Sierra Club, Inc. - Page 22




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          be made using its nonprofit mail permit, (5) actively endorsing             
          and sponsoring the acquisition of the affinity credit card                  
          through brochures and letters from its officers, (6) guaranteeing           
          refunds of the annual fee if the Chase Lincoln imposed such a               
          charge, and (7) attempting to persuade the Chase Lincoln to relax           
          its credit tolerances so that additional affinity credit cards              
          could be issued and higher profits realized.                                
                    2.  Control of Marketing Plans                                    
                    a.  SC-ABS Agreement                                              
               Respondent argues that petitioner controlled the marketing             
          plans for the credit card program, and, thus, petitioner was                
          compensated for providing services.  Petitioner’s rights and                
          duties with respect to marketing are set forth in the SC-ABS                
          agreement.  For the most part, the SC-ABS agreement assigns to              
          ABS responsibility for marketing the credit card program.                   
          Article 4.2 assigns to ABS the initiative for developing                    
          marketing plans:  “ABS shall be responsible for the development             
          of all promotional and solicitation materials and programs                  
          designed to encourage the acquisition and usage of the Services             
          by the members”.  Article 4.2 imposes on ABS the cost of such               
          materials and programs, unless petitioner elects (which it did              
          not) to pay for production and mailing costs in consideration of            
          a larger payment.  Article 3.3 places with ABS the initiative to            
          propose additional services to offer to the members.                        
               Article 4.2 subjects promotional and solicitation materials            
          and programs developed by ABS to approval by petitioner.                    

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Last modified: May 25, 2011