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ABS on a continuing basis in the solicitation and encouragement
of SC members to utilize the services provided by ABS.”1
ATTACHMENT “B”, read in conjunction with the Concept-Chase
Lincoln Agreement, provides that, in consideration of its
cooperation, petitioner is to receive a minimum of 0.25 percent
of total cardholder sales volume. ATTACHMENT “B” further
provides that petitioner is to receive royalties if members
purchase certain additional services.
Finally, under the SC-ABS agreement, as implemented,
petitioner did not receive a fee for any marketing activities or
share in any economies realized by ABS in its expenditures made
in carrying out its marketing responsibilities.
We conclude that petitioner did not control the marketing
plan for the credit card program and, thus, was not compensated
for providing marketing services.
b. Petitioner’s Intent
We have also considered the negotiations preceding the SC-
ABS agreement and its implementation. As stated, petitioner did
have some control over marketing efforts through its right to
approve all promotional and marketing materials and programs.
Nevertheless, the SC-ABS agreement, considered in light of the
parties’ negotiations and course of action preceding it,
convinces us that, in entering the SC-ABS agreement, petitioner
1 Article 4.3 gives petitioner the privilege, but not the
duty, to pay production and mailing costs of solicitations, for
increased compensation.
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