AMENDED AND RESTATED AGREEMENT (Trademark License) - PDF

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AMENDED AND RESTATED AGREEMENT (Trademark License) This Amended and Restated Agreement is entered into as of this 2-'t day of May, 1995, (the Effective Date ) by and between MBNA AMERICA BANK, N.A., a
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AMENDED AND RESTATED AGREEMENT (Trademark License) This Amended and Restated Agreement is entered into as of this 2-'t day of May, 1995, (the Effective Date ) by and between MBNA AMERICA BANK, N.A., a national banking association having its principal place of business in Newark, Delaware ( MBNA America ),and the University of Illinois Alumni Association, a not-for-profit Illinois Corporation having its principal place of business in Urbana, Illinois ( IAA ). WHEREAS, IAA and MBNA America, individually and in its capacity as assignee of any and all of Trans National's rights under the Agreement, are parties to an affinity agreement, as the same may have been amended (the Original Agreement ), wherein MBNA America provides certain financial services to certain persons included in certain lists provided to MBNA America by or on behalf of IAA; and WHEREAS, IAA and MBNA America mutually desire to amend and restate the Original Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, IAA and MBNA America agree as follows: 1. DEFINITIONS When used in this Agreement: a. Agreement means this Agreement and Schedules A and B. b. Anniversary Date means the end of business on May 31, 2000, or the final day of the term of any extension of this Agreement, whichever occurs later. C. Customer means any participant in the Program. d. Financial Services Products means credit card programs, charge card programs, debit card programs, travel and entertainment programs and deposit products. e. Participant means any former student of the University of Illinois ( Alumni ), anyone currently enrolled as a student at the University of Illinois( Student ), and/or other potential participants mutually agreed to by IAA and MBNA America. f. Program means those programs and services of the Financial Service Products which MBNA America agrees to offer pursuant to this Agreement from time to time to the Participants. 9- Royalties means the royalties set forth in Schedules A and B. h. Trademarks means any logo, service mark, trade dress, trade name or trademark used or acquired by IAA during the term of this Agreement. 2. ROYALTIES FOR LICENSING OF RIGHT TO USE TRADEMARK a. In accordance with the terms and conditions of this Agreement, MBNA America agrees to offer the Program to the Participants, and to directly compensate IAA with the Royalties U1AAGD3.D0C/5/5/95 generated thereby. It is the express intention of the parties that the Royalties payable to IAA hereunder are based exclusively upon MBNA America's right to use the Trademarks in accordance with the terrns of this Agreement and upon no other right or consideration, if any, which may be granted or given by IAA to MBNA America now or in the future. b. IAA warrants and represents that it has the right and power to grant a limited, exclusive license to use the Trademarks to MBNA America for use as contemplated by this Agreement: IAA hereby grants MBNA America a limited, exclusive license to use the Trademarks solely in conjunction with the Program, including the promotion thereof. This license shall be transferred upon assignment of this Agreement. This license shall remain in effect for the duration of this Agreement notwithstanding the transfer of ownership of the Trademarks by operation of law or otherwise to any permitted successor corporation, organization or individual. 3. RIGHTS AND RESPONSIBILITIES OF IAA a. IAA agrees that during the term of this Agreement and any extension, it does and will continue to endorse the Program exclusively and will not sponsor, endorse, advertise, aid or develop any Financial Service of any entity other than MBNA America. IAA shall not license the Trademarks nor sell nor otherwise make available or pern-dt any other entity to use the Trademarks in relation to or for promoting any other Financial Services. IAA further agrees that during the term of this Agreement, no IAA publication shall carry advertisements for any other Financial Services. Not withstanding anything else in this agreement to the contrary, IAA may accept advertising from any financial institution provided that the advertisement does not contain an express or implied endorsement by IAA of said financial institution or the advertised Financial Services Products. b. IAA authorizes MBNA America to solicit its Participants in person or by mail, direct promotion, advertisements, and/or telephone for participation in the Program. C. IAA shall have the right of prior approval of all Program advertising and solicitation materials to be used by MBNA America, which contain either the Trademarks or the endorsement of IAA, which shall not be unreasonably withheld or delayed. d. IAA may not provide any information to or otherwise communicate with Participants or potential Participants about the Program, without MBNA America's prior written approval, except for current advertising and solicitation materials provided by MBNA America to IAA. e. Nothing stated in this Agreement prohibits IAA from granting to other persons or entities a license to use the Trademarks on or in connection with any service or product other than any Financial Service. f. IAA shall provide MBNA America with a subscription without charge to principal alurm-d publications. 4. RIGHTS AND RESPONSIBILITIES OF MBNA AMERICA a. MBNA America shall design, develop, produce, promote and administer the Program for the Participants. UIAAGD3.DOC/5/5/95 2 b. MBNA America shall design all advertising, solicitation, and promotional materials with regard to the Program. MBNA America reserves the right of prior approval of all advertising and solicitation materials concerning or related to the Program. C. MBNA America shall bear all costs of producing and mailing materials for the Program. d. MBNA America shall make all credit decisions and shall bear all credit risks with respect to an individual Customer's accounts independent of IAA. e. MBNA America shall have the right to designate parties to whom promotional materials may not be sent including, without limitation, based on the appropriateness of the product offered, Participants who have been denied credit from previous mailings, who reside in a foreign country or reside in states where credit card solicitations are prohibited by law or are subject to prohibitive legal and logistic conditions. 5. CROSS INDEMNIFICATION IAA and MBNA America (each individually the indemnitor ) will each inderm-tify and hold harmless the other party, its directors, officers, agents, employees, parent, subsidiaries, affiliates, successors, and assigns (individually and together the indemnified ) from and against any and all loss, damage, liability, causes of action or claims, brought against the indemnified, and the costs incurred in connection therewith by the indemnified, which result from a breach of this Agreement by the inclemnitor or the indemnitor's directors, officers, agents, or employees in connection with the performance of this Agreement. Each party shall notify the other party in writing (in the manner provided for in this Agreement) of notice of any claims or complaints that may result in the indernnification by the other party. 6. RATES AND BENEFITS MBNA America reserves the right to make periodic adjustments to the Program and its terms and features. MBNA America shall inform IAA prior to such an adjustment. In the event the adjustment increases the fees or finance charges to be paid by the Customer, MBNA America shall, as required by Delaware and applicable federal law, give each Customer the opportunity to reject the change and pay the existing balance under the prior terms in accordance with Delaware and applicable federal law. 7. CONFIDENTIALITY OF AGREEMENT MBNA America and IAA expressly agree that the terms of this Agreement and any prior agreements between the parties shall remain confidential and will not be disclosed to the general public or any third person, except by mutual written consent (assignment of this Agreement shall not be a violation of this provision). However, MBNA America and IAA shall be pern-dtted to disclose such terms to their employees, Board of Directors, accountants and their legal, financial, and marketing advisors as necessary for the performance of their respective duties, or as required by law, provided that said persons agree to be bound by the provisions of this Section TERM OF AGREEMENT a. All other agreements, including without limitation the Original Agreement, concerning the subject matter herein shall be of no further force and effect upon the full execution of this Agreement. The initial term of this Agreement will extend from the date of the full execution of UIAAGD3.DOC/5/5/95 3 this Agreement through and including May 31, This Agreement will be automatically extended on the Anniversary Date for successive two (2) year periods, unless either party gives written notice of its intention not to renew at least one hundred eighty (180) days prior to the last date of such term or renewal term, as applicable. b. MBNA America shall have the right to prior review and approval of any notice in connection with, relating to or referring to the termination of this Agreement to be communicated by IAA to the Participants. Upon termination or expiration of this Agreement, IAA shall not take action, either singly or with any other person, to cause the removal of IAA's identification or Trademarks from the credit devices or records of any Customer prior to the expiration of the Customer's credit device. 9. STATE LAW GOVERNING AGREEMENT This Agreement shall be governed by and subject to the laws of the State of Delaware (except for its conflicts of law principles) and shall be deemed for all purposes to be made and fully performed in Delaware. 10. TERMINATION a. In the event of any material breach or default of this Agreement by MBNA America or IAA, the other party may, in its sole discretion, cancel this Agreement by giving sixty (60) days written notice to the defaulting party, provided that the defaulting party has been given sixty (60) days to cure the breach or default. In the event that any other written agreement between the parties terminates, either party may terminate this Agreement upon giving the other party at least six (6) months prior written notice. b. If either MBNA America or IAA becomes insolvent in that its liabilities exceed its assets, or is adjudicated insolvent, or takes advantage of or is subjected to any insolvency proceeding, or makes an assigm-nent for the benefit of creditors or is subjected to receivership, conservatorship, or liquidation, this Agreement shall immediately terminate. The license of the right to use the Trademark granted by this Agreement shall not constitute assets or property of MBNA America in such proceeding that may be assigned or that may accrue to any trustee, receiver, creditor, or to any court or creditor-appointed committee or receiver. C. Upon termination or expiration of this Agreement, MBNA America shall, in a manner consistent with Section 8(b) of this Agreement, immediately cease to use the Trademarks. MBNA America agrees that upon such expiration or termination it will not claim any right, title, or interest in or to the Trademarks. MBNA America agrees that upon such termination or expiration it will not claim any privilege, right, title or interest in or to the Trademarks. 11. MISCELLANEOUS a. This Agreement cannot be amended except by written agreement signed by the authorized officers of both parties hereto. b. The rights and obligations in Sections 5, 7, 8(b), 10(c), 11(b), and 12 shall survive any tern-tination or expiration of this Agreement. UIAAGD3.DOC/5/5/95 4 C. The waiver or failure of any party to exercise any rights under this Agreement shall not be deemed a waiver of any other right or any future rights. d. The section captions are inserted only for convenience and are in no way to be construed as part of this Agreement. e. If any part of this Agreement shall for any reason be found or held invalid or unenforceable by any court or govermnental agency of competent jurisdiction, such invalidity or unenforceability shall not affect the remainder of this Agreement which shall survive and be construed as if such invalid or unenforceable part had not been contained herein. f. All notices relating to this Agreement shall be in writing and shall be deemed received upon actual receipt by overnight courier delivery, or by registered or certified mail, postage prepaid, return receipt requested by: i) If to IAA: UNIVERSITY OF ILLINOIS ALUMNI ASSOCIATION 227 Illini Union 1401 West Green Street Urbana, Illinois AT'TENTION: Mr. Louis D. Liay Executive Director ii) If to MBNA America: MBNA AMERICA BANK, N.A. 400 Christiana Road Newark, Delaware ATTENTION: Mr. Howard C. Wallace Executive Vice President Any party may change the address to which communications are to be sent by giving notice of such change of address. 9. This Agreement contains the entire agreement of the parties with respect to the matters covered and no other or prior promises, agreements, negotiations, or discussions, oral or written, made by either party or its employees, officers, or agents shall be valid and binding. Without the prior written consent of MBNA America, not to be unreasonably withheld, IAA may not assign any of its rights or obligations under or arising from this Agreement. MBNA America may assign any of its rights or obligations under this Agreement to any other person without the prior written consent of IAA. h. It is agreed and understood that MBNA America and IAA are not agents, representatives, or employees of the other. i. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person other than IAA and MBNA America, their successors, and assigns, any rights or remedies under or by reason of this Agreement. UIAAGD3.DOC/5/5/95 5 12. CUSTOMER LIST (a) Upon the request of IAA but in no event more than once per year, MBNA America shall provide a list of names and addresses of Customers (collectivelyl, hereinafter Customer List ). IAA shall return any and all Customer Lists provided by MBNA America in the form provided within thirty (30) days of receipt of such Customer Lists. (b) Each Customer List is and shall remain the sole property of MBNAmerica. IAA shall not make and shall prevent its employees, volunteers, and representatives from making Customer List(s) available in whole or in part to any person or entity other than MBNA America without receiving the prior written approval of MBNA America. In the view of the confidenetial nature of the Customer List, IAA warrants that all employees, volunteers, agents and/or representatives of IAA who work with the Customer List shall be made aware of the obligations contained in this Section and shall be under strict legal obligation not to copy the Customer List or make any other use of the Customer List other than as specifically approved by MBNA America. (c) Because the nature of this asset makes an evaluation of damages after a violation of this Section extremely difficult or impossible, then in the event that any Customer List or any part thereof is handled in a fashiosn that violates this Agreement by IAA or its employees, volunteers or agents, MBNA America will be entitled to damages of twenty dollars ($20.00) for each use of each name or address used in violation of this Section, with the amount of damages UIAAGD3.DOC/5/5/95 6 not to exceed one hundred thousand dollars ($100,000.00) per breach, in addition to any other remedies MBNA America may wish to pursue. IN WITNESS WHEREOF, each party hereto by their representatives has caused this Agreement to be executed as of the date indicated above, and such party and its representative warrant that such representative is duly authorized to execute this Agreement for and on behalf of such party. UN17VERSITY OF ILLINOIS ALUMNI ASSOCIATION By: Name: Title: C(' %'( J-L J/ MBNA AMVICA BANK, N A B. r ( 14ame qubygg 0- C Title: L 4 /- UIAAGD3.DOC/5/5/95 7 SCHEDULEA I. TERMS AND FEATURES Subject to MBNA America's right to vary the terms and features of the Program, and to the terms and conditions entered into between MBNA America and each Customer by separate agreement(s): A. CREDIT CARD ACCOUNTS * There is NO annual fee for the Alumni. The student card will be issued free for the first year to students of the University of Illinois. Thereafter the annual fee for the student card will be $ The current Annual Percentage Rate for Students will be a fixed rate of 19.4% or a variable rate of Prime plus 9.9%. The prime rate will be the highest U.S. prime rate as published on certain dates in the Money Rates Section of The Wall Street Journal. The variable rate will be determined quarterly as provided under the Cardholder Agreement entered into between MBNA America and each such Customer. For variable rate accounts there may be an additional margin applied on account of the Customer's delinquency. The current Annual Percentage Rate for Alumni will be a fixed rate of 18.4%, or a variable rate of Prime plus 8.9%. The prime rate will be the highest U.S. prime rate as published on certain dates in the Money Rates Section of The Wall Street Journal. The variable rate will be determined quarterly as provided under the Cardholder Agreement entered into between MBNA America and each such Customer. For variable rate accounts there may be an additional margin applied on account of the Customer's delinquency. Customers may be offered opportunities to select credit insurance as a benefit under the Program. B. GOLD RESERVE ACCOUNTS (Available only for Alumni) There is NO annual fee for the first six months for the Alumni. The annual fee for the second six (6) months, when applied, is $7.50. Thereafter the annual fee, when applied, is $ The current Annual Percentage Rate is 17.9%. C. GOLD OPTION ACCOUNTS (Available only for Alumni) There is NO annual fee for the Alumni. The current Annual Percentage Rate is 16.9%. UIAAGD3.DOC/5/5/95 Ii. ROYALTY ARRANGEMENT During the term of this Agreement, or any extension thereof, MBNA America will pay IAA a Royalty calculated according to the following schedule, for those accounts with active charging privileges: A. CREDIT CARD ACCOUNTS For Students * $1.00 for every new Program credit card account opened by a Student, which remains open and active for at least ninety (90) consecutive days. * $3.00 for each full twelve (12) month period that a Student Customer's Program credit card account is renewed and an annual fee is paid by the Student, or if no am-tual fee is assessed by MBNA America (other than as a result of a courtesy waiver by MBNA America), then such royalty will be paid for each Credit Card Account which: 1) has a balance greater than zero as of the last business day of every twelfth month after the opening of that Credit Card Account; and 2) has had active charging privileges for each of the preceding twelve months. 0.50% per retail Zur mait, trans et of any refunds, returns and fraudulent transactions) made by tudent Member Customers. Except where otherwise provided, payment for the above sections shall be made approximately 45 days after the end of each calendar quarter. b) For Alumni * $1.00 for every new Program credit card account opened by a Alumni pursuant to the Program, which remains open and active for at least ninety (90) consecutive days (each, a Credit Card Account ). * $3.00 for each full twelve (12) month period that a Credit Card Account is renewed (other than as a result of a courtesy waiver by MBNA America). If no annual fee is assessed by MBNA America (other than as a result of a courtesy waiver by MBNA America), then such royalty will be paid for each Credit Card Account which: 1) has a balance greater than zero as of the last business day of every twelfth month a
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