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HomeMy WebLinkAboutA3728 - VISA USA PROGRAM MO 5835 Visa U.S.A. Inc. S "Visa, Preferred in Palm Springs" Slogan AGREEMENT #3728 v� M05835, 11-6-96 WORLDWIDE SPONSOR AGREEMENT This Agreement, made this day of Deee , 1996, is between the City of Palm Springs (hereinafter "City"), a municipal corporation, and Visa U.S.A. Inc. (hereinafter "VISA"), with offices at 900 Metro Center Boulevard, Foster City, California 94404 (collectively "Parties"). WHEREAS, the City desires to create and manage a consumer Program (as defined below) that will run between January 1, 1997 and December 31, 1997 (hereinafter "Program Period"); and WHEREAS, the City desires to obtain sponsors for the Program; and WHEREAS, VISA desires to sponsor the Program by providing funding, advertising and other merchandising activities; NOW, THEREFORE, in consideration of the terms and conditions contained herein, the Parties agree as follows: 1. THE PROGRAM. VISA will be the sole sponsor of the Program which City will manage on behalf of VISA and will be entitled "Visa, Preferred in Palm Springs" (hereinafter the "Slogan"). The Program will consist of magazine insert advertising, statement insert advertising, Internet advertising, exclusive offers for Visa cardholders and merchant signage and is further detailed and outlined below. City will manage and coordinate all aspects of the Program, including using best efforts to obtain an executed copy of the merchant participation letter which is attached hereto as exhibit A (hereinafter "Participation Agreement") with a minimum of fifty (50) Palm Springs, CA area merchants for exclusive offers to be made available to Visa cardholders (i.e., customers must use a Visa card to receive the special offers from the Palm Springs, CA area merchants). 2. CITY'S RESPONSIBILITIES. a. Merchant Agreements. City will obtain a minimum of fifty (50) executed Participation Agreements with Palm Springs, CA area merchants already accepting Visa cards to participate in the Program using the Participation Agreement form attached and incorporated into this Agreement as Exhibit A. Each merchant who executes a Participation Agreement 1 MWP/PALM SPRINGS PRUERS VISA VISA U.S.A. INC. • POST OFFICE Box 8999 • SAN FRANCISCO • CALIFORNIA 94128.8999 • (415) 432.3200 1111CT9 (hereinafter "Participating Merchant") will offer a value added offer to all of its customers who mention the Program and pay for their purchases with a Visa card during the Program Period (hereinafter "Value Added Offers"). City further agrees to use best efforts to obtain an additional fifty (50) Participating Merchants to participate in the Program. If any Participating Merchant happens to be a restaurant, then that Participating Merchant must also agree to exclusively use VISA supplied check presenters for a minimum of eighteen (18) months. All Value Added Offers must require use of a Visa card for redemption and when appropriate, must be travel agent commissionable. VISA has right of approval on all Value Added Offers. City will allow VISA at least four (4) business days to review all Value Added Offers and Participation Agreements. b. Point of Purchase Materials and Check Presenters. City will ensure that the appropriate VISA supplied point of purchase materials and check presenters are mailed or delivered to the Participating Merchants prior to the commencement of the Program Period. City will use its best efforts to ensure that the Participating Merchants prominently display the promotional signage and that if the Participating Merchant happens to be a restaurant that it also exclusively uses the VISA supplied check presenters throughout the Program Period. C. Slogan Endorsement. During the Program Period, City agrees to give VISA the right to use the Slogan. d. Press Releases. City and VISA will develop a strategic public relations plan. All news releases and press advisories for the Program must be approved in writing by both Parties prior to release. Both Parties will allow the other Party at least four (41) business days to review all such releases, unless otherwise indicated. City will include all such VISA approved press releases in all mutually agreed upon outgoing media and merchant communications. e. Value Added Offer Booklet. As soon as practicable, City agrees to develop and distribute fifty thousand (50,000) booklets that detail all of the Value Added Offers ("the Booklets"). The Booklets will be distributed at the City Visitor's Center and to consumers who call City's eight hundred (800) telephone number and request one. Additionally, City will use its best efforts to have the Booklets distributed at Participating Merchants. All such Booklets will contain VISA, City, the Participating Merchants, the Value Added Offers and the Slogan and will be subject to VISA's prior written approval which will not be unreasonably withheld. City will allow VISA at least four (4) business days to perform such review. 2 MWP/PALM SPRINGS PREFERS VISA f. Visitors Guide Editorial. As soon as possible, City agrees to include an editorial about the Program in its visitors guide. The editorial will feature VISA, City, the Slogan and the Program and will be subject to VISA's prior written approval which will not be unreasonably withheld. City will allow VISA at least four (4) business days to perform such review. g. Corporate Cards. If at any time during the Program Period, City decides to issue corporate credit cards and purchasing cards to its personnel, City agrees that such cards will be Visa cards. Additionally, if such cards are issued, City agrees to exclusively use the VISA corporate and purchasing cards for appropriate reimbursable business expenditures for a minimum of two (2) years. h. Print Advertising. Unless otherwise indicated by VISA, City agrees to advertise the Program in national and regional magazines at the rate of one hundred and fifty thousand dollars ($150,000.00) worth of media value for every fifty thousand dollars ($50,000.00) that VISA spends on the Program (excluding the costs for the Conde Nast Traveler insert and the $40,000.00 for collateral material in Section 31) as part of the City's regular print advertising during the Program Period. All such print advertising will include VISA, City, the Slogan and the Program and will be subject to VISA's prior written approval which will not be unreasonably withheld. City will allow VISA at least four (4) business days to perform such review. i. On-Hold Messaae Advertising. If on-hold message advertising is developed by City during the Program Period, City agrees to create and advertise the Program as part of the new on-hold telephone message for the remainder of the Program Period. All such message scripts will feature City, VISA and the Program and will be subject to VISA's prior written review which will not be unreasonably withheld. City will allow VISA at least four (4) business days to perform such review. j. Tourist Office Advertising. During the Program Period, City agrees to prominently display the VISA supplied point of purchase materials and Booklets in its Visitor Center. k. Airport Advertising. City agrees to advertise the Program in two (2) mutually agreed upon feeder market airports. It is understood that Conde Nast Traveler will be funding this requirement and that it will be Visa's responsibility to ensure that Conde Nast Traveler funds this requirement. All such advertising will feature the City, VISA and the Slogan and will be subject to the VISA's prior written approval which will not be unreasonably withheld. City will allow VISA at least four (4) business days to perform such review. 3 MWP/PALM SPRINGS PRNPNRS VISA 1. Renewal Right. City agrees to allow VISA an exclusive forty-five (45) day period in which to negotiate a renewal of this Agreement. VISA must inform City of its intention to negotiate for the renewal of this Agreement at least forty-five days prior to the completion of the Program Period. If VISA and City fail to reach an agreement for the renewal of this Agreement in that time period, City agrees to allow VISA one time right of refusal to renew the Program or enter into a new marketing agreement which is substantially similar to any proposed agreement being contemplated between a competitor of VISA and City before City can enter into any agreement with a competitor of VISA for a period of one (1) year after the termination of this Agreement. During the one-year period, the City will provide notice to VISA if the City is contemplating entering a similar marketing agreement with a competitor of VISA, after which the City and VISA shall have forty-five (45) days to negotiate mutually acceptable terms and conditions under which the Parties are willing to re-enter this Agreement. If the Parties do not reach a mutual agreement, then VISA shall have no further right of refusal, and the City shall not be required to notify VISA of any subsequent contemplated agreements. in. Exclusivity. During,the Program Period, City will not promote any other credit, debit, charge card or travelers cheque. This provision will not prohibit City or the Participating Merchants from accepting any other credit, debit, charge card or traveler cheque for payment. City further agrees to not use any form of the word "prefers" in conjunction with any other promotion during the Program Period and through December 31, 1999. n. Internet Advertising. During the Program Period, and until such time as the City's Web page is privatized, City agrees to advertise the Program as part of its regular advertising on the World Wide Web. All such advertising will feature the City, VISA and the Slogan and all uses of or references to VISA names or marks will be subject to VISA's prior written approval which will not be unreasonably withheld. City will allow VISA at least four (4) business days to perform such review. 3. VISA'S RESPONSIBILITIES. a. Funding. VISA will pay City forty thousand dollars ($40,000.00) for the Program. Payment will be due thirty (30) days after the mutual execution of this Agreement. b. Participation Agreement Approval. VISA will approve the Participation Agreements outlined in Section 2.a. above in a timely manner not to exceed four (4) business days. 4 MWP/PALM SPRINGS PREFERS VISA ! ! C. Point of Purchase Materials and Check Presenters. As soon as possible, VISA will supply City with an adequate amount of decals, counter cards and check presenters for use in conjunction with the Program. All such promotional materials will feature VISA, City and the Slogan. d. Internet Advertising. During the Program Period, VISA agrees to advertise the Program on America On Line and the Visa Expo Web site. All such advertising will feature VISA, City, the Slogan and the Program and will be subject to City's prior written approval which will not be unreasonably withheld. VISA will allow City at least four (4) business days to perform such review. e. Press Release. As soon as practicable, VISA agrees to disseminate a press release concerning the Program. The press release will feature VISA, City, the Slogan and the Program and will be subject to the City's prior written approval which will not be unreasonably withheld. VISA will allow the City at least four (4) business days to perform such review. f. Conde Nast Traveler Maf,,azine Insert. VISA agrees to spend sixty thousand dollars ($60,000.00) to advertise the Program as part of a four (4) page insert in the January 1997 edition of the Conde Nast Traveler magazine. All such magazine insert advertising will feature City, VISA, the Slogan and the Program and will be subject to the City's prior written approval which will not be unreasonably withheld. VISA will allow City at least four (4) business days to perform such review. g. Statement Insert Advertisine. VISA agrees to include the Program as part of a February 1997 VISA Instant Rewards Statement Insert that VISA member financial institutions can opt to mail to their respective cardholders informing them of the Program. All such statement inserts will feature City, VISA, the Program and other VISA promotional programs and the City-related portion of the statement insert will be subject to City's prior written approval which will not be unreasonably withheld. VISA will allow City at least four (4) business days to perform such review. h. Trade Advertising. VISA agrees to advertise the Program in at least one select travel trade publications (determined by VISA) with City approval. All such trade advertising will feature City, VISA and the Slogan and City's portion will be subject to City's prior written approval which will not be unreasonably withheld. VISA will allow City at least four (4) business days in which to perform such review. 5 MWP/PALM SPRINGS PREFERS VISA i. Central Reservation Prompting. VISA agrees to advertise the Program on the Apollo/Gallileo CRS system in feeder markets solely determined by VISA during select time periods during the Program Period. Such advertising will have a minimum value of fifty thousand dollars ($50,000.00) and will be subject to City's prior approval which will not be unreasonably withheld. VISA will use its best efforts to allow City at least four (4) business days in which to perform such review. j. Airport Advertising. As soon as practicable and for a minimum of two months, VISA agrees to advertise the Slogan in the Palm Springs Airport and that all such advertising will be subject to City's prior written approval which will not be unreasonably withheld. VISA will allow City at least four (4) business days in which to perform such review. VISA further agrees to inform City of the total costs associated with such advertising. k. Additional Advertising. VISA reserves the right to create and implement additional advertising or promotional activities concerning the Program with the prior written consent of City provided that such consent is not unreasonably withheld. 4. COMPLIANCE WITH LAW. City and VISA each will be responsible separately for complying with all federal, state, or local laws and regulations applicable to their portions of the Program. In addition, each Party will be responsible for ensuring that its performance of this Agreement will not cause it to violate any pre-existing agreement to which it is a party. Both City and VISA will have the right to exclude Participating Merchants from the Program if they determine that applicable law or compliance with the provisions of this Agreement requires such exclusion and will notify the other of such exclusion in writing. Each Party's approval of advertising copy submitted by the other Party does not relieve the submitting Party of such responsibility for complying with applicable law. 5. USE OF TRADE AND SERVICE MARKS. Unless otherwise agreed to in writing by both Parties, nothing contained herein will give either Party a license or other right to use the trade or service marks or other intellectual property rights of the other Party. Any such use will require the prior written consent of the Party that owns the marks. 6. CONFIDENTIALITY. City and VISA agree that they will not use in any way for their own account or the account of any third party, nor disclose to any third party, any confidential information revealed to them by the other Party. City and VISA will designate on any disclosure containing confidential information that such information is considered confidential and not to be 6 MWP/PALIVI SPRINGS PREFERS VISA disclosed to third parties. Both Parties will take every reasonable precaution to protect the confidentiality of such information. This provision will not apply to information which is subject to public disclosure under the California Public Records Act Government Code Sections 6250 through 6270 or which is rightfully obtained from third parties. 7. TERM AND TERMINATION. This Agreement will be effective on the date first written above and will terminate on January 1, 1999. However, both Parties' rights pursuant to Section 8 below, Sections 2.g. and 2.1. above and the last sentence in Section 2.m. above will survive the termination of this Agreement. Each Party will have the right to terminate this Agreement for the uncured default by the other Party of any of its terms by providing written notice specifying the particulars of the default. If the default is not cured within thirty (30) days after such notice is given, the non-defaulting Party may terminate this Agreement :immediately upon providing written notice to the defaulting Party. Each Party will have the right to terminate this Agreement without cause on ninety (90) day's prior written notice provided that the Party seeking such termination agrees to engage in good faith negotiations to arrange for a mutually satisfactory end to this Agreement which will include a pro-rata return of all unused sponsorship monies paid through the termination date. S. INDEMNIFICATION. City will indemnify and hold harmless VISA, Visa International Service Association (the owner of the Visa trademarks) their affiliates and subsidiaries and their respective Member financial institutions, officers, directors, employees, attorneys, agents, successors and assigns from any claims, damages, liabilities, losses, government procedures and costs, including reasonable attorneys' fees and costs of suit, arising from City's or its employees' or agents' failure to comply with applicable laws and regulations, unauthorized use of VISA's trademarks, infringement of a third party's intellectual property or publicity rights, negligence or willful misconduct in connection with performance of this Agreement, including property damage, personal injury, death, or other damage sustained by individuals on City property, misrepresentation, or breach of any warranty, obligation or covenant of this Agreement. The Participating Merchants are not to be considered as part of the City or its employees or agents for the purposes of this Agreement. Visa will indemnify and hold harmless City and its officers, directors, employees, attorneys, agents, successors and assigns from any claims, damages, liabilities, losses, government procedures and costs, including reasonable attorneys' fees and costs of suit, arising from VISA's or its 7 MWPIPALM SPRINGS PREFERS VISA employee's or agent's failure to comply with applicable laws and regulations, unauthorized use of City's trademarks, infringement of a third party's intellectual property or publicity rights, negligence or willful misconduct in connection with performance of this Agreement, including property damage, personal injury, death, or other damage sustained by individuals at VISA's locations, misrepresentation or breach of any warranty, obligation or covenant of this Agreement, or any claim asserted by any of VISA's competitors against City related to this Agreement provided that (i) VISA is given prompt notice of such claim and (ii) VISA controls all aspects of the litigation. Neither Party will be obligated to indemnify the other Party for indirect, special, consequential, or incidental damages. 9. RELATIONSHIP OF THE PARTIES. City and VISA are independent contractors, and this Agreement does not create a partnership, agency,joint venture, or employee/employer relationship between them. VISA will not be responsible for the withholding or payment of any taxes on compensation received by City or any Participating Merchant under this Agreement. 10. NOTICES. All notices required under this Agreement will be in writing and sent by prepaid mail, overnight courier service, or facsimile to the addresses below, and will be effective on the day mailed or transmitted. Each Party will advise the other when notice addresses change. To City: The Palm Springs Office of Tourism 401 South Pavilion Way Palm Springs, CA 92263-2743 Attn: Murrell Foster, Executive Director Phone: (619) 778-8415 Fax: (619) 323-3021 To VISA: VISA U.S.A. Inc. P. O. Box 8999 San Francisco, CA 94128-8999 Attn: Mr. Thomas Edwards, MS MI-10T Phone: (415) 432-2904 Fax: {415) 432-2910 Street Address: 900 Metro Center Boulevard Foster City, CA 94404 8 MWP/PALM SPRINGS PREFERS VISA 11. EXCUSABLE DELAYS. If the Program does not take place because of any act of God and/or force majeure, such as weather, fire, flood, strike, labor dispute, or similar cause beyond the control of the Parties, each Party will be excused from performance of its obligations hereunder and the Agreement shall be terminated. If any other obligation of this Agreement is not performed due to an act of God and/or force majeure, Visa will be entitled to an expeditious refund, on a pro rata basis, of any unused portion of the payments made to The City. 12. ASSIGNMENT. This Agreement will be binding on and inure to the benefit of each of the Parties, their successors and assigns. It may not be assigned or transferred, in whole or in part, without the written consent of the other Party. Any such assignment or transfer without consent will be void. 13. SEVERABILITY. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such term, provision, covenant or condition will be adjusted, rather than voided, if possible, to achieve the intent of the Parties. The rest of the Agreement will remain in full force and effect and will in no way be affected, impaired or invalidated, unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 14. WAIVER; MODIFICATIONS. No delay or omission in the exercise of any right or remedy by a nondefaulting party or any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and no waiver of any breach or condition of this Agreement will be deemed to be a waiver of any other subsequent breach or condition, whether of like or different nature. This Agreement may be modified only in a writing signed by authorized representatives of the Parties. 15. GOVERNING LAW. This Agreement will be governed by the laws of the State of California, without giving effect to its conflict of law provisions. 16. ENTIRE AGREEMENT. This is the entire Agreement between the Parties and supersedes all previous oral or written understandings between them on the subject matter hereof. No oral agreement or previous negotiations, arrangements, agreements and understandings, if any, between the parties shall be used to interpret this Agreement. 17. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES. No officer or employee of the City shall be personally liable to VISA, or any successor in interest, in the event of any default or breach by the City or for 9 MWP/PALM SPRINGS PREFERS VISA any amount which may become due to VISA or to its successor, or for breach of any obligation of the terms of this Agreement. 18. CONFLICT OF INTEREST. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects his financial interest or the financial interest of any corporation, partnership or association in which he is directly or indirectly interested in violation of any State statute or regulation. VISA warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be signed and delivered by its duly authorized officer on the date first written above. VISA U.S.A. INC. CITY ALM-S-Pf23N. S, CALIFORNIA ("VISA") O.F P- - - -� Name i` ' City Manager Title � y ATTEST: City of Palm Springs, California Date City Clerk �,. a`��'E'R'OOA7-DBYylas I1� C®UNCE" 10 MWP/PALM SPRINGS PREFERS VISA PALM SPRINGS PREFERS VISA PARTICIPATION AGREEMENT EFFECTIVE DATE: COMPANY NAME ("PARTICIPANT"): ADDRESS: CONTACT: PHONE NUMBER: PARTICIPANT (herein defined as a merchant, manufacturer or agent of a merchant or manufacturer) agrees to continue to accept Visa cards, and/or cause its merchant outlets or agents to accept such cards for goods and services, and to honor and/or have its merchant outlets or agents honor all requests from Visa cardholders in response to the dollar discounts or offers made through the Palm Springs Prefers Visa program ("Program"). The Program will run from January 1, 1997 through December 31, 1997 ("Program Period"). The dollar discount or offer to be included in the Program is: TITLE: DOLLAR DISCOUNT OR OFFER: ("Offer") (THE OFFER CAN NOT INCLUDE ALCOHOLIC BERAGES IN ANY WAYO The promotional copy describing the Offer to be used is(40 words or less): Participant agrees that Visa U.S.A. Inc. will have the right of prior approval on the Offer. Visa's execution of this Agreement will indicate such approval. It is further agreed that the above Offer will be deemed not approved until Visa U.S.A. Inc. executes this Agreement. Participant will provide Visa with copy and artwork for preparation of the listing for the Offer. Participant will ensure that all copy for the Offer complies with all applicable legal requirements. Participant agrees to provide Visa, within 45 days after the Program's expiration date,with its best estimate of number of cardholders responding to the Offer. As a participant in the Program, Participant agrees that during the Program Period, the Offer will be exclusive and made available to Visa cardholders only. Participant agrees to fulfill or have its merchant outlets or agents fulfill all claims on the Offer and will not make the same or more favorable Offer through a direct or other marketing channel during the Program Period. In addition, Participant agrees not to offer a similar or more favorable Offer in connection with any other credit, debit or charge card or travelers check, including without limitation, American Express,MasterCard,Discover,Cirrus,JCB,Eurocard, Eurocheque or Europay during the Program Period. 0 0 Participant agrees to fulfill or have its merchant outlets or agents fulfill all Offers during the Program Period. Participant agrees to accept and will have its merchant outlets or agents accept and fulfill all Offers in accordance with its normally established business practices. Participant agrees to stock or have its merchant outlets or agents stock sufficient goods and arrange for sufficient services on the first day of the Program Period to satisfy expected consumer requests in at least the first 30 days of the Program Period. If Participant does not fulfill its marketed promise to consumers requesting the Offer,Visa will have the sole right to cancel this Agreement. This paragraph in no way will limit Visa's rights pursuant to the indemnification paragraph of this Agreement. If Participant is a restaurant, then Participant also agrees to exclusively use Visa supplied check presenters from the date in which they are received by Participant through May 31, 1998. During the Program Period, Participant will maintain or have its participating merchant outlets or agents maintain at its or their expense agreements with a Visa Member Financial Institution ("MM") for the acceptance of Visa cards for purchases. Participant will comply and will use its best efforts to ensure that its merchant outlets or agents comply with the terms and conditions of such agreements. Visa will have no responsibility whatsoever to Participant or its merchant outlets or agents for claims of Visa cardholders or those arising under Participant's, merchants' or agents' agreements with the MFI's. Participant will not use data from cardholders- responding to the Offer for any purpose not related to the Program. Visa has made no prediction or representation whatsoever, including any regarding Participant's or its merchant outlets'or agents'sales or profits,on the anticipated response to the Program by Visa cardholders. Neither party grants to the other any right to use its trademarks or trade names without its prior written consent. Participant and its merchant outlets or agents are not hereby granted any right to use Visa's trademarks or trade names without Visa's prior written permission, other than rights granted to Participant or the merchant outlets or agents in their written agreements with a MFI for accepting Visa cards. Participant agrees to indemnify, defend and hold harmless Visa and its MFIs from any claim or liability, including injury or death, directly or indirectly arising from breach of any warranty, representation, provision of products or services by Participant,failure to fulfill orders or rebates or dollar discounts or failure to honor Visa cards. This is the entire agreement and understanding between us regarding the subject matter herein. All prior oral or written understandings have been incorporated into this Agreement. Subsequent modifications must be in writing and signed by both parties. VISA U.S.A.INC. ("Participant") ("VISA") By By Name Name Title Title Date Date 50A 43 2