compliance of this Program with Applicable Law. The Bank Compliance Manager shall be entitled to review Kohls compliance with Applicable Law and the Operating Policies (and its underlying procedures), and Kohls shall provide the Bank Compliance Manager with such information as reasonably requested in connection with the Bank Compliance Managers activities hereunder. The Bank Compliance Manager shall sign a confidentiality agreement in a form acceptable to Kohls to ensure compliance with Article 12. Bank may replace the Bank Compliance Manager at its sole discretion. Without limiting the foregoing, Kohls shall raise any concerns it has about the Bank Compliance Manager with Bank and Kohls and Bank shall consult in good faith to address such concerns. |
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3.3 | Management Committee. |
The parties hereby establish a committee (the Management Committee) to review the conduct of the Program pursuant to this Agreement and to perform any other action that, pursuant to any express provision of this Agreement, requires its action. The Management Committee shall consist of an equal number of nominees from each party and shall consist of at least six (6) members. The initial Kohls Nominees and Bank Nominees will be nominated prior to the Effective Date. Each party shall nominate its Manager to serve as one of its nominees on the Management Committee. At least one nominee from each party shall be the individual with overall responsibility for the performance of the Program within his or her respective corporate organization, which, in the case of Bank, shall be a managing vice president or more senior officer with primary responsibility for the Program at the Bank and, in the case of Kohls shall be the senior vice president of Retail Payment Solutions. Each Bank Nominee will serve on the Management Committee for a minimum of two (2) years, unless the Bank Nominees employment with the Bank terminates or Bank Nominee is a Manager who is replaced pursuant to Section 3.2(b) herein. Each party may substitute one of its nominees to the Management Committee upon termination of such nominees employment with the party; provided that the substitute nominee satisfies the requirements of this Section 3.3. Each party shall provide the other party with as much prior notice of such substitution as is reasonably practicable under the circumstances.
3.4 | Functions of the Management Committee. |
The Management Committee shall primarily serve as a forum for the parties to discuss and recommend initiatives to improve the Program. The Management Committee shall have no decision-making authority and any decision-making authority regarding various aspects of the Program is as set forth throughout this Agreement. Specifically the Management Committee shall:
(a) | Monitor and review Program activities, financial performance of the Program and key portfolio performance data; |
(b) | Monitor activities of competitive programs, identify implications of market trends and develop initiatives to present to Kohls to ensure that the Program remains competitive; |
(c) | Review and recommend Enhancement Products, changes to the Account Terms, etc.; and |
(d) | Carry out such other tasks as are assigned to it by this Agreement or jointly by the parties. |
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3.5 | Management Committee Meetings. |
(a) | The Management Committee will meet from time to time as its members consider necessary, but in no event less than once per calendar quarter unless otherwise agreed by each partys Manager. Meetings may be held in person or wholly or partly by way of telephone or video conference. |
(b) | The Management Committee shall determine the frequency, place and agenda for its meetings, the manner in which meetings will be called and all procedural matters not set forth herein. |
ARTICLE 4
PROGRAM OPERATION
4.1 | Operating Policies; Operation of the Program. |
(a) | Subject to Section (b) of Schedule 4.1(b), except as modified by mutual agreement of the parties from time to time or as modified by the Bank pursuant to subsection (a) of Schedule 4.1(b), the Operating Policies shall be the Kohls Operating Policies. The parties shall cooperate to review and update Operating Policies as appropriate. Except as provided in the remainder of this Section 4.1 and Schedule 4.1(b), all changes to the Operating Policies shall be mutually agreed by the parties. |
(b) | Bank shall be responsible for monitoring and updating the Operating Policies (including its underlying procedures) to comply with changes in Applicable Law. The parties further agree as set forth on Schedule 4.1(b) with respect to the Operating Policies. |
(c) | Bank and Kohls shall provide, either directly or indirectly, the services, materials and personnel necessary to operate the Program in accordance herewith and in accordance with the Operating Policies. |
4.2 | Certain Responsibilities of Kohls. |
In addition to its other obligations set forth elsewhere in this Agreement, the parties agree that during the Term, Kohls shall, on behalf of itself or as servicer for Bank:
(a) | maintain (internally or via a third party) one or more systems to process Credit Card Applications, establish new Accounts, assign, increase and decrease credit lines, and authorize Transactions; |
(b) | maintain one or more call center(s) to respond to inquiries from Cardholders and to deal with billing related claims and adjustments (including making finance charges and late fee reversals); |
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(c) | provide Account monitoring services, including identifying delinquencies, identifying collection efforts required, implementing credit-line adjustments, over limit authorizations and Account reactivation, deactivation or cancellation; |
(d) | handle collection and recovery efforts with respect to Accounts; |
(e) | be responsible for Credit Card Application processing, customer service, statementing, payment processing, Transaction authorization and processing, Value Proposition administration, collections and risk management; |
(f) | prepare, process and mail Billing Statements, Inserts, Program Privacy Policy notices, change in terms notices and other communications to Cardholders; |
(g) | produce and issue all new, replacement and reissued credit card plates related to the Private Label Credit Cards; |
(h) | in its capacity as servicer, operate in accordance with the Risk Management Policies and Operating Policies and any underlying procedures; |
(i) | provide the support described on Schedule 4.3(d) to assist Bank in performing Banks operational responsibilities described on such schedule; and |
(j) | have ultimate decision-making authority with respect to any aspect of the Program except for (i) the Account Terms which are governed by Section 2.3, (ii) change in terms notices which are governed by Section 2.4(a), (iii) the Operating Policies which are governed by Section 4.1, (iv) the Risk Management Policies which are governed by Section 4.6; (v) Banks right to make changes to documents and materials to ensure compliance with Applicable Law which is governed by Section 4.5; (vi) any other aspect of the Program designated as a Bank responsibility under Section 4.3 or elsewhere in this Agreement; and (vii) all matters related to compliance of the Program with Applicable Law. |
4.3 | Certain Responsibilities of Bank. |
In addition to its other obligations set forth elsewhere in this Agreement, including on Schedule 4.3, the parties agree that during the Term, Bank shall:
(a) | extend credit on newly originated and existing Accounts in accordance with the Risk Management Policies and Operating Policies; |
(b) | comply with, or ensure that Kohls in its capacity as servicer complies with, the terms of the Credit Card Agreements, the Program Privacy Policy and all Cardholder opt-outs; |
(c) | monitor and notify Kohls of changes in Applicable Law that will affect the Program and ensure that all aspects of the Program comply with Applicable Law at all times (in this regard all matters under the Program pertaining to compliance with Applicable Law shall be determined by Bank as provided in this Agreement and Kohls shall extend reasonable cooperation and access to permit Bank to perform its obligations herein); |
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(d) | perform the operational functions set forth on Schedule 4.3(d) in accordance with the terms described on such schedule; |
(e) | provide Kohls reasonable access to Banks compliance staff and counsel in order to address issues relating to compliance with Applicable Law, including Banks Compliance Manager as set forth in Section 3.2(d) and systems support personnel as set forth in subsection (c) of Schedule 4.10; and |
(f) | provide introductions to Kohls to Banks third party servicers for the purpose of assisting Kohls in its efforts to minimize the costs associated with Kohls performance under this Agreement (including, costs for collections, mailers, printers and plastics) and use commercially reasonable efforts to facilitate Kohls negotiations with such servicers. |
4.4 | Ownership of Accounts. |
(a) | Except to the extent of Kohls ownership of the Kohls Licensed Marks and its option to purchase the Program Assets under Section 16.2, 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 Bank shall exercise such rights consistent with its obligations under this Agreement and the Operating Policies and in no event in a manner less favorable than its exercise of similar rights in connection with its other similarly situated credit card portfolios. All purchases of Goods and/or Services in connection with the Accounts and the Cardholder Indebtedness shall create the relationship of debtor and creditor between the Cardholder and Bank, respectively. Kohls acknowledges and agrees that (i) it has no right, title or interest (except for its right, title and interest in the Kohls Licensed Marks and its option to purchase the Program Assets under Section 16.2) in or to, any of the Accounts or Account Documentation or any proceeds of the foregoing, and (ii) Bank extends credit directly to Cardholders. |
(b) | Except as expressly provided herein, Bank shall be entitled to (i) receive all payments made by Cardholders on Accounts, and (ii) retain for its account all Cardholder Indebtedness and such other fees and income authorized by the Credit Card Agreements and collected by Bank, or by Kohls as servicer for Bank, with respect to the Accounts and Cardholder Indebtedness. |
(c) | Bank shall fund all Cardholder Indebtedness on the Accounts. |
(d) | Bank shall have the exclusive right to effect collection of Cardholder Indebtedness, subject to Kohls right to service the Accounts, and shall notify Cardholders to make payment directly to it in accordance with its instructions; provided, however, that Bank shall make all collections for its account using the name Kohls and shall direct all payments to be made payable to Kohls or, |
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with Kohls approval, another name. Kohls grants to Bank a limited power of attorney (coupled with an interest) to sign and endorse Kohls name upon any form of payment that may have been issued in Kohls name in respect of any Account. |
(e) | Notwithstanding the foregoing, in addition to payments made by mail, Kohls shall accept payments made with respect to an Account (i) in a Kohls store as provided in Section 8.3, (ii) online, and (iii) by telephone through the call center. |
(f) | With respect to all Account Documentation, and notwithstanding the purchase of such Account Documentation by Bank as of the Effective Date for so long as Kohls is the servicer of the Accounts, Kohls shall continue to hold and retain the Account Documentation following the Effective Date as bailee for the sole benefit of Bank. |
4.5 | Documents Developed and Used in Connection with the Program. |
(a) | The content, design and format of all documents and materials used in connection with the Program including the Credit Card Documentation, Solicitation Materials and Private Label Credit Cards (both front and back) shall be as proposed by Kohls and modified by Kohls from time to time (except for the Account Terms which are governed by Section 2.3, the change in ownership notices which are governed by Section 2.4(a), the Operating Policies which are governed by Section 4.1 and the Risk Management Policies which are governed by Section 4.6); subject to final approval of Bank solely for matters relating to compliance with Applicable Law. Bank shall consider in good faith the suggestions and concerns of Kohls regarding any changes proposed by Bank to comply with Applicable Law. Kohls shall provide Bank an opportunity to review all such documents and materials for compliance with Applicable Law and Bank shall review and approve such documents and materials in a timely manner (but in no event later than seven (7) calendar days from receipt by Bank) and in accordance with Kohls production calendar. Notwithstanding the immediately preceding sentence, Kohls shall have no obligation to provide an opportunity for legal review if Bank has previously approved such document, text or template unless Bank has notified Kohls of a change in Applicable Law that has occurred since the prior review. Bank acknowledges and agrees that it received, reviewed, and accepted, without modification, the marketing materials attached hereto as Schedule 4.5(a). |
(b) | The parties agree as set forth on Schedule 4.5(b) with respect to Program documentation. |
(c) | Kohls Licensed Marks shall appear prominently on the face of the Private Label Credit Cards. The front of the Private Label Credit Cards shall not bear Banks Licensed Marks or Banks name. |
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4.6 | Risk Management/Credit Standards. |
Bank and Kohls agree regarding risk management and credit standards as set forth on Schedule 4.6(a).
4.7 | Exception Accounts. |
(a) | Notwithstanding the foregoing, Bank shall, upon request by Kohls, shall offer a Private Label Credit Card and Account to any customer that does not satisfy Banks credit standards; provided that Bank shall have no obligation to issue such a Private Label Credit Card and Account if, at the time Kohls makes such a request to Bank, the number of Accounts approved under this Section 4.7(a) exceeds the percentage set forth on Schedule 4.7(a). |
(b) | Notwithstanding the foregoing, Bank shall, upon request by Kohls, work with Kohls to develop a program whereby any Kohls employee that does not satisfy Banks credit standards may receive an Account or other mutually agreed credit or debit card product issued by Bank. The parties shall work together in good faith to develop the terms of such a program including whether such Accounts should be secured or prepaid. |
4.8 | Program Website. |
(a) | Kohls shall maintain a Kohls-branded website for Cardholders and potential Cardholders (Program Website). The Program Website shall be accessible by means of links from the Kohls website and shall contain or otherwise be associated with only such material and links as Kohls shall determine in its discretion, subject to Applicable Law. Kohls will provide links to the Program Website on (i) its home page, (ii) its check-out pages, and (iii) such other pages as Kohls shall determine from time to time. Kohls shall ensure that the Program Privacy Policy is clearly and prominently posted on the pages of the Program Website. |
(b) | The Program Website shall permit Cardholders to (i) view the Cardholders Account information and Billing Statements, (ii) make payments on the Cardholders Account via automated clearing house transfer or other payment mechanism approved by the parties, (iii) perform account maintenance (update address or telephone, request replacement cards, update billing cycle etc.), (iv) contact customer service, and (v) apply for a new credit card account. In addition, the Program Website shall include any other functions as may be approved by the Managers from time to time. |
4.9 | Taxes. |
The parties respective responsibilities for taxes arising under or in connection with this Agreement shall be as set forth on Schedule 4.9.
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4.10 | Systems. |
The parties agree as set forth on Schedule 4.10 with respect to systems.
ARTICLE 5
MARKETING OF THE PROGRAM
5.1 | Kohls Responsibility to Market the Program. |
(a) | Kohls shall bear primary responsibility for marketing the Program and shall make all marketing decisions in its discretion; provided, however, that Bank shall have the opportunity to review any changes after the Effective Date to Kohls marketing channels or processes solely with respect to matters related to compliance with Applicable Law related to the Program; provided, however that Bank shall not be permitted to review Kohls marketing strategies, plans and calendars. Bank shall review and approve such channels and processes in a timely manner (but in no event later than seven (7) calendar days from receipt by Bank) and in accordance with Kohls production calendar. |
(b) | Kohls may, in its discretion, choose and implement marketing initiatives including offering the Value Proposition to Cardholders. Kohls may, in its discretion, offer a different Value Proposition through a rewards program to certain Cardholders based on one or more Account characteristics determined by Kohls, including Cardholder purchase volume, tenure of Account, or Account type. |
(c) | During the Term, Kohls may present marketing initiatives to Bank for Banks consideration, which Bank shall review and consider in good faith. In addition, the parties agree as set forth on Schedule 5.1 with respect to Kohls marketing initiatives. |
5.2 | Banks Responsibility to Market the Program. |
During the first six (6) months following the Effective Date, and on an annual basis thereafter, Bank shall present to Kohls marketing team a list of possible marketing initiatives and the associated budget for each marketing initiative. In addition, the parties agree as set forth on Schedule 5.2 with respect to Banks marketing initiatives.
5.3 | Communications with Cardholders. |
(a) | Inserts. Except as provided in the remainder of this Section 5.3(a), Kohls shall have the exclusive right to communicate with Cardholders, except for any message required by Applicable Law, through use of inserts, fillers and bangtails (collectively, Inserts), including Inserts selectively targeted for particular classes of Cardholders, in any and all Billing Statements, subject to Applicable Law. Bank shall give Kohls reasonable advance notice of any Insert required by Applicable Law. Bank shall ensure that any Insert required by Applicable Law that is distributed through the Program is consistent in form and content with the Inserts distributed to Banks other |
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similarly affected credit card portfolios. Bank shall consider in good faith the suggestions and concerns of Kohls regarding any such Insert required by Applicable Law. All Inserts required by Applicable Law shall take precedence over any other Inserts, solely to the extent required by Applicable Law and in a manner that is consistently applied across Banks other similarly affected credit card portfolios. In addition, the parties agree as set forth on Schedule 5.3(a) with respect to Inserts. |
(b) | Billing Statement Messages. Kohls shall have the exclusive right to use Billing Statement messages and Billing Statement envelope messages in each Billing Cycle to communicate with Cardholders, subject to Applicable Law. Notwithstanding the foregoing, the following messages shall take precedence, to the extent required by Applicable Law and in a manner that is consistently applied across Banks other similarly affected credit card portfolios, over any Kohls messages: (i) any message required by Applicable Law as determined by Bank; and (ii) collection and/or customer service messages. Bank shall give Kohls reasonable advance notice of any Billing Statement messages and Billing Statement envelope messages required by Applicable Law to allow Kohls to review such changes and to coordinate the timing and content of Billing Statement messages. Bank shall consider in good faith the suggestions and concerns of Kohls regarding any such messages required by Applicable Law. Notwithstanding the first sentence of this Section 5.3(b) and Banks obligation to communicate with customers as required by Applicable Law, subject to Kohls prior written approval, Bank may communicate with Cardholders through Billing Statement messages. Bank shall be responsible for the content of any message required by Applicable Law and any Bank message which has been approved by Kohls, and Kohls shall be responsible for the content of any other Billing Statement message. |
(c) | Other Communications. Kohls shall have the exclusive right to communicate with Cardholders through direct mail (including through books, invitations, newsletters and postcards), e-mail, telephone messaging, text messaging and any other communication channel that Kohls deems appropriate. Kohls may communicate with Cardholders through these channels about any aspect of the Program, including the Value Proposition, and any other subject matter, in Kohls discretion, subject to Applicable Law. Notwithstanding the first sentence of this Section 5.3(c), Bank may communicate with Cardholders through any of the foregoing communication channels to carry out its obligations as may be required by Applicable Law. Bank shall give Kohls reasonable advance notice of any such communication required by Applicable Law. Bank shall consider in good faith the suggestions and concerns of Kohls regarding any such communication required by Applicable Law. In addition, the parties agree as set forth on Schedule 5.3(c) with respect to other cardholder communications. |
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5.4 | Access to Bank Databases and Mailing Lists. |
The parties agree as set forth on Schedule 5.4 with respect to access to and use of certain Bank marketing resources and mailing lists.
5.5 | Interest Free Plans/Deferred Billing. |
The parties agree as set forth on Schedule 5.5 with respect to Interest Free Plans.
ARTICLE 6
CARDHOLDER AND CUSTOMER INFORMATION
6.1 | Customer Information. |
The parties agree as set forth on Schedule 6.1 with respect to Customer Information.
6.2 | Qualified Kohls Customer List. |
The parties agree as set forth on Schedule 6.2 with respect to Qualified Kohls Customer List.
6.3 | Cardholder Data. |
The parties agree as set forth on Schedule 6.3 with respect to Cardholder Data.
6.4 | Kohls Shopper Data. |
The parties agree as set forth on Schedule 6.4 with respect to Kohls Shopper Data.
6.5 | Data Security. |
The parties agree as set forth on Schedule 6.5 with respect to Data Security.
ARTICLE 7
OPERATING STANDARDS
7.1 | Reports. |
Within thirty (30) days after the end of each month to begin after the Effective Date, each party shall provide to the other party the reports specified in Schedule 7.1. To the extent that Kohls, as servicer to Bank, has access to the information needed to produce such reports, Kohls, as servicer, shall provide such information and reports to itself on Banks behalf. The parties shall also provide to each other such other data and reports as are mutually agreed to by the parties from time to time.
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7.2 | Servicing. |
Kohls, on behalf of Bank, shall service all Accounts under the Program in accordance with the terms and conditions of this Agreement.
7.3 | Customer Service. |
(a) | Kohls shall be responsible for customer service for the Program in accordance with this Agreement, including the Regulatory SLAs and the other service level standards set forth in Schedule 7.3(b) as attached hereto, in each case subject to the terms set forth on Schedule 7.3(c). |
(b) | Kohls shall maintain one or more separate toll-free customer service telephone numbers for the Program, which toll-free numbers shall be provided by and remain the property of Kohls. Any publication of the toll-free numbers shall be approved by Kohls. |
(c) | Customer service shall be Kohls branded to the extent legally permissible. Notwithstanding the foregoing, Bank shall have the right in its reasonable discretion to take whatever steps and make such disclosures it believes are necessary to ensure that at all times the Bank is considered the creditor on the Accounts. |
(d) | If Bank receives a Cardholder complaint or inquiry from a Governmental Authority regarding the quality or delivery of Goods and/or Services, Bank shall refer such complaint to Kohls in accordance with the Operating Policies and Kohls shall respond directly to Cardholder. |
(e) | Bank, in consultation with Kohls, shall establish an appropriate process for handling immaterial Cardholder complaints or inquiries from a Governmental Authority regarding the Private Label Credit Card or the Program, provided that Bank, upon reasonable request, shall have access to and the right to review all such complaints and inquiries and any responses thereto handling by Kohls. Bank, in consultation with Kohls, shall establish a process for Kohls to determine which Cardholder complaints or inquiries from a Governmental Authority regarding the Private Label Credit Card or the Program should be deemed a material complaint and the parties shall cooperate with respect to responding to such complaints; provided that Bank shall have final approval with respect to such responses. |
(f) | Kohls and Bank (or their respective subcontractors, as applicable), may jointly observe and score inbound/outbound telephone customer contacts that Kohls has with Cardholders, provided, that, Bank may conduct and score observations alone if a representative of Kohls does not join in the observation. Kohls will make arrangements to allow Bank to observe customer service operations remotely at any time and without prior notice. Customer service observations may be conducted by Bank on any day and at any time during the day or night, provided that such observations shall not unreasonably interfere with Kohls normal business operations. |
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7.4 | Transfer of Servicing to Bank. |
The parties agree as set forth on Schedule 7.4 with respect to the transfer of servicing to Bank.
7.5 | Bank Right to Assume Servicing. |
The parties agree as set forth on Schedule 7.5 with respect to Banks right to assume servicing.
7.6 | Access. |
In addition to access as provided in Section 7.3(e), each party, at its own expense, will permit the other party and any Governmental Authority with jurisdiction over the other party, including without limitation the Office of the Comptroller of Currency (the Regulators) to visit its facilities related to the Program. Each party will also permit the other party and its Regulators to review and obtain copies of the books and records relating to the Program; provided that Bank shall not have access to books and records relating to the expenses or cost structure of servicing the Accounts and Kohls shall not have access to the books and records relating to the funding or other costs or expense solely borne by Bank. Notwithstanding the foregoing, each party shall have access to the other partys books and records in order to audit the other partys compliance with the terms of this Agreement. The access granted under this Section 7.6 shall occur during normal business hours with reasonable advance notice; provided, however that with respect to access by Regulators, such access shall not be so limited.
7.7 | Disaster Recovery Plans. |
Kohls and Bank will each maintain in effect during the Term a disaster recovery and business continuity plan that complies with Applicable Law. Each party shall notify the other party of any material changes to its disaster recovery and business continuity plan. Each party will test such plan annually and will promptly initiate such plan upon the occurrence of a disaster or business interruption, giving the Program the highest priority in its recovery efforts. In addition, the parties agree as set forth on Schedule 7.7 with respect to disaster recovery.
7.8 | Sarbanes-Oxley Compliance. |
The parties agree as set forth on Schedule 7.8 with respect to Sarbanes-Oxley Compliance.
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ARTICLE 8
MERCHANT SERVICES
8.1 | Transmittal and Authorization of Charge Transaction Data. |
(a) | Kohls will accept the Private Label Credit Cards for Transactions. Kohls will transmit Charge Transaction Data for authorization of Transactions as provided in the Operating Policies. If Kohls is unable to communicate with the authorization system for any reason, Kohls may complete Transactions without receipt of further authorization as provided in the Operating Policies. |
(b) | Bank, through Kohls as servicer, shall authorize or decline Transactions on a real time basis as provided in the Operating Policies, including transactions involving split-tender (i.e., a portion of the total transaction amount is billed to a Private Label Credit Card and the remainder is paid through one or more other forms of payment). |
8.2 | POS Terminals. |
Kohls shall maintain POS terminals capable of processing Private Label Credit Card Transactions. To the extent that Bank requires other equipment or changes to such terminals for transmission of Charge Transaction Data under this Agreement, Bank shall provide, or pay for the purchase, installation and maintenance of, such other equipment or required changes to Kohls POS credit card terminals.
8.3 | In-Store Payments. |
Kohls may accept In-Store Payments from Cardholders on their Accounts in accordance with the Operating Policies, which payments Kohls, as servicer for the Bank, shall apply against the outstanding balances on the Accounts. Kohls shall, as necessary, provide proper endorsements on such items. Bank grants to Kohls a limited power of attorney (coupled with an interest) to sign and endorse Banks name upon any form of payment that may have been issued in Banks name in respect of any Account. The Operating Policies shall specify the manner in which such In-Store Payments shall be processed. Kohls shall notify Bank upon receipt of In-Store Payments and Bank shall include the Charge Transaction Data related to such In-Store Payments in the net settlement in respect of the day immediately following such receipt on the same basis as other Charge Transaction Data. Kohls shall issue receipts for such payments in compliance with the Operating Policies.
8.4 | Settlement Procedures. |
(a) | Kohls will transmit Charge Transaction Data (including Charge Transaction Data arising in connection with sales by Licensees) to Bank in accordance with the Operating Policies. If Charge Transaction Data is received by Banks processing center before 11:00 am (CST) on any Business Day, Bank will process the Charge Transaction Data for payment on the same Business Day. If the Charge Transaction Data is received after 11:00 am (CST) on any Business Day, or at any time on a day other than a Business Day, Bank will process the Charge Transaction Data for payment on the following Business Day. |
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(b) | Bank will remit to Kohls on each Business Day, for itself and any Licensees, an amount equal to: the sum of the total of charges identified in such Charge Transaction Data less the sum of (i) the total amount of any credits included in such Charge Transaction Data for returns of Goods and/or Services in accordance with Section 8.5, and (ii) the total amount of any Cardholder payments (the Net Settlement Amount). Kohls shall be responsible for allocating such remittances among all Kohls Channels as appropriate and Bank shall have no responsibility or liability in connection therewith (it being agreed that Bank has no obligation to accept Charge Transaction Data directly from, or make remittances to, any Person other than Kohls). If the Net Settlement Amount is negative, Bank shall notify Kohls of the negative amount and Kohls shall pay Bank such negative amount by the next Business Day following such notice. |
8.5 | Returns of Kohls Goods and/or Services. |
If a Cardholder purchases Goods and/or Services on an Account and Kohls processes a return of such Goods and/or Services in accordance with Kohls return policy or makes another adjustment such as a price reduction, Kohls shall provide a credit to such Cardholders Account. Kohls will transmit the relevant information in the Charge Transaction Data for inclusion in the daily settlement process.
8.6 | No Merchant Discount. |
None of Kohls, its Affiliates or its Licensees shall be required to pay any merchant discount, interchange fees, or other transaction fees on any Transaction. Bank shall directly process the Transactions such that none of Kohls, its Affiliates or its Licensees incur any merchant acquirer/processor or similar fees.
ARTICLE 9
PROGRAM ECONOMICS
9.1 | Monthly Statement to Kohls. |
Prior to the Effective Date, the parties shall mutually agree on an appropriate process for sharing information in a timely manner to enable Bank to deliver to Kohls within five (5) Business Days after the end of each month a statement setting forth, in a mutually agreed format and Bank shall deliver such statement in accordance with such process,
(a) | the total amount owed to Kohls for the month pursuant to Section 9.2, with line item specificity; and |
(b) | any other amounts owed to or by Kohls as explicitly provided for herein or as otherwise agreed by the parties in writing with line item specificity, which amounts may be netted. |
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Each such statement, including supporting documentation, shall be known as a Monthly Settlement Sheet.
9.2 | Compensation. |
The parties agree as set forth on Schedule 9.2 with respect to compensation.
9.3 | Renegotiation of Terms. The parties agree as set forth on Schedule 9.3 with respect to renegotiation of terms. |
9.4 | Recoveries. The parties agree as set forth on Schedule 9.4 with respect to recoveries. |
ARTICLE 10
LICENSING OF TRADEMARKS; INTELLECTUAL PROPERTY
10.1 | The Kohls Licensed Marks. |
(a) | Grant of License to Use the Kohls Licensed Marks. Kohls and its Affiliates hereby grant to Bank a non-exclusive, royalty-free, non-transferable right and license to use the Kohls Licensed Marks in the United States solely in connection with the creation, establishment, marketing and administration of, and the provision of services related to, the Program, all pursuant to, and in accordance with, this Agreement and any applicable Trademark Style Guide of Kohls. Those services shall include the solicitation of Cardholders and potential Cardholders, acceptance of Credit Card Applications, the issuance and reissuance of Credit Cards, the provision of accounting services to Cardholders, the provision of Billing Statements and other correspondence relating to Accounts to Cardholders, the extension of credit to Cardholders, and the advertisement or promotion of the Program. All use of the Kohls Licensed Marks shall be approved by Kohls. The license hereby granted is solely for the use of Bank and may be used as necessary to permit the exercise by Bank of any of its rights under this Agreement to (i) delegate its obligations to Affiliate(s) and/or third party subcontractors, and (ii) sell the Accounts and Cardholder Indebtedness to third parties for liquidation. Except for the rights granted to the Bank in the preceding sentence, the licenses granted hereby may not be sublicensed in connection with the sale of any goods or services without the prior written approval of Kohls. Bank will ensure that any subcontractor or third party shall agree to comply with all of the standards specified herein and the limitations on the use of the Kohls Licensed Marks contained in this Section. |
(b) | New Marks. If Kohls or its Affiliates adopt a trademark, trade name, service mark logo or other proprietary mark which is used by Kohls or its Affiliates in connection with the Program but which is not listed on Schedule A hereto (a New Mark), Kohls, upon written notice to Bank, may add such New Mark to Schedule A. Bank may request that Kohls add a New Mark to Schedule A hereto and license its use hereunder, Kohls shall not unreasonably fail to do so. Any New Mark requested by Bank and agreed by Kohls shall be added to Schedule A by amendment of this Agreement. |
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(c) | Termination of License. Except as otherwise set forth on Schedule 16.3 hereof, the license granted in this Section shall terminate six (6) months after the later of (i) the Program Purchase Date, (ii) termination of this Agreement, or (iii) Kohls gives written notice that it will not exercise its Purchase Option or the Purchase Option expires. Upon such termination of this license, as provided in this subsection (c), all rights in the Kohls Licensed Marks shall revert to Kohls and its Affiliates, the goodwill connected therewith shall remain the property of Kohls and its Affiliates, and Bank shall: (i) discontinue immediately all use of the Kohls Licensed Marks, or any of them, and any colorable imitation thereof; and (ii) at Banks option, delete the Kohls Licensed Marks from or destroy all unused Credit Cards, Credit Card Applications, Account Documentation, periodic statements, materials, displays, advertising and sales literature and any other items bearing any of the Kohls Licensed Marks. |
(d) | Ownership of the Kohls Licensed Marks. Bank acknowledges that (i) the Kohls Licensed Marks, all rights therein, and the goodwill associated therewith, are, and shall remain, the exclusive property of Kohls and its Affiliates, (ii) it shall take no action which will adversely affect Kohls and its Affiliates exclusive ownership of the Kohls Licensed Marks, or the goodwill associated with the Kohls Licensed Marks (it being understood that the collection of Accounts, adverse action letters, and changes in terms of Accounts as required by Applicable Law do not adversely affect goodwill, if done in accordance with the terms of this Agreement), and (iii) any and all goodwill arising from use of the Kohls Licensed Marks by Bank shall inure to the benefit of Kohls and its Affiliates. Nothing herein shall give Bank any proprietary interest in or to the Kohls Licensed Marks, except the right to use the Kohls Licensed Marks in accordance with this Agreement, and Bank shall not contest Kohls or its Affiliates title in and to the Kohls Licensed Marks. |
(e) | Infringement by Third Parties. Bank shall use reasonable efforts to notify Kohls, in writing, in the event that it has Knowledge of any infringing use of any of the Kohls Licensed Marks by any third party. If any of the Kohls Licensed Marks is infringed, Kohls alone has the right, in its sole discretion, to take whatever action it deems necessary to prevent such infringing use; provided, however, that if Kohls fails to take reasonable steps to prevent infringement of the Kohls Licensed Marks by any retail department store and such infringement has an adverse effect upon the Program or the rights of Bank hereunder, Bank may request that Kohls take action necessary to alleviate such adverse impact. Bank shall reasonably cooperate with and assist Kohls, at Kohls expense, in the prosecution of those actions that Kohls determines, in its sole discretion, are necessary or desirable to prevent the infringing use of any of the Kohls Licensed Marks. |
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10.2 | The Bank Licensed Marks. |
(a) | Grant of License to Use the Bank Licensed Marks. Bank hereby grants to Kohls a non-exclusive, royalty-free, non-transferable right and license to use the Bank Licensed Marks in the United States solely in connection with the creation, establishment, marketing and administration of, and the provision of services related to, the Program, all pursuant to, and in accordance with, this Agreement and any applicable Trademark Style Guide of Bank. Those services shall include the solicitation of Cardholders and the advertisement or promotion of the Program. All use of the Bank Licensed Marks shall be approved by Bank. The license hereby granted is solely for the use of Kohls and may be used as necessary to permit the exercise by Kohls of any of its rights under this Agreement to delegate obligations to Affiliate(s) and/or third party contractors. The license granted hereby may not be sublicensed in connection with the sale of Goods and/or Services without the prior written approval of Bank. Kohls shall ensure that any subcontractor or third party shall agree to comply with all of the standards specified herein and the limitations on the use of the Bank Licensed Marks contained in this Section. |
(b) | New Marks. If Bank adopts a trademark, trade name, service mark logo or other proprietary mark which is used by Bank in connection with its extension of bank card credit to customers but which is not listed on Schedule B hereto (a New Mark), Kohls may request that Bank add such New Mark to Schedule B hereto and license its use hereunder, Bank shall not unreasonably fail to do so, and such New Mark shall be added to Schedule B by amendment of this Agreement. The foregoing notwithstanding, it is understood and agreed that Bank shall not be required to add a New Mark to Schedule B if such New Mark was developed by Bank primarily for another charge, credit or debit program. |
(c) | Termination of License. The license granted in this Section shall terminate six (6) months after the later of (i) the Program Purchase Date, (ii) termination of this Agreement, or (iii) Kohls gives written notice that it will not exercise its Purchase Option or the Purchase Option expires. Upon such termination of this license, as provided in this subsection (c), all rights in the Bank Licensed Marks shall revert to Bank, the goodwill connected therewith shall remain the property of Bank, and Kohls shall: (i) discontinue immediately all use of the Bank Licensed Marks, or any of them, and any colorable imitation thereof; and (ii) at Kohls option, delete the Bank Licensed Marks from or destroy all unused Credit Card Applications, Account Documentation, periodic statements, materials, displays, advertising and sales literature and any other items bearing any of the Bank Licensed Marks. |
(d) | Ownership of the Bank Licensed Marks. Kohls acknowledges that (i) the Bank Licensed Marks, all rights therein, and the goodwill associated therewith, are, and shall remain, the exclusive property of Bank, (ii) it shall take no action which will adversely affect Banks exclusive ownership of the Bank Licensed Marks or the goodwill associated with the Bank Licensed Marks, and (iii) any and all goodwill arising from use of the Bank Licensed Marks by Kohls shall inure to |
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the benefit of Bank. Nothing herein shall give Kohls any proprietary interest in or to the Bank Licensed Marks, except the right to use the Bank Licensed Marks in accordance with this Agreement, and Kohls shall not contest Banks title in and to the Bank Licensed Marks. |
(e) | Infringement by Third Parties. Kohls shall use reasonable efforts to notify Bank, in writing, in the event that it has Knowledge of any infringing use of any of the Bank Licensed Marks by any third party. If any of the Bank Licensed Marks is infringed, Bank alone has the right, in its sole discretion, to take whatever action it deems necessary to prevent such infringing use; provided, however, that if Bank fails to take reasonable steps to prevent infringement of the Bank Licensed Marks by any credit provider and such infringement has an adverse effect upon the Program or the rights of Kohls hereunder, Kohls may request that Bank take action necessary to alleviate such adverse impact. Kohls shall reasonably cooperate with and assist Bank, at Banks expense, in the prosecution of those actions that Bank determines, in its sole discretion, are necessary or desirable to prevent the infringing use of any of the Bank Licensed Marks. |
10.3 | Ownership and Licenses of Intellectual Property. |
(a) | Ownership of Intellectual Property. Each party shall continue to own all of its Intellectual Property that existed as of the Effective Date. Each party also shall own all right, title and interest in the Intellectual Property it develops independently of the other party during the Term. To the extent a party (the Acquiring IP Party) acquires any rights in or to such Intellectual Property of the other party (the IP Owner), the Acquiring IP Party hereby assigns all such right, title and interest in and to such Intellectual Property back to IP Owner. |
(b) | Joint Intellectual Property. |
(i) | The parties intend that any Intellectual Property developed through the combined efforts of the parties during the Term of this Agreement shall be developed pursuant to a negotiated development agreement, which shall be negotiated in good faith, and entered into, by the parties prior to commencement of work for the development of the Intellectual Property (each such agreement a Development Agreement). The terms of any such Development Agreement shall govern the parties rights in and any restrictions or obligations with respect to the Intellectual Property that is the subject of such Development Agreement. |
(ii) | In the event that a Development Agreement has not been entered into by the parties with regard to jointly developed Intellectual Property, such Intellectual Property shall be owned jointly by the parties and any restrictions or obligations on use shall be governed by the remainder of this Section 10.3(b)(ii). During the Term and in perpetuity thereafter, Bank shall have the right to use, license and otherwise exploit such jointly owned Intellectual Property |
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without any restriction or obligation to account to Kohls. During the Term and in perpetuity thereafter, Kohls shall have the right to use, license and otherwise exploit such jointly owned Intellectual Property without any restriction or obligation to account to Bank for such uses (A) solely in connection with and for purposes of operating the Kohls-branded private label credit card program and any other payment product program offered by Kohls, either directly or through third party, including in connection with the creation, establishment, marketing and administration of such programs, and the provision of services related thereto; and (B) solely for the purposes described in subsection 10.3(b)(ii)(A), sublicense such jointly owned Intellectual Property to its Affiliates and subcontractors, the third party purchaser of the Program Assets and any other third party that offers such any such payment program with Kohls. |
(iii) | Patents and inventions shall be deemed to be developed jointly only if employees or contractors of each party who have assigned all such patent rights to such party are deemed co-inventors under the applicable patent laws. Software and other works of authorship and associated copyrights shall be deemed to be jointly developed only if the parties are deemed co-authors of such software or other work of authorship under the applicable copyright laws or otherwise deemed co-owners of such copyright. Otherwise, all patents, patentable inventions, software, other works of authorship and related copyrights shall be deemed to be developed solely by one party. For the avoidance of doubt, if any work is created solely by one party which is based on or incorporates Intellectual Property of the other party, then such party shall be the sole owner of the Intellectual Property in and to the new work, subject to the other partys sole ownership of the underlying work. |
(c) | Bank Intellectual Property. |
The parties agree as set forth on Schedule 10.3(c) with respect to Bank Intellectual Property.
ARTICLE 11
REPRESENTATIONS, WARRANTIES AND COVENANTS
11.1 | General Representations and Warranties of Kohls. |
To induce Bank to establish and administer the Program, Kohls makes the representations and warranties set forth on Schedule 11.1 and the following representations and warranties to Bank, each and all of which shall survive the execution and delivery of this Agreement, and each and all of which shall be deemed to be restated and remade with the same force and effect on each day of the Term.
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(a) | Corporate Existence. Kohls (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of its incorporation; (ii) is duly licensed or qualified to do business as a corporation and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted or proposed to be conducted by it or the character of the assets owned or leased by it makes such licensing or qualification necessary to perform its obligations required hereunder except to the extent that its non-compliance would not have a material and adverse effect on Kohls ability to perform its obligations hereunder; and (iii) has all necessary licenses, permits, consents or approvals from or by, and has made all necessary notices to, all governmental authorities having jurisdiction, to the extent required for Kohls current ownership, lease or conduct and operation, except to the extent that the failure to obtain such licenses, permits, consents or approvals or to provide such notices would not have a material and adverse effect on Kohls ability to perform its obligations required hereunder. |
(b) | Capacity; Authorization; Validity. Kohls has all necessary corporate power and authority to (i) execute and enter into this Agreement, and (ii) perform the obligations required of Kohls hereunder and the other documents, instruments and agreements relating to the Program and this Agreement executed by Kohls pursuant hereto. The execution and delivery by Kohls of this Agreement and all documents, instruments and agreements executed and delivered by Kohls pursuant hereto, and the consummation by Kohls of the transactions specified herein have been duly and validly authorized and approved by all necessary corporate action of Kohls. This Agreement (i) has been duly executed and delivered by Kohls, (ii) constitutes the valid and legally binding obligation of Kohls, 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 Kohls, its compliance with the terms hereof, and its 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 material contract, instrument or agreement to which Kohls is a party or by which it is bound, or by which Kohls assets are bound, except for conflicts, breaches and defaults which would not have a material and adverse effect upon Kohls ability to perform its obligations under this Agreement; (ii) conflict with or violate the articles of incorporation or by-laws, or any other equivalent organizational document(s), of Kohls; (iii) violate any Applicable Law or conflict with, or require any consent or approval under any judgment, order, writ, decree, permit or license, to which Kohls is a party or by which it is bound or affected, except to the extent that such violation or the failure to obtain such consent or approval would not have a material and adverse effect upon Kohls ability to perform its obligations under this Agreement; (iv) require the consent or approval of any other party to any contract, instrument |
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or commitment to which Kohls is a party or by which it is bound, except to the extent that the failure to obtain such consent or approval would not have a material and adverse effect upon Kohls ability to perform its obligations under this Agreement; or (v) require any filing with, notice to, consent or approval of, or any other action to be taken with respect to, any regulatory authority, except to the extent that the failure to obtain such consent or approval would not have a material and adverse effect upon Kohls ability to perform its obligations under this Agreement. |
(d) | Solvency. Kohls is solvent. |
(e) | No Default. Neither Kohls nor, to the best of its Knowledge, its Affiliates are in default with respect to any contract, agreement, lease, or other instrument to which it is a party or by which it is bound, except for defaults which would not have a material and adverse effect upon Kohls ability to perform its obligations under this Agreement, nor has Kohls received any notice of default under any contract, agreement, lease or other instrument which default or notice of default would materially and adversely affect the performance by Kohls of its obligations under this Agreement. No Kohls Event of Default has occurred and is continuing. |
(f) | Books and Records. All of Kohls and, to the best of its Knowledge, its Affiliates records, files and books of account relating to the Program, including records provided to the Bank regarding Kohls Account activities, are in all material respects complete and correct and are maintained in accordance with Applicable Law and GAAP. |
(g) | No Litigation. No action, claim or any litigation, proceeding, arbitration, investigation or controversy is pending or, to the best of Kohls Knowledge, threatened against Kohls or its Affiliates, at law, in equity or otherwise, before any court, board, commission, agency or instrumentality of any federal, state, or local government or of any agency or subdivision thereof or before any arbitrator or panel of arbitrators, to which Kohls is a party, which, if adversely determined, could have a material and adverse effect on Kohls ability to perform its obligations under this Agreement. |
(h) | Kohls Licensed Marks. Kohls is the owner of the Kohls Licensed Marks and Kohls has the right, power and authority to license to Bank and authorized designees the use of the Kohls Licensed Marks in connection with the Program and the use of the Kohls Licensed Marks by said licensees in a manner approved (or deemed approved) by Kohls shall not (i) violate any Applicable Law or (ii) infringe upon the right(s) of any third party. |
11.2 | General Representations and Warranties of Bank. |
To induce Kohls to enter into this Agreement and participate in the Program, Bank makes the following representations and warranties to Kohls, each and all of which shall survive the execution and delivery of this Agreement, and each and all of which shall be deemed to be restated and remade with the same force and effect on each day of the Term.
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(a) | Corporate Existence. Bank (i) is a banking corporation duly organized, validly existing, and in good standing under the laws of the United States with its home office as indicated in the first paragraph of this Agreement; (ii) is duly licensed or qualified to do business as a banking corporation and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted or proposed to be conducted by it or the character of the assets owned or leased by it makes such licensing or qualification necessary to perform its obligations hereunder except to the extent that its non-compliance would not have a material and adverse effect on Bank, the Program, the Accounts, Cardholder Indebtedness or Banks ability to perform its obligations hereunder; and has all necessary licenses, permits, consents, or approvals from or by, and has made all necessary notices to, all governmental authorities having jurisdiction, to the extent required for Banks current ownership, lease or conduct and operation, except to the extent that the failure to obtain such licenses, permits, consents, approvals or to provide such notices would not have a material and adverse effect on Bank, the Program, the Accounts, Cardholder Indebtedness or Banks ability to perform its obligations under this Agreement. |
(b) | Capacity; Authorization; Validity. Bank has all necessary power and authority to (i) execute and enter into this Agreement, and (ii) perform all of the obligations required of Bank hereunder and the other documents, instruments and agreements relating to the Program and this Agreement executed by Bank pursuant hereto. The execution and delivery by Bank of this Agreement and all documents, instruments and agreements executed and delivered by Bank pursuant hereto, and the consummation by Bank of the transactions specified herein, have been duly and validly authorized and approved by all necessary corporate action of Bank. This Agreement (i) has been duly executed and delivered by Bank, (ii) constitutes the valid and legally binding obligations of Bank, and (iii) is enforceable in accordance with its respective terms (subject to applicable bankruptcy, insolvency, reorganization, receivership or other laws affecting the rights of creditors generally and financial institutions in particular 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 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 material contract, instrument or agreement to which Bank is a party or by which it is bound, except for conflicts, breaches and defaults which would not have a material and adverse effect upon Bank, the Program, the Accounts, Cardholder Indebtedness or Banks ability to perform its obligations under this Agreement; (ii) conflict with or violate the articles of incorporation or by-laws, or any other equivalent organizational document(s) of Bank; |
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(iii) violate any Applicable Law or conflict with, or require any consent or approval under any judgment, order, writ, decree, permit or license, to which Bank is a party or by which it is bound or affected, except to the extent that such violation or the failure to obtain such consent or approval would not have a material and adverse effect upon Bank, the Program, the Accounts, the Cardholder Indebtedness or Banks ability to perform its obligations under this Agreement; (iv) require the consent or approval of any other party to any contract, instrument or commitment to which Bank is a party or by which it is bound, except to the extent that the failure to obtain such consent or approval would not have a material and adverse effect upon Banks ability to perform its obligations under this Agreement; or (v) require any filing with, notice to, consent or approval of, or any other action to be taken with respect to, any regulatory authority, except to the extent that the failure to obtain such consent or approval would not have a material and adverse effect upon Banks ability to perform its obligations under this Agreement. |
(d) | Solvency. Bank is solvent. |
(e) | No Default. Neither Bank nor, to the best of its Knowledge, its Affiliates are in default with respect to any contract, agreement, lease, or other instrument to which it is a party or by which it is bound, except for defaults which would not have a material and adverse effect upon Bank, the Program, the Accounts, Cardholder Indebtedness or Banks ability to perform its obligations under this Agreement, nor has Bank received any notice of default under any such contract, agreement, lease or other instrument which default or notice of default would materially and adversely affect the performance by Bank of its obligations under this Agreement. No Bank Event of Default has occurred and is continuing. |
(f) | Books and Records. All of Banks and, to the best of its Knowledge, its Affiliates records, files and books of account relating to the Program are in all material respects complete and correct and are maintained in accordance with Applicable Law. |
(g) | No Litigation. No action, claim, or any litigation, proceeding, arbitration, investigation or controversy is pending or, to the best of Banks Knowledge, threatened against Bank or its Affiliates, at law, in equity or otherwise, before any court, board, commission, agency or instrumentality of any federal, state, or local government or of any agency or subdivision thereof or before any arbitrator or panel of arbitrators, to which Bank is a party, which, if adversely determined, could have a material and adverse effect on Bank, the Program, the Accounts, Cardholder Indebtedness or Banks ability to perform its obligations under this Agreement, nor, to the best of Banks Knowledge, do facts exist which might give rise to any such proceedings. Bank, further, is not the subject of any action by a regulatory authority; and is not subject to any agreement, orders or directives with any regulatory authority with respect to its operations affecting the Accounts, Cardholder Indebtedness and the Program, any other aspect of Banks business that relates to the Program or the ability of Bank to consummate the transactions specified herein. |
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(h) | FDIC Insurance. Bank is FDIC-insured, and to the best of Banks Knowledge, no proceeding is contemplated to revoke such insurance. |
(i) | The Bank Licensed Marks. Bank, or one of its Affiliates, is the owner of the Bank Licensed Marks and Bank has the right, power and authority to license to Kohls the use of the Bank Licensed Marks in connection with the Program and the use of the Bank Licensed Marks by Kohls in a manner approved (or deemed approved) by Bank shall not (i) violate any Applicable Law or (ii) infringe upon the right(s) of any third party. |
11.3 | General Covenants of Kohls. |
Kohls makes the following covenants to Bank, each and all of which shall survive the execution and delivery of this Agreement:
(a) | Maintenance of Existence and Conduct of Business. Kohls shall preserve and keep in full force and effect its corporate existence, other than in the event of a change in control, merger or consolidation in which Kohls is not the surviving entity. |
(b) | Litigation. Kohls promptly shall notify Bank in writing if it receives written notice of any litigation that, if adversely determined, would have a material and adverse effect on the Program, the Accounts in the aggregate or Kohls ability to perform its obligations hereunder. |
(c) | Enforcement of Rights. Except as otherwise specified herein, Kohls shall enforce its rights against third parties to the extent that a failure to enforce such rights could reasonably be expected to materially and adversely affect the Program, Accounts in the aggregate or Kohls ability to perform its obligations hereunder. Kohls shall not enter into any agreement which, at the time such agreement is executed, could reasonably be expected to have a material and adverse effect on the Program, the Accounts in the aggregate or Kohls ability to perform its obligations hereunder. |
(d) | Reports and Notices. Kohls will provide Bank with a telephonic, telefacsimile or PDF e-mail notice specifying the nature of any Event of Default where Kohls is the defaulting party or Kohls Event of Default, or any event which, with the giving of notice or passage of time or both, would constitute a Kohls Event of Default or any Event of Default where Kohls is the defaulting party or any development or other information which is likely to have a material and adverse effect on the Program, the Accounts in the aggregate or Kohls ability to perform its obligations pursuant to this Agreement. Notices pursuant to this Section 11.3(d) relating to Kohls Events of Default or any Event of Default where Kohls is the defaulting party shall be provided within two (2) Business Days after Kohls has Knowledge of the existence of such default. Notices relating to all other |
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events or developments described in this Section 11.3(d) shall be provided (i) within two (2) Business Days after Kohls becomes aware of the existence of such event or development if such event or development has already occurred, and (ii) with respect to events or developments that have yet to occur, as early as reasonably practicable under the circumstances. Any notice provided under this section shall be confirmed in writing to Kohls within five (5) Business Days after the transmission of the initial notice. |
(e) | Applicable Law/Operating Policies. Kohls shall at all times during the Term of this Agreement comply in all material respects with Applicable Law affecting obligations under this Agreement and the Operating Policies. |
(f) | Disputes with Cardholders. Kohls shall cooperate with Bank in a timely manner (but in no event less promptly than required by Applicable Law) to resolve all disputes with Cardholders. |
(g) | Affiliate Compliance. Kohls shall, to the extent necessary, cause its Affiliates to comply with the terms of this Agreement. |
(h) | Disposition of any Kohls Channels. Kohls shall promptly notify Bank of any material disposition or discontinuance of Kohls Channels. |
11.4 | General Covenants of Bank. |
Bank makes the following covenants to Kohls, each and all of which shall survive the execution and delivery of this Agreement:
(a) | Maintenance of Existence and Conduct of Business. Bank shall preserve and keep in full force and effect its corporate existence other than in the event of a change in control, merger or consolidation in which Bank or its Parent is not the surviving entity. |
(b) | Litigation. Bank promptly shall notify Kohls in writing if it receives written notice of any litigation that, if adversely determined, would have a material and adverse effect on the Program, the Accounts in the aggregate or Banks ability to perform its obligations hereunder. |
(c) | Enforcement of Rights. Except as otherwise specified herein, Bank shall enforce its rights against third parties to the extent that a failure to enforce such rights could reasonably be expected to materially and adversely affect the Program, Kohls or Banks ability to perform its obligations hereunder. Bank shall not enter into any agreement which, at the time such agreement is executed, could reasonably be expected to have a material and adverse effect on the Program or Banks ability to perform its obligations hereunder. |
(d) | Reports and Notices. Bank will provide Kohls with a telephonic, telefacsimile or PDF e-mail notice specifying the nature of any Event or Default where Bank is defaulting party any Bank Event of Default, or any event which, with the giving of notice or passage of time or both, would |
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constitute a Bank Event of Default or any Event of Default where Bank is the defaulting party, or any development or other information which is likely to have a material and adverse effect on the Program, the Accounts in the aggregate or Banks ability to perform its obligations pursuant to this Agreement. Notice pursuant to this Section 11.4(d) relating to Bank Events of Default or any Event of Default where Bank is the defaulting party shall be provided within two (2) Business Days after Bank becomes aware of the existence of such default. Notices relating to all other events or developments described in this Section 11.4(d) shall be provided (i) within two (2) Business Days after Bank becomes aware of the existence of such event or development if such event or development has already occurred, and (ii) with respect to events or developments that have yet to occur, as early as reasonably practicable under the circumstances. Any notice produced under this section shall be confirmed in writing to Bank within five (5) Business Days after transmission of the initial notice. |
(e) | Applicable Law/Operating Policies. Bank shall at all times during the Term comply in all material respects with Applicable Law and the Operating Policies. Bank shall at all times during the Term maintain its bank charter and FDIC insurance. |
(f) | Books and Records. Bank shall keep adequate records and books of account with respect to the Accounts and Cardholder Indebtedness in which proper entries, reflecting all of Banks financial transactions relating to the Program, are made in accordance with GAAP. All of Banks 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. |
(g) | Affiliate Compliance. Bank shall, to the extent necessary, cause its Affiliates to comply with the terms of this Agreement. |
ARTICLE 12
CONFIDENTIALITY
12.1 | General Confidentiality. |
(a) | For purposes of this Agreement, Confidential Information means any of the following: (i) information that is provided by or on behalf of either Kohls or Bank to the other party or its agents in connection with the Program; or (ii) information about Kohls or Bank or their Affiliates, or their respective businesses or employees, that is otherwise obtained by the other party in connection with the Program, in each case including but, not limited to: (A) information concerning marketing plans, objectives and financial results; (B) information regarding business systems, methods, processes, financing data, programs and products; (C) information unrelated to the Program obtained by Kohls or Bank in connection with this Agreement, including by accessing or |
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being present at the business location of the other party; (D) proprietary technical information, including source codes; (E) information about Credit Card usage that is not identifiable to Cardholders, which shall solely be the Confidential Information of Kohls; and (F) any information, data, materials, and elements relating to and/or comprising Intellectual Property. Confidential Information shall include Cardholder Data, the Qualified Kohls Customer List or Kohls Shopper Data and shall be governed by this Article 12, except as expressly provided elsewhere in this Agreement. Program-related data, including financial data related to the Program, that is not personally identifiable to a Cardholder shall be the Confidential Information of each party. |
(b) | The restrictions on disclosure of Confidential Information under this Article 12 shall not apply to, with respect to Kohls or Bank, information that: (i) is already rightfully known to such party at the time it obtains Confidential Information from the other party; (ii) 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; (iii) is lawfully received on a non-confidential basis from a third party authorized to disclose such information without restriction and without breach of this Agreement; (iv) is contained in, or is capable of being discovered through examination of publicly available records or products; (v) is required to be disclosed by Applicable Law (provided that the party subject to such Applicable Law shall, if permitted by Applicable Law, notify the other party of any such use or requirement prior to disclosure of any Confidential Information obtained from the other party in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure of the Confidential Information to third parties and shall disclose Confidential Information of the other party only to the extent required by such Applicable Law); or (vi) is developed by Kohls or Bank without the use of any proprietary, non-public information provided by the other party under 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 shall be the Confidential Information of both Kohls and Bank. |
(d) | If Kohls or Bank receive 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 secure and confidential; (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. |
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(e) | Upon reasonable request, Kohls and Bank each shall have the right to review the other partys information security standards and shall notify the other party prior to materially modifying such procedures. |
12.2 | 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 and this Agreement 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. |
(b) | Each Receiving Party shall: (i) limit access to the Disclosing Partys Confidential Information to those employees, authorized agents, vendors, consultants, service providers and subcontractors who have a reasonable need to access such Confidential Information in connection with the Program; and (ii) ensure that any Person with access to the Disclosing Partys Confidential Information agrees to be bound by the provisions of this Article 12 and maintains the existence of this Agreement and the nature of their obligations hereunder strictly confidential. |
(c) | The parties acknowledge that the Confidential Information pertaining to consumer Cardholders, applicants and the Accounts received by Kohls under this Agreement may include nonpublic personal information (NPPI), as such term is defined in Title V of the federal Gramm-Leach-Bliley Act (Pub. L. 106-102) as implemented and interpreted by regulations promulgated pursuant thereto (the Privacy Act and Regulations). Subject to Section 6.4, to the extent Kohls is receiving NPPI from Program applicants, Cardholders or otherwise from Bank in connection with this Agreement, such NPPI shall be and remain the property of Bank and Kohls shall not possess or assert any ownership interest or right to NPPI. Subject to Sections 6.3 and 6.4, neither Kohls nor Bank shall use or disclose such NPPI for purposes other than those necessary for each party to exercise its rights and carry out its obligations under this Agreement, and as otherwise permitted by Program Privacy Policy and Applicable Law, including in the provisions of the Privacy Act and Regulations applicable to the reuse and redisclosure of NPPI (see, e.g., 12 CFR 40.11). |
12.3 | Unauthorized Use or Disclosure of Confidential Information |
Each Receiving Party agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party might cause immediate and irreparable harm to the Disclosing Party for which money damages might not constitute an adequate remedy. In that event, the Receiving Party agrees that injunctive relief 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 via facsimile or PDF e-mail of any security breach that may have compromised any Confidential Information, of any unauthorized misappropriation, disclosure or use by any person of the Confidential Information of the Disclosing Party which may come to its attention and to take all steps at its own expense reasonably requested by the Disclosing Party to limit, stop or otherwise remedy such misappropriation, disclosure or use.
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12.4 | Return or Destruction of Confidential Information |
Upon the termination or expiration of this Agreement, the Receiving Party shall comply with the Disclosing Partys reasonable instructions regarding the disposition of the Disclosing Partys Confidential Information, which may include return of any and all the Disclosing Partys Confidential Information (including any electronic or paper copies, reproductions, extracts or summaries thereof); provided, however, the Receiving Party in possession of tangible property containing the Disclosing Partys Confidential Information may retain one archived copy of such material, subject to the terms of this Agreement, which may be used solely for regulatory purposes and may not be used for any other purpose. Such compliance shall be certified in writing, including a statement that no copies of Confidential Information have been kept, except as necessary for regulatory purposes.
ARTICLE 13
RETAIL PORTFOLIO ACQUISITIONS AND DISPOSITIONS
13.1 | Retail Portfolio Acquisition. |
The parties agree as set forth on Schedule 13.1 with respect to retail portfolio acquisitions.
13.2 | Retail Disposition. |
Nothing in this Agreement shall be deemed to require Kohls to maintain any Kohls Channel, in whole or in part, during the Term of this Agreement or prevent Kohls from ceasing to operate any Kohls Channel, in whole or in part, during the Term of this Agreement. In the event that Kohls arranges for the disposition of any of its retail establishments in the United States during the Term of this Agreement, Kohls may, in its discretion, offer its designated purchaser the right to acquire the portion of the Program Assets related to such disposition and Bank shall cooperate and use commercially reasonable efforts to consummate such disposition to the same extent as if such disposition were a transfer of Program Assets upon the expiration of this Agreement as provided in Article 16.
ARTICLE 14
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
14.1 | Events of Default. |
The parties agree as set forth on Schedule 14.1 with respect to Events of Default.
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14.2 | Defaults by Bank. |
The parties agree as set forth on Schedule 14.2 with respect to defaults by Bank.
14.3 | Defaults by Kohls. |
The parties agree as set forth on Schedule 14.3 with respect to defaults by Kohls.
14.4 | Remedies for Events of Default. |
The parties agree as set forth on Schedule 14.4 with respect to Remedies for Events of defaults.
ARTICLE 15
TERM/TERMINATION
15.1 | Term. |
This Agreement shall continue in full force and effect for seven (7) years from the Effective Date (the Initial Term). The Agreement shall renew automatically without further action of the parties for successive one (1) year terms (each a Renewal Term) unless either party provides written notice of non-renewal at least six (6) months prior to the expiration of the Initial Term or current Renewal Term, as the case may be.
15.2 | Termination by Kohls Prior to the End of the Initial Term or a Renewal Term. |
Kohls may terminate this Agreement upon written notice prior to the end of the Initial Term or any Renewal Term on any basis set forth on Schedule 15.2.
15.3 | Termination by Bank Prior to the End of the Initial Term or Renewal Term. |
Bank may terminate this Agreement upon written notice prior to the end of the Initial Term or any Renewal Term on any basis set forth on Schedule 15.3.
ARTICLE 16
EFFECTS OF TERMINATION
16.1 | General Effects. |
(a) | All obligations of the parties including (i) operating the Program and servicing of the Accounts in good faith and in the ordinary course of their respective businesses, (ii) solicitations, marketing and advertising of the Program, and (iii) acceptance of applications through Kohls Channels in the ordinary course of business consistent with past practice, shall continue during the Termination Period upon notice of termination or non-renewal of this Agreement by either party, except as the parties may mutually agree, subject to the terms of this Agreement, until the expiration of the |
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Termination Period. The parties will cooperate in good faith to ensure the orderly wind-down or transfer of the Program, including with respect to the Bank, providing such transition support as reasonably requested by Kohls. Bank shall provide such transition support to Kohls at its then-current rates; provided however, that Bank shall waive any amounts due and owing by Kohls for such transition services if Kohls terminates this Agreement upon the occurrence of a Bank Event of Default or any other Event of Default where Bank is the defaulting party, unless otherwise determined by a court of competent jurisdiction after the resolution of all appeals. |
(b) | Upon the expiration of the Termination Period, all obligations of the parties under this Agreement shall cease, except that the provisions specified in Section 18.24 shall survive. |
16.2 | Kohls Option to Purchase the Program Assets. |
The parties agree as set forth in Schedule 16.2 with respect to Kohls option to purchase the Program Assets.
16.3 | Rights of Bank if Purchase Option not Exercised. |
The parties agree as set forth on Schedule 16.3 with respect to the rights of Bank if Kohls Purchase Option is not exercised.
ARTICLE 17
INDEMNIFICATION
17.1 | Kohls Indemnification of Bank. |
From and after the Effective Date, Kohls shall indemnify and hold harmless Bank, its Affiliates, their respective officers, directors, employees, agents and representatives and any Person claiming by or through any of them 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 relating to third-party claims, which are caused or incurred by, result from, arise out of or relate to:
(a) | Kohls or its Licensees negligence, gross negligence, recklessness or willful misconduct (including acts and omissions) relating to the Program; |
(b) | any breach by Kohls, its Licensees or any of its Affiliates, or their respective officers, directors employees or agents of any of the material terms, covenants, representations, warranties or other provisions contained in this Agreement or of Kohls or its Affiliates obligations under any Credit Card Agreement, if any; |
(c) | Kohls, or its Licensees, failure to satisfy any of its material obligations or liabilities to third parties, including its obligations to Cardholders in respect of the purchase of Goods and/or Services; |
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(d) | any actions or omissions by Bank taken or not taken at Kohls written request or direction pursuant to this Agreement except where Bank would have been otherwise required to take such action (or refrain from acting) absent the request or direction of Kohls; |
(e) | fraudulent acts by Kohls, or its Licensees or its Affiliates, or their respective officers, directors employees or agents; |
(f) | the failure of Kohls or its Licensees to comply with Applicable Law or Operating Policies unless such failure was the result of any action taken or not taken by Kohls or its Licensees at the specific written request or direction of Bank; |
(g) | Kohls Inserts or Billing Statement messages; |
(h) | allegations by a third party that the use of the Kohls Licensed Marks or any materials or documents provided by Kohls constitutes: (i) libel, slander, and/or defamation; (ii) infringement of intellectual property, including trademark infringement or dilution, or copyright infringement; (iii) unfair competition or misappropriation of anothers ideas or trade secret; (iv) invasion of rights of privacy or rights of publicity; or (v) breach of contract or tortious interference; or |
(i) | allegations by a third party that the use of the Kohls Core Systems or anything provided by Kohls under Schedule 4.10 (including Kohls Core Systems, software or licenses) constitutes infringement, misappropriation or violation of intellectual property unless such allegations are caused by a failure of Bank, its personnel and any third parties engaged thereby to (i) have complied with applicable licenses, and (ii) have maintained the confidentiality of source codes as applicable. |
17.2 | Banks Indemnification of Kohls. |
From and after the Effective Date, Bank shall indemnify and hold harmless Kohls, its Affiliates, their respective officers, directors, employees, agents and representatives and any Person claiming by or through any of them 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, relating to third-party claims, which are caused or incurred by, result from, arise out of or relate to:
(a) | Banks negligence, gross negligence, recklessness or willful misconduct (including acts and omissions) relating to the Program; |
(b) | any breach by Bank or any of its Affiliates, or their respective officers, directors employees or agents of any of the material terms, covenants, representations, warranties or other provisions contained in this Agreement, or any Credit Card Agreement; |
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(c) | Banks failure to satisfy any of its material obligations or liabilities to third parties, including Cardholders; |
(d) | any actions or omissions by Kohls taken or not taken at Banks written request or direction pursuant to this Agreement, except where Kohls would have been otherwise required to take such action (or refrain from acting) absent the request or direction of Bank; |
(e) | fraudulent acts by Bank, its Affiliates or their respective officers, directors employees or agents; |
(f) | any Account Documentation used by Kohls after Banks legal review and approval that fails to comply with Applicable Law unless such failure to comply is as a result of subsequent modification to such Account Documentation by Kohls; |
(g) | the failure of Bank to comply with Applicable Law or the Operating Policies unless such failure was the result of any action taken or not taken by Bank at the specific written request or direction of Kohls; |
(h) | the Banks Inserts or Billing Statement messages; |
(i) | the Banks failure to perform its obligations under the Purchase Agreement; |
(j) | allegations by a third party that the use of the Bank Licensed Marks or any materials or documents provided by Bank constitutes: (i) libel, slander, and/or defamation; (ii) infringement of intellectual property, including trademark infringement or dilution, or copyright infringement, (iii) unfair competition or misappropriation of anothers ideas or trade secret; (iv) invasion of rights of privacy or rights of publicity; or (v) breach of contract or tortious interference; and |
(k) | allegations by a third party that the use of the Bank Systems or anything provided by Bank under Schedule 4.10 (including Bank Systems, software or licenses) constitutes infringement, misappropriation or violation of intellectual property unless such allegations are caused by a failure of Kohls, its personnel and any third parties engaged thereby to (i) have complied with licenses and training provided pursuant to subsection (b) of Schedule 4.10 after Bank has completed such training and other obligations set forth in subsection (b) Schedule 4.10, (ii) have maintained the confidentiality of source codes accessed pursuant thereto in accordance with this Agreement, and (iii) use or alter the Bank Systems or anything provided by subsection (b) of Schedule 4.10 in a manner consistent with the installation, tuning, maintenance and support therefor provided by Bank pursuant to subsection (b) of Schedule 4.10 after Bank has completed such support and other obligations set forth in subsection (b) of Schedule 4.10. |
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17.3 | Procedures. |
(a) | In case any claim is made, or any suit or action is commenced, against either party (the Indemnified Party) in respect of which indemnification may be sought by it under this Article 17, the Indemnified Party shall promptly give the other party (the Indemnifying Party) notice thereof and the Indemnifying Party shall be entitled to participate in the defense thereof and, with prior written notice to the Indemnified Party given not later than twenty (20) days after the delivery of the applicable notice, to assume, at the Indemnifying Partys 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 will not be liable to such Indemnified Party under this Section for any attorneys fees or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. |
(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 Partys expense, unless (i) the employment of such counsel 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 event attorneys fees and expenses shall be borne by the Indemnifying Party. |
(c) | The Indemnifying Party shall promptly notify the Indemnified Party if the Indemnifying Party desires not to assume, or participate in the defense of, any such claim, suit or action. |
(d) | 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, 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 settle or compromise any such claim, suit or action solely for an amount not exceeding One Thousand Dollars ($1,000), but shall not settle or compromise any other matter without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. |
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17.4 | 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 17 may be sought, such failure shall not limit the liability of the Indemnifying Party; provided, however, that this provision shall not be deemed to limit the Indemnifying Partys rights to recover for any loss, cost or expense which it can establish resulted from such failure to give prompt notice. |
(b) | This Article 17 shall govern the obligations of the parties with respect to the subject matter hereof but shall not be deemed to limit the rights which any party might otherwise have at law or in equity. |
ARTICLE 18
MISCELLANEOUS
18.1 | Limitation of Liability. |
Notwithstanding anything to the contrary in this Agreement, no party shall be liable to the other party for punitive, consequential, indirect or exemplary damages relating to or arising out of this Agreement, any breach hereof or any of the transactions provided for therein; provided, however, the limitations set forth in this Section 18.1 shall not apply with respect to the following: (i) damages occasioned by the willful misconduct, fraud or gross negligence of either party; (ii) third-party claims that are the subject of indemnification pursuant to Article 17; (iii) damages occasioned by a partys breach of its obligations under Section 6.5 or Article 12 covering data security and confidentiality.
18.2 | Precautionary Security Interest. |
Kohls and Bank agree that this Agreement contemplates the extension of credit by Bank to Cardholders. However, as a precaution in the unlikely event that any person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, and to secure Kohls payment of and performance of all obligations of Kohls to Bank, Kohls hereby grants to Bank a first priority present and continuing security interest in and to the following, whether now existing or hereafter created or acquired, together with the proceeds thereof: all Accounts, all indebtedness charged to Accounts, and all Charge Transaction Data. In addition, Kohls agrees to take any reasonable action requested by Bank, at Banks expense, to establish the first lien and perfected status of such security interest, and appoints Bank as Kohls attorney-in-fact to take any such action on Kohls behalf; provided that Bank shall be responsible for preparing any such documentation.
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18.3 | Securitization; Participation. |
Bank shall have the right to securitize, pledge or participate the Cardholder Indebtedness or any part thereof by itself or as part of a larger offering at any time, in such a manner that allows Bank to obtain cash flows representing all or most of the economic benefits of owning such Cardholder Indebtedness. Such securitization, pledge or participation shall not affect Kohls rights or Banks obligations hereunder. Bank shall not securitize, pledge or participate the Cardholder Indebtedness in any manner that may encumber any of Kohls rights hereunder to purchase the Program Assets. All uses of the Kohls Licensed Marks in any securitization document shall be made in accordance with Section 10.1 and with the prior written approval of Kohls.
18.4 | Assignment. |
Except as provided in this Section 18.4, neither party shall assign this Agreement or any of its rights hereunder without the prior written consent of the other party; provided, however, that either party may, without the consent of the other party, assign this Agreement in whole or in part to an Affiliate of such party or as part of a transfer of all or substantially all of the assets of such party.
18.5 | Sale or Transfer of Accounts. |
Except as provided in Sections 13.2 and 18.3, the Bank shall not sell or transfer in whole or in part the Accounts.
18.6 | Subcontracting. |
It is understood and agreed that, in fulfilling its obligations under this Agreement, either party may utilize its Affiliates or other Persons to perform functions. The party shall be responsible for functions performed by such Affiliates or other Persons to the same extent the party would be responsible if it performed such functions itself.
18.7 | Amendment. |
Except as provided herein, this Agreement may not be amended except by a written instrument executed and delivered by Bank and Kohls. For the avoidance of doubt, an email shall not constitute a written instrument for purposes of this Section 18.7.
18.8 | 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 partys 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 in law or at equity.
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18.9 | Severability. |
If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions shall remain valid and be enforced and construed as if such invalid provision were never a part of this Agreement.
18.10 | Waiver of Jury Trial and Venue. |
(a) | The parties hereto waive all right to trial by jury in any action or proceeding to enforce or defend any rights under this Agreement. |
(b) | Any lawsuit brought by a party against the other party shall be brought in the United States District Court in the jurisdiction where the headquarters of the party against which the suit is being brought is located. |
18.11 | 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, without regard to internal principles of conflict of laws, and applicable federal law.
18.12 | Captions. |
Captions of the articles and sections of this Agreement are for convenient reference only and are not intended as a summary of such articles or sections and do not affect, limit, modify or construe the contents thereof.
18.13 | Notices. |
Any notice, approval, acceptance or consent required or permitted under this Agreement shall be in writing to the other party and shall be deemed to have been duly given when delivered in person or, if sent by United States registered or certified mail, with postage prepaid, or by a nationally recognized overnight delivery service, when received, addressed as follows:
If to Kohls: | Kohls Department Stores, Inc. N56 W17000 Ridgewood Drive Menomonee Falls, Wisconsin 53051 Attention: Chief Executive Officer | |
With a copy to (which copy shall not constitute notice): | Kohls Department Stores, Inc. N56 W17000 Ridgewood Drive Menomonee Falls, Wisconsin 53051 Attention: General Counsel Fax: (262)  ###-###-#### |
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If to Bank: | Capital One Services, LLC 15000 Capital One Drive Glen Allen, VA 23832 Attention: James Banta, Managing Vice President Fax: 804 ###-###-#### | |
With a copy to (which copy shall not constitute notice): | Capital One Financial Corporation 1680 Capital One Drive McLean, VA 22102 Attention: Shahin Rezai, Esq. Chief Counsel Transactions Fax: 703 ###-###-#### |
18.14 | Further Assurances. |
Kohls and 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 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. Without limiting the foregoing each party shall use commercially reasonable efforts to enable Bank to enter into and close the Purchase Agreement.
18.15 | No Joint Venture. |
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, partnership, joint venture or of any association between Kohls and Bank, and no act of either party shall be deemed to create any such relationship. Kohls and Bank each agree to such further actions as the other may request to evidence and affirm the non-existence of any such relationship.
18.16 | Press Releases. |
Kohls and Bank shall mutually agree on the content, timing and distribution of a press release announcing the execution of this Agreement. Kohls and Bank each shall obtain the prior written approval of the other party with regard to the substance and timing of any press releases which announce the execution of this Agreement or the transactions specified herein, which prior approval shall not unreasonably be withheld or delayed. At all times thereafter, Kohls and Bank, prior to issuing any press releases concerning this Agreement or the transactions specified herein, shall consult with each other concerning the proposed substance and timing of such releases and give due consideration to the comments of the other party relating thereto.
18.17 | No Set-Off. |
Kohls and Bank agree that each party has waived any right to set-off, combine, consolidate or otherwise appropriate and apply (i) any assets of the other party held by the party or (ii) any indebtedness or other liabilities at any time owing by the party to the other party, as the case may be, against or on account of any obligations owed by the other party under this Agreement, except as expressly set forth herein.
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18.18 | Conflict of Interest. |
Each party hereto, in performing it obligations hereunder, shall establish and maintain appropriate business standards, procedures and controls. Each party shall review such standards, procedures and controls with reasonable frequency during the Term of this Agreement including those related to the activities of its employees and agents in their relations with the employees, agents and representatives of the other parties hereto and with other third parties.
18.19 | Third Parties. |
There are no third-party beneficiaries to this Agreement. The parties do not intend: (i) the benefits of this Agreement to inure to any third party; or (ii) 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.
18.20 | 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, embargo or any law, order, proclamation, regulation, ordinance, demand or requirement having legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of a party and could not have been prevented by reasonable precautions, then such party shall be excused from such performance to the extent of and during the period of such prevention, restriction, delay or interference. A party excused from performance pursuant to this Section shall exercise all reasonable efforts to continue to perform its obligations hereunder, including by implementing its disaster recovery and business continuity plan as provided pursuant to Section 7.7, 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.
18.21 | Entire Agreement. |
This Agreement, together with the Schedules hereto which are expressly incorporated herein by reference, supersedes any other agreement, whether written or oral, that may have been made or entered into by Kohls and Bank (or by any officer or employee of either of such parties) relating to the matters specified herein and constitutes the entire agreement by the parties related to the matters specified herein or therein.
18.22 | Binding Effect; Effectiveness. |
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 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.
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18.23 | Counterparts/Facsimiles/PDF E-Mails. |
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 telefacsimile or PDF e-mailed version of an executed counterpart shall be deemed an original.
18.24 | Survival. |
Upon the termination of this Agreement, the parties shall have the rights and remedies described herein. Upon such termination, all obligations of the parties under this Agreement shall cease, except that the obligations of the parties pursuant to Sections 6 (Cardholder and Customer Information), 10 (Licensing of Trademarks; Intellectual Property), 12 (Confidentiality), 16 (Effects of Termination), 17 (Indemnification), 18.1 (Limitation of Liability), 18.10 (Waiver of Jury Trial and Venue) and 18.11 (Governing Law) shall survive the expiration or termination of this Agreement. In furtherance and not in limitation of the foregoing, Bank shall be entitled to collect Accounts in any lawful manner.
18.25 | Consents. |
Unless otherwise expressly set forth herein, whenever the consent or approval of a party is required under this Agreement, such consent shall not be unreasonably withheld or delayed.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed as of the date first above written.
KOHLS DEPARTMENT STORES, INC.
By: /s/ Wesley S. McDonald
Name: Wesley S. McDonald
Title: EVP, Chief Financial Officer
CAPITAL ONE, NATIONAL ASSOCIATION
By: /s/ Richard D. Fairbank
Name: Richard D. Fairbank
Title: Chief Executive Officer