Exhibit 10.95
UNITED CONTRACT NO. 14574
UNITED MILEAGE PLUS(R) PARTICIPATION AGREEMENT
THIS AGREEMENT is made and entered into as of the first day of January,
2001, and is effective as of the first day of March, 2001 (the "Effective Date")
by and between MILEAGE PLUS, INC. ("MPI"), a Delaware corporation whose mailing
address is ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and E-LOAN, INC. ("E-LOAN"),
a Delaware corporation whose corporate address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
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WHEREAS, United Air Lines, Inc. ("United") is in the business of
providing passenger air transportation to the public and E-LOAN is in the
business of providing on-line access to lenders for home purchase mortgages,
mortgage refinancing, home equity lines of credit and automobile loans to the
public;
WHEREAS, MPI is a wholly-owned subsidiary of Mileage Plus Holdings, Inc.
("MPHI"), which is a wholly owned subsidiary of United, and on behalf of United,
offers the United Mileage Plus(R) frequent traveler recognition program to all
United passengers who desire to participate in that program
WHEREAS, Mileage Plus Marketing, Inc. ("MPM") is also a wholly-owned
subsidiary of MPHI, and United Networks, Inc. ("United Networks") is a
wholly-owned subsidiary of UAL Corporation, and on behalf of MPI and' United,
are responsible for the marketing, advertising and promotion of the Mileage Plus
Program and United Networks, on behalf of MPI, is authorized to execute this
Agreement; and
WHEREAS, MPI and F.-LOAN desire to allow Mileage Plus Members to further
participate in the Mileage Plus Program by receiving mileage credit for
Qualifying Activity at the E-LOAN Web Site, and MPI and E-LOAN further desire to
enter into this Agreement pursuant to which E-LOAN shall (i) purchase from MPI
the right to award Mileage Plus Miles and (ii) award such Miles to Eligible
Members for Qualifying Activity at the E-LOAN Web Site.
NOW, THEREFORE, in consideration of the promises, covenants and the
mutual obligations hereinafter set forth, MPI and E-LOAN agree as follows:
1. DEFINITIONS - For purposes of this Agreement, the following terms shall
have the following meanings:
A. "Additional E-LOAN Bonus" means each award or credit of Miles
issuable by E-LOAN to The account of a Mileage Plus Member under
the Mileage Plus Program in conjunction with an E-LOAN Bonus and
pursuant to special promotional efforts undertaken by agreement of
the parties hereto and in accordance with the terms and conditions
of this Agreement.
B. "Cash Minimum" means the annual payment guarantee of USD $[*] for
each Contract Year that this Agreement remains in fall force and
effect or a pro rata portion of such annual payment guarantee for
any period which is less than the applicable Contract Year for
purposes of the payment calculations pursuant to Article 6 herein.
C. "Contract Year" means each full one-year period during the term of
this Agreement, beginning on the Effective Date and ending one
year after the Effective Date.
D. "Eligible Mileage Plus Member" or "Eligible Member" means a
Mileage Plus Member who requests mileage credit and provides to
E-LOAN, at the time of engaging in Qualifying Activity at the
E-LOAN Web Site, his or her valid Mileage Plus account number.
Exhibit 10.95
UNITED CONTRACT NO. 14574
E. "E-LOAN Bonus" means each award or credit of Miles issuable by
E-LOAN to the account of a Mileage Plus Member under the Program,
and in accordance with the terms and conditions of this Agreement.
F. "E-LOAN Web Site" means the co-branded, private label Internet
e-commerce web site, located at <>, as well
as E-LOAN's home page web site and telemarketing center, that
offers the public on-line or telephone access to lenders for
various consumer financial products, including home purchase
mortgages, mortgage refinancing, home equity lines of credit and
automobile loans.
G. "Mile" means one (1) unit of Mileage Plus Program credit (or its
equivalent) that is awarded to Eligible Members for engaging in
Qualifying Activity at & E-LOAN Web Site.
H. "Mileage Plus Member" or "Member" means an air travel customer who
has applied to and become a participant in the United Mileage Plus
Program.
I. "Qualifying Activity" means the process by which an Eligible
Member accesses (or calls) the E-LOAN Web Site and applies for, is
approved and ultimately obtain from E-LOAN a home purchase
mortgage, a mortgage refinance, a home equity line of credit or an
automobile loan, which such mortgage, line of credit or automobile
loan is determined by E-LOAN and United Networks to be eligible
for mileage accrual hereunder.
J. "United Mileage Plus Program," "Mileage Plus Program" and
"Program" mean the frequent traveler recognition program, owned
and maintained by MPI, whereby the participating traveler receives
specified travel awards or other benefits based upon air travel
mileage accumulated by the participating traveler, during air
travel on United or another designated participating carrier or
through the purchase or use of the goods or services provided by
another participant in the Program
2. MILEAGE PLUS PROGRAM PARTICIPATION
Subject to the terms and conditions of this Agreement, MPI and E-LOAN
hereby establish a relationship in the Mileage Plus Program under which
E-LOAN shall:
(i) Record and process, according to mutually agreed-upon
procedures, mileage credit for Qualifying Activity
attributed to Eligible Members;
(ii) Purchase the right to award Mileage Plus Miles to Eligible
Members (and other travel or frequency-based awards, as
agreeable between the parties);
(iii) Market the relationship in the Mileage Plus Program (with
MPM's and United Network's cooperation as more fully set
forth in this Agreement); and
(iv) Participate as a mileage accrual affiliate in the Mileage
Plus Program in accordance with the terms and conditions
set forth in this Agreement.
3. PROMOTIONAL MATERIALS
A. At no cost to P-LOAN, United Networks shall provide to E-LOAN, in
quantities which United Networks and E-LOAN deem sufficient, any
and all materials collateral to the Mileage Plus Program that
United Networks reasonably deems necessary to provide to E-LOAN.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
B. At no cost to E-LOAN, all materials specified in Article 3.A.
shall identify E-LOAN's name and identify E-LOAN as a mileage
accrual affiliate participating in the Mileage Plus Program.
United Networks identifies and lists all participating Program
affiliates at its discretion and when feasible, and E-LOAN shall
have the right to either approve or decline such listing.
4. DISTRIBUTION AND USE OF E-LOAN BONUSES AND ADDITIONAL E-LOAN BONUSES
A. (i) Whenever a Mileage Plus Member is an Eligible Member (a
Member who provides to E-LOAN, at the time of engaging in
Qualifying Activity at the E-LOAN Web Site, his or her
valid Mileage Plus account number), E-LOAN shall ensure
that it will properly associate the membership data with
the Eligible Member's Qualifying Activity or otherwise
record the transaction, and provide to the Eligible Member
confirmation of the same. If a Mileage Plus Member cannot
provide his or her Mileage Plus account number when
engaging in Qualifying Activity at the E-LOAN Web Site,
then E-LOAN shall ensure that it will advise the Mileage
Plus Member that when the appropriate membership
information is provided to E-LOAN, within twelve (12)
months of the Qualifying Activity, the appropriate credit
will be posted by MPI to the Member's account. E-LOAN
shall' ensure in all cases that it will provide the proper
credit to every Eligible Member's account and report such
credit in accordance with Article 4.A.(ii), below.
(ii) On a monthly basis, E-LOAN shall prepare and forward to
MPI, at the address below, a computerized tape, or other
mutually agreed-upon format, generated from E-LOAN's data
entry system, listing by Mileage Plus Member account
number, Mileage credit amount, and dates of the Qualifying
Activity for Eligible Mileage Plus Members who engaged in
Qualifying Activity at the E-LOAN Web Site during the
preceding monthly periods:
United Air Lines, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: MPI Desk/WHQKF
B. E-LOAN shall award one (1) E-LOAN Bonus to Eligible Mileage Plus
Members for engaging in Qualifying Activity at the E-LOAN Web
Site, and the additional Miles represented by each E-LOAN Bonus
will be posted by MPI to each Mileage Plus Member's account as
soon as practicable. As of the Effective Date, an E-LOAN Bonus
shall be comprised of, per Qualifying Activity: (i) 1,250 Miles
for each USD $10,000 mortgaged through a new home purchase
mortgage or refinance of an existing home mortgage, or for each
USD $10,000 loaned through a home equity line of credit; and (ii)
3,500 Miles for each automobile loan for a new or used vehicle.
C. At the discretion of E-LOAN, E-LOAN may offer, in conjunction with
each E-LOAN Bonus, an Additional E-LOAN Bonus to Eligible Mileage
Plus Members, in order to promote E-LOAN's participation in the
Mileage Plus Program, but only upon and in accordance with the
terms and conditions of this Agreement, which terms and conditions
require United Network's prior approval.
D.(i) (i) MPI agrees that any Miles earned by a Mileage Plus
Member from the award of an F.-LOAN Bonus or Bonuses or
an Additional E-LOAN Bonus or Bonuses, as specified in
Articles 4.B. and 4.C., will be treated like any other
accrual of Miles and shall be good toward award benefits
in the same manner as any other Mileage Plus Program
credit; and
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Exhibit 10.95
UNITED CONTRACT NO. 14574
(ii) MPI agrees that any and all Miles purchased by E-LOAN
during any Contract Year of this Agreement, which Miles
are not awarded by E-LOAN to Mileage Plus Members during
that Contract Year, shall continue to be valid and shall
be eligible for award to Mileage Plus Members for the
remaining term of the Agreement, plus an additional 9
month period or until the processing of all Pipeline
Loans is complete, whichever occurs earlier, as
described in Article 11.C. herein.
E. Subject to the provisions of Articles 7.C. and 7.D. herein, E-LOAN
shall have the right to use up to five-hundred-thousand (500,000)
Miles each Contract Year of this Agreement, free of charge, which
such Miles will be awarded solely to E-LOAN employees for internal
promotional and motivational purposes only, and which Miles may
not be used for business travel, for E-LOAN's benefit or
otherwise, on United or its airline partners. The use of such
Miles shall be for such E-LOAN employees to redeem for personal
travel on United Airlines, or for other permitted redemption in
the Mileage Plus Program, and the employees' use of such Miles
shall be subject to the same rules and regulations, as well as the
same blackout dates and other mileage redemption restrictions, as
applicable to any mileage accrued by any Mileage Plus Member.
5. PROCEDURES FOR SUBSEQUENT ISSUANCE OF E-LOAN BONUSES
In the event that a Mileage Plus Member asserts that he or she was an
Eligible Member at the E-LOAN Web Site, as described in Article 4.A.(i),
above, but did not receive an E-LOAN Bonus in connection with such
Qualifying Activity engaged in at the E-LOAN Web Site, then:
A. If the Mileage Plus Member makes such claim to E-LOAN within
twelve (12) months of such Qualifying Activity, E-LOAN shall
verify whether the Mileage Plus Member engaged in Qualifying
Activity at the E-LOAN Web Site, when he or she was an Eligible
Mileage Plus Member, and whether he or she received an E-LOAN
Bonus in connection with said Qualifying Activity, and, if the
Mileage Plus Member is entitled to an E-LOAN Bonus but did not
receive such Bonus, then E-LOAN shall arrange for the issuance of
an E-LOAN Bonus and/or Additional E-LOAN Bonus to the Eligible
Mileage Plus Member within thirty (30) days of written receipt of
the Member's request and provide the required Qualifying Activity
data on tape, or otherwise as agreed, to MPI as provided in
Article 4.A.(ii); or
B. if the Mileage Plus Member makes such claim directly to United,
MPI, MPM or United Networks within twelve (12) months of engaging
in such Qualifying Activity at the E-LOAN Web Site, then United,
MPI, MPM or United Networks shall refer any such request to E-LOAN
for handling as set forth in Article 5.A.; provided, however, that
E-LOAN shall have thirty (30) days from the receipt of United's,
MPI's, MPM's or United Network's written request to provide the
required Qualifying Activity data on tape, or otherwise as agreed,
to MPI as provided in Article 4.A.(ii).
6. CHARGES, PAYMENTS AND REPORTS
A. (i) Exclusive of any and all applicable taxes and surcharges
levied, E-LOAN shall pay MPI as follows during the term
of this Agreement: USD $[*] for each E-LOAN Bonus Mile
credited , to a Member's account pursuant to Articles
4.A. and 4.B. and for each Additional E-LOAN Bonus Mile
credited to a Member's account pursuant to Article 4.C.
(ii) On a monthly basis, pursuant to Article 6.C.(ii), E-LOAN
shall pay to MPI amounts owed to MPI pursuant to Article
6,A.(i), above.
(iii) After accounting for all payments pursuant to Article
6.A.(ii), if for a given Contract Year E-LOAN has not
paid to MPI at least the Cash Minimum, as described in
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Exhibit 10.95
UNITED CONTRACT NO. 14574
Article 1.B. herein, then for that Contract Year E-LOAN
shall pay to MPI the difference between the amount
previously paid during that Contract Year and the Cash
Minimum. MPI will credit E-LOAN with the difference
between the amounts paid during the given Contract Year
and the Cash Minimum due in Bonus Miles at the rate
described in Article 6.A.(i), above, Such reconciliation
payment shall be due no later than ninety (90) days
following end of the given Contract Year and the Bonus
Miles will be available to E-LOAN once such
reconciliation payment has been received by MPI.
B. In the event of any termination of this Agreement, MPI shall
determine the total payments due, if any. If this Agreement is
terminated: (i) by E-LOAN, for cause pursuant to Articles 14, 15,
17.E. or 21; (ii) by MPI, for cause pursuant to Articles 6.D., 14,
15, 17.E. or 21; or (iii) by MPI, for convenience pursuant to
Article 11.A., then E-LOAN shall meet its payment obligations
under Articles 6.A.(i) and 6.A.(ii), but shall make no further
payment under Article 6.A.(iii) or otherwise. However, if this
Agreement is terminated by E-LOAN, for convenience pursuant to
Article 11.A., then such termination will require E-LOAN to meet
its payment obligations under Articles 6.A.(i) and 6.A.(ii), as
well as to make complete payment of the balance of the Cash
Minimum due pursuant to Article 6.A.(iii), which balance is based
upon the elapsed term of this Agreement in which the effective
date of termination falls, as shown below:
Termination Payment = (total Cash Minimum payment
obligation due over the term of this
Agreement minus the total amount paid
as of the effective date of
termination of this Agreement)
Example = [*]
(assuming termination after one-half
year of this two year Agreement,
where [*] would be the amount owed to
MPI by E-LOAN at the time of
termination)
C. (i) On a monthly basis, MPI shall provide E-LOAN with a
report-invoice regarding the mileage credited to Mileage
Plus Members' accounts during the previous calendar
month. Each report-invoice for a month shall list the
Mileage Plus Member's name, account number, dates of the
Qualifying Activity at the E-LOAN Web Site, the total
number of Miles credited for the month and the total
amount due MPI from E-LOAN under the report-invoice
pursuant to this Agreement. Not later than sixty (60)
days after receipt of a report-invoice, E-LOAN may
request and MPI shall provide sufficient evidence or
other documents as reasonably necessary to verify the
amount of Miles credited or any other information
contained in such report-invoice.
(ii) Within thirty (30) days after the date of receipt of a
report-invoice, E-LOAN shall pay MPI the amount due
under that report-invoice.
D. If E-LOAN fails to pay MPI the amount due under any monthly
report-invoice and in addition to any other remedies available
hereunder, MPI may suspend, without penalty or liability, the
right of E-LOAN to participate in the award of Mileage Plus Miles
under this Agreement. MPI shall have the right to terminate this
Agreement immediately, upon a written notice to E-LOAN, in the
case of any non-payment of a monthly report-invoice, which
non-payment exceeds ninety (90) days,
E. All amounts paid for the right to award Mileage Plus Miles
pursuant to this Agreement are exclusive of the U.S. federal
excise tax (currently 7.5%) and E-LOAN agrees to pay the
applicable federal excise tax. E-LOAN shall pay applicable sales
or use taxes, but no party shall pay any
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Exhibit 10.95
UNITED CONTRACT NO. 14574
taxes or tax-related surcharges determined by another party's
income, net worth, franchise, property or purchases, which shall
be borne solely by that other party.
F. All mileage award and payment calculations under this Agreement
shall be reasonably based upon data contained in MPI's records,
and the data in MPI's records shall take precedence over the data
in any other records, unless the parties mutually agree otherwise
in writing. Any discrepancies in the data shall be resolved by
both parties hereto in good faith.
7. CONTROL SYSTEMS
A. E-LOAN shall use its reasonable efforts to establish its own
internal control system to protect against the improper issuance
and use of E-LOAN Bonuses and Additional E-LOAN Bonuses.
B. In the event that either party discovers or learns of any
wrongfully issued E-LOAN Bonuses or Additional E-LOAN Bonuses, it
shall so advise the other party and provide the other party with
the identities as well as the Mileage Plus account numbers of
those individuals who have, or are suspected to have, improperly
received the Bonuses.
C. E-LOAN shall prevent any of the Bonus or Additional Bonus Miles
that E-LOAN purchases from MPI, for award to Mileage Plus Members,
from being used for corporate travel or flight upgrades on United,
or any of its Star Alliance or other airline partners, by
employees of E-LOAN. MPI and E-LOAN acknowledge that nothing in
this Agreement restricts E-LOAN employees from joining the Mileage
Plus Program and earning Mileage Plus Miles through participation
in various Mileage Plus partner programs and subsequently using
their individual Miles for award travel or other award redemption.
D. During the term of this Agreement, if E-LOAN desires to promote
the award, transfer or other distribution of Mileage Plus Miles
for any activity outside of Qualifying Activity at the E-LOAN Web
Site, then E-LOAN shall seek prior written consent from United
Networks for the following:
(i) Any promotion, marketing or other advertisement of any
ability to affect the award, issue, transfer, conversion,
exchange or other distribution of Mileage Plus Miles for
any activity other than Qualifying Activity at the E-LOAN
Web Site, given that Mileage Plus Miles are to be earned
hereunder solely for such Qualifying Activity and not, as
of the Effective Date, for any other activity or other
purposes not described herein; or
(ii) Any participation in any third party, co-brand program or
scheme, including, for example, any Internet portal web
site, that awards, issues, transfers, converts, exchanges
or otherwise distributes Mileage Plus Miles for any
activity other than Qualifying Activity at the E-LOAN Web
Site, given that Mileage Plus Miles are to be earned
hereunder solely for such Qualifying Activity and not, as
of the Effective Date, for any other activity or other
purposes not described herein.
8. MILEAGE PLUS MEMBER PROBLEMS
MPI or its designee shall be responsible for communicating directly with
any Mileage Plus Member to resolve any problems that the Mileage Plus
Member has regarding the Mileage Plus Program, However, if such a problem
relates to E-LOAN's participation in the Mileage Plus Program, E-LOAN
shall act in accordance with Article 5.A. and cooperate with MPI to the
extent reasonably necessary to resolve the problem.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
9. ADVERTISING AND PROMOTIONAL EFFORTS
A. (i) On a periodic basis to be determined by E-LOAN in good
faith, E-LOAN may promote in direct mailings, point of
purchase materials, and/or brochures and advertise in
various media, such as, but not limited to, print, radio,
television and the Internet, its participation in the
Mileage Plus Program.
(ii) E-LOAN shall promote and advertise the Mileage Plus Program
with comparable marketing exposure and visibility, and
using comparable advertising mediums with a comparable
degree of diligence and effort, that it does for any other
airline frequent traveler recognition program in which
E-LOAN participates.
B. MPM periodically mails Mileage Plus newsletters and account
statements to Mileage Plus Members. E-LOAN shall have the option
to provide to MPM, for inclusion with newsletter mailings, certain
feature copy that solely promote E-LOAN-Mileage Plus Miles earning
opportunities or awards. If properly submitted, E-LOAN may include
such feature copy, referenced under this Agreement as "Bonus Box
Features," with a minimum of one (1) full file and one (1) Premier
newsletter during each Contract Year of this Agreement. In
addition, E-LOAN shall have the option to provide to MPM, for
inclusion in account statement mailings, certain inserts or
statements messages, which format will be determined at MPM's
discretion, that solely promote E-LOAN-Mileage Plus Miles earnings
opportunities or awards. If properly submitted based on guidelines
provided by Mileage Plus, E-LOAN may include three (3) full file
inserts during each Contract Year of this Agreement. However,
United may at its discretion, substitute (2) full file inserts for
(2) statement messages. If MPM publishes more than one (1)
newsletter during a Contract Year, MPM will determine which
newsletters will include an E-LOAN Bonus Box Feature and MPM will
determine which account statements will include an E-LOAN insert
or statement message, at MPM's discretion, and MPM will make a
reasonable good faith effort to accommodate E-LOAN's requested
publication and insertion schedule. MPM shall also provide launch
coverage through an article in the April, 2001 full file
newsletter.
C. (i) Each offer or insert must meet United MPM's standards of
quality and professionalism as established by United, MPM
and United Networks guidelines, and each insert must
consist of no more than a single sheet of paper. E-LOAN
shall bear the expense of preparing and printing each
insert and providing it to MPM for mailing, and E-LOAN
shall bear any additional postage expense associated with
inclusion of an insert with an account statement, which
insert is more than a single sheet of paper. Any departure
from the standards established by United, MPM and United
Networks in connection with insert mailings must receive
MPM's or United Network's prior written approval.
(ii) After any such mailing, MPM shall advise E-LOAN of the
number of Mileage Plus Members to whom an E-LOAN insert was
mailed. Nothing in this provision obligates MPM to continue
publishing Mileage Plus newsletter issues or account
statements or to publish a minimum number of newsletters or
statements during the term of this Agreement.
D. At least seven (7) days prior to printing, all promotional or
advertising material described in this Article 9 mentioning
United, MPI, MPM, United Networks or FF-LOAN must receive the
applicable party's prior written approval, which approval shall
not be unreasonably withheld,
E. Up to two (2) times each Contract Year, F.-LOAN may request and
MPM shall arrange for E-LOAN to have the right, through a
third-party fulfillment house acceptable to MPM, to solicit the
Mileage Plus membership for E-LOAN direct marketing purposes,
which solicitation must be reviewed and approved by MPM in each
instance.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
F. MPM shall provide the following promotional and advertising
opportunities, at no cost to E-LOAN, during the term of this
Agreement:
(i) E-LOAN inclusion in the United Mileage Plus Member's Guide,
subject to its publication schedule, as well as E-LOAN
inclusion in all United Mileage Plus affiliate listings
(I.E., the Affiliate Column that is on the back page of all
published newsletters) and in the United-Mileage Plus web
site, at <>, featuring two (2) unique
hyper-links (I.E., mortgages and auto loans)'to E-LOAN's
dedicated Mileage Plus web site;
(ii) Two (2) e-mail communications each Contract Year that this
Agreement remains in full force and effect, subject to
United's and United Network's contact management policies,
which e-mails will be dedicated E-LOAN c-mails to announce
and promote the Mileage Plus/E-LOAN affiliation, which will
be e-mailed to the full file of those Mileage Plus Members
who have provided their email addresses to United and who
have opted-in to receive Mileage Plus Program affiliate
offers and communications, and for which E-LOAN will
develop the copy for the e-mails, which copy is subject to
approval by MPM;
(iii) Two (2) e-mail communications each Contract Year that this
Agreement remains in full force and effect, subject to
United's and United Network's contact management policies,
which e-mails will be non-dedicated e-mails identifying and
promoting E-LOAN as a Mileage Plus Program affiliate' and
which will be e-mailed to the full file of those Mileage
Plus Members who have provided their e-mail addresses to
United and who have opted-in to receive Mileage Plus
Program partner offers and communications; and
(iv) Additional B-LOAN Bonus Box Features in selected Mileage
Plus newsletters, account statement inserts and/or database
access when MPM is presented with a unique, compelling and
exclusive mileage-based promotional offer, subject to space
availability and subject to MPM's prior approval.
G. United Networks agrees to facilitate for E-LOAN an introduction to
the United Airlines Credit Union, for the purpose of E-LOAN and
the United Airlines Credit Union to develop and market an employee
loan program that provides United employees with preferred pricing
for consumer loan products from E-LOAN, which program will be made
available at the discretion of the United Airlines Credit Union.
H. In the event that MPM and United Networks do not fulfill their
obligations as set forth in this Article 9, then E-LOAN will have
the right to terminate this Agreement in accordance with Article
21.B. herein.
10. MILEAGE PLUS COORDINATORS
Upon execution of this Agreement, E-LOAN and MPI shall each designate an
individual as its Mileage Plus Coordinator whom the other party may
contact concerning all Mileage Plus Program related matters. Upon
designation of that individual, each party shall provide the other with
the name, address and telephone number of its Mileage Plus Coordinator
and shall thereafter keep the other apprised of any changes in such
information.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
11. TERM AND TERMINATION
A. The term of this Agreement shall commence as of the Effective Date
and shall terminate two years later, on February 28, 2003,
provided, however, that either parry hereto may terminate this
Agreement at any time, for convenience and without cause, by
providing not less than one-hundred-eighty (ISO) days prior
written notice to the other party.
B. Notwithstanding Article 11.A., above, the expiration date of this
Agreement shall be February 28, 2002, if during a mutual
evaluation by the parties hereto after ten (10) months following
the Effective Date of this Agreement, the parties hereto mutually
determine that E-LOAN's performance in the Mileage Plus Program
has fallen short of the mutual expectations of the parties hereto.
Despite any early expiration of this Agreement pursuant to this
Article 11.B., E-LOAN shall be responsible in any case for the
difference between the Cash Minimum for the first Contract Year of
this Agreement and the amounts paid to MPI during that Contract
Year, and MPI will credit E-LOAN with the difference between the
amounts paid during the Contract Year and the Cash Minimum due in
Bonus Miles once such reconciliation payment is received by MPI.
C. Upon termination of this Agreement, by either party for any
reason, E-LOAN shall no longer award new E-LOAN Bonuses or E-LOAN
Additional Bonuses to Mileage Plus Members unless otherwise agreed
by the parties. For a period of 9 months after the effective date
of termination of this Agreement:
(i) E-LOAN will continue to process Mileage Plus Program Miles
previously earned for Qualifying Activity at the E-LOAN Web
Site, and E-LOAN may continue to award Miles for qualified
mortgages and loans for which the mortgage or loan
application was received prior to the effective date of
termination ("Pipeline Loans"); and
(ii) This entire Agreement will remain in effect until the
processing of all Pipeline Loans is complete, or the end of
the 9 months following termination, whichever occurs
earlier.
D. If MPI terminates the Mileage Plus Program, or any subsequent but
substantially similar program then E-LOAN may immediately
terminate its participation under such Program on the same basis
that United terminates its own participation in such Program
E. To the extent that either party terminates this Agreement before
its expiration date, or if this Agreement is not renewed upon its
expiration, then all notices required to be given to Mileage Plus
Members or E-LOAN customers of the conclusion of E-LOAN's
participation in the Mileage Plus Program shall be undertaken by
the respective party at the respective parry's initiative and
expense.
12. NON-EXCLUSIVITY
Nothing described in this Agreement shall be construed as prohibiting
E-LOAN from participating in any other frequent traveler recognition
program with any third party, or as prohibiting United, MPI, MPM or
United Networks from affiliating with any other on-line consumer loan
service.
13. CORPORATE GUARANTEE
MPI shall be solely responsible for and shall procure the performance of
United, MPM and United Networks for all of their obligations stipulated
hereunder.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
14. NON-ASSIGNMENT
Neither party shall assign or otherwise transfer any of its rights or
obligations under this Agreement to any third party without the prior
written consent of the other parry hereto (the "Non-Assigning Party"),
except that either party (the "Assigning Party") may assign this
Agreement to its parent corporation or its holding corporation, or any
subsidiary or affiliate of its parent corporation or its holding
corporation, without consent of the Non-Assigning Party; provided,
however, that such parent corporation, holding corporation, subsidiary or
affiliate assumes all of the obligations of the Assigning Party
hereunder. Any violation of this provision will be cause for immediate
termination of this Agreement or, at the option of the Non-Assigning
Party, the Non-Assigning Party may declare the assignment of any of the
rights or obligations under this Agreement null and void as of the date
of the purported assignment. This Agreement shall be binding upon and
shall inure to the benefit of the permitted successors and assigns of
each party hereto.
15. CHANGE IN OWNERSHIP
Either party may terminate this Agreement immediately, upon written
notice, in recognition that this Agreement may not be the most
appropriate statement of the relationship between the parties, if (i)
either party merges with or acquires control of or a controlling interest
in any third parry or (ii) any third party acquires control of or a
controlling interest in either party hereto.
16. LOGOS AND SERVICE MARKS
A. Neither party hereto shall use any of the other party's names,
logos, logotype, insignia, service marks, trademarks, trade
names, copyrights, corporate goodwill or other proprietary
intellectual property, including without limitation the names
"United Air Lines, Inc .... .. United Airlines," "United,"
"Mileage Plus" or "E-LOAN" in any marketing, advertising or
promotional collateral, including without limitation credit card
or similar solicitations (which are expressly forbidden), except
when each specific use has been approved in advance, in writing,
by the other party. When such approval is granted, either party
shall comply with any and all conditions that the other party
may impose to protect the use of any of that party's names,
logos, logotype, insignia, service marks, trademarks, trade
names, copyrights, corporate goodwill' or other proprietary
intellectual property,
B. Except as expressly provided herein, no right, property,
license, permission or interest of any kind in the use of any
name logo, logotype, insignia, service ▇▇▇▇, trademark, trade
name, copyright, corporate goodwill or other proprietary
intellectual property owned by United, MPI, MPM, United Networks
or E-LOAN is intended to be given to or acquired by the other
party hereto, its agents, servants, and/or other employees by
the execution or performance of this Agreement.
17. CONFIDENTIALITY
A. Except in any proceeding to enforce any of the provisions of
this Agreement, or as required by the Securities Exchange
Commission or other applicable regulatory agency, neither party
(the "User") shall, without the prior written consent of the
other party (the "Owner"), publicize or disclose to any third
party, either directly or indirectly, any of the following (the
"Confidential Information"):
(i) This Agreement or any of the terms or conditions of this
Agreement; or
(ii) Any confidential or proprietary information or data,
either oral or written, received from and designated as
such by the Owner.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
B. If either party is served with a subpoena or other legal process
requiring the production or disclosure of any Confidential
Information, then that party, before complying, shall immediately
notify the Owner and shall use its reasonable efforts to permit
the Owner a reasonable period of time to intervene and contest
production or disclosure.
C. Upon termination or expiration of this Agreement, the User must
return any and all Confidential Information received from the
Owner.
D. Each party shall restrict all Confidential Information provided to
its respective employees and agents on a "need to know" basis.
E. If the User breaches this Article 17, then the Owner may terminate
this Agreement immediately, upon written notice to the User.
F. (i) E-LOAN acknowledges that any failure by it to maintain the
complete confidentiality of the Confidential Information
hereunder will have a direct and severe adverse impact on
United's, MPI's, MPM's and/or United Network's business,
which will subject United, MPI, MPM and/or United Networks
to irreparable harm, and that United, MPI, MPM and/or
United Networks may, without jeopardizing any other rights
or remedies that United, MPI, MPM and/or United Networks
may have, seek a court order or injunction without further
notice to Protect the confidentiality of their information
and to halt any unauthorized disclosure thereof.
(ii) United, MPI, MPM and United Networks acknowledge that any
failure by them to maintain the complete confidentiality of
the Confidential Information hereunder will have a direct
and severe adverse impact on E-LOAN's business, which will
subject E-LOAN to irreparable harm, and that E-LOAN may,
without jeopardizing any other rights or remedies that
E-LOAN may have, seek a court order or injunction without
further notice to protect the confidentiality of its
information and to halt any unauthorized disclosure
thereof.
G. The confidentiality obligations of the parties hereto pursuant to
this Article 17 are of a continuing nature and shall survive the
termination or expiration of this Agreement.
18. TITLE TO DATA
Full title and complete ownership rights to Mileage Plus Program
membership data and information developed by MPI and United, wherever
located, shall 'remain with MPI and United. E-LOAN understands and agrees
that such data and information constitutes MPI's proprietary information
whether or not any portion thereof is or may be validly copyrighted. Any
membership lists, labels, data or other compiled membership information
supplied to E-LOAN in any form by MPI and any and all copies thereof arc
to be used by E-LOAN exclusively in its ,performance of their obligations
pursuant to this Agreement as agreed to by MPI, and will not be otherwise
used, sold, licensed, leased, transferred, e-mailed, bartered, traded,
stored in a retrieval system, duplicated, or transmitted, in any form by
any means, without the prior written consent of MPI.
19. FORCE MAJEURE
Except for any payment obligations, neither party shall be liable for
delays or failure in performance under this Agreement caused by acts of
God, war, strike, labor dispute, work stoppage, fire, act of government,
or any other cause, whether similar or dissimilar, beyond the control of
that party.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
20. RELATIONSHIP OF THE PARTIES
This Agreement is not intended to nor shall it be construed to create or
establish any employer-employee, agency, partnership, or joint venture
relationship between the parties. Neither party shall have any right to
enter into any contract or commitment in the name of the other party, to
incur any obligation for, create any liability for, or bind the other
party in any respect whatsoever.
21. TERMINATION FOR CAUSE
A. If either party (the "Defaulting Party") becomes insolvent; if the
other party (the "Insecure Party") has evidence that the
Defaulting Party is not paying its bills when due without just
cause; if the Defaulting Party takes any step leading to its
cessation as a going concern; or if the Defaulting Party either
ceases or suspends operations for reason other than a strike, then
the Insecure Party may immediately terminate this Agreement upon
written notice to the Defaulting Parry, unless the Defaulting
Party immediately gives' adequate assurance of the future
performance of this Agreement by establishing an irrevocable
letter of credit (issued by a U.S. bank acceptable to the Insecure
Party, on terms and conditions acceptable to the Insecure Party,
and in an amount sufficient to cover all amounts potentially due
from the Defaulting Party under this Agreement) that may be drawn
upon by the Insecure Party if the Defaulting Party does not
fulfill its obligations under this Agreement in a timely manner.
B. If either party (the "Defaulting Party") fails to observe or
perform any of its obligations under this Agreement and if this
failure continues for a period of thirty (30) days after written
notice to the Defaulting Party thereof (except that where the
default is due to any non-payment by E-LOAN of any monthly
report-invoice and such non-payment exceeds ninety (90) days, the
period to cure such non-payment shall be five (5) days after
notice), then, without prejudice to any other rights or remedies
the other parry may have, this Agreement will terminate as of the
expiration date of the notice period.
22. BANKRUPTCY
If bankruptcy proceedings are commenced with respect to either party (the
"Bankrupt Party") and this Agreement has not otherwise terminated, d= the
other party (the "Other Party") may suspend all further performance of
this Agreement until the Bankrupt Parry assumes or rejects this Agreement
pursuant to Section 365 of the U.S. Bankruptcy Code. Any such suspension
of further performance by the Other Parry pending the Bankrupt Party's
assumption or rejection will not be a breach of this Agreement and will
not affect the Other Party's right to pursue or enforce any of its rights
under this Agreement or otherwise.
23. NON-WAIVER
Any previous waiver, forbearance, or course of dealing shall not operate
as or be deemed a waiver of any subsequent default or breach and will not
affect the right of either party to require strict performance and
Observance of any provision of its Agreement.
24. POST-TERMINATION RIGHTS
Exercise by either parry of its right to terminate under any provision of
this Agreement will not affect or impair its right to enforce its other
rights or remedies under this Agreement All obligations of each parry
that have accrued before termination or that are of a continuing nature,
including without limitation any indemnity provisions herein, shall
survive the termination or expiration of this Agreement.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
25. INDEMNIFICATION
A. Except as otherwise provided for in this Agreement, each party
(the "Indemnitor") shall indemnify, defend and hold harmless the
other party, its subsidiaries and affiliates, and their officers,
directors, employees, and agents, (the "Indemnitees") from and
against any and all liabilities, damages, losses, expenses,
claims, demands, suits, fines, or judgments, including but not
limited to reasonable attorneys' fees, costs, and related
expenses, which may be suffered by, accrue against, or be
recovered from any of the Indemnitees resulting from any claim or
suit brought by any third party or parties arising out of or in
connection with:
(i) Any failure of performance or wrongful performance by
the Indemnitor of any of its obligations under this
Agreement; or
(ii) Any negligence or willful misconduct of the Indemnitor
relating to, arising out of or in connection with this
Agreement.
B. Notwithstanding any language in this Agreement to the contrary,
E-LOAN shall indemnify, defend and hold harmless United, MPI, MPM
and United Networks from and against any liability resulting from
any U.S. federal excise tax, interest or penalty due by law under
this Agreement and E-LOAN shall reimburse United, WI, MPM or
United Networks if any of them have properly remitted such tax,
interest or penalty on behalf of E-LOAN. In the event that any
such excise tax is levied upon E-LOAN and if E-LOAN desires to
transfer the economic impact of such tax to the Mileage Plus
membership, then E-LOAN will provide United Networks with written
notice of the E-LOAN rules, regulations, announcements, practices
and procedures related to such transfer that affect or are
directed to the Mileage Plus membership base.
C. For the purposes of this Article 25, each of United, MPM, MPI, MPM
and United Networks, and each of their respective parent and
holding corporations, shall be deemed the Indemnitees of E-LOAN.
D. The indemnity, defend and hold harmless obligations of MPI and
E-LOAN pursuant to this Article 25 are of a continuing nature and
shall survive the termination or expiration of this Agreement.
26. GOVERNING LAW AND JURISDICTION
This Agreement and any dispute arising under or in connection with this
Agreement, including any action in tort shall be governed by and
construed in accordance with the laws of the State of Illinois, U.S.A.,
without regard to any conflicts of laws principles which may direct the
application of the laws of any other jurisdiction. The courts of the
State of Illinois, U.S.A., shall have nonexclusive jurisdiction to settle
any dispute relating to, arising out of or in connection with this
Agreement.
27. COMPLIANCE WITH APPLICABLE LAWS
Each party hereto shall comply with all applicable federal, state and
local laws and regulations with respect to its performance under this
Agreement.
28. DISCLAIMER OF WARRANTIES
ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE,
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Exhibit 10.95
UNITED CONTRACT NO. 14574
29. EXCLUSION OF CONSEQUENTIAL DAMAGES
EXCEPT AS PROVIDED UNDER "INDEMNIFICATION," ABOVE, NEITHER PARTY SHALL BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST REVENUES, LOST PROFITS, OR LOST PROSPECTIVE ECONOMIC
ADVANTAGE, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT BASED ON
CONTRACT, TORT, WARRANTY CLAIMS OR OTHERWISE, ARISING FROM ANY
PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, AND EACH PARTY
HEREBY RELEASES AND WAIVES ANY CLAIMS AGAINST THE OTHER PARTY REGARDING
SUCH DAMAGES.
30. NOTICES
Any notices required to be sent under this Agreement shall be sent by
first class mail, postage prepaid, or any more expedient written means.
Notices sent via electronic means (E.G., telex, e-mail or facsimile) will
be effective immediately if received prior to 5:00 p.m. local time of the
recipient. All other notices shall be effective the first business day
after receipt. Notices shall be addressed to that party or, if the party
so designates, as follows:
If to E-LOAN, address as follows:
E-LOAN, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇▇▇▇, Corporate Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to MPI/MPM/United Networks, address as follows:
United Networks, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
31. SEVERABILITY
Should any clause or any part of any clause of this Agreement be found
invalid or unenforceable, the remainder of this Agreement shall continue
to remain valid and enforceable unless the provision in its modified
state would materially and adversely affect the essence of the Agreement.
The invalid or unenforceable provision shall be deemed modified to the
limited extent required to permit its enforcement in a manner which comes
as close as possible to achieving the intended result of the original
provision.
32. CAPTIONS
The captions appearing in this Agreement have been inserted as a matter
of convenience and in no way define, limit or enlarge the scope of this
Agreement.
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Exhibit 10.95
UNITED CONTRACT NO. 14574
33. ENTIRE AGREEMENT
This Agreement, including Attachment A hereto, constitutes the entire
agreement and understanding of the parties on the subject matter hereof,
and, as of the Effective Date, supersedes all prior agreements, whether
written or oral, between the parties concerning the subject matter
hereof. This Agreement may be modified only by further written agreement
signed by all of the parties hereto.
IN WITNESS WHEREOF, MPI and E-LOAN have executed this Agreement on the
dates reflected below, by their duly authorized representatives, to be effective
as of the Effective Date.
UNITED NETWORKS, INC. E-LOAN, INC.
on behalf of MILEAGE PLUS, INC. on its own behalf
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- ---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- -------------------------
Title: DIRECTOR PARTNERSHIP MARKETING Title: PRESIDENT/COO
-------------------------------- ------------------------
Date: 1/24/01 Date: 1/12/01
--------------------------------- -------------------------
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Exhibit 10.95
ATTACHMENT A
PRIVACY, CONFIDENTIALITY AND NON-SOLICITATION ADDENDUM
THIS PRIVACY, CONFIDENTIALITY AND NON-SOLICITATION ADDENDUM (the
"Addendum") supplements and amends the UNITED MILEAGE PLUS(R) PARTICIPATION
AGREEMENT (the "Agreement") between E-Loan, Inc. ("E-Loan") and Mileage Plus,
Inc. ("MPI") and is effective as of the Effective Date of the Agreement. In the
event of a conflict between the terms of this Addendum and the terms of the
Agreement, the terms of this Addendum, shall control. E-Loan and MPI
specifically agree as follows:
Article 1. Each party shall keep confidential all Non-public Personal
Information, of the other party that is received or obtained during the
negotiation or performance of the Agreement, in accordance with the terms of
this Addendum "Non-public Personal Information" shall include all Personally
Identifiable Financial Information and any list, description or other grouping
of consumers, and publicly available information pertaining to such consumers,
that is derived without using any Personally Identifiable Financial Information
that is not publicly available. "Personally Identifiable Financial Information"
means any information a consumer provides to either party in order to obtain a
financial product or service, any information either party otherwise obtains
about a consumer in connection with providing a financial product or service to
that consumer, and any information about a Consumer resulting from any
transaction involving a financial product or service between either party and a
consumer. Personally Identifiable Financial Information may include, without
limitation, a consumer's first and last name, physical address, zip code, email
address, telephone number, social security number, birth date, and any other
information that itself identifies, or when tied to the above information, may
identify a consumer as such.
Article 2. Each party acknowledges that its privacy notices and privacy policies
are consistent with the Federal Trade Commission's procedures or rules, as
applicable, and comply with acceptable trade practices. In addition, each party
acknowledges and agrees not to disclose, share, rent, sell or transfer to any
third party any Non-public Personal Information, except as specifically required
to satisfy the disclosing party's contractual obligations to the other party,
provided that such disclosure would not violate existing law or the privacy
policy of either party. Each party also agrees not to contact or solicit (for
example, by means of advertising, telemarketing or e-mailing) to any of the
other party's customers, except for such contacts or solicitations to the public
generally that are not based on Non-public Personal Information.
Article 3. It is understood and agreed to by each party hereto that any exchange
of Non-public Personal Information under this Addendum shall be solely for the
purpose of negotiating or performing the Agreement, and shall be provided only
to those authorized individuals of a party who are directly involved in
negotiating or performing the Agreement and who are provided with a copy of this
Addendum and directed by the receiving party to treat such information as
proprietary and confidential.
Article 4. Each party agrees to be responsible for any breach of this Addendum
by any of its directors, officers, employees, agents or advisors (including,
without limitation, any attorneys, accountants, consultants, bankers and
financial advisors). In the event that either party discovers that the other
party's Non-public Personal Information has been used in an unauthorized manner
or disclosed in violation of this Addendum, upon discovery of the unauthorized
use or disclosure, the disclosing party shall immediately notify the other party
of such event and shall indemnify and hold harmless the other party from all
claims, damages, liability, costs and expenses (including court costs and
reasonable attorneys' fees) arising out of or resulting from the unauthorized
use or disclosure. In addition, the nondisclosing Party shall be entitled to all
other remedies available at law or equity, including injunctive relief
Article 5. Upon the request of the disclosing party, the other party shall
promptly return all Non-public. Personal Information received in connection with
the Agreement or Shall Promptly destroy any materials containing such Nonpublic
Personal Information (and any copies, extracts, and summaries thereof, and shall
further provide the other party with written confirmation of such return or
destruction upon request.
ATTACHMENT A
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