Credit Card Alliance Agreement
<\/b>\n\nThis \nAgreement, effective as of March 1, 2002 (\"Effective Date\"), is between Providian Bancorp Services, a California corporation, with principal offices located in San Francisco, \nCalifornia (together with all its affiliates \"Providian\"), and PayPal Inc., a Delaware corporation with principal offices located in Palo Alto, California (\"PayPal\") (collectively, \"the \nParties\"). <\/p>\n\n
Recitals <\/p>\n\n
A. Providian \nBancorp Services is an affiliate of Providian National Bank and Providian Bank, each a Card Association member issuing general-purpose credit cards. Providian \nprovides marketing, credit, technology, operations, systems, compliance, audit and other card-related services and support to these card-issuing affiliates and enters into this \nAgreement for and on their behalf in connection with the Program; <\/p>\n\n
B. PayPal \noperates the world's largest Internet-based payment network, providing a secure online payment service to its over 13 million customers. PayPal operates a \nWorld Wide Website at http:\/\/www.paypal.com (the \"PayPal Website\"), that allows users to sign up for or use the PayPal products and services involving its online payment services (collectively, the \n\"PayPal Services\"); <\/p>\n\n
C. PayPal \n(formerly named X.com Corporation) and Providian previously executed a Credit Card Alliance Agreement dated as of February 2, 2001 (the \"Old Agreement\"). <\/p>\n\n
D. The \nParties want to enter into this Agreement so that Providian, through its card-issuing affiliates, continues to offer and provide a PayPal \nco-branded Card (bearing a PayPal Mark and a Providian Mark) that will be the preferred credit card promoted through the PayPal Services, and as such will be afforded by PayPal the \n\"preferred alliance partner\" opportunities set forth in this Agreement. This Agreement supersedes the Old Agreement as of the above Effective Date and all prior agreements and amendments, both written \nand oral, between the Parties pertaining to the Program. <\/p>\n\n
NOW, \nTHEREFORE, for valuable consideration, the Parties agree as follows: <\/p>\n\n<\/pre>\n
1.1 “Account”
\nmeans a revolving, open-end credit account provided by Providian for PayPal Members and Non-Member Consumers and established pursuant
\nto this Agreement, of which the features and terms are further described in this Agreement. <\/p>\n
1.2 “Account
\nAgreement” means a credit agreement between Providian and a Cardholder with terms and conditions that apply to the Cardholder’s Account. <\/p>\n
1.3 “Active
\nAccount” means an Account booked by Providian on or after March 1, 2002 that is in good standing and that has at least 1 purchase, cash advance,
\nquasi-cash or balance-transfer transaction posted to it within the first year after it is booked. Such a transaction does not include a fee or charge such as an annual fee or a credit
\nadjustment. <\/p>\n
1.4 “Active
\nMember” means a Member (defined below) that has logged in their PayPal account or received a payment in that account within 90 days as further described
\nin relevant provisions in this Agreement. <\/p>\n
CERTAIN
\nCONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE
\nSECURITIES EXCHANGE ACT OF 1934, AS AMENDED. <\/p>\n
1.5 “Agreement”
\nmules of Section 424(d) of the Code with regard to the attribution of stock ownership shall apply
\nin determining the stock ownership of an individual, and stock which an employee may purchase under outstanding options shall be treated as stock owned by the employee. For purposes of the Plan, the
\nemployment relationship shall be treated as continuing intact while the individual is on sick leave or other leave of absence approved by the Company or Designated Subsidiary and meeting the
\nrequirements of Treasury Regulation Section 1.421-7(h)(2). Where the period of leave <\/p>\n
\nexceeds ninety (90) days and the individual’s right to reemployment is not guaranteed either by statute or by contract, the employment relationship shall be deemed to have terminated on the (k) “Employee<\/i>” shall mean any person who renders services to the Company or a Subsidiary in the status of an employee within (l) “Enrollment Date<\/i>” shall mean the first Trading Day of each Offering Period. <\/p>\n (m) “Exercise Date<\/i>” shall mean the last Trading Day of each Purchase Period. <\/p>\n (n) “Fair Market Value<\/i>” shall mean, as of any date, the value of Common Stock determined as follows: <\/p>\n (i) If (ii) If (iii) In (iv) For (o) “Offering Period<\/i>” shall mean (i) the period commencing on the Effective Date and ending on the last Trading Day on (p) “Parent<\/i>” means any corporation, other than the Company, in an unbroken chain of corporations ending with the Company if, (q) “Plan<\/i>” shall mean this Amended and Restated PayPal, Inc. 2001 Employee Stock Purchase Plan. <\/p>\n (r) “Purchase Period<\/i>” shall mean the approximately six (6) month period commencing after one Exercise Date and ending 2<\/p>\n \nunder the Plan shall end on the last Trading Day on or before the next occurring February 1 or August 1 following the Effective Date and such period may be less than (s) “Purchase Price<\/i>” shall mean 85% of the Fair Market Value of a share of Common Stock on the Enrollment Date or on the (t) “Subsidiary<\/i>” shall mean any corporation, other than the Company, in an unbroken chain of corporations beginning with the (u) “Trading Day<\/i>” shall mean a day on which national stock exchanges and the Nasdaq System are open for trading. <\/p>\n<\/ul>\n 3. Eligibility.<\/i> <\/p>\n (a) Any (b) Each (c) No 2.2 Marketing of the Program.<\/i> PayPal and Providian will work jointly to develop and market the Program and to (a) Marketing Materials.<\/i> Subject to Section 2.1, PayPal and Providian will mutually develop and approve (b) Marketing Plan.<\/i> Within 30 days of the execution of this Agreement (unless the Parties mutually agree 2.3 Card Design.<\/i> Updates to the design of the Card will be determined by mutual consent of the Parties, and will 2.4 Providian as Sole Owner and Creditor of Accounts.<\/i> <\/p>\n (a) Account Ownership.<\/i> Providian will be the sole and complete owner and creditor of, and PayPal will have no (b) Applications; Account Servicing.<\/i> Without limiting the general nature of the foregoing, Providian will have (c) Marketing Other Products and Services.<\/i> Providian will have the right to market to Cardholders other banking 4<\/p>\n <\/p>\n \n(including but not limited to inserts with Cardholders’ Account statements), telemarketing and online advertising on the Providian Website and related Websites for such marketing efforts, provided (1) Providian (2) The (3) The (4) Providian (5) Providian (6) Providian Exceptions Providian Non-Exclusivity<\/i>. Providian and its affiliates will be free to offer credit card alliances, co-branded 3.1 Card Offers and Application Evaluation.<\/i> In accordance with this Agreement, Providian will perform for each 3.2 Account and Card Issuance.<\/i> Providian will evaluate each Application or request for an Account and will open 5<\/p>\n <\/p>\n \nscript provided by PayPal to its customer service representatives regarding contacts with Applicants, Members and Non-Member Consumers about the Program. <\/p>\n 3.3 Account Agreements.<\/i> Providian will be solely responsible for, have complete control and discretion over, and 3.4 Production of Cards.<\/i> In accordance with Section 2.3, Providian will produce, store, maintain and 3.5 Account Administration and Servicing.<\/i> <\/p>\n (a) Customer Service.<\/i> Providian will be responsible for all Cardholder customer-service and record-retention (b) Payments.<\/i> PayPal will not accept payments on Accounts nor accept billing-error notices under the Fair Credit (c) Service Levels.<\/i> Providian conducts reviews of its corporate-wide customer service performance 3.6 Cardholder Inquiries Regarding PayPal.<\/i> Providian will refer any Cardholders who contact Providian concerning 3.7 Credit Risk.<\/i> As between Providian and PayPal, Providian will bear all risk of credit loss on the Accounts 3.8 Limited License to PayPal Marks.<\/i> PayPal hereby grants to Providian, subject to compliance with the terms of 6<\/p>\n <\/p>\n \nProvidian will submit to PayPal, for its prior written approval, such approval not to be unreasonably withheld or delayed, samples of each of Providian’s uses of the PayPal Marks. Providian will use 3.9 Legal Compliance.<\/i> Providian will be responsible for compliance with Applicable Law with regard to its 4.1 Member List.<\/i> PayPal hereby grants Providian a non-exclusive license to use the Member List to 4.2 PayPal Website and E-mail.<\/i> PayPal will be responsible for the PayPal Website and 4.3 Exclusivity.<\/i> <\/p>\n (a) Providian as Preferred Credit Card.<\/i> During the Term, including any Renewal Term, Providian will be the 7<\/p>\n <\/p>\n \n (b) Restrictions on Competing Card Products.<\/i> PayPal will not, in the U.S., without Providian’s written (c) Other Websites.<\/i> With respect to Websites other than the PayPal Website that PayPal may acquire, operate or (d) Co-branded Sites.<\/i> PayPal will use its best efforts to include Providian as the preferred credit (e) New Payment Products.<\/i> Consistent with the Parties’ strategic banking relationships, with respect to U.S. (f) The PayPal Account As An [*] Account.<\/i> <\/p>\n (1) On 8<\/p>\n (2) Providian’s (3) Providian (4) Notwithstanding 4.4 Limited License to Providian Marks.<\/i> Providian hereby grants to PayPal a limited, royalty-free, 4.5 Legal Compliance.<\/i> PayPal will comply with all Applicable Law regarding its participation in the Program, 5.1 Old Agreement.<\/i> Subject to Section 9.4, effective February 28, 2002, the compensation terms in 5.2 One-time Payment.<\/i> Subject to Section 9.4, Providian will pay PayPal a 5.3 Bounty Fee for Active Accounts\u0097March 2002 Only.<\/i> Providian will pay PayPal 5.4 Bounty Fee for Active Accounts\u0097April 1, 2002 Forward.<\/i> Starting April 1, 2002 on a 9<\/p>\n <\/p>\n 5.4.1 When PayPal Pays Marketing and Solicitation Costs.<\/i> When PayPal bears the marketing and solicitation costs (a) If (b) If (c) At 5.4.2 When Providian Pays Marketing and Solicitation Costs.<\/i> When Providian bears the marketing and solicitation 5.4.3 Payments.<\/i> Providian will remit to PayPal payment of the Bounty Fee according to Sections 5.4.1 and 5.4.2 5.4.4 Mutual Cooperation to Increase the Number of Active Accounts.<\/i> The Parties will use reasonable efforts to 5.5 Basis Point Fee.<\/i> Effective March 1, 2002, Providian will reimburse to PayPal a Basis Point Fee equal 10<\/p>\n <\/p>\n \nposted to an Account that remained in good standing at the end of the previous calendar month and are not, prior to the time of Providian’s compensation payment to PayPal: (1) the subject of a 5.6 Sunset.<\/i> Except as provided in Sections 6.8 and 6.10(a) of this Agreement, upon the expiration of this 6.1 Term.<\/i> Subject to the provisions of this Section 6, the Term will be 5 years from the Effective 6.2 Exclusive Negotiation Period.<\/i> The Parties will have an exclusive negotiation period of 90 days, to 6.3 Termination for Breach.<\/i> If either Party materially breaches a material term of this Agreement, the 6.4 Termination for Material Change in Applicable Law.<\/i> Either Party may terminate this Agreement on the 6.5 Termination for Insolvency.<\/i> If either Providian or PayPal becomes insolvent in that its liabilities exceed 6.6 Termination for Improper Activities.<\/i> Either Party may terminate this Agreement upon 15 Business Days’ 11<\/p>\n <\/p>\n \ndetermines are materially harmful to relationships with its federal or state supervisory or law enforcement agencies, provided that the terminating Party promptly notifies the other Party of such 6.7 Termination For Not Meeting Program Performance Hurdles.<\/i> The Program Performance Hurdles based on 6.8 Termination Due to Change of Control.<\/i> If either Party enters into a merger, acquisition or agreement (a) PayPal Change of Control With a Providian Competitor.<\/i> If PayPal has a Change of Control with a competitor of (1) If PayPal Terminates.<\/i> If PayPal exercises its right to terminate this Agreement: <\/p>\n (2) If Providian Terminates.<\/i> If Providian exercises its right to terminate this Agreement: <\/p>\n (b) PayPal Change of Control With a Providian Non-Competitor.<\/i> If PayPal has a Change of Control with (1) If PayPal Terminates.<\/i> If PayPal exercises its right to terminate this Agreement: <\/p>\n 12<\/p>\n (2) If Providian Terminates.<\/i> If Providian exercises its right to terminate this Agreement, Providian will pay Providian (c) Providian Change of Control With a PayPal Competitor.<\/i> If Providian has a Change of Control with a competitor (1) If PayPal Terminates.<\/i> If PayPal exercises its right to terminate this Agreement: <\/p>\n Providian 13<\/p>\n (2) If Providian Terminates.<\/i> If Providian exercises its right to terminate this Agreement: <\/p>\n Providian (d) Providian Change of Control With PayPal Non-Competitor.<\/i> If Providian has a Change of Control (1) If PayPal Terminates.<\/i> If PayPal exercises its right to terminates this Agreement: <\/p>\n 14<\/p>\n (2) If Providian Terminates.<\/i> If Providian exercises its right to terminate this Agreement: <\/p>\n Providian (e) For (f) Accounts; Unwinding the Program.<\/i> In each of the cases described in subsections (a) and 15<\/p>\n <\/p>\n (g) Summary.<\/i> Solely for the Parties’ convenience and not intended to add new terms, the following chart gives a 6.9 A 6.10 Effects of Expiration or Termination.<\/i> Subject to other terms in this Agreement: <\/p>\n (a) Marks.<\/i> Upon expiration or termination of this Agreement for any reason, Providian will have the right to use 16<\/p>\n <\/p>\n \nProvidian will not claim any right, title or interest in or to the PayPal Marks or to any mailing lists provided pursuant to this Agreement. However, Providian may use the PayPal Marks to complete (b) Notice to Cardholders and Members.<\/i> Upon expiration or termination of this Agreement for any reason, the (c) Solicitations.<\/i> <\/p>\n (1) If (2) If (d) For 6.11 Survival of Terms of this Agreement.<\/i> The provisions of Sections 1, 2.4, 3.7, 5 for purposes of 17<\/p>\n <\/p>\n 7.1 Cooperation on Publicity.<\/i> From and after the date of this Agreement, Providian will work with PayPal as its 7.2 E-Mail Policy.<\/i> PayPal has an interest in avoiding overly aggressive e-mail 8.1 Providian Ownership of Data.<\/i> Providian will collect, maintain, and be the sole owner of all Cardholder Data. 8.2 PayPal Ownership of Data.<\/i> Notwithstanding Section 8.1, PayPal will be the sole and complete owner of 8.3 Privacy Policies.<\/i> Providian and PayPal will maintain and publish on their Websites in a prominent manner 18<\/p>\n 9.1 Duty to Keep Proprietary Information Confidential.<\/i> Providian Confidential Information is a confidential and 9.2 Duty To Keep This Agreement Confidential; Press Release.<\/i> PayPal and Providian will maintain the 9.4 Information Security.<\/i> By March 31, 2002, the Parties will amend this Agreement by adding mutually 9.3 Duty to Notify Other Party of Any Mandated Disclosure.<\/i> Each Party will notify the other immediately if it 10.1 By PayPal.<\/i> PayPal will defend, indemnify and hold harmless Providian against each claim, action, damage 10.2 By Providian.<\/i> Providian will defend, indemnify and hold harmless PayPal against each claim, action, damage 10.3 Liability Limitation.<\/i> Notwithstanding any other terms in this Agreement, neither Party will be entitled to 19<\/p>\n <\/p>\n \neither Party’s breach of its confidentiality obligations under Section 9, its representation and warranty under Section 14.1(f) or (h) as to PayPal, 14.2(f) or (g) as to <\/p>\n Any Neither Before In 14.1 By PayPal.<\/i> PayPal represents, warrants and covenants to Providian that: (a) it is duly incorporated, 14.2 By Providian.<\/i> Providian represents and warrants to PayPal that: (a) it is a duly organized national 20<\/p>\n <\/p>\n \nAgreement; (e) to the extent required by law, it is and will continue to be duly qualified and licensed and has made and will continue to make all registrations to do business and to carry out 15.1 Parties are Independent Contractors.<\/i> PayPal and Providian are independent contractors, and neither is the 15.2 Amendments.<\/i> Except as otherwise provided in this Agreement, any amendment or modification to this Agreement 15.3 Headings.<\/i> The Section headings in this Agreement are for convenience only and are in no way to be construed 15.4 Waiver.<\/i> The waiver or failure of either Party to exercise any right provided for in this Agreement will not 15.5 Notices.<\/i> All notices and other communications between the Parties will be written and will be deemed given 21<\/p>\n 15.6 “Writing” to Include Electronic Mail.<\/i> References to “writing” or “written” in this Agreement will be deemed 15.7 Assignment.<\/i> This Agreement will be binding upon and will inure to the benefit of each Party and its 15.8 Third-Party Beneficiaries.<\/i> It is expressly intended and agreed that there are no third-party beneficiaries 15.9 Governing Law.<\/i> This Agreement will be governed by and interpreted in accordance with California law, 15.10 Audit and Inspection.<\/i> Each Party will keep and maintain, in accordance with generally accepted accounting 15.11 Entire Agreement.<\/i> This Agreement is the final, full and exclusive statement of the agreement between 15.12 Counterparts; Facsimile Signatures.<\/i> This Agreement may be executed in counterparts and, when fully 22<\/p>\n <\/p>\n IN 23<\/p>\n \n Exhibit A \n Performance Standards Whether through Internet services, call center, or customer-service functions, Providian is committed to and strives for 100% customer satisfaction when helping Websites:\n<\/p>\n (Performance metrics will be websites sourced from Keynote, external measurement provider)<\/i><\/p>\n Call E-mail 24<\/p>\n \n Exhibit B \n Competitors in Section 6.7 Providian American PayPal American 25<\/p>\n \n Exhibit C \n Program Performance Hurdles PayPal may exercise its right to terminate this Agreement according to Section 6.7 if the following Program Performance Hurdles are not met. <\/p>\n If, 26<\/p>\n \n Exhibit D<\/p>\n Information Security Standards \n[to be added by amendment by May 1, 2002] <\/p>\n CERTAIN 27<\/p>\n<\/ul>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8469,8594],"corporate_contracts_industries":[9415,9416],"corporate_contracts_types":[9613,9617],"class_list":["post-42207","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-paypal-inc","corporate_contracts_companies-providian-financial-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-financial__credit","corporate_contracts_types-operations","corporate_contracts_types-operations__jv"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42207","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42207"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42207"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42207"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42207"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nninety-first (91st<\/sup>) day of such leave. <\/p>\n
\nthe meaning of Code Section 3401(c). “Employee” shall not include any director of the Company or a Subsidiary who does not render services to the Company or a Subsidiary in the status of an
\nemployee within the meaning of Code Section 3401(c). <\/p>\n\n
\nthe Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq
\nSmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system
\nfor the last market trading day prior to the purchase, as reported in The Wall Street Journal<\/i> or such other source as the Administrator deems reliable; <\/p>\n
\nthe Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean of the closing
\nbid and asked prices for the Common Stock on the date prior to the purchase as reported in The Wall Street Journal<\/i> or such other source as the
\nAdministrator deems reliable; <\/p>\n
\nthe absence of an established market for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the Administrator; or <\/p>\n
\npurposes of the first Offering Period under the Plan, the Fair Market Value shall be the initial price to the public as set forth in the final prospectus included
\nwithin the registration statement in Form S-1 filed with the Securities and Exchange Commission for the initial public offering of the Company’s Common Stock (the “Registration
\nStatement”). <\/p>\n<\/ul>\n
\nor before the February 1 or August 1 following the Effective Date that is at least eighteen (18) months but not more than twenty-four (24) months following the
\nEffective Date, and (ii) subject to Section 24, each twenty-four (24) month period commencing on any February 1 or August 1 thereafter following the
\ntermination of the preceding Offering Period and terminating on the last Trading Day in the periods ending twenty-four (24) months later. The duration and timing of Offering Periods
\nmay be changed pursuant to Section 4 of this Plan. <\/p>\n
\nat the time of the determination, each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other
\ncorporations in such chain. <\/p>\n
\nwith the next Exercise Date, except that the first Purchase Period of any Offering Period shall commence on the Enrollment Date and end with the next Exercise Date. Notwithstanding the foregoing, the
\nfirst Purchase Period with respect to the initial Offering Period <\/p>\n<\/ul>\n
\n\n<\/p>\n
\nsix-months in duration. <\/p>\n
\nExercise Date, whichever is lower; provided, however<\/i>, that the Purchase Price may be adjusted by the Administrator pursuant to Section 20. <\/p>\n
\nCompany if, at the time of the determination, each of the corporations other than the last corporation in an unbroken chain owns stock possessing 50% or more of the total combined voting power of all
\nclasses of stock in one of the other corporations in such chain. <\/p>\n\n
\nEligible Employee who shall be employed by the Company or a Designated Subsidiary on a given Enrollment Date for an Offering Period shall be eligible to participate
\nin the Plan during such Offering Period, subject to the requirements of Section 5 and the limitations imposed by Section 423(b) of the Code. <\/p>\n
\nperson who, during the course of an Offering Period, first becomes an Eligible Employee subsequent to the Enrollment Date will be eligible to become a participant
\nin the Plan on the first day of the first Purchase Period following the day on which such person becomes an Eligible Employee, subject to the requirements of Section 5 and the limitations
\nimposed by Section 423(b) of the Code. <\/p>\n
\nEligible Employee shall be granted an option under the Plan which permits his rights to purchase stock under the Plan, and to purchase stock under all other employee
\nstock purchase plans of the Company, any Parent or any Subsidiary subject to the Section 423, to accrue at a rate which exceeds $25,000 of fair market value of such stock (determined at the
\ntime the option is granted) for each calendar year in which the option is outstanding at any time. For purpose of the limitation imposed by this subsection, the right to purchase stock under an option
\naccrues when the option (or any portion thereof) first becomes exercisable during the calendar year, the right to purchase stock under an option accrues at the rate provided in the option, but in no
\ncase may such rate exceed $25,000 of the fair market value of such stock (determined at the time such option is granted) for any one calendar year, and a right to purchase stock which has accrued
\nunder an option may not be carried over to any option. This limitation shall beterms, setting Providian-funded incentives to induce Members to
\nsubmit Applications, establishing new premium categories and other categories of Cards, and making other changes; provided that Providian will give PayPal at least 15 days’ advance written
\nnotice of any material changes. Any changes to terms and conditions will be subject to Applicable Law. Subject to Section 2.2(a), PayPal has the right to fund and offer any additional
\nincentives for adoption or use of the Card or the Account as long as such incentives do not violate Applicable Law. <\/p>\n
\nsolicit Applications from consumers residing in Providian’s Marketing Area to enable Providian to establish Accounts and issue Cards, as follows: <\/p>\n
\nall marketing, advertising and solicitation materials to be used for Program marketing, including without limitation, content and placement on the PayPal Website to promote the Program. If one Party
\ndevelops marketing materials, it will be subject to the other Party’s prior written approval which will not be unreasonably withheld or delayed beyond a 10-Business-Day review
\nperiod. If PayPal develops
\nmarketing materials, PayPal will incorporate all content identified by Providian as required for compliance with Applicable Law or compliance with Providian card-marketing standards. <\/p>\n
\non a different timetable), the Parties will agree on a written marketing plan specifically describing responsibilities and a timetable for the Parties’ implementation and marketing efforts under this
\nAgreement (the “Marketing Plan”). <\/p>\n
\ninclude one or more of the PayPal Marks on the front of the Card and one or more of the Providian Marks on the back of the Card and will be subject to Applicable Law. Subject to the foregoing, the
\nPayPal Marks will be in a primary position and the Providian Marks will be in a secondary position on the back of the Card. <\/p>\n
\nright, title or interest in, the Accounts, the Cards or Cardholder Data. Such ownership will in no way be affected by expiration or termination of the Program or this Agreement. As the creditor,
\nProvidian will have sole discretion over the criteria that must be met to qualify for an Account, for a credit line increase or for repricing or other incentives Providian may wish to offer to
\nqualified Cardholders. <\/p>\n
\nthe right to decline an Application or Card request from any person who already has one or more credit cards or open-end revolving lines of credit with Providian or its affiliates. An
\nApplication can only be approved by Providian, and neither PayPal nor any of its employees may legally bind or otherwise commit Providian to any agreement or arrangement of any kind. Providian will
\nhave the exclusive right to collect amounts owed by a Cardholder on an Account and to receive payments from Cardholders. Providian will also have the exclusive right to terminate, block or suspend
\ncredit or charge privileges in an Account. Providian will be solely liable for any charge-offs or other credit losses resulting from an uncollectible Account. <\/p>\n
\nproducts or services offered by Providian or its affiliates and third-party membership programs selected by Providian. Providian, at its option, may use e-mail, direct mail <\/p>\n
\n
\nthat: <\/p>\n\n
\nobtains Cardholders’ prior consent to the extent required by Applicable Law; <\/p>\n
\nParties follow the review and approval process in Section 2.2(a); <\/p>\n
\nname, brand or mark of any such product, service or membership program does not have incorporated in it any PayPal Mark without PayPal’s prior written consent; <\/p>\n
\nwill be solely responsible for compliance with Applicable Law governing such marketing and advertising efforts; <\/p>\n
\ndoes not deliberately target-solicit Cardholders for the purpose of inducing them to use another banking product or service instead of their Account or their
\nCard, or for the purpose of avoiding compensation to PayPal under this Agreement; and <\/p>\n
\ndoes not market a competitive Internet-based payments service to Cardholders, where “competitive” means that the service functions essentially as PayPal
\nServices function on the Effective Date; provided that Providian and its affiliates may continue to market and offer existing online payment services called BillPay Online and PaySmart and may market
\nand offer any money-transfer services between and among Providian deposit, credit or other transaction accounts. <\/p>\n<\/ul>\n
\nto these restrictions may be made with the Parties’ prior mutual written agreement. <\/p>\n\n
\ncredit cards or other affiliate programs to other companies, including other Internet-based payment services. <\/p>\n<\/ul>\n\n
\nADMINISTRATION AND SERVICING OF ACCOUNTS. <\/dd>\n<\/dl>\n
\ntype of Account all functions of the issuing bank, including without limitation designing the Application forms, receiving, reviewing and processing Applications for Accounts, providing customer
\nservice and otherwise administering and operating the Program and the relationships with Cardholders, evaluating the creditworthiness of each Applicant, establishing credit limits for each Account and
\nissuing Cards to qualified Applicants who accept Providian’s offer and pay the applicable fee, if any. <\/p>\n
\nan Account and issue a Card to each Applicant who is creditworthy according to Providian’s credit criteria and standards, who accepts the terms of Providian’s offer and who pays the applicable fees,
\nif any, to open an Account. As to each Application or request Providian approves, Providian will establish the credit line it deems appropriate. Providian will have no obligation or liability to
\nPayPal in connection with any credit procedure or decision with respect to an Application, and Providian will have no obligation to advise PayPal of its credit criteria or Providian’s decision as to
\nany Application or request for a Card. Providian will use its best efforts, subject to maintaining high customer response rates and in accordance with Providian’s privacy policies and applicable law,
\nto provide PayPal with information, both aggregate and specific, regarding Members that opened Accounts. PayPal will not communicate with Applicants about their Application; provided however, that if
\na Member or Non-Member Consumer who is not a Cardholder contacts PayPal via standard PayPal customer service channels with a question about the Program or how to apply for an Account, then
\nPayPal may communicate with those Members or Non-Member Consumers according to PayPal’s standard customer relations policies and will refer them to Providian, in a manner to be mutually
\ndetermined by the Parties, including but not limited to prior review and approval by Providian of any <\/p>\n
\n
\nbear the cost of production and printing of any Account Agreement. The contractual relationship with respect to each Account will be between Providian and the respective Cardholder. <\/p>\n
\nemboss plastic stock for each Card solely at its own expense. <\/p>\n
\nrequirements relating to the processing of Applications and Accounts, including but not limited to Cardholder-initiated calls, Account statements (both on paper and electronic), and all forms
\nof customer service including online customer service. Providian will bear all costs of administering and providing customer service for Accounts, except as otherwise provided under this Agreement. <\/p>\n
\nBilling Act (Regulation Z) from Cardholders and instead will promptly forward them to Providian via first-class mail or, at Providian’s request, via overnight courier at the address that
\nProvidian specifies to PayPal, subject to Providian’s change from time to time. If any Cardholder incorrectly makes a check, money order, draft, or other form of payment for an Account payable to the
\norder of PayPal rather than to the order of Providian or its agents, PayPal hereby expressly authorizes Providian to endorse the item on PayPal’s behalf and to credit the payment to the appropriate
\nAccount. Providian will substantially adhere to the Performance Standards as set forth in Exhibit A. <\/p>\n
\nstandards and will share these reviews, to the extent they apply to Cardholders, with PayPal on a regular basis. Providian and PayPal will promptly cooperate to develop procedures and a service level
\nagreement (“Service Level Agreement”) regarding Account-related customer service matters including but not limited to the referral of Cardholders who contact a Party concerning a claim, complaint,
\ndispute or request for information regarding the other Party. PayPal will refer to Providian customer service in accordance with such procedures any Cardholders who contact PayPal concerning a claim,
\ncomplaint, dispute or request for information regarding Providian, Accounts or Cards. <\/p>\n
\na claim, complaint, dispute or request for information concerning PayPal to PayPal customer service in accordance with the referral procedures described in Section 3.5(c). PayPal will be
\nresponsible for all Cardholder inquiries relating to PayPal as well as all complaints or disputes regarding PayPal; provided that Providian may take any action needed to comply with its obligations to
\na Cardholder under Regulation Z and other Applicable Law. In addition, PayPal will provide Providian with any information or documents in its possession reasonably requested by Providian with
\nrespect to a Cardholder’s dispute concerning Providian, as long as Applicable Law and the PayPal Privacy Policy and User Agreement do not prohibit PayPal from releasing such information or documents. <\/p>\n
\nand PayPal will have no responsibility for any such loss. <\/p>\n
\nthis Agreement, a limited, royalty-free, exclusive, non-transferable (except as set forth in Section 15.7 below), non-sublicensable right to use, display and
\nreproduce the PayPal Marks in connection with its marketing, promotion and operation of the Program as set forth in this Agreement. <\/p>\n
\n
\nthe
\nPayPal Marks only in a manner approved by PayPal. Except as otherwise provided by this Agreement, upon termination of this Agreement, Providian will promptly cease use of the PayPal Marks. <\/p>\n
\nparticipation in the Program, its issuance of Cards and its extension of consumer credit, including those Applicable Law governing billings, consumer credit disclosures, billing error resolution,
\ncollections, and any related charges, such as late fees and overlimit fees imposed on Cardholders and Accounts. <\/p>\n\n
\nMARKETING CHANNELS; CARD-RELATED INITIATIVES. <\/dd>\n<\/dl>\n
\nenable Providian to solicit Members for the Card and the Account on a recurring basis throughout the Term. On a regular basis, but not less often than once at the end of each calendar month during the
\nTerm, PayPal will furnish Providian will a full, complete and updated Member List. This monthly Member List will be in addition to any Member List that PayPal will provide to Providian for
\ne-mail marketing to Members. Besides using the Member List for internal analysis to understand and enhance Program performance results, for offering Cards and Accounts under
\nSection 4.2, and for any purpose to which the Parties mutually agree through the Marketing Plan or other means, Providian will not use the Member List for any other purpose. Upon the expiration
\nor termination of this Agreement for any reason, Providian promptly will destroy or return, at PayPal’s sole discretion, any and all Member Lists and information regarding Members, except for
\ninformation that also is Cardholder information that belongs to Providian. <\/p>\n
\ne-mail solicitations related to the Program, subject to Section 2.2. Providian will bear all costs of solicitation and fulfillment associated with the Program, except for costs to
\ndevelop and modify the PayPal Website (including without limitation Banner Ads) and to develop and send direct e-mail solicitations associated with the Program, which costs will be borne
\nby PayPal, unless otherwise agreed. PayPal will be solely authorized to distribute all e-mail solicitations and solely authorized to disseminate PayPal Website solicitations in accordance
\nwith its Member communication policies, User Agreement, Privacy Policy and do-not-promote procedures in which Members have indicated to PayPal that they do not want to be
\ncontacted with offers such as Card Offers. Unless PayPal agrees to exceptions in writing, Providian will only use PayPal’s channels for e-mail and web solicitations. In connection with
\nPayPal’s solicitation by e-mail of its Members, Providian may provide PayPal with such information relevant to creditworthiness of the Member-solicitees that may be relevant to restricting
\nthe solicitation to a subset of Members, and Providian and PayPal will cooperate in coordinating such solicitation efforts, in accordance with the Marketing Plan. PayPal will keep all information
\nprovided by Providian in accordance with the prior sentence confidential. Also, Providian will keep all information provided by PayPal private, sharing it only as necessary to carry out this Agreement
\nand only to Parties bound by confidentiality arrangements at least as strong as this Agreement. <\/p>\n
\nexclusive United States credit card or charge card promoted by PayPal in the PayPal registration process on the PayPal Website. <\/p>\n
\n
\nconsent,
\n(1) sponsor, develop or participate in a Competing Card Product; (2) license or allow others to license PayPal Marks to promote a Competing Card Product; (3) negotiate, discuss or
\nsolicit any offer to market or promote a Competing Card Product; or (4) sell, rent or otherwise make available to the issuer of a Competing Card Product any list of Cardholders or any usage and
\ndemographic data on individual Cardholders, provided that PayPal will not be restricted from selling, renting or making available lists of its Members, or usage and demographic data on its Members, in
\na manner that does not identify which Members are Cardholders. Notwithstanding the provisions set forth in this Section 4.4, PayPal may accept American Express and Discover on the PayPal system
\nand may inform Members accordingly. <\/p>\n
\ncontrol during the Term or any Term renewal, where such Websites do not already have exclusive relations with an organization other than Providian to offer a Competing Card Product directed to a U.S.
\nmarket, PayPal will provide Providian with a right of first offer prior to negotiating with, or soliciting proposals from, any Party other than Providian to promote, advertise or solicit a Competing
\nCard Product on such Websites. In the event that the Parties are unable to complete an agreement on a credit card alliance or co-branding program for such other Website within
\n45 days after PayPal notifies Providian that the first offer period has begun, then PayPal will be free to negotiate to promote Competing Card Products through such other Website. <\/p>\n
\ncard for the U.S. market under the terms of this Agreement in any co-branded Website that PayPal develops in partnership. A co-branded Website is one that has third-party
\nbranding above the fold and a URL that indicates the joint offering of the PayPal service with the third party. As required by the specific partnership, PayPal may be required either not to offer Card
\n(or other) Products at all, or to support on the co-branded Website the partner’s choice of credit card. <\/p>\n
\ndomestic New Payment Products other than online person-to-person payment products, if PayPal intends to work with a U.S. domestic banking partner to develop or provide such New
\nPayment Products, it will notify Providian of such intent and negotiate in good faith to use Providian as its banking partner for such New Payment Products. With respect to all New Payment Products
\n(including online person-to-person payment products) that PayPal offers to its Members during the Term, PayPal will use its best efforts to ensure that the Card is the
\npreferred credit card used to purchase or transfer funds into such New Payment Products for Members. PayPal will ensure that promotional materials for the Program are at least equivalent to the
\npromotional materials for any New Payment Products. This Section 4.4(e) does not apply to any vendor relationships that PayPal has, or may establish in the future,
\nwith banking partners for use in services such as, without limitation, ACH or merchant processing. The provisions of this Section 4.4(e) will apply exclusively to New Payment Products or
\nextending PayPal’s current functionality to new payments networks such as, without limitation, ATM networks and international bank payments networks, and will not relieve PayPal of any of its other
\nobligations under this Agreement. <\/p>\n\n
\na periodic basis and subject to subsection (f)(2) below, Providian will use reasonable efforts to solicit and offer the Card and the Account to
\n[*], provided that each such Member completed at least [*]. Providian will conduct these solicitations on a pooled basis at least
\n[*] times in any 12-month period, and PayPal will cooperate with these efforts by supplying Providian with Member information and data that assists Providian in
\ncontacting Members for these purposes, subject to the PayPal Privacy Policy and User Agreement. Accounts acquired through these efforts will be referred to as [*]. <\/p>\n<\/ul>\n
\n\n
\nobligations under subsection (f)(1) above will apply only when the total number of Members using [*] exceed
\n[*]. <\/p>\n
\nwill have sole and complete discretion to determine the terms and provisions described in Sections 2.1, 2.4, 3.1, 3.2 and 3.3. <\/p>\n
\nany provision in this Agreement or in the Old Agreement, the provisions in Section 5.1 of the Old Agreement regarding marketing a second Card will
\nhave no force or effect under either the Old Agreement or this Agreement and will be replaced by the foregoing provisions in this Section 4.3(f). <\/p>\n<\/ul>\n
\nexclusive, non-transferable (except as set forth in Section 15.7 below), non-sublicensable right to use, display and reproduce Providian Marks in connection with
\nPayPal’s marketing, promotion and operation of the Program as set forth in this Agreement. PayPal will submit to Providian for its prior written approval, such approval not to be unreasonably withheld
\nor delayed, samples of each of PayPal’s uses of Providian Marks, and PayPal will use Providian Marks in a manner approved by Providian, which approval may not be unreasonably withheld or delayed
\nbeyond a 10-Business-Day review period. Except as otherwise expressly provided by this Agreement, upon termination of this Agreement, PayPal will promptly cease use of
\nProvidian Marks. <\/p>\n
\nincluding those governing advertising, incentive offers and on-line privacy issues and will comply with all Applicable Law governing the PayPal Services. <\/p>\n\n
\nSection 5 of the Old Agreement will have no force or effect, and PayPal hereby waives its rights to compensation from Providian under the Old Agreement for the period from March 1, 2002
\nforward. <\/p>\n
\none-time lump sum of [*]. PayPal will apply this payment toward redesigning and changing the PayPal Website within the 6-month period following the
\nEffective Date to promote and market the Card and the Program more prominently and to increase the rate of click-throughs from the PayPal Website to the Application Web Page, and toward supporting
\nPayPal’s other marketing responsibilities as provided in the Marketing Plan and this Agreement. Providian will deliver this payment to PayPal by March 31, 2002, but in no event prior to the
\nParties’ amendment of this Agreement to add the Security Standards described in Section 9.4. <\/p>\n
\n[*] for each new Account [*]; provided that, during that month, PayPal launches an outbound e-mail campaign to all eligible members
\npromoting the Card and the Program or launches a special click-through campaign on the PayPal Website promoting the Card and the Program to Members. If PayPal does not launch either the
\ne-mail campaign or the click-though campaign by March 31, 2002, Providian will pay PayPal only [*] for each new Account [*]. <\/p>\n
\nmonthly basis, Providian will pay PayPal a fee for each new Active Account according to either Section 5.4.1 or Section 5.4.2 (collectively the “Bounty Fee”).
\n[*]. <\/p>\n
\n
\nfor marketing the Program and soliciting Applications (e.g.<\/i>, PayPal e-mail and the PayPal Website) that result in Accounts, the Bounty Fee
\nwill be as follows: <\/p>\n
\nthere are [*] or more new Accounts booked by Providian in a calendar month, Providian will pay PayPal [*] for each new
\nAccount that becomes an Active Account during that month, subject to subsection (c) below. <\/p>\n
\nthere are fewer than [*] new Accounts booked by Providian in a calendar month, Providian will pay PayPal [*] for each
\nAccount that becomes an Active Account during that month, subject to subsection (c) below. <\/p>\n
\nthe end of each calendar quarter, Providian will review the monthly totals of new Active Accounts for each calendar month in that quarter and make either one of the
\nfollowing adjustments to the Bounty Fee, as applicable: <\/p>\n\n
\n
\nthe sum of the three months’ new Accounts booked by Providian is [*] or more, Providian will pay PayPal [*] for each Account that
\nbecomes a new Active Account during that quarter. For example, if new Accounts totaled [*] in the first month, [*] in the second month, and
\n[*] in the third month, the quarterly total would equal [*], and the Bounty Fee would be [*] per Active Account for all Active
\nAccounts in the quarter. <\/p>\n<\/dd>\n
\nthe sum of the three months’ new Accounts booked by Providian is less than [*], Providian will pay PayPal [*] for each Account that
\nbecomes a new Active Account during that quarter. For example, if new Active Accounts totaled [*] in the first month, [*] in the second month, and
\n[*] in the third month, the quarterly total would equal [*], and the Bounty Fee would be [*] per Active Account for all Active
\nAccounts in the quarter. <\/dd>\n<\/dl>\n<\/ul>\n
\ncosts for marketing the Program and soliciting Applications (e.g., direct mail and other channels) that result in Active Accounts, Providian will pay PayPal a Bounty Fee of [*]
\nfor each Account that becomes an Active Account. The Active Accounts acquired through this channel will count towards the booked Account totals in Section 5.4.1. <\/p>\n
\nwithin 45 days after the end of each calendar month during the Term. As provided in Section 5.4.1(c), at the end of each calendar month quarter, Providian will count the actual total
\nnumber of new Accounts booked by Providian during the quarter and make either of the adjustments based on subsections (c)(1) and (c)(2) above. If additional Bounty Fee is due, Providian will pay
\nPayPal the difference. If Providian has overpaid the Bounty Fee, Providian will collect the difference from PayPal by subtracting the amount of the difference from the Bounty Fees that Providian pays
\nfor the subsequent calendar month. If there is no subsequent month in which the Bounty Fee will be paid (because the Term is ending), Providian will invoice PayPal, and PayPal will reimburse Providian
\nby check within 15 days following receipt of the invoice. <\/p>\n
\nwork together and develop promotions and communications to Cardholders with non-Active Accounts so that those Cardholders change their non-Active Accounts to Active Accounts.
\nUpon
\nPayPal’s request, Providian will furnish PayPal with information that identifies Cardholders with non-Active Accounts or that enables PayPal to contact those Cardholders by
\ne-mail, subject to the review and approval procedures in Section 2.2 and subject to Applicable Law and the Providian Privacy Policy. <\/p>\n
\nto [*] basis points of the net amount of Account [*] transactions, when such transactions are <\/p>\n
\n
\nChargeback request, (2) reversed through a credit adjustment, or (3) otherwise disputed. [*]. Providian will pay all amounts due to PayPal under this
\nSection 5.2 within 45 days following the end of each calendar month. The Basis Point Fee will apply to [*] transactions on all Accounts booked under this
\nAgreement and the Old Agreement. <\/p>\n
\nAgreement, or if during the Term either Party exercises its termination rights pursuant to Section 6 of this Agreement, Providian will cease to pay compensation to PayPal as of the effective
\ndate of such expiration or termination; provided that Providian will be responsible for all payments that have accrued up to the date of such expiration or termination. <\/p>\n\n
\nTERMINATION. <\/dd>\n<\/dl>\n
\nDate. On March 1, 2007, the Term will automatically renew for a 2-year period unless either Party gives written termination notice to the other Party at least 90 days before
\nMarch 1, 2007. <\/p>\n
\ncommence 90 days before the date the Term terminates, for purposes of discussing the terms and conditions of a renewal or extension of the Term. <\/p>\n
\nnon-breaching Party may terminate this Agreement by giving notice, as provided in Section 15.5, to the breaching Party. This notice will: (a) describe the material breach;
\nand (b) state the Party’s intention to terminate this Agreement. If the breaching Party does not cure or substantially cure its material breach within 30 days after receipt of notice as
\ndescribed in this Section (the “Cure Period”), then the non-breaching Party may immediately terminate this Agreement by giving notice at any time following the end of such Cure Period.
\nNeither Party will be held in breach for failure to perform under this Agreement if such failure is due to compliance with Applicable Law. In addition, Providian’s failure to meet any of the
\nPerformance Standards in Exhibit A will not be deemed a material breach unless Providian fails to meet that performance standard for 3 consecutive calendar months and PayPal gives
\nProvidian written notice to terminate this Agreement for that reason within 30 days after the end of the third consecutive month. <\/p>\n
\neffective date of any change in the legal or regulatory requirements applicable to the Program, or in the MasterCard or Visa rules applicable to the Program, that: (a) has a substantial
\nnegative impact on the financial burdens or rewards of the terminating Party with respect to the Program, which the non-terminating Party is unwilling or unable to accommodate; or
\n(b) would render performance of a material obligation of the terminating Party hereunder a violation of the Card Association rules, illegal or otherwise subject to legal challenge, unless
\nperformance of such material obligation is waived by the non-terminating Party. The terminating Party will notify the other Party of such change within 2 Business Days of becoming aware of
\nsuch change. <\/p>\n
\nits assets, or is adjudicated insolvent, or takes advantage of or is subject to any insolvency proceeding, or makes an assignment for the benefit of creditors or is subject to bankruptcy receivership,
\nconservatorship or liquidation, then the other Party may immediately terminate this Agreement. <\/p>\n
\nadvance written notice to the other Party of such intent to terminate if, at any time during the term of this Agreement, the other Party is conducting activities that the terminating Party <\/p>\n
\n
\nactivity, provides evidence of such activity, and the other Party does not cure such activity to the terminating Party’s sole and complete satisfaction within 15 Business Days of notification to the
\nterminating Party. <\/p>\n
\n[*] Rates in Exhibit B will apply to each calendar quarter after [*] following the Effective Date. If any of the Program Performance Hurdles is
\nnot met, PayPal will have the right to terminate this Agreement according to Exhibit B by giving Providian at least 90 days’ prior written notice, provided that PayPal gives such notice
\nto Providian within 10 days’ after the date that Providian provides PayPal with the quarterly [*] Rate for the quarter in which the Program Performance Hurdle was not
\nmet. On or before the effective date of termination, PayPal will pay Providian the Termination Fee, if any, that PayPal owes under Exhibit B. <\/p>\n
\nproviding for the transfer of control or the sale of all or substantially all of its assets to a third party, that event will be called a “Change of Control” for purposes of this Section 6.8.
\nIn that case, each Party will have the right, as described below, to terminate this Agreement by giving the other Party at least 30 days’ prior written notice. <\/p>\n
\nProvidian listed on Exhibit C or any of its affiliates (a “Providian Competitor”), each Party will have the right to terminate this Agreement as follows: <\/p>\n\n
\n
\n
\n
\n
\nwill be relieved from its obligations to compensate PayPal under this Agreement, effective upon the effective date of termination; and <\/p>\n<\/dd>\n
\nwill pay Providian [*] per Member who is an Active Member as of the effective date of termination. For example, if the
\neffective date of termination is August 30, 2003, Members who during the preceding 90-day period either logged in their PayPal account or received a payment in that account will be
\ncounted as an Active Member. <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n<\/ul>\n\n
\n
\n
\n
\n will be relieved from its obligations to compensate PayPal under this Agreement, effective upon the effective date of termination; and <\/p>\n<\/dd>\n
\n will pay Providian [*] per Member who is an Active Member as of the effective date of termination. <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n<\/ul>\n<\/ul>\n
\nan entity that is not Providian Competitor (“Providian non-Competitor”), each Party will have the right to terminate this Agreement as follows: <\/p>\n\n
\n
\n
\n
\n
\nwill be relieved from its obligations to compensate PayPal under this Agreement, effective upon the effective date of termination; and <\/p>\n<\/dd>\n
\nwill pay Providian [*] per Member who is an Active Member as of the effective date of termination. <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n<\/ul>\n<\/ul>\n
\n\n
\n
\n
\n<\/ul>\n<\/ul>\n<\/ul>\n
\nPayPal a one-time lump sum calculated as follows and discounted to present value at a rate of [*]: <\/p>\n\n
\n
\n
\n
\ntotal net compensation, based on the [*] Fee in Section 5, that Providian paid to PayPal for the most recent calendar
\nquarter preceding the effective date of termination, divided by<\/i>: <\/p>\n<\/dd>\n
\n total number of Active Accounts during the same calendar quarter, then multiplying the product by<\/i>: <\/p>\n<\/dd>\n
\nnumber of Active Accounts on the effective date of termination, then multiplying the product by<\/i>: <\/p>\n<\/dd>\n
\ninstallments (representing [*] quarters or [*] years); provided that
\nthe number of these quarterly installments will not exceed beyond February 28, 2007 and will be prorated as needed. <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n<\/ul>\n\n
\n
\n
\nwill make this lump-sum payment to PayPal within 30 days following the effective date of termination. <\/p>\n<\/ul>\n<\/ul>\n<\/ul>\n<\/ul>\n
\nof PayPal listed on Exhibit C or any of its affiliates (a “PayPal Competitor”), each Party will have the right to terminate this Agreement as follows: <\/p>\n\n
\n
\n
\n
\n
\nwill pay PayPal a one-time lump sum calculated as follows and discounted to present value at a rate of
\n[*]: <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n<\/ul>\n<\/ul>\n\n
\n (i)<\/td>\n <\/td>\n The total net compensation, based on the [*] Fee in Section 5, that Providian paid to PayPal for the most recent calendar quarter preceding the effective date of termination, divided
\nby<\/i>:<\/td>\n<\/tr>\n\n (ii)<\/td>\n <\/td>\n The total number of Active Accounts during the same calendar quarter, then multiplying the product by<\/i>:<\/td>\n<\/tr>\n \n (iii)<\/td>\n <\/td>\n The number of Active Accounts on the effective date of termination, then multiplying the product by<\/i>:<\/td>\n<\/tr>\n \n (iv)<\/td>\n <\/td>\n [*] installments (representing [*] quarters or [*] years), provided that the number of these quarterly installments will not extend beyond February 28, 2007 and will be prorated as needed.<\/td>\n<\/tr>\n<\/table>\n \n
\n
\n
\n
\nwill make this lump-sum payment to PayPal within 30 days following the effective date of termination; and <\/p>\n\n
\n[*] after the effective date of termination, Providian will not market a competitive Internet-based payments service to
\nCardholders, where “competitive” means that the service functions essentially as PayPal Services function on the Effective Date; provided that Providian and its affiliates may continue to market and
\noffer existing online payment services called BillPay Online and PaySmart and may market and offer any money-transfer services between and among Providian deposit, credit or other transaction
\naccounts. <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n<\/ul>\n<\/ul>\n
\n\n
\n
\n
\n<\/ul>\n<\/ul>\n<\/ul>\n<\/ul>\n
\n
\n
\n
\n
\n
\nwill pay PayPal a one-time lump sum calculated as follows and discounted to present value at a rate of
\n[*]: <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n<\/ul>\n<\/ul>\n\n
\n (i)<\/td>\n <\/td>\n The total net compensation, based on the [*] Fee in Section 5, that Providian paid to PayPal for the most recent calendar quarter preceding the effective date of termination, divided
\nby:<\/i><\/td>\n<\/tr>\n\n (ii)<\/td>\n <\/td>\n The total number of Active Accounts during the same calendar quarter, then multiplying the product by:<\/i><\/td>\n<\/tr>\n \n (iii)<\/td>\n <\/td>\n The number of Active Accounts on the effective date of termination, then multiplying the product by:<\/i><\/td>\n<\/tr>\n \n (iv)<\/td>\n <\/td>\n [*] full installments (representing [*] quarters or [*] years), provided that the number of these quarterly installments will not extend beyond February 28, 2007 and will be prorated as needed.<\/td>\n<\/tr>\n<\/table>\n \n
\n
\n
\n
\nwill make this lump-sum payment to PayPal within 30 days following the effective date of termination; and <\/p>\n\n
\n [*] after the effective date of termination, Providian will not market a competitive Internet-based payments service to
\nCardholders, where “competitive” means that the service functions essentially as PayPal Services function on the Effective Date; provided that Providian and its affiliates may continue to market and
\noffer existing online payment services called BillPay Online and PaySmart and may market and offer any money-transfer services between and among Providian deposit, credit or other transaction
\naccounts. <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n<\/ul>\n<\/ul>\n
\nwith an entity that is not PayPal Competitor (a “PayPal non-Competitor”), each Party will have the right to terminate this Agreement as follows: <\/p>\n\n
\n
\n
\nwill be relieved from its obligations to compensate PayPal under this Agreement, effective upon the effective date of termination; and <\/p>\n<\/dd>\n
\n[*] after the effective date of termination, Providian will not market a competitive Internet-based payments service to Cardholders, where “competitive”
\nmeans that the service functions essentially as PayPal Services function on the Effective Date; provided that Providian and its affiliates may continue to market and offer existing online payment
\nservices called BillPay Online and PaySmart and may market and offer any money-transfer services between and among Providian deposit, credit or other transaction accounts. <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n
\n\n
\n<\/ul>\n<\/ul>\n
\n
\n
\n
\nwill pay PayPal a one-time lump sum calculated as follows and discounted to present value at a rate of 10%: <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n\n
\n (i)<\/td>\n <\/td>\n The total net compensation, based on the [*] Fee in Section 5, that Providian paid to PayPal for the most recent calendar quarter preceding the effective date of termination, divided
\nby:<\/i><\/td>\n<\/tr>\n\n (ii)<\/td>\n <\/td>\n The total number of Active Accounts during the same calendar quarter, then multiplying the product by<\/i>:<\/td>\n<\/tr>\n \n (iii)<\/td>\n <\/td>\n The number of Active Accounts on the effective date of termination, then multiplying the product by<\/i>:<\/td>\n<\/tr>\n \n (iv)<\/td>\n <\/td>\n [*] full installments (representing [*] quarters or [*] years), provided that the number of these quarterly installments will not extend beyond February 28, 2007 and will be prorated as needed.<\/td>\n<\/tr>\n<\/table>\n \n
\n
\n
\nwill make this lump-sum payment to PayPal within 30 days following the effective date of termination; <\/p>\n<\/ul>\n\n
\n[*] after the effective date of termination, Providian will not market a competitive Internet-based payments service to Cardholders, where “competitive”
\nmeans that the service functions essentially as PayPal Services function on the Effective Date; provided that Providian and its affiliates may continue to market and offer existing online payment
\nservices called BillPay Online and PaySmart and may market and offer any money-transfer services between and among Providian deposit, credit or other transaction accounts. <\/dd>\n<\/dl>\n<\/ul>\n<\/ul>\n
\neach payment provision in this Section 6.8, the Party obligated to pay will pay the other Party within 60 days after the effective date of termination. <\/p>\n
\n(b) above, ownership of Accounts will continue to belong to Providian, and the Parties will unwind the Program according to Section 6.10. Providian will have 180 days from the
\neffective date of termination to transition the Accounts and Cards away from the PayPal Mark. <\/p>\n
\n
\nrecap of some of the key terms in subsections (a) and (b) above. If there is a conflict or inconsistency, the terms in subsections (a) and (b) will control. <\/p>\n\n
\n <\/th>\n <\/th>\n If PayPal Terminates:
<\/b><\/p>\n
<\/th>\n <\/th>\n If Providian Terminates:
<\/b><\/p>\n
<\/th>\n<\/tr>\n\n PayPal Change of Control With Providian Competitor:<\/b><\/td>\n <\/td>\n \u0095 Providian relieved of its obligations.<\/td>\n <\/td>\n \u0095 Providian will be relieved of its obligations.<\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \n\u0095 PayPal will pay Providian [*] per Active Member.<\/td>\n <\/td>\n \n\u0095 PayPal will pay Providian [*] per Active Member.<\/td>\n<\/tr>\n \n PayPal Change of Control With Providian non-Competitor:<\/b><\/td>\n <\/td>\n \n\u0095 Providian will be relieved of its obligations.<\/td>\n <\/td>\n \n\u0095 Providian will pay PayPal [*] under Section 5, but for no longer than the remaining Term.<\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \n\u0095 PayPal will pay Providian [*] per Active Member.<\/td>\n <\/td>\n \n <\/td>\n<\/tr>\n \n Providian Change of Control With PayPal Competitor:<\/b><\/td>\n <\/td>\n \n\u0095 Providian will pay PayPal [*] under Section 5, but for no longer than the remaining Term.<\/td>\n <\/td>\n \n\u0095 Providian will pay PayPal [*] under Section 5, but for no longer than the remaining Term.<\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \n\u0095 Providian will not compete in Internet payment services for [*].<\/td>\n <\/td>\n \n\u0095 Providian will not compete in Internet payment services for [*].<\/td>\n<\/tr>\n \n Providian Change of Control With PayPal non-Competitor:<\/b><\/td>\n <\/td>\n \n\u0095 Providian relieved of its obligations.<\/td>\n <\/td>\n \n\u0095 Providian will pay PayPal [*] under Section 5, but for no longer than the remaining Term.<\/td>\n<\/tr>\n<\/table>\n
\n
\nmaterial feature of the Program is the on-going branding of the PayPal Website and the implicit endorsement of the PayPal Co-Branded Program
\nCard. Should the PayPal business model be materially altered with the PayPal branding (e.g., through name change due to acquisition or sale, etc.), which subsequently or through time, in Providian’s
\ndiscretion, materially alters the ability to originate accounts within the Program, then Providian may terminate this Agreement on 30 days’ notice unless the terms and conditions of all future
\ncompensation and or reimbursement arrangements are revised to Providian’s satisfaction. If Providian terminates the agreement for this reason, there will be no compensation payment. <\/p>\n
\nthe PayPal Marks on Cards issued prior to such expiration or termination, on periodic Account statements and on records of, and on correspondence to, any Cardholder until expiration of the Cards
\nexcept as provided in Section 6.8(f). Unless this Agreement terminates due to: (1) PayPal’s material breach of this Agreement under Section 6.3, (2) PayPal’s insolvency
\nunder Section 6.5, (3) PayPal’s improper activity under Section 6.6, or (4) either Party’s Change of Control under Section 6.8, Providian will continue to pay PayPal
\nas provided in Section 5 for a period of 1 year from the effective date of expiration or termination. After the 1-year period, Providian will cease to use the PayPal Marks
\nexcept as described above in this subsection (a) or for identification purposes when necessary on Cardholder service or collection letters. Except as otherwise provided in this Agreement, <\/p>\n
\n
\nany solicitation that Providian is required by Applicable Law to complete. PayPal will not cause or attempt to cause the removal of PayPal’s identification or PayPal Marks from any Cardholder’s Cards,
\nchecks or records already existing on the effective date of expiration or termination of this Agreement. Neither Party will make or distribute any disparaging or defamatory remarks regarding the other
\nParty, its products or services or its performance under this Agreement. <\/p>\n
\nParties will cooperate in good faith to develop a joint notice to Cardholders regarding the termination of the Program within 30 days of expiration or termination. In the event of a termination
\nresulting from a material breach under Section 6.3, the breaching Party will bear the cost of developing and distributing such notice to Cardholders and to Members. In the event of a
\ntermination for other cause, each Parties will bear one-half of the cost of developing and distributing such notice to Cardholders and to Members. <\/p>\n
\nProvidian terminates this Agreement under Section 6.3, 6.5 or 6.6, PayPal will not solicit Cardholders for cards, including without limitation Competing Card
\nProducts, to replace Cards (other than through general solicitation of all Members without targeting Cardholders) for 2 years after the effective date of termination. In no event will PayPal
\ntarget-solicit Cardholders to cancel or substitute their Accounts. <\/p>\n
\nPayPal terminates this Agreement under Section 6.3, 6.5 or 6.6, Providian may not market to or solicit Members, or communicate with Members through direct use
\nof a Member List in an manner whatsoever, and will promptly destroy or return, at PayPal’s sole election, all Member Lists and other PayPal Member information, provided that Providian will not be
\nprevented or restricted from marketing to or soliciting Members who already are Providian’s credit card customers, and provided that Providian may solicit individuals or entities that are Members so
\nlong as Providian does not target them by virtue of their Member status. <\/p>\n
\npurposes of Section 6.5, the Member List constitutes “intellectual property” as that term is defined and used in the U.S. Bankruptcy Code, 11 U.S.C.
\n\u00a7101(35A), \u00a7365(n). If Providian terminates this Agreement under Section 6.5 due to PayPal’s bankruptcy, Providian would be entitled to use the Member List for the
\nremaining Term notwithstanding any intervening bankruptcy by PayPal or attempt by PayPal to terminate or reject this Agreement under bankruptcy law. Notwithstanding any PayPal bankruptcy, PayPal will
\ncontinue to provide Providian with the Member List on a timely basis during the bankruptcy proceeding, and in any event at least every calendar month. <\/p>\n
\nSection 6.8, 6.10, 7.1, 8.1, 8.2, 9, 10, 11, 15.1, 15.3-15.6, 15.8-15.11 will survive expiration or termination of this Agreement. <\/p>\n
\n\n
\nstrategic partner to enhance PayPal’s relationships with the Card Associations, specifically Visa. Press releases describing the Parties’ strategic relationships and the Program will not be made
\nwithout the mutual written consent of each Party, which will not unreasonably be withheld or delayed. Without the written permission of Providian, PayPal will not discuss any specifics of this
\nAgreement or the Program with issuers of other cards, except to disclose to those issuers that exclusivity provisions in this Agreement prohibit its discussion of or entering into agreements for
\nofferings of Competing Card Products. Without prior written approval from Providian, PayPal will not generally communicate with PayPal customers, potential customers, or outside Parties (other than
\nPayPal’s attorneys, auditors, financial advisors and other agents or contractors with a reason to know within a confidential relationship or confidentiality agreement) about the Program or about
\nProvidian’s relationship with PayPal. Providian will not unreasonably withhold consent or delay consent beyond a 10-Business-Day period. These provisions will not apply to
\ndisclosures that PayPal is required to make to the SEC, to shareholders, to the general public or to other individuals or entities as required by Applicable Law. <\/p>\n
\nsolicitation of its Members. If PayPal substantially changes its policy of e-mail solicitations approximately three times per quarter, it will inform Providian in advance. This provision
\ndoes not constitute an obligation for PayPal either to expand its policy, nor expands nor changes the provisions in Section 4.2 on type or frequency of marketing that Providian may conduct to
\nMembers. <\/p>\n\n
\nAND USE OF CARDHOLDER DATA. <\/dd>\n<\/dl>\n
\nProvidian may use the Cardholder Data in a manner consistent with this Agreement for any legitimate business purpose and in compliance with Applicable Law, provided that no personally identifiable
\nCardholder Data will be disclosed or transferred by Providian to any third party (other than credit reporting agencies or as otherwise necessary or appropriate for administration, servicing and
\nfunding of the Accounts) without the Cardholder’s prior express consent. <\/p>\n
\nall Member Lists and all proprietary information pertaining to Members provided by PayPal to
\nProvidian pursuant to this Agreement and of all information provided to PayPal by a Member in PayPal’s registration process. Providian may only use the data provided by PayPal to make the Card
\noffering and other products mutually agreed upon. Providian may not use the data for any marketing, other than provided by the channels in this agreement. Furthermore, Providian may not sell, lease,
\nor otherwise disclose this data to any third party. Finally, Providian may not sell or market directly to Members who have been declined for a Card or who decline an offer for a Card, or sell, lease
\nor otherwise disclose their information to any third party. However, Providian may maintain and use information that it obtains as a result of an Account relationship with a Member or a
\nNon-Member Consumer. The provisions of this Section 8.2 will not prohibit Providian from using information relating to Members that Providian acquires by other means. <\/p>\n
\nprivacy policies in compliance with Applicable Law. The PayPal Privacy Policy will also follow practices endorsed or imposed by privacy groups such as TRUSTe and BBBOnline. Each Party will provide the
\nother with notice of any material changes to their privacy policy promptly after the effective date of such changes. <\/p>\n\n
\n
\nvaluable proprietary asset of Providian. PayPal Confidential Information is a confidential and valuable proprietary asset of PayPal. Each Party, the Card Associations and each Party’s respective
\nemployees, agents, third-party subcontractors and independent contractors (“Representatives”) will treat as strictly confidential all Confidential Information and proprietary third-party products that
\nthe other Party provides in connection with the Program. They will not disclose or duplicate Confidential Information or third-party products to anyone not having a need to know in connection with the
\nperformance of this Agreement and will not use them except in connection with the performance of this Agreement. Each Party will take all steps needed to ensure that its Representatives preserve this
\nconfidentiality. <\/p>\n
\nconfidentiality of this Agreement and its terms and will not disclose this Agreement or its terms to any third party; provided, however, that either Party may disclose this Agreement or its terms:
\n(a) as required by Applicable Law, (b) to its subsidiaries, affiliates and parent companies, (c) to its accountants, legal advisors, financial advisors, government regulators, and
\ninternal and external auditors, and (d) either Party may issue a press release about the Program upon execution of this Agreement if the press release has the written approval of the other
\nParty, which will not be unreasonably withheld, but which will be subject to regulations including the SEC Quiet Period and other relevant regulations. Providian and PayPal will consult with each
\nother prior to any conference with the press or other news media relating to the Program or this Agreement, including consultation with regard to responses to inquiries from the press or other media
\nabout the Program or this Agreement. <\/p>\n
\nagreeable Information Security Standards as Exhibit D to this Agreement (“Security Standards”). If the Parties do not add the Security Standards to this Agreement by March 31, 2002, the
\nParties will continue to work together in good faith to establish mutually agreeable Information Security Standards, and Providian will not be obligated to pay PayPal the [*]
\nlump sum described in Section 5.2 until the Information Security Standards are incorporated in this Agreement. <\/p>\n
\nreceives a subpoena or other legal process referring to Confidential Information or documents containing Confidential Information and will cooperate in any effort the owner of such Confidential
\nInformation has to comply with or to contest the legal process. <\/p>\n\n
\nAND LIMITATION OF LIABILITY. <\/dd>\n<\/dl>\n
\n(including reasonable attorney fees and costs) or liability resulting from or relating to PayPal’s breach of its obligations or of any terms (including, but not limited to, any representation or
\nwarranty) under this Agreement; and any acts or omissions of PayPal, its directors, officers, agents or employees in connection with PayPal’s participation in the Program. <\/p>\n
\n(including reasonable attorney fees and costs) or liability resulting from or relating to Providian’s breach of its obligations or of any term (including, but not limited to, any representation or
\nwarranty) under this Agreement; and any acts or omissions of Providian, its directors, officers, agents or employees in connection with Providian’s participation in the Program. <\/p>\n
\nrecover special, incidental, punitive, or consequential damages, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not that Party has been advised of the
\npossibility of such damage, except that this limitation will not apply to damages resulting from <\/p>\n
\n
\nProvidian, or its obligations under Section 15.1. <\/p>\n\n
\ncontroversy or claim between the Parties arising from or relating to this Agreement, or the breach of this Agreement, will be settled by arbitration to take place in San Francisco,
\nCalifornia or another mutually agreed upon site, in accordance with the Commercial Arbitration Rules of the American Arbitration Association by a panel of three arbitrators selected in accordance with
\nthose rules. Judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction and will be deemed Confidential Information. <\/p>\n\n
\nMAJEURE. <\/dd>\n<\/dl>\n
\nParty will be responsible, nor incur any liability to the other for any failure to comply with the terms of this Agreement due to causes beyond its control, including, without
\nlimitation, fire, storm, flood, acts of war, terrorism, accident, insurrection, sabotage, labor disputes, computer system malfunction, acts of God, acts of third Parties, acts of federal, state or
\nlocal government or judicial action (“force majeure”), provided that such actions that do not substantially hinder or prohibit performance will not excuse performance. If an event of force majeure is
\ncaused by a labor dispute, computer system malfunction, or government or judicial action arising from the business operations of a Party and continues for 60 days or more, the other Party may
\nterminate this Agreement in accordance with Section 6.3. <\/p>\n\n
\nPRECEDENT. <\/dd>\n<\/dl>\n
\neither Party will be obligated to implement the Program, all required approvals of any organization must be obtained including, without limitation, a Card Association. <\/p>\n\n
\nAND WARRANTIES. <\/dd>\n<\/dl>\n
\naddition to any representation or warranties made by the Parties in other sections of this Agreement, the Parties make the following representations and warranties: <\/p>\n
\nvalidly existing and in good standing under the laws of Delaware; (b) it is duly authorized to enter into this Agreement and to perform its obligations hereunder; (c) the making of this
\nAgreement does not knowingly violate any law or regulation to which PayPal is subject or any agreement or contract to which it is a Party or by which it is bound; (d) it will comply with all
\nApplicable Law (including but not limited to Card Association rules and regulations which pertain to Card Association non-members who are affinity partners of a Card Association member) in
\nperforming its obligations under this Agreement; (e) to the extent required by law, it has applied for licenses and, following receipt of such licenses, will continue to be duly qualified and
\nlicensed and has made and will continue to make all registrations to do business necessary to carry out its obligations under this Agreement under the law
\nof each state in which the Program will be offered; (f) it owns and is authorized to use the PayPal Marks, and the use of the PayPal Marks does not violate the intellectual property rights of
\nany third party; (g) its entering into and performing this Agreement does not violate any other Agreements by which it is bound. <\/p>\n
\nbanking association, validly existing under the laws of the United States of America; (b) at the time of the execution of this Agreement, it is duly authorized to enter into this Agreement and
\nto perform its obligations hereunder, (c) the making of this Agreement does not knowingly violate any law or regulation to which Providian is subject or any agreement or contract to which it is
\na party or by which it is bound; (d) it will comply with all Applicable Law in performing its obligations under this <\/p>\n
\n
\nits obligations under this Agreement under the law of each state in which the Program will be offered; (f) it is authorized to use Providian Marks, and the use of Providian Marks does not
\nviolate the intellectual property rights of any third party; and (g) its entering into and performing this Agreement does not violate any other Agreements by which it is bound. <\/p>\n\n
\nPROVISIONS. <\/dd>\n<\/dl>\n
\npartner, employee or agent of the other. Neither PayPal nor Providian will have the power or authority to pledge, bind or obligate the other with respect to any third party. <\/p>\n
\nor its Appendices must be in writing signed by both Parties. <\/p>\n
\nas enlarging or limiting the scope of the particular terms to which they refer. <\/p>\n
\nbe deemed a waiver of any further or future right under this Agreement. <\/p>\n
\nif delivered personally or by overnight courier service, or facsimile transmission or 2 days
\nafter mailing by registered or certified mail, return receipt requested, to a Party at its address set forth below, or to such other address as a Party may designate at a later time, as follows: <\/p>\n\n
\n Providian:<\/i><\/td>\n <\/td>\n Bill Buchanan
\nExecutive Vice President
\nProvidian Financial Corporation
\n123 Mission Street, 9th<\/sup> Floor
\nSan Francisco, CA 94105
\nFAX: (415) 644-2321<\/td>\n<\/tr>\n\n \nWith a copy to:<\/td>\n <\/td>\n \nSusan Lau
\nSenior Vice President and
\nAssociate General Counsel
\nProvidian Financial Corporation
\n201 Mission Street, 12th Floor
\nSan Francisco, CA 94105
\nFAX: (415) 278-6012<\/td>\n<\/tr>\n\n PayPal:<\/i><\/td>\n <\/td>\n \nTodd Pearson
\nSenior Vice President
\nPayPal Inc.
\n1840 Embarcadero Road
\nPalo Alto, CA 94303
\nFAX: (650) 251-1101<\/td>\n<\/tr>\n\n \nWith a copy to:<\/td>\n <\/td>\n \nJohn Muller
\nGeneral Counsel
\nPayPal Inc.
\n1840 Embarcadero Road
\nPalo Alto, CA 94303
\nFAX: (650) 251-1306<\/td>\n<\/tr>\n<\/table>\n<\/div>\n
\n
\nto include an electronic mail message that is sent using standard Internet protocols and whose receipt is confirmed by the recipient to the sender. <\/p>\n
\nsuccessors and assigns; provided that, neither Party will assign or transfer its rights under this Agreement by operation of law or otherwise, without the other Party’s prior written consent which
\nwill not be unreasonably withheld, except that either Party may assign its rights and obligations to its parent, subsidiary or affiliate, or in the event of reincorporation or reorganization, as long
\nas the assignment does not result in a substantial change to the Program or otherwise cause a breach of this Agreement. Additionally, Providian may not sell, transfer or assign Accounts to third
\nparties via a sale of assets, accounts or otherwise without the prior written permission of PayPal which will not be unreasonably withheld. Nothing in this Agreement will prohibit Providian from
\nsecuritizing or participating the Accounts or related receivables in accordance with general banking practices. <\/p>\n
\nto this Agreement. <\/p>\n
\nwithout regard to its principles of conflicts of laws, with exclusive jurisdiction in courts located in the counties of Santa Clara, San Mateo and\/or San Francisco. <\/p>\n
\nprinciples consistently applied, accurate books and records related to the Program including all charges, disbursements and expenses made or incurred by each Party in the performance of its
\nobligations. Each Party, including its internal and external auditors and the government agencies that regulate them, will have the right, upon reasonable notice, to audit, at any time prior to the
\nexpiration of 1 year following termination of the Program, the other Party’s books and records relating to the Program or this Agreement. Such audit will be at the expense of the auditing Party
\nand will be conducted during reasonable business hours. If any such audit indicates a discrepancy, the audited Party will promptly make the appropriate adjustments and\/or payments, or, in the
\nalternative and at the auditing Party’s option, the auditing Party will deduct or offset such discrepancy. If the discrepancy exceeds 5% of the payments for any given period, the Party that benefited
\nfrom the discrepancy will pay the costs of such audit. <\/p>\n
\nPayPal and Providian with respect to the subject matter set forth here. It supersedes all prior agreements and inducements relating to the subject of this Agreement. No promise or agreement made at or
\nafter the execution of this Agreement is binding unless it is written and signed by both Parties. <\/p>\n
\nexecuted, will be deemed effective on the date first written above without regard to the dates or times on when actually signed. The signed copies of this Agreement may be delivered by telefacsimile,
\nand such facsimile exchange has the same legal effect as delivery of a signed original. <\/p>\n
\n
\nWITNESS WHEREOF, the Parties, by their duly authorized representatives, have executed this Agreement as of the date first shown above. <\/p>\n\n
\n <\/td>\n <\/td>\n PayPal Inc.<\/b><\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n By:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n <\/td>\n <\/td>\n \/s\/ Todd Pearson<\/p>\n
Todd Pearson
\nSenior Vice President<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n Date:<\/td>\n <\/td>\n 3\/5\/2002<\/p>\n
<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n Providian Bancorp Services<\/b><\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n By:<\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n <\/td>\n <\/td>\n \/s\/ William Buchanan<\/p>\n
William Buchanan
\nExecutive Vice President<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n Date:<\/td>\n <\/td>\n 3\/5\/02<\/p>\n
<\/td>\n<\/tr>\n<\/table>\n
\n
<\/b><\/p>\n
<\/b><\/p>\n
\ncustomers build, protect and responsibly use credit. Under this Agreement, Providian will meet the following service performance standards when servicing the Accounts. <\/p>\n\n
\n
\navailability (online uptime) in any 1-week period and 98% availability in any 1-calendar-month period. <\/p>\n<\/dd>\n
\nseconds or less average response time for 95% of transactions on a weekly and monthly basis. <\/dd>\n<\/dl>\n<\/ul>\n
\nCenter: <\/p>\n\n
\n
\nof calls answered within 60 seconds measured on a monthly basis. <\/p>\n<\/dd>\n
\ncall abandon rate measured on a monthly basis. <\/dd>\n<\/dl>\n<\/ul>\n
\nSupport: <\/p>\n\n
\n
\nof e-mails (received at the Providian e-mail address that Providian designates to Cardholders for customer service) answered
\nwithin 1 Business Day, measured on a monthly basis. <\/dd>\n<\/dl>\n<\/ul>\n
\n\n
\n<\/ul>\n<\/ul>\n
<\/b><\/p>\n
<\/b><\/p>\n
\nCompetitors <\/p>\n\n
\n
\nExpress Company
\nBank of America Corporation
\nBank One Corporation
\nBarclays Bank plc
\nCapital One Financial Corp.
\nCitigroup Inc.
\nFleet Boston Corporation
\nHousehold International, Inc. (Household Bank LLC)
\nJ.P. Morgan Chase\/Chase Manhattan Corp.
\nMBNA Bank
\nMorgan Stanley Dean Witter\/Morgan Stanley (Discover and Novus Cards)
\nStandard Chartered Bank
\nWells Fargo & Co. <\/p>\n<\/ul>\n<\/ul>\n
\nCompetitors <\/p>\n\n
\n
\nExpress Company
\nBank of America Corporation
\nBarclays Bank plc
\nCitigroup Inc.
\neBay
\nFirst Data Corporation
\nHSBC
\nJ.P. Morgan Chase\/Chase Manhattan Corp.
\nMorgan Stanley Dean Witter\/Morgan Stanley (Discover and Novus Cards)
\nWells Fargo & Co.
\nYahoo! <\/p>\n<\/ul>\n<\/ul>\n
\n\n
\n<\/ul>\n<\/ul>\n
<\/b><\/p>\n
<\/b><\/p>\n
\nafter [*] after the Effective Date, and at the end of each consecutive calendar quarter, the Program fails to meet the [*] Rate shown
\nbelow as measured over the preceding full; calendar quarter, then PayPal may terminate this Agreement by sending Providian at least 90 days’ prior written notice, subject to the Termination Fee
\nrequirement shown below, if any. At the end of each calendar quarter, Providian will report the [*] Rate to PayPal in writing, after which PayPal will have 10 days to
\nexercise its termination right under Section 6.7 and this Exhibit C. For purposes of this provision, the number of Active Members will be based Active Members during the
\n90-day period immediately preceding PayPal’s termination notice. For example, if PayPal gives Providian termination notice on August 30, 2003, Members who during the preceding
\n90-day period either logged in their PayPal account or received a payment in that account will be counted as an Active Member. <\/p>\n\n
\n [*] Rate
<\/b>[*]<\/p>\n
<\/th>\n <\/th>\n Termination Fee for PayPal to Pay
\nto Providian<\/p>\n
<\/th>\n<\/tr>\n\n \n<\/td>\n <\/td>\n No Fee<\/td>\n<\/tr>\n \n ><\/u>[*], but\n<\/td>\n <\/td>\n [*] per Active Member<\/td>\n<\/tr>\n \n ><\/u>[*]<\/td>\n <\/td>\n [*] per Active Member<\/td>\n<\/tr>\n<\/table>\n<\/div>\n
\n
<\/b><\/p>\n
\nCONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE
\nSECURITIES EXCHANGE ACT OF 1934, AS AMENDED. <\/p>\n