**Execution Copy**Communication Channel to communicate the Invitation to each Business Customer in the TargetPopulation and may, with the express prior consent of American Express, communicate the Invitationto only a subset of the Target Population. Advanta may only discuss and communicate the Invitationduring the Referral Window and may only discuss and communicate the Invitation to the TargetPopulation; Advanta’s authorization to communicate the Invitation expires on the last day of theReferral Window. Advanta is providing referral services only and is not authorized hereunder to,and hereby covenants that it will not, discuss or describe any products or services issued by Amexor its parent or Affiliates, except as explicitly authorized by American Express.1.2 In no event and under no circumstances may Advanta discuss or communicate the Invitation alongwith any invitation to apply for, offer to receive, or the like with respect to any charge card,credit card, debit card or other payment network, device or process, other than such a card orother payment network, device or process that is issued, sold or made available by any entity otherthan American Express, its parent or an affiliate thereof.1.3 Advanta shall not, at any time during the Referral Window (and, as to any Business Customer inthe Tier 1 Target Population, until the one-year anniversary of the Effective Date), communicate tothe Target Population any invitation to apply for, offers to receive, or the like with respect toany charge card, credit card, debit card or other payment network, device or process, other thansuch a card or other payment network, device or process that is issued by American Express or anyperson controlled by, controlling or under common control with (each such person an“affiliate”) American Express, provided that Advanta may continue to market merchant cardacceptance services on behalf of First Data Merchant Services Corporation (FDMS), pursuant to itsagreement with FDMS.1.4 Subject to the terms of this Agreement, including, but not limited to, Section 4.8 below, atany time during the Referral Window and ten (10) calendar days thereafter, American Express may usethe Business Customer Information to communicate the Invitation to Business Customers in the TargetPopulation.1.5 Each party shall only communicate the Invitation and use distribution materials, including,without limitation, telephone scripts, e-mail messages and direct mail collateral (collectively,“Campaign Materials”), that is pre-approved by both parties and the same may be used onlyin strict compliance with the written instructions of OPEN (with respect to communication to bemade by Advanta) or Advanta (with respect to communication to be made by American Express), asapplicable, with respect thereto. You and American Express each have the right, each in its soleand absolute discretion, to approve or disapprove any proposed Campaign Materials andcommunications. In the event that either party desires to modify any Campaign Materials proposedby the other party, such party shall communicate such desired modifications to the other partywithin one (1) business day after such party’s receipt of any such proposed Campaign Materials andboth parties shall mutually agree on the Campaign Materials to be used within one (1) business dayfollowing such party’s notification to the other party of its desired modifications.
 
 

 
**Execution Copy**1.6 In no event and under no circumstances may Advanta share or disclose the Business CustomerInformation of the Target Population to issuers of charge cards, credit cards, debit cards or topayment network or payment processors except for the servicing of Advanta accounts.Notwithstanding anything to the contrary in this Agreement, no provisions of this Agreement shalllimit or constrain Advanta’s use of any Business Customer Information that American Express isobligated to return or destroy pursuant to Section 8.7 from and after the time such obligationarises.1.7 If we determine, in our sole discretion, that your website is unsuitable for the Campaign, wemay revoke your authorization to use your website Communication Channel in connection with theCampaign and/or to terminate this Agreement upon Notice to you. As used in the preceding sentence,websites unsuitable for the Campaign include, without limitation, websites that, in AmericanExpress’s sole judgment:(i) promote pornography,(ii) promote gambling,(iii) are otherwise offensive,(iv) are defamatory or libelous,(v) promote violence or contains hate speech,(vi) are aesthetically unpleasing, or(vii) target a non-U.S. based audience.2. RESERVED3. YOUR RESPONSIBILITIES IN CONNECTION WITH THE CAMPAIGN3.1 You shall conduct the Campaign as provided in this Agreement. You shall create, implement andexecute a customized, “high-touch” communication strategy with respect to the Tier 1 TargetPopulation identified on Attachment 2 to Schedule B and American Express shall reasonably cooperatein such strategy, all subject to American Express’s prior approval, as provided herein. Allcommunications in connection with the Campaign shall include a disclosure to the Business Customersthat, if they accept the Invitation, Advanta may share certain information about such BusinessCustomers and their Advanta accounts with American Express in order to process the application.3.2 Except as otherwise expressly provided in this Agreement, you will be solely responsible forall of your Campaign Materials and communications. Unless expressly agreed by American Express inits sole and absolute discretion, recorded message calls shall not refer to American Express or useany branding, names, domain names, trademarks, trade names, trade dress or logos (“Marks”)belonging to American Express (“American Express Marks”). We
 
 

 
**Execution Copy**disclaim all liability for such materials and communications, except to the extent that the same,and your use thereof, is in strict compliance with that which has been pre-approved andpre-authorized by us and are not changed by you. You are also responsible for notifying us of anyproblems with your participation in the Campaign in accordance with the terms of this Agreement.American Express (or a designee) will respond in normal course to all concerns upon notification.3.3 You shall not seek to acquire prospects for American Express by representing that you canmaintain, accept or refer applications for any American Express products or services. Other thanyour specific duties under this Agreement, you shall refrain from any activities that could bereasonably construed as you acting as an official American Express representative, including, butnot limited to, sending e-mail (except to the extent expressly required and/or permitted hereby)about American Express, its products or services; maintaining, accepting or referring AmericanExpress card applications; or collecting personal information in conjunction with any applicationfor an OPEN Card Account. In the event that you engage in any of the activities described in thisSection 3.3, American Express may terminate this Agreement by Notice to you and the parties agreethat American Express may seek immediate injunctive relief against, and monetary damages from, you.3.4 Subject to Section 3.2, you shall change or modify content and/or creative features of Campaignmaterials communications that describe American Express products or services upon notification by,and strictly in accordance with the specifications provided by American Express by Notice to you.American Express shall not request any such changes that are inconsistent with this Agreement orthe Campaign. If you continue to use such Campaign materials or communications after such Noticeand fail promptly to make the changes or modifications required by such Notice or if you makechange to the Campaign communications other than those prescribed by or consented to by AmericanExpress in its sole and absolute discretion, American Express maintains the right to terminate thisAgreement by Notice to you and you shall have the obligation to indemnify, as provided in Section10 below. American Express will use commercially reasonable efforts to provide Notice at least one(1) business day prior to the effective date of any such change or modification.3.5 On the Effective Date, Advanta shall disclose to American Express the information listed onSchedule D with respect to the Target Population (the “Business Customer Information”) and,subject to the provisions of this Agreement, Advanta hereby authorizes American Express tocommunicate the Invitation directly to the Target Population. In disclosing the Business CustomerInformation pursuant to this Agreement, you shall comply with your privacy policies as well asapplicable privacy and data security laws. You shall honor all applicable opt-out elections madeby your customers and shall not disclose to us any information that you are not permitted orauthorized to disclose.3.6 Advanta shall be responsible for all of its costs related to its communication of theInvitation to the Target Population, including, without limitation all costs in connection with itsactivities via the approved Advanta communication channels. Advanta shall not, and herebycovenants and agrees that it will not, offer to any of its customers any incentive whatsoeverbeyond the value proposition of the OPEN Cards for which customers are referred in connection
 
 

 
**Execution Copy**with the Campaign or applications by its Business Customers for an OPEN Card, provided that Advantamay make normal servicing or collections adjustments (such as the waiver of fees) for its customersin the context of servicing Advanta accounts, even though Advanta may communicate an Invitationduring such servicing, provided that such adjustments are not conditioned on the customer’sapplication for, or receipt or use of, an OPEN Card Account. In the event that you materiallyviolate your covenant in the immediately preceding sentence as to any Business Customer, you willforfeit all Referral Fees hereunder as to that Business Customer.3.7 Advanta shall assign a unique source code to each Communication Channel and to each othermarketing channel that the parties mutually agree to include in the Campaign. Advanta shallmaintain, at its expense, one or more webpages accessed by one or more unique urls in theadvanta.com domain, each of which will identify and record Business Customer in the TargetPopulation who visits such website as a Business Customer in the Target Population who accessed theInvitation. Within seven (7) calendar days following the end of each calendar month of the term ofthis Agreement, Advanta shall provide to American Express in electronic format reasonablyacceptable to American Express reports with respect to the performance of the Campaign, includingAdvanta Communication Channel traffic from the Target Population and the number of BusinessCustomers in the Target Population who accessed Invitations.3.8 In order to use your website Communication Channel to participate in the Campaign, your websitemust contain a privacy statement substantially similar to the privacy policy contained in ScheduleF.3.9 As between the parties, you will be solely responsible for the development, operation andmaintenance of your website.3.10 No more than one (1) time (but including follow up investigations on items identified in suchaudit) within the nine (9) month period following the Effective Date, Advanta shall allow a thirdparty approved by Advanta, which consent shall not be unreasonably withheld, conditioned ordelayed, on behalf of American Express, at American Express’s cost, to inspect and audit theapplicable books and records of Advanta to reconcile the unique Advanta customer identificationnumbers that appear on Schedule B with the Business Customer Information. Any such audit shall beconducted upon reasonable advance Notice and during normal business hours and pursuant to suchthird party’s written agreement with American Express to maintain the confidentiality ofinformation audited (or pursuant to professional duties to similar effect). If American Expressbecomes aware of any violation by such third party of such confidentiality obligations, it shallpromptly notify Advanta and take all reasonable steps required to prevent further breach anddisclosure; provided, however, that American Express shall be liable for any breach by such agentof, or failure by such third party to comply with such obligation and that such a breach or failureto comply by such agent will be deemed a breach of this Agreement by American Express. Advantashall cooperate with any such audit. Upon American Express’s request, Advanta shall provide,within a reasonable period, documentation and information necessary for American Express to answerinquiries of auditors and regulatory authorities. Notwithstanding anything to the contrary in thisAgreement, any disclosure of or access to confidential or personally identifiable information issubject to Advanta privacy policies, provided that Advanta represents and warrants that its privacy policies will not materially impedeor impair and effective audit.
 
 

 
**Execution Copy**4. OUR RIGHTS AND RESPONSIBILITIES4.1 American Express shall assign unique source codes to the approved Communication Channels thatmay be used in connection with Campaign. American Express shall use commercially reasonableefforts to maintain, at its expense, one or more unique toll-free telephone numbers and one or morewebpages accessed by one or more unique urls, each of which will identify and record each submittedapplication as referred by you pursuant to the Campaign (provided that such identification shallnot establish the submitted application as having been submitted by a Business Customer in theTarget Population) and shall use commercially reasonable efforts to maintain the accessibility ofsuch telephone numbers and websites throughout the Referral Window and ten (10) days thereafter.American Express shall have the sole right and responsibility for processing all applications madeby Business Customers. You acknowledge that all agreements relating to applications by BusinessCustomers shall be between American Express and the Business Customer. Business Customers whoapply for, and receive, OPEN Card Accounts through the Campaign will be deemed to be customers ofAmerican Express. Accordingly, all applicable American Express rules, policies, and operatingprocedures concerning customer applications, customer service, customer data, and producttransactions will apply to those customers with respect to their OPEN Card Account(s). We maychange our policies and operating procedures at any time. For example, we will determine theprices to be charged for products marketed under this Campaign in accordance with our own pricingpolicies.4.2 With respect to the OPEN Card Accounts in connection with the Campaign:(i) All communications discussing OPEN products will indicate that American Express Bank, FSB(“AEFSB”) or an affiliate thereof is the issuer of such OPEN Cards.(ii) (a) AEFSB will accept or reject any application for an OPEN Card Account basedsolely upon application of AEFSB’s credit criteria, in its sole discretion.(b)    Upon satisfaction by an applicant of AEFSB’s applicable credit criteria,AEFSB shall establish an OPEN Card Account for, and issue an OPEN card to, eachqualifying applicant.(c)    Except as otherwise provided herein, after referring a Business Customer toAmerican Express, Advanta will not participate or attempt to participate in the creditapplication process.(iii) AEFSB shall own, maintain and service the OPEN Card Accounts and shall extend creditwith respect to all OPEN Card Accounts, and Advanta shall have no obligations orresponsibilities for or be considered a creditor or service provider with respect to any OPENCard Account for any purpose whatsoever. As between Advanta and American Express, AmericanExpress (or an affiliate thereof) shall be solely responsible for the
 
 

 
**Execution Copy**establishment, maintenance and servicing of the OPEN Card Accounts, and shall be solelyresponsible for all credit and fraud losses on the OPEN Card Accounts. American Express maycancel or suspend credit privileges of any OPEN Card Account customer if American Expressdetermines such action is warranted in accordance with its applicable credit policies andprocedures. American Express (or its affiliate) shall be permitted to transfer ownership ofthe OPEN Card Accounts in connection with the securitization and other financing conducted inthe ordinary course of its business. The parties acknowledge that AEFSB is the issuer of theOPEN Card Accounts under this Agreement and that nothing in this Section 4.2 or otherwise inthis Agreement or anywhere else shall be deemed to imply in any way that Advanta, directly orindirectly, issues OPEN Card Accounts in connection with the Campaign or otherwise directly orindirectly issues OPEN card products. American Express (or its affiliate) shall have the solediscretion to delete, add or amend the features and benefits of the OPEN Card Accounts.4.3 American Express (or its affiliate) shall perform all functions and services that are requiredto establish, maintain and administer the OPEN Card Accounts. American Express (or its affiliate)will apply its standard servicing standards in all circumstances, including but not limited to,when making credit-line adjustments, re-pricing the terms of an OPEN Card Account, authorizingtransactions at the point of sale that involve credit limit overrides, that are generallyconsistent in all material respects the servicing standards applied to OPEN Card Accounts notreferred by Advanta.4.4 Except as otherwise expressly provided in this Agreement, American Express shall be responsiblefor its costs related to opening and operating the OPEN Card Accounts, including, but not limitedto, credit-bureau costs, pre-screening and post-screening costs, credit-authorization costs,card-production costs, processing, servicing, administration, compliance, billing and collectioncosts, the cost of funding the card receivables and credit and fraud losses on the OPEN CardAccounts.4.5 American Express will not, and is not obligated to, make any representations, warranties, orother statements concerning you, your communication channels, any of your products or services, orany of your policies, procedures and practices.4.6 Except as otherwise expressly provided in this Agreement, American Express will be solelyresponsible for all of its Campaign Materials and communications. Advanta disclaims all liabilityfor such materials and communications, except to the extent that the same, and your use thereof, isin strict compliance with that which has been pre-approved and pre-authorized by you and are notchanged by us.4.7 American Express shall comply with Advanta’s privacy policies, and applicable privacy and datasecurity laws in dealing with the Business Customer Information. Except as provided in Section4.8, American Express shall not use the Business Customer Information except to identify BusinessCustomers in the Target Population, to communicate with them pursuant to Section 1.4, to evaluatetheir applications for OPEN Card Accounts, to service OPEN Card Accounts opened in connection withthe Campaign, and to determine Advanta’s entitlement to a Referral Fee. Without limiting theforegoing, except as provided in Section 1.4, American Express shall not allow any third party toaccess or use the Business Customer Information, other than service providers acting on its behalf to perform actions that would be permitted under thisSection 4.7 if conducted by American Express directly.
 
 

 
**Execution Copy**4.8 (i) If American Express opens an OPEN Card Account for a Business Customer in the TargetPopulation and is obligated to pay a Referral Fee (or has a right of set-off against a Referral Feein accordance with Section 16.9) with respect thereto (subject to the fulfillment of therequirement in Section 1(iii) or Section 2(iv), as applicable, of Schedule B), it may thereafteruse any Business Customer Information as to that Business Customer in any manner permitted byAdvanta’s privacy policy or American Express’s privacy policy, as applicable, and applicable law inperpetuity.(ii) American Express may also use any Business Customer Information as to any BusinessCustomer in the Tier 1 Target Population (as defined in Schedule B) in any manner permitted byAdvanta’s privacy policy and applicable law in perpetuity.4.9 No more than one (1) time (but including follow up investigations on items identified in suchaudit) within the nine (9) month period following the Effective Date, American Express shall allowa third party approved by American Express, which consent shall not be unreasonably withheld,conditioned or delayed, on behalf of Advanta, at Advanta’s cost, to inspect and audit theapplicable books and records of American Express relating to the calculation of Referral Fees, andthe handling and use of Business Customer Information. Any such audit shall be conducted uponreasonable advance Notice and during normal business hours and pursuant to such third party’swritten agreement with Advanta to maintain the confidentiality of information audited (or pursuantto professional duties to similar effect). If you become aware of any violation by such thirdparty of such confidentiality obligations, you shall promptly notify American Express and take allreasonable steps required to prevent further breach and disclosure; provided, however, that youshall be liable for any breach by such agent of, or failure by such third party to comply with suchobligation and that such a breach or failure to comply by such agent will be deemed a breach ofthis Agreement by you. American Express shall cooperate with any such audit. Upon Advanta’srequest, American Express shall provide, within a reasonable period, documentation and informationnecessary for Advanta to answer inquiries of auditors and regulatory authorities. Notwithstandinganything to the contrary in this Agreement, any disclosure of or access to confidential orpersonally identifiable information is subject to American Express privacy policies, provided thatAmerican Express represents and warrants that its privacy policies will not materially impede orimpair and effective audit.4.10 Notwithstanding anything to the contrary in this Agreement, American Express shall not offer abalance transfer to any Business Customer in the Target Population with respect to any balance suchBusiness Customer has on any Advanta account, whether during or after the term of this Agreementand whether before of after the opening of an OPEN Card Account for such Business Customer.4.11 As between the parties, American Express will be solely responsible for the development,operation and maintenance of its website.
 
 

 
**Execution Copy**5. REFERRAL FEES5.1 We agree to pay you the Referral Fees, subject to, and as specified on, Schedule B. Eachpayment shall be accompanied by a report showing, on an aggregated basis, the number of OPEN CardAccounts with respect to which you have earned a Referral Fee for the previous week and for theyear to date. You acknowledge that American Express’s tracking services are subject to factorsbeyond American Express’s reasonable control that may cause certain discrepancies in matching OPENCard Accounts to an Advanta source code. You acknowledge that such discrepancies are unavoidableand, to the extent not attributable to American Express’s gross negligence or willful misconduct,will not constitute a material breach of this Agreement, provided that nothing in this or thepreceding sentence shall affect Advanta’s rights to Referral Fees, as specified on Schedule B.5.2 American Express will determine in good faith whether a Referral Fees is payable pursuant toSection 5.1. Subject to correction pursuant to an audit pursuant to Section 4.9, suchdeterminations shall bind the parties.6. REFERRAL FEE PAYMENTBeginning at the end of the first calendar week (ending Sunday) after the date of this Agreement,American Express will pay you the Referral Fees earned on a weekly basis within seven (7) businessdays after the end of each calendar week. All payments pursuant to this Section 6 shall be inimmediately available funds by wire transfer pursuant to instructions provided by you. You areonly eligible to earn Referral Fees on Qualifying Referrals (as defined in Schedule B) occurringduring the Referral Window, ten (10) calendar days thereafter and such longer period, if any,during which American Express maintains its designated telephone lines and urls pursuant to Section8.6.7. OWNERSHIP, LICENSES AND CONFIDENTIALITY7.1 Each party owns and shall retain all right, title, and interest in its Marks, copyrights andproprietary technology, including, without limitation, those Marks, copyrights, and proprietarytechnology currently used or which may be developed and/or used by it in the future. Withoutlimiting the generality of the foregoing, and except as provided in Section 4.8, you shall retainall ownership rights to all Business Customer Information.7.2 We grant you a limited, revocable, non-exclusive license to use the graphic image and text,which may include American Express Marks, designated by us for your authorized use in connectionwith specific Campaign activities pursuant to this Agreement. Except as expressly set forth inthis Agreement or permitted by applicable law, you may not copy, distribute, modify, reverseengineer, or create derivative works from the American Express Marks or any part thereof. You maynot sublicense, assign, or transfer such license for the use of the American Express Marks or anypart thereof, and any attempt at such sublicense, assignment, or transfer is void ab initio,provided that the parties understand and agree that you may use third party service providers forCampaign fulfillment, such as sending e-mails and printing and mailing communications. You agreeto follow the American Express Brand Use Guidelines and the
 
 

 
**Execution Copy**OPEN Brand Use Guidelines attached hereto as Schedule C and, upon Notice to you, as modified by usfrom time to time. We may revoke your license at any time by giving you Notice. Upon any suchrevocation, other than for your material breach of this Agreement, you may terminate this Agreementby Notice to American Express.7.3 You agree to (a) cooperate with American Express in facilitating American Express’s control ofthe nature and quality of your use of the American Express Marks and (b) upon request, supplyAmerican Express or its designee with specimens of your use of the American Express Marks, ifapplicable.7.4 As a condition to your acceptance and participation in the Campaign, you shall not undertake orengage in the following practices, and any violation of this Section 7.4 shall be deemed a materialbreach of this Agreement: (a) Except as expressly agreed by American Express, use or otherwiseincorporate any American Express branded terms, the terms “American Express” or “Amex”, AmericanExpress product names, or any other American Express Marks (including, without limitation, theAmerican Express Marks set forth on Schedule E hereto), or variations, misspellings orportions of any of the foregoing, in the domain name(s) of any of your websites or in any of theCommunication Channels; (b) Make any representations, either express or implied, or create anappearance that a caller to Advanta or recipient of any communication from Advanta is calling orreceiving a communication from American Express; (c) bid on and/or purchase American Expressbranded terms, the terms “American Express” or “Amex”, American Express product names, or any otherAmerican Express Marks (including without limitation, the American Express Marks set forth inSchedule E hereto), or variation or misspelling of any of the foregoing, through aninternet search auction or otherwise; or (d) during and after the term of this Agreement, use anyMark which is confusingly similar to “American Express” or “Amex” or any other American ExpressMark.7.5 You will not, in connection with this Agreement, have any access whatsoever to the AmericanExpress website or any portion thereof.7.6 You grant us a limited, revocable, non-exclusive license to use the graphic image and text,which may include your Marks (collectively, the “Advanta Marks”), designated by you for ourauthorized use in connection with specific activities pursuant to Section 1.4 of this Agreement.Except as expressly set forth in this Agreement or permitted by applicable law, we may not copy,distribute, modify, reverse engineer, or create derivative works from the Advanta Marks or any partthereof. We may not sublicense, assign, or transfer such license for the use of the Advanta Marksor any part thereof, and any attempt at such sublicense, assignment, or transfer is void ab initio,provided that the parties understand and agree that we may use third party service providers forCampaign fulfillment, such as sending e-mails and printing and mailing communications. You mayrevoke our license at any time by giving us Notice. Upon any such revocation, other than for ourmaterial breach of this Agreement, we may terminate this Agreement by Notice to you.7.7 American Express agrees to (a) cooperate with Advanta in facilitating Advanta’s control of thenature and quality of our use of the Advanta Marks and (b) upon request, supply Advanta or its designee with specimens of American Express’s use of the Advanta Marks, ifapplicable.
 
 

 
**Execution Copy**7.8 We shall not undertake or engage in the following practices, and any violation of this Section7.8 shall be deemed a material breach of this Agreement: (a) Except as expressly agreed by Advanta,use or otherwise incorporate any Advanta branded terms, the term “Advanta,” Advanta product names,or any other Advanta Marks, or variations, misspellings or portions of any of the foregoing, in thedomain name(s) of any of our websites or in any communications pursuant to Section 1.4; (b) Makeany representations, either express or implied, or create an appearance that a caller to AmericanExpress or recipient of any communication from American Express is calling or receiving acommunication from Advanta; (c) bid on and/or purchase Advanta branded terms, the term “Advanta”,Advanta product names, or any other Advanta Marks, or variation or misspelling of any of theforegoing, through an internet search auction or otherwise; or (d) during and after the term ofthis Agreement, use any Mark which is confusingly similar to “Advanta” or any other Advanta Mark.7.9 The disclosure by either party to the other of Confidential Information, as defined in theMutual Confidentiality Agreement between the parties, dated May 25, 2009 (the “ConfidentialityAgreement”), during the term of this Agreement shall be governed by the provisions of Sections1, 2, 3, 6, 10 and 12 of the Confidentiality Agreement, which are hereby incorporated in thisAgreement, provided that notwithstanding Section 1(i) of the Confidentiality Agreement, suchinformation may be used by the Receiving Party (as defined in the Confidentiality Agreement) onlyas authorized under this Agreement or as necessary to fulfill its obligations under this Agreement.Without limiting the definition of Confidential Information, the parties acknowledge and agreethat American Express’s selection of the accounts included in the Target Population shall be deemedConfidential Information of American Express; subject to Section 4.8 above, all Business CustomerInformation shall be deemed the Confidential Information of Advanta; and information provided byone party to the other pursuant to Sections 3.8, 3.9, 4.9 and 4.10 shall be deemed ConfidentialInformation of the disclosing party.8. TERMINATION8.1 American Express may terminate, suspend, or discontinue the Campaign, in whole or in part, atany time, for any reason, by Notice to you. Termination of the Campaign with respect to a specificCommunication Channel shall not be deemed to terminate the Campaign with respect to any otherCommunication Channels. Each party agrees to promptly implement any Notice from the other partyinstructing it to cease all efforts in connection with the Campaign, including communicationefforts to promote OPEN Card Accounts, provided that the party receiving any such Notice thatterminates, suspends or discontinues, or results in the termination, suspension or discontinuationof, three or more of such party’s Communication Channels may terminate this Agreement by Notice tothe other party.8.2 Either party may terminate this Agreement immediately upon Notice to the other party for theother party’s material breach of this Agreement.
 
 

 
**Execution Copy**8.3 American Express shall be entitled to terminate this Agreement immediately upon Notice to youif American Express determines, in its reasonable discretion, that there has been (i) poorexecution by you in the Campaign, (ii) poor quality of applicants via the Campaign, or (iii) anegative public relations experience for American Express or OPEN as a result of the Campaign.8.4 Termination of this Agreement shall also terminate the Campaign in whole. (i) The right topayment of Referral Fees for OPEN Card Accounts opened by Business Customers in the TargetPopulation who applied for an OPEN Card Account on or before the date that is ten (10) calendardays following the end of the Referral Window and such longer period, if any, during which AmericanExpress maintains its designated telephone lines and urls pursuant to Section 8.6, (ii) causes ofaction, (iii) and any provisions which by their terms are intended to survive termination, eachshall survive the termination of this Agreement. Without limiting the generality of the foregoing,Sections 1.2, 4.7, 4.8(i), 4.9, 4.11, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 16 and Schedule B shallsurvive termination of this Agreement. Notwithstanding anything to the contrary in this Agreement,Section 4.8(ii) shall survive the termination of this Agreement only if such termination occursmore than 21 calendar days after the Effective Date.8.5 Upon termination of this Agreement for any reason, each party will immediately cease use of alllinks (if any) to the other party’s website, any Marks of the other party, and all other CampaignMaterials and communications provided by or on behalf of the other party in connection with theCampaign.8.6 Upon termination of the Campaign or this Agreement for any reason, though both parties shallimmediately cease all communication efforts and initiatives in connection with the Campaign,American Express shall, for a period of ten (10) calendar days after such termination (or suchlonger period as may be required by applicable law or by American Express policies), subject toAmerican Express privacy policies, continue to maintain the toll-free telephone numbers websitesand urls described in Section 4.1.8.7 Except as provided below, American Express shall return or certify the destruction of allcopies of the Business Customer Information within twenty (20) days of the earlier of thetermination of this Agreement for any reason or the expiration of the Referral Window. Theexceptions to the preceding sentence are as follows:(i) American Express may retain the Business Customer Information as to any Business Customerdescribed in Section 4.8.(ii) American Express may retain the Business Customer Information as to any Business Customerwho meets the requirements of Sections 1(i)-(ii) or 2(i)-(iii) of Schedule B, as applicable, withinten (10) days after the termination of this Agreement or the expiration of the Referral Window, asapplicable, for fifty (50) days after the earlier of such termination or expiration.8.8 Upon termination of this Agreement for any reason, within thirty (30) days after suchtermination Advanta shall return or certify the destruction of all evidence of American Express’ selection of the Target Population and the Tier 1 Target Population, including, without limitation,drafts thereof provided prior to the Effective Date and all copies thereof.
 
 

 
**Execution Copy**9. REPRESENTATIONS AND WARRANTIES9.1 You represent and warrant that (a) the execution and delivery of this Agreement by you and yourconsummation and performance of the transactions and obligations contemplated hereby have been dulyauthorized by all corporate action necessary on your part, (b) the execution and delivery of thisAgreement by you does not breach or violate any other agreement to which you are a party or towhich you are subject, (c) you have the legal right and authority to provide the Business CustomerInformation to American Express as contemplated by this Agreement, (d) your disclosure of, and ourreceipt and use of the Business Customer Information as contemplated by this Agreement andconsistent with its terms, will not violate any privacy representations or disclosures to yourcustomers or their opt-out elections, (d) our use, as contemplated by this Agreement and consistentwith its terms, of the Business Customer Information will not infringe on any third party’scopyright, trademark or trade secret rights or any right of publicity or privacy, (e) any materialwhich is displayed on webpages you use in connection with the Campaign will not (i) infringe on anythird party’s copyright, patent, trademark, trade secret, or other proprietary rights or right ofpublicity or privacy; (ii) violate any applicable law, statute, ordinance, or regulation; (iii) bedefamatory or libelous; (iv) be lewd, pornographic, or obscene; (v) violate any laws regardingunfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hatespeech; (vii) promote discrimination, based on race, age, sex, religion, nationality, sexualorientation, or disability; or (viii) contain viruses, trojan horses, worms, time bombs,cancelbots, or other similarly harmful or deleterious programming routines.9.2 American Express represents and warrants that (a) the execution and delivery of this Agreementby it and its consummation and performance of the transactions and obligations contemplated herebyhave been duly authorized by all corporate action necessary on its part and (b) your use, ascontemplated by this Agreement and consistent with its terms, of content provided by AmericanExpress for inclusion in Campaign Materials and communications will not infringe on any thirdparty’s copyright, trademark or trade secret rights or any right of publicity or privacy, (c) anymaterial which is displayed on webpages we use in connection with the Campaign will not (i)infringe on any third party’s copyright, patent, trademark, trade secret, or other proprietaryrights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance, orregulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic, or obscene; (v) violateany laws regarding unfair competition, anti-discrimination or false advertising; (vi) promoteviolence or contain hate speech; (vii) promote discrimination, based on race, age, sex, religion,nationality, sexual orientation, or disability; or (viii) contain viruses, trojan horses, worms,time bombs, cancelbots, or other similarly harmful or deleterious programming routines.9.3 EXCEPT AS STATED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHERPARY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE. AMERICAN EXPRESS MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONSWITH RESPECT TO THE CAMPAIGN OR ANY
 
 

 
**Execution Copy**PRODUCTS OR SERVICES SOLD THROUGH THE CAMPAIGN OR THAT THE AMERICAN EXPRESS SITE OR THE TOLL-FREETELELPHONE NUMBER(S) FOR THE CAMPAIGN WILL BE UNINTERRUPTED OR ERROR-FREE AND, EXCEPT AS PROVIDEDIN SECTION 4.1, WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OR ANY INTERRUPTIONS OR ERRORS.10. INDEMNIFICATION10.1 Each party (each an “Indemnifying Party”, as applicable) agrees to indemnify, defendand hold harmless the other party (each an “Indemnified Party”, as applicable), itsaffiliates, successors and assigns and their respective officers, directors, employees and agents,from and against any and all losses, liabilities, damages, actions, claims, expenses and costsincluding, without limitation, reasonable attorneys’ fees, which result or arise from third partyclaims arising out of, or based on, any of the following: (i) the negligence, gross negligence orintentional misconduct of the Indemnifying Party, its agents, independent contractors, servantsand/or employees, including third party service providers used to perform the obligations of theIndemnifying Party hereunder; (ii) the Indemnifying Party’s breach of this Agreement or any of theterms hereunder; any inaccuracy or misrepresentation contained in the representations and/orwarranties of the Indemnifying Party hereunder; (iii) any claim for infringement of any UnitedStates patent, copyright, trademark, trade secret or other proprietary right as a result of theIndemnifying Party’s actions or inactions in connection with this Agreement, (iv) any claim arisingfrom to the Indemnifying Party’s website, including, without limitation, all content therein notcontributed directly by the Indemnified Party.10.2 The Indemnified Party will promptly give Notice to the Indemnifying Party upon learning of anyclaim indemnifiable under Section 10.1, provided that delay in providing such Notice or failure toprovide such Notice shall not affect the Indemnified Party’s indemnification rights hereunder,except to the extent the Indemnifying Party establishes actual harm caused by such delay orfailure. The purported Indemnified Party will provide the purported Indemnifying Party with allrelevant available information reasonably requested and reasonable assistance in defendingindemnified claims. Upon the purported Indemnifying Party’s Notice that (1) it elects to assumethe defense of a claim, at its own expense, while reserving its rights with respect to whether suchclaim is, in fact subject to indemnification or (2) accepts a claim as indemnifiable under Section10.1, it will have authority to defend such claim, provided that it may not settle any such claimupon terms that provide for (a) more than money damages and (b) any action or inaction on the partof the Indemnified Party (including the admission of guilt) without the Indemnified Party’sconsent, which consent will not be unreasonably withheld, conditioned or delayed. In the eventthat (i) the Indemnifying Party does not accept a claim as indemnifiable under Section 10.1 andsuch claim subsequently is determined to be indemnifiable under such Section, or (ii) even thoughthe Indemnifying Party acknowledges that a claim is indemnifiable hereunder, elects not to assumethe defense or disposition of the Indemnified Party against such claim in a timely manner and theIndemnified Party assumes its own defense or disposition thereof, then the Indemnifying Party shallreimburse the Indemnified Party for its reasonable costs and expenses in connection therewithwithin ten (10) business days of its demand therefor.
 
 

 
**Execution Copy**11. PUBLIC STATEMENTSNeither party may issue any press release or public announcement, distribute any marketing orpromotional materials or otherwise make any public communications regarding this Agreement or yourparticipation in the Campaign without the other party’s prior written consent, provided that eitherparty may disclose the terms of this Agreement and its text (i) if required by federal or statesecurities laws and regulations or the rules of any securities exchange on which such party’ssecurities are listed and (ii) the other party has received prior notice of such disclosure and anopportunity to comment on the text of the same. American Express understands that you intend todisclose the terms of this Agreement promptly after the date hereof in a filing pursuant to theSecurities Exchange Act of 1934 on Form 8-K and to disclose the text of this Agreement pursuant tothe Securities Exchange Act of 1934 as an exhibit to its next filing on Form 10-Q. You shall,prior to any such disclosure, provide American Express with drafts thereof and shall consider anycomment American Express may make on such drafts. You shall cooperate with American Express tocreate messaging in response to any inquiries or public relations consequences as a result thereof.All messaging and communication in response to any inquiries or public relations consequences as aresult of your disclosure with respect hereto in a filing pursuant to the Securities Exchange Actof 1934 on Form 8-K and as an exhibit to your next filing on Form 10-Q shall be pre-approved byAmerican Express.12. LIMITATION OF LIABILITYIn no event shall either party be liable to the other party for any direct, indirect, special,exemplary, consequential, or incidental damages, even if informed of the possibility of suchdamages.13. MODIFICATIONS TO THIS AGREEMENTModifications to this Agreement may only be made in a writing duly executed by both parties.
 
 

 
**Execution Copy**14. NOTICES14.1 All notices, consents, requests, instructions, approvals, and other communications made,required or permitted hereunder (each herein, a “Notice”) shall be given in writing anddelivered: (i) by personal delivery, (ii) by confirmed facsimile transmission, (iii) by electronicmail, (iv) by certified or registered mail (return receipt requested), or (v) by a nationallyrecognized overnight courier. If the Notice is to you, it shall be addressed to:If to you:       Advanta Bank Corp.    Attn: Ajay Pillai & James Shreero  Welsh & McKean Roads    P.O. Box 844    Spring House, PA 19454    Fax No. 215.444.5915    Electronic Mail Address: apillai@advanta.com and    jshreero@advanta.comwith a copy to:       Advanta Bank Corp.    Legal Department    Welsh & McKean Roads    P.O. Box 844    Spring House, PA 19454    Fax No. 215.444.5915    Electronic Mail Address: estone@advanta.comIf to American Express:       American Express    Attention: Mary Ann Fitzmaurice Reilly  3 World Financial Center    200 Vesey Street    New York, NY 10285    Fax No. (212) 640-9166    Electronic Mail Address: Maryann.Fitzmaurice@aexp.com
 
 

 
**Execution Copy**with a copy to:       American Express    Attn: OPEN Counsel    3 World Financial Center    200 Vesey Street    New York, NY 10285    Fax No. (212) 640-9245    Electronic Mail Address: Charlita.C.Cardwell@aexp.comor such other address as either party may give the other by Notice from time to time. Theeffective date of such Notice shall be deemed to be the date upon which any Notice is delivered tothe addressee.15. DISPUTE RESOLUTION:15.1 The parties agree that any and all disputes and claims or controversies arising out of orrelated to this Agreement shall be submitted to mediation and if the matter is not resolved throughmediation, it shall be submitted for arbitration upon the election of either party. Unless theparties agree otherwise, any mediation and/or arbitration shall, if instituted by us, take place inPhiladelphia and, if instituted by you, take place in New York, NY and also shall be administeredby, and pursuant to the Commercial Mediation Procedures and the Commercial Arbitration Rules of theAmerican Arbitration Association. Disputes shall be arbitrated on an individual basis. There shallbe no right or authority for any disputes to be arbitrated on a class action basis or in apurported representative capacity on behalf of the general public or other persons similarlysituated. The arbitrator’s authority to resolve disputes and to make awards is limited to disputesbetween you and us alone, and is subject to the limitations of liability set forth above.Furthermore, disputes brought by either party against the other may not be joined or consolidatedin arbitration with disputes brought by or against any third party, unless agreed to in writing byall parties. No arbitration award or decision shall be given preclusive effect as to issues orclaims in any dispute with anyone who is not a party to the arbitration. If any portion of thisSection 15.1 regarding the arbitrator’s authority to resolve disputes between only you and us isstricken from this Agreement or deemed otherwise unenforceable, then this entire Section 15 shallbe stricken from this Agreement.15.2 The provisions of this Section 15 may be enforced by any Court of competent jurisdiction, andthe party seeking enforcement shall be entitled to an award of all costs, fees and expenses,including attorneys’ fees, to be paid by the party against whom enforcement is ordered.16. GENERAL16.1 Each party shall act as an independent contractor and shall have no authority to obligate orbind the other in any respect, and nothing in this Agreement (including any offer for an OPEN CardAccount) shall create any partnership, joint ventures, agency, franchise, sales representative, or employment relationship between the parties. Neither party shall make anystatement, whether via any Communication Channel or otherwise, that reasonably would contradictanything in this Section 16.1.
 
 

 
**Execution Copy**16.2 You acknowledge that you have read this Agreement and agree to all its terms and conditions.You understand that, subject to Section 4.7, we may at any time (directly or indirectly) solicitcustomer referrals on terms that may differ from those contained in this Agreement or operatewebsites that are similar to or compete with websites that you own or operate. We understand that,subject to Sections 1, 3 and 7, you may at any time (directly or indirectly) solicit customerreferrals on terms that may differ from those contained in this Agreement or operate websites thatare similar to or compete with websites that we own or operate. You have independently evaluatedthe desirability of participating in the Campaign and are not relying on any representation,guarantee, or statement other than as set forth in this Agreement.16.3 THIS AGREEMENT HAS BEEN MADE IN AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THELAWS OF THE UNITED STATES AND NEW YORK STATE WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS.SUBJECT TO SECTION 15, ANY ACTION TO ENFORCE THIS AGREEMENT SHALL BE BROUGHT IN THE FEDERAL COURTSLOCATED IN NEW YORK, NEW YORK.16.4 This Agreement may be agreed to in more than one counterpart, each of which together shallform one and the same instrument. The parties agree that execution may be achieved in any formatconvenient to the parties.16.5 The provisions of this Agreement are independent of and separable from each other, and noprovision shall be affected or rendered invalid or unenforceable by virtue of the fact that for anyreason any other or others of them may be invalid or unenforceable in whole or in part. Neitherparty may assign this Agreement, without the other party’s prior written consent, which consentshall not be unreasonably withheld, conditioned or delayed; provided, however that, AmericanExpress may assign this Agreement to its parent or to an affiliate or subsidiary thereof withoutyour consent. Subject to that restriction, this Agreement will be binding on, inure to the benefitof, and enforceable against the parties and their respective successors and permitted assigns.Either party’s failure to enforce the other party’s strict performance of any provision of thisAgreement will not constitute a waiver of such party’s right to subsequently enforce such provisionor any other provision of this Agreement.16.6 The parties agree that any breach of either of the parties’ obligations regarding Marks,confidentiality, and/or customer data may result in irreparable injury for which there may be noadequate remedy at law. Therefore, in the event of any breach or threatened breach of a party’sobligations regarding Marks, confidentiality, and/or customer data, the aggrieved party will beentitled to seek equitable relief in addition to its other available legal remedies in a court ofcompetent jurisdiction.
 
 

 
**Execution Copy**16.7 You acknowledge that American Express’s servers, equipment (including telephone systems), andservices (e.g., tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond American Express’s reasonable control. Such temporary serviceinterruptions will not constitute a material breach of this Agreement. American Express will usecommercially reasonable efforts to provide the services and products contemplated under thisAgreement and to remedy any temporary interruptions or other problems that adversely affect theCampaign.16.8 Each party agrees to comply with all applicable laws, rules and regulations and to abide byall applicable privacy policies in its consummation and performance of the transactions andobligations contemplated by this Agreement.16.9 Any amounts payable by one party to another may be used by such party, in its sole discretion,as an offset against any of the other’s payment obligations under this Agreement.16.10 This Agreement and the Confidentiality Agreement embody the entire agreement andunderstanding of the parties and supersedes any and all prior agreements, arrangements, andunderstandings relating to the matters provided for herein.[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.