PDF STATE UNIVERSITY ALUMNI ASSOCIATION nance.gov

ARIZONA STATE UNIVERSITY ALUMNI ASSOCIATION AFFINITY AGREEMENT

This Agreement is entered into as of this 12ib day of December, 2003, (the "Effective Date") by

and between MBNA AMERICA BANK, N.A., a national banking association having its

principal place of business in Wilmington, Delaware ("MBNA America"), and ARIZONA

STATE place of

UNIVERSITY ALUMNI ASSOCIATION, an Arizona corporation having its business in Tempe, Arizona ("Alumni Association") for themselves, and their

principal respective

successors and assigns.

1. LEFINITIONS

When used in this Agreement,

(a) "Agreement" means this agreement and Schedules A, B, C, D, and E.

(b) "Alumni common control

Association Affiliate" means with the Alumni Association,

any but

entity controlling, controlled by or under excludes all departments of Arizona State

University other than the Athletic Department.

(c) service

"Alumni Association Trademarks" means any design, image, mark, trade dress, trade name, or trademark used or acquired

visual representation, logo, by Alumni Association or

any Alumni Association Affiliate during the term of this Agreement.

(d) "Credit Card Account" means a credit card account opened by a Member response to marketing efforts made pursuant to the Program. A "Student Credit

in Card

Account" is America as

a Credit a student

Card Account opened through an application. An "Alumni Credit

application coded by MBNA Card Account" is a Credit Card

Account opened through an application coded by MBNA America as an alumni

application.

(e) "Customer" means any Member who is a participant in the Program.

(caofnaf)frdedreepndrtoe"tgrFotriaaMnimnaenmsmc, eibianneltsrtSscaaelfrrlodmvripcetenrhotePglsrroooaamldneuspcp.rtusorT"gphromaissmeedasone, fsfriecncvoirtenoidoslviontilnicsdghaaartldliolnapgnnroooptgurirontasgcmtlrauasnd,mdecisnh,agandrgegipenoosvctseaairltrnldmpmrpeoernngottrgalrlomoaamasnnssap,nrgddoregatbrrniaattvemdel to pay for college expenses (e.g., a Stafford loan).

(g) "MBNA Trademarks" means the trademarks of MBNA America depicted on Schedule E.

(h) "Mailing Lists" means updated and current lists and/or magnetic tapes (in a format designated by MBNA America) containing names, postal addresses and, when available,

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telephone numbers of Members segmented by zip codes or reasonably selected membership characteristics.

(i) "Member" means (i), undergraduate or graduate student of Arizona State University (each a "Student Member"); and (ii), alumni of Arizona State University, a member of the Alumni Association, friends, fans, ticket holders, and/or other potential participants mutually agreed to by Alumni Association and MBNA America (each an "Alumni Member").

0) "Program" means those programs and services of the Financial Service Products MBNA America agrees to offer pursuant to this Agreement to the Members from time to time.

(k) "Royalties" means the compensation set forth in Schedule B.

(1) "Trademarks" means the Alumni Association Trademarks and the Athletic Department Trademarks.

(m) "Athletic Department" means the athletic department of Arizona State University.

(n) "Athletic Department Trademarks" means any design, image, visual representation, logo, service mark, trade dress, trade name, or trademark used or acquired by the Athletic Department during the term of this Agreement.

(o) "Group Incentive Program "or "GlP" means any marketing or other program whereby Alumni Association conducts solicitation efforts for the Program, and the parties mutually agree that such marketing or other program shall constitute a GIP.

(p) "GIP Account" means a Credit Card Account opened by a Member pursuant to a GIP in which Alumni Association complies with the GIP provisions of this Agreement.

(q) "Travel Reward Credit Card Account" means a credit card carrying the Reward Enhancement and opened pursuant to the Program.

(r) "Travel Reward Enhancement" means the frequent travel reward enhancement which may be marketed under another name (e.g., Plus Rewards). MBNA America reserves the right to change the Travel Reward Enhancement name(s), in its sole discretion, from time to time.

2. RIGHTS AND RESPONSIBILITIES OF THE ALUMNI ASSOCIATION

(a) The Alumni Association agrees that during the term ofthis Agreement it shall, endorse the Program exclusively and that Alumni Association, any Alumni Association Affiliate, and the Athletic Department shall not, by itself or in conjunction with others, directly or indirectly: (i) sponsor, advertise, aid, develop, market, solicit proposals for programs offering, or discuss with any organization (other than MBNA America) the providing of, any Financial Service Products of any organization other than MBNA America; (ii) license or allow others to license the Trademarks in relation to or for

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promoting any Financial Service Products of any entity other than MBNA America; and (iii) sell, rent or otherwise make available or allow others to sell, rent or otherwise make available any of its mailing lists or information about any current or potential Members in relation to or for promoting any Financial Service Products of any entity other than MBNA America. Notwithstanding anything else in this Agreement to the contrary, Alumni Association may accept print advertising from any firiancial institution provided that the advertisement does not contain an express or implied endorsement by Alumni Association of said financial institution or the advertised Financial Service Pro net. his Agreement does not preclude Desert Schools Credit Union C'Credit Union") from offering Financial Service Products to Members or Wells Fargo Bank from soliciting its Financial Service Products at the Wells Fargo Arena provided that: (1) the credit card programs, charge card programs or debit card programs offered by the Credit Union and/or Wells Fargo Bank and the advertisements and solicitations for such products do not utilize or bear a Trademark; and (2) neither Alumni Association nor the Athletic Department shall provide Mailing Lists to the Credit Union or to Wells Fargo Bank for the purpose of enabling the Credit Union or Wells Fargo Bank to solicit Members for credit card programs, charge card programs or debit card programs. (b) Alumni Association agrees to provide MBNA America with such information and assistance as may be reasonably requested by MBNA America in connection with the Program. (c) Alumni Association authorizes MBNA America to solicit its Members by mail, direct promotion, advertisements, and/or telephone for participation in the Program. (d) Alumni Association shall have the right of prior approval of all Program advertising and solicitation materials to be used by MBNA America, which contain a Trademark; such approval shall not be unreasonably withheld or delayed; however, Alumni Association shall have a minimum of three (3) business days to grant such approval. In the event that MBNA America incurs a cost because of a change in the Trademarks required by Alumni Association (e.g., the cost of reissuing new credit cards), MBNA America may deduct such costs from Royalties due Alumni Association. In the event such costs exceed Royalties then due Alumni Association, Alumni Association shall promptly reimburse MBNA America for all such costs. (e) Upon the request of MBNA America, Alumni Association shall provide MBNA America with Mailing Lists or an update to a Mailing List provided recently to MBNA America, free of any charge; provided, however, that Alumni Association shall not include in any Mailing List the name and/or related information regarding any person who has expressly requested that Alumni Association not provide his/her personal information to third parties. In the event that MBNA America incurs a cost because of a charge assessed by Alumni Association or its agents for an initial Mailing List or an update to that list, MBNA America may deduct such costs from Royalties due Alumni Association. Alumni Association shall provide the initial Mailing List, containing at least two hundred and ten thousand (210,000) non-duplicate names with corresponding postal addresses and, when available, telephone numbers of Alumni Members and at least fifty five thousand (55,000) non-duplicate names with corresponding postal addresses and, when available, telephone numbers of Student Members as soon as possible but no later than thirty (30) days after the Effective Date of this Agreement.

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(f) Alumni Association shall only provide information to or otherwise communicate with

Members or potential Members about the Program with MBNA America's prior written

approval, except for current advertising and solicitation materials provided by MBNA America

to Alumni Association. Notwithstanding the above, Alumni Association may not respond to

individual inquiries about the Program from its Members on an individual basis and shall instruct

all such individuals Alumni Association inquiries, etc.) shall

to contact MBNA America that is intended for MBNA be forwarded to the MBNA

directly. Any correspondence received by America (e.g., applications, payments, billing America account executive via overnight courier

within 24 hours of receipt. All charges incurred for this service will be paid by MBNA America.

(g) Alumni Association hereby grants MBNA America and j!skf iliates a limited, exclusive

license to use the Trademarks depicted on Schedule D solely in conjimttion with the Program,

including the further action

promotion thereof Schedule D shall be deemed automatically amended without of the parties to include any additional Alumni Association design, image, visual

representation, logo, service mark, trade dress, trade name, or trademark which Alumni

Association approves for use by MBNA America in connection with the Program, and any

intellectual property developed as a successor or replacement of, or as a modification to, any

Trademark. This license shall be transferred upon assignment of this Agreement. This license

shall remain in effect for the duration of this Agreement and shall apply to the Trademarks,

notwithstanding the transfer of such Trademarks by operation of law or otherwise to any

permitted successor, corporation, organization or individual. Alumni Association shall provide

MBNA America all Trademark production materials (e.g., camera ready art) required by MBNA

America for the Program, as soon as possible but no later than thirty (30) days after the Effective

Date of this Agreement. Nothing stated in this Agreement prohibits Alumni Association from

granting to other persons a license to use the Trademarks in conjunction with the providing of

any other service or product, except for any Financial Service Products.

(h) page

Alumni Association and at other prominent

shall permit MBNA locations within the

America to advertise the Program on its home internet site of Alumni Association at the then

current rates. MBNA America may establish a "hot-link" from such advertisements to another

internet site to enable a person to apply for a Credit Card Account. Any Credit Card Account

generated pursuant to such a "hot-link7 shall entitle Alumni Association to the GIP

compensation set forth on Schedule B, subject to the other terms and conditions of this

Agreement. Alumni Association shall modify or remove such advertisements within three (3)

business days of MBNA America's request.

3. RIGHTS AND RESPONSIBILITIES OF MBNA AMERICA

(a) MBNA America shall design, develop and administer the Program for the Members.

(b) regard

MBNA America shall design all advertising, solicitation and promotional materials to the Program. MBNA America reserves the right of prior written approval of all

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advertising and solicitation materials concerning or related to the Program, which may be

developed by or on behalf of Alumni Association.

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(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 each Customer's account(s) independently of Alumni Association. (e) MBNA America shall use the Mailing Lists provided pursuant to this Agreement consistent with this Agreement and shall not permit those entities handling these Mailing Lists to use them for any other purpose. MBNA America shall have the sole right to designate Members on these Mailing Lists to whom promotional material will not be sent. These Mailing Lists are and shall remain the sole property of Alumni Association. However, MBNA America may maintain separately all information which it obtains as a result of an account relationship or an application for an account relationship. This information becomes a part of MBNA America's own files and shall not be subject to this Agreement; provided however that NONA America will not use this separate information in a manner that would imply an endorsement by Alumni Association. (f) If MBNA America sends the Mailing List to National Change of Address Service ("NCOA"), then after MBNA America receives the Mailing List back from NCOA it will provide a copy of the updated Mailing List to Alumni Association; however, such updated Mailing List, if any, shall be provided no more than once a quarter. (g) MBNA America hereby grants Alumni Association a nonexclusive, nonassignable, nontransferable license to use the MBNA Trademarks solely for GTP.

4. REPRESENTATIONS AND WARRANTIES (a) Alumni Association and MBNA America each represents and warrants to the other that as of the Effective Date and throughout the term of this Agreement:

(i) It is duly organized, validly existing and in good standing. (ii) It has all necessary power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. (iii) This Agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, receivership, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity.

(iv) No consent, approval or authorization from any third party is required in connection with the execution, delivery and performance of this Agreement, except such as have been obtained and are in full force and effect.

(v) The execution, delivery and performance of this Agreement by such party will not constitute a violation of any law, rule, regulation, court order or ruling applicable to such party.

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