EXHIBIT 10.15
DELTA SKYMILES PROGRAM PARTICIPATION AGREEMENT
This Agreement is made and entered in this 15th day of August, 1999, by and
between Delta Air Lines, Inc., having its principal place of business at
Xxxxxxxxxx Atlanta International Airport, Xxxxxxx, Xxxxxxx 00000 ("Delta"), and
Netcentives Inc., having its principal place of business at 000 Xxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Netcentives").
Whereas, Delta is in the business of providing travel related services to the
public; and
Whereas, Delta has developed the "SkyMiles(TM) Program" (or "Program"), under
which Members are awarded Mileage for travel on Delta and certain other SkyMiles
Participants (as defined below), and for the purchase of goods or services from
other SkyMiles Participants in association with the SkyMiles Program, and can
obtain bonus travel and other SkyMiles Awards (as defined below) for such
SkyMiles activity; and
Whereas, Delta offers a SkyMiles Program to its passengers who desire to
participate in that Program; and
Whereas, Netcentives desires to purchase Mileage to provide to consumers as an
incentive; and
Whereas, Delta and Netcentives both desire Netcentives to participate in the
Delta SkyMiles Program and allow Netcentives consumers to participate in such
program; and
Whereas, Netcentives desires to accelerate the vesting schedule for the Warrant
(as defined herein) as consideration to Delta for entering into this Agreement;
Now, therefore, in consideration of the mutual promises, agreements and
covenants contained herein, Delta and Netcentives (collectively, the "Parties")
covenant and agree as follows on joint participation in Delta's SkyMiles
Program:
1. DEFINITIONS
-----------
As used in this Agreement, the following terms shall have the following
meanings:
A. "Account" shall mean the account of Members who are also SkyMiles
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Members in which Mileage balances are maintained by Delta.
B. "Direct Competitor of Netcentives" means [******]
--------------------------------
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as ******. A complete version of this has been filed
separately with the Securities and Exchange Commission.
[******].
C. "Limited Exclusivity" means Delta's agreement not to sell SkyMiles to
-------------------
any Direct Competitor of Netcentives as defined above. Delta and
Netcentives shall have a relationship of Limited Exclusivity during
the Term unless terminated earlier pursuant to Section 9(C).
D. "Member" means a member in good standing of a Netcentives Program.
------
E. "Netcentives Points" means the promotional currency distributed to
------------------
consumers participating in any Netcentives Program.
F. "Netcentives Program" means any incentives program conducted by
-------------------
Netcentives, in which merchants or web sites purchase Netcentives
Points for distribution to individuals who perform specific
activities.
G. "SkyMiles Award" means the awards or benefits that Members can
--------------
receive from Delta, Delta Connection(TM) and/or certain SkyMiles
participants pursuant to the SkyMiles Program Rules in exchange for
the redemption of accrued SkyMiles, and, if applicable, other
consideration.
H. "SkyMiles Member" means an individual who is a member in good
---------------
standing of the SkyMiles Program.
I. "SkyMiles Participant" means any Person or Company that, pursuant to
--------------------
the SkyMiles Program Rules and an agreement between Delta and such
Person/Company regarding such Person's/Company's participation in the
SkyMiles Program: (i) provides goods and services to Members in
exchange for redemption of SkyMiles, or (ii) in connection with the
sale of goods or services by such Person/Company to Member, offers
SkyMiles to such Member.
J. "SkyMiles Partner" or "Partner Program" means any Person or Company
-------------------------------------
that, pursuant to the SkyMiles Program Rules and an Agreement between
Delta and such Person/Company regarding such Person's/Company's
participation in the SkyMiles Program in connection with the sale of
goods or services by such Person/Company to Member, offers SkyMiles to
such Member. As of the Effective Date, SkyMiles Partners or Partner
Programs shall mean the entities listed in Attachment C.
K. "SkyMiles" or "Mileage" means the points accrued under the SkyMiles
-------- -------
Program by SkyMiles Members for travel on Delta or such other reasons
as are permitted by Delta.
L. "Term" has the meaning given it in Section 2 hereof.
----
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****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
2. TERM
----
This Agreement shall commence on August 16, 1999 (the "Effective Date"),
and continue in effect until August 15, 2002 (the "Term"). This Agreement
terminates at the end of the Term unless renewed in writing upon thirty
(30) days prior written notice by either party prior to the end of the
Term. This Agreement (1) supersedes any previous Delta SkyMiles Program
Participation Agreement(s) between Delta and Netcentives, including without
limitation, the Delta Air Lines SkyRewards Agreement (the "Previous
Agreement") between Delta and Netcentives dated July 24, 1997, as amended;
and (2) amends the Warrant to Purchase Non-Voting Convertible Stock of
Netcentives issued to Delta by Netcentives on July 24, 1997 (the
"Warrant"). Notwithstanding the foregoing, unused SkyMiles purchased
pursuant to the Previous Agreement will continue to be valid and awardable
to consumers by Netcentives, and will be governed by the terms of this
Agreement.
3. TERMINATION
-----------
A. If this Agreement terminates pursuant to Section 3(B) on or before its
scheduled termination date, then:
(i) A "Winding Down Period" of six (6) months will begin, during
-------------------
which both Delta and Netcentives will let SkyMiles Members and
Members know the relationship is ending. Netcentives Points may
continue to be redeemed for SkyMiles during the Winding Down
Period and use of trademarks and confidentiality will survive
during the Winding Down Period.
(ii) After the end of the Winding Down Period, Netcentives will not
process Delta SkyMiles Members Mileage credit and Delta SkyMiles
Members will not be eligible for further accumulation of
Netcentives Points.
B. In the event of breach of any of the material terms and conditions of
this Agreement by Delta or Netcentives, the non-breaching party may
terminate this Agreement, without further liability, upon thirty (30)
days prior written notice to the other party which notice shall
describe, with as much particularity as possible, the alleged material
breach. All notices must conform to the provisions of Paragraph 20 of
this Agreement. Termination pursuant to this provision shall not be
effective, however, if the breaching party shall, within said thirty
(30) day period after receipt of such notice, correct such breach.
Failure to terminate this Agreement pursuant to this
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section shall not effect or constitute a waiver of any remedies the
non-defaulting party would have been entitled to demand in absence of
this section, whether by way of damage, termination or otherwise.
4. PROGRAM TERMS AND CONDITIONS
----------------------------
A. Mileage is accrued for SkyMiles Members in the following manner:
(i) Netcentives, currently in the business of Internet and online
service marketing, conducts various Netcentives Programs in which
consumers may earn Netcentives Points by performing various
activities on- and off-line. Web sites in each Netcentives
Program will award Netcentives Points to Members as a form of
incentive, loyalty, or promotional currency for use by a
consumer. Members may then redeem Netcentives Points through
Netcentives for Delta SkyMiles, or other rewards (including other
airlines' frequent flyer miles) at the Member's option.
B. Tracking and Reporting of Mileage
(i) Members will accrue Netcentives Points when visiting associated
web sites which offer these Netcentives Points. Members will
redeem Netcentives Points through Netcentives for Delta Air
Lines SkyMiles Mileage, which will then be posted to the
Members' SkyMiles Account. Netcentives shall only request that
SkyMiles be credited to the Accounts of Members whom Netcentives
believes in good faith to be SkyMiles Members. To the extent
that Netcentives requests that SkyMiles be credited to a person
who is not a SkyMiles Member, Delta shall not be obligated to
credit such Account.
(ii) Netcentives will supply Delta a data tape in a mutually
acceptable format, containing the Member name, Program Account
number and Mileage to be awarded. This tape is to be produced
and sent to Delta at least once per month. Netcentives will bear
all responsibility for ensuring the accuracy of the information
on the tape before sending such tape to Delta.
(iii) Once the tape is received by Delta, the data from the tape will
be entered in the Members' accounts within two (2) weeks of
receipt by Delta. Once the data is entered into the Member
accounts, Netcentives is responsible for payment of the SkyMiles
posted, unless such SkyMiles have been prepaid as provided in
Section 5(B).
(iv) If a SkyMiles Member asserts that he or she is entitled to
Mileage credit but did not receive such Mileage credit, the
Member will be instructed to notify Netcentives in writing or
via e-mail to ensure that Netcentives has
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forwarded their redemption request to Delta. In addition, the
SkyMiles Member must include their name and SkyMiles Account
number.
C. Upon prior written notice toDelta, Netcentives may offer Delta
SkyMiles Members extra SkyMiles as a value added incentive for
shopping at the associated web sites. For purposes of this Agreement,
extra SkyMiles shall mean bonus SkyMiles for travel incentives.
Compensation for such extra SkyMiles will be at a rate set forth in
Paragraph 5.C of this Agreement unless otherwise agreed upon by both
Parties.
D. Netcentives agrees that it will offer SkyMiles at a redemption value
of no less than [******] per SkyMile , and that the SkyMiles must meet
at least one of the following purposes: (1) employee sales and/or job
performance awards, recognition or incentives; (2) awards, recognition
or incentives granted by web sites in a Netcentives Program for
shopping, winning contests, or other activities. [******] Netcentives
will not allow Netcentives Points earned for specific activities that
are in violation of current Delta SkyMiles Participants' exclusivity
agreements with Delta to be converted to SkyMiles. Such prohibition
will not apply in cases where Delta has granted prior written
permission to Netcentives. A listing of those activities which are not
eligible for earning SkyMiles is included in Attachment A. Additions
to this restrictions list may only be made with the mutual consent of
both parties.
5. BILLING
-------
In consideration of the marketing opportunities provided by the
participation in the SkyMiles Program and Limited Exclusivity, Delta will
xxxx Netcentives as follows:
A. Netcentives shall pay to Delta an annual administrative fee of
[******] as consideration for the promotional materials and
advertising set forth in Section 10 herein. If Netcentives purchases
[******] worth of SkyMiles in contract year one, the administrative
fee will be waived for year two. If Netcentives purchases [******]
worth of SkyMiles in contract year two, the fee will be waived in
contract year three. The administrative fee will be billed at the
beginning of each contract year.
B. Netcentives guarantees that it will purchase [******] worth of
SkyMiles in contract year one and in each contract year thereafter, at
the price per SkyMile
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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set forth in Section 5(C). Delta will xxxx Netcentives at the price
per SkyMile set forth in Section 5(C). At the end of each contract
year, Delta will calculate the annual revenue received from
Netcentives during such contract year. If Netcentives has underpaid
the [******] of annual revenue guarantee, Delta will invoice
Netcentives for the difference owed.
C. In consideration of the marketing opportunities provided by
participation in the Program, Delta will xxxx Netcentives [******] per
SkyMile posted which is generated under this Agreement, payable
monthly.
D. All SkyMiles paid for are subject to a Federal Excise Tax, currently
7.5%, that must be collected on any sale of miles. Netcentives agrees
that this tax will be included on the monthly invoice to be paid by
Netcentives in cash.
E. All monies due for the purchase of SkyMiles will be invoiced to
Netcentives by Delta on a monthly basis.
F. Netcentives will remit payment directly to Delta within 30 days of
invoice receipt. Payment may be made by check or by wire transfer, at
Netcentives' sole discretion.
G. As consideration for Delta's entering into this Agreement, the parties
agree that the Warrant is hereby amended such that the Warrant shall
be exercisable as to 100% of the total number of shares subject
thereto upon Delta's execution of this Agreement.
6. PROGRAM CHANGES
----------------
Netcentives will not change the exchange rate of Netcentives Points to
SkyMiles without prior written notice to Delta.
7. DELTA SKYMILES REPORTS
----------------------
A. On a monthly basis and at no extra charge to Netcentives, Delta will
provide to Netcentives reports, summarizing:
(i) actual Mileage posted,
(ii) bonus SkyMiles posted as a result of special promotions offered
by Netcentives, and
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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B. Netcentives will keep complete and accurate records of identified
Delta SkyMiles Members and standard accounting records of amounts owed
to Delta. From time to time, as Delta may reasonably request,
Netcentives will confirm in writing by verified statement, the fact
that a person(s) reported as accruing Delta SkyMiles redeemed
Netcentives Points for such SkyMiles at Netcentives and Netcentives
will produce, for good cause, where available, copies of records
verifying same.
8. TITLE AND CONFIDENTIALITY
-------------------------
A. Title
-----
Title and full and complete ownership rights to Delta SkyMiles
Membership data and information developed by Delta and wherever
located will remain with Delta. Netcentives understands and agrees
that such data and information constitutes Delta's proprietary
information whether or not any portion thereof is or may be validly
copyrighted.
Title and full and complete ownership rights to any Member data and
information developed by Netcentives and wherever located will remain
with Netcentives. Delta understands and agrees that such data and
information constitutes Netcentives' proprietary information whether
or not any portion thereof is or may be validly copyrighted.
B. Confidentiality of Information
------------------------------
Each Party agrees to protect as confidential all information and
materials exchanged under this Agreement and that such information and
materials may be used solely for the specific purpose set forth
therein. The recipient of such confidential information ("the
recipient") agrees that, without prior written consent of the supplier
of such confidential information ("the supplier"), the recipient shall
not use, copy or divulge to third parties or otherwise use except in
accordance with the terms of this Agreement, any information or
materials obtained from the supplier or through the supplier in
connection with this Agreement, unless (a) the information or
materials is known to the recipient prior to obtaining same from the
supplier; (b) the information or material is, at the time of
disclosure to the recipient, then in public domain; (c) the
information or material is obtained by the recipient from a third
party who did not receive the same, directly or indirectly, from the
supplier or; (d) the recipient becomes legally compelled to disclose
confidential information or materials by a governmental body or court.
In that event, the recipient will provide the supplier with prompt
notice so that the supplier may seek a protective order or other
appropriate remedy and/or waive compliance (in writing) with the
provisions hereof. In the event that such protective order or other
remedy is not obtained, or the supplier waives, in writing, compliance
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with the provisions hereof, recipient will furnish only that portion
of such confidential information or materials which is legally
required and will exercise its reasonable efforts to obtain
appropriate assurance that confidential treatment will be accorded
such confidential information or materials. All confidential
information will either be returned to the supplier or destroyed at
its request upon termination of this Agreement. So long as Delta
SkyMiles membership information is not disclosed to any third party,
except under compulsion of valid legal process, nothing herein may be
construed to restrict Netcentives' use of information contained in its
own customer database obtained from its customers in the normal course
of business. So long as Netcentives' membership information is not
disclosed to any third party, except under compulsion of valid legal
process, nothing herein may be construed to restrict Delta's use of
information contained in its own customer database from its customers
in the normal course of business.
C. Confidentiality of Agreement
----------------------------
The terms of this Agreement shall be deemed confidential information
of both Delta and Netcentives.
9. LIMITED EXCLUSIVITY
-------------------
A. Delta grants Netcentives Limited Exclusivity on the Internet by
[******] This exclusivity is limited in that [******].
B. It is understood that Delta is presently a participant in Partner
Programs and that Partner Programs are participants in Delta's
SkyMiles Program. The Parties agree that Delta's present SkyMiles
Partnerships do not violate the exclusivity provisions of this
Agreement. Delta will not endorse any change to Partner Programs
initiated by the SkyMiles Partner that would infringe
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****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
upon the Limited Exclusivity granted above. The parties agree that
changes to the Partner Programs are at the SkyMiles Partner's
discretion and that Delta shall use its best efforts to ensure that
any such changes will not violate the Limited Exclusivity outlined
above.
C. Termination of Limited Exclusivity. Beginning on the first
----------------------------------
anniversary of the Effective Date, Delta may terminate its own
obligations with respect to Limited Exclusivity by giving at least
ninety (90) days prior written notice of such termination
("Exclusivity Termination Notice") to Netcentives. Effective
immediately after Netcentives receives Delta's Exclusivity Termination
Notice, [******]. Effective ninety (90) days after Netcentives
receives Delta's Exclusivity Termination Notice, Delta will not be
bound under the terms of the Limited Exclusivity.
D. Remedies. Any violation of Section 9(A) during the Term shall be
--------
considered a material breach of this Agreement, provided that either
party shall have 5 business days after receipt of notice of such
breach to cure such breach. Each party agrees that its obligations
under Limited Exclusivity as provided herein are necessary and
reasonable in order to protect Netcentives and its business, and each
party expressly agrees that monetary damages would be inadequate to
compensate Netcentives for any breach by Delta of its Limited
Exclusivity related covenants and agreements. Accordingly, each party
agrees and acknowledges that any such violation would cause
irreparable injury to Netcentives and that, in addition to any other
remedies that may be available, in law, in equity or otherwise,
Netcentives shall be entitled to obtain injunctive relief against any
such breach or the continuation of any such breach by Delta, without
the necessity of proving actual damages. The parties agree that this
Section 9(D) shall only apply as long as Limited Exclusivity has not
been terminated pursuant to Section 9(C). Notwithstanding the
foregoing, nothing in this Section 9(D) shall limit either party's
right to seek any and all remedies available in connection with this
Agreement.
10. PROMOTIONAL MATERIALS AND ADVERTISING
-------------------------------------
Subject to the advance approval of the other party, Delta and Netcentives
agree to promote and/or advertise the Delta SkyMiles Program by:
A. On the Effective Date and from time to time thereafter, Delta will
provide to Netcentives, in quantities and frequencies which Delta
deems reasonably sufficient, the following materials:
(i) Delta SkyMiles applications;
(ii) Delta SkyMiles Program brochures; and
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****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
(iii) Any other collateral materials to the Delta SkyMiles Program
that Delta in its sole discretion deems necessary.
B. Delta will promote and/or advertise Netcentives's participation where
appropriate and on a basis at least consistent with other full
SkyMiles Partners, as determined solely by Delta, by:
(i) Inclusion of Netcentives's name and logo in SkyMiles sales
literature and the SkyMiles Newsletter.
C. Netcentives will promote and/or advertise the Delta SkyMiles Program
where appropriate by:
(i) Advertising at Netcentives's cost its participation in Delta's
SkyMiles Program.
(ii) Including the Delta SkyMiles Program in Netcentives' promotional
literature.
D. Delta agrees to permit Netcentives to insert promotional material in
[******] SkyMiles mailings per year at no additional charge.
Netcentives is not limited to [******] spaces per year and additional
space may be allocated if mutually agreed upon by both parties. Delta
and Netcentives will mutually agree on the month for such insert and
Netcentives agrees to comply with the mailing and creative
specifications and deadlines as set by Delta. Production and delivery
of the inserts to Delta and all costs associated therewith shall be
the sole responsibility of Netcentives, content of the insert is
subject to Delta's prior review and approval. Netcentives will
verify/certify to the best of its knowledge that any insert containing
business reply or courtesy reply letter-size cards or envelopes, shall
bear the correct facing identification marks (FIM) and bar-code, and
all appropriate U.S. Postal Service automation standards. Netcentives
will be liable for and will agree to pay, subject to appeals described
by postal laws and regulations, any revenue deficiencies assessed.
11. COORDINATORS
------------
A. Upon the Effective Date of this Agreement, Netcentives will designate
an individual as its coordinator whom Delta may contact and operate
through concerning all Delta SkyMiles Program related matters. Upon
designation of that individual, Netcentives will provide Delta the
name, address and telephone number of the individual. Netcentives
shall have the right to change such coordinator from time to time at
its sole discretion, with notice to Delta.
B. Upon the effective date of this Agreement, Delta will designate an
individual as its coordinator whom Netcentives may contact and operate
through
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****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
concerning all Delta SkyMiles Program related matters. Upon
designation of that individual, Delta will provide Netcentives the
name, address and telephone number of the individual. Delta shall have
the right to change such coordinator from time to time at its sole
discretion, with notice to Netcentives.
12. ASSIGNABILITY
-------------
Neither Party may 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 party, except that (i) either party may assign
this Agreement to its parent corporation or wholly-owned subsidiary of that
party or its parent corporation without consent, but with 14 days advance
written notice, and (ii) no consent will be required for an assignment to
the acquiring or merging entity pursuant to a merger or sale of all or
substantially all of the assets of the assigning party. 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.
Notwithstanding the foregoing, the engagement of an advertising agent or
fulfillment house to prepare or distribute any mailings, advertising, or
promotional materials or perform operational tasks will not be deemed to be
an assignment.
13. ENTIRE AGREEMENT
----------------
This Agreement including all Attachments hereto, including the Warrant as
amended by this Agreement, constitutes the sole and entire agreement of the
parties hereto with respect to the subject matter hereof, and no
modification to or amendment of this Agreement will be binding on either
party unless signed by a duly authorized officer of each party to this
Agreement.
14. HOLD HARMLESS AND INDEMNIFICATION
---------------------------------
(a) Without limitation of any other provision of this Agreement, each
party shall indemnify, defend and hold harmless the other, its
affiliates and their respective employees, attorneys, agents,
successors and assigns from any and all loss, cost or expense,
including reasonable attorneys' fees and costs of suit, directly
arising from any claim, action, government proceeding or suit directly
arising from indemnitor's performance or non-performance under this
Agreement, to the extent that such claim, action or suit does not
result directly from indemnitee's negligence, willful misconduct or
breach of any provision of this Agreement. Each party shall promptly
notify the other party of any claim, demand, suit or threat of suit of
which that party becomes aware which might give rise to a right of
indemnification under this Agreement. Indemnitor shall be entitled to
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participate in the settlement or defense thereof and, if indemnitor so
elects, to assume and control the settlement or defense thereof with
counsel satisfactory to indemnitee. In any case, indemnitor and
indemnitee shall cooperate (at no cost to indemnitee) in the
settlement or defense of any such claim, action, government action or
suit.
(b) Neither party shall be obligated to the other party for indirect,
special, consequential or incidental damages, provided that this
subsection (b) shall not limit either party's indemnification
obligations to the other party with respect to claims by unaffiliated
third parties.
15. INDEPENDENT CONTRACTORS
-----------------------
Nothing herein may be construed to create an agency, joint venture,
partnership or other relationship between the parties other than
independent contractors.
16. SEVERABILITY
------------
If any provision of this Agreement is declared inoperative, void or illegal
by a court of competent jurisdiction, the remaining provisions shall not be
affected and shall continue in full force and effect unless this Agreement
is thereby rendered impossible to perform.
17. APPLICABLE LAW
--------------
This Agreement shall be construed and interpreted in accordance with the
laws of the State of Georgia, U.S.A.
18. NOT DEEMED WAIVER
-----------------
If either party at any time fails to require strict compliance with any
term or condition hereunder, such failure will not constitute a waiver of
such term or condition or of any subsequent breach of that term or
condition.
19. FORCE MAJEURE
-------------
Neither party will be liable for delays or failure in its performance
hereunder caused by any act of God, war, work stoppage, fire, act of
government, or any other cause, whether similar or dissimilar, reasonably
beyond the control of that party.
20. NOTICE
------
Any notice, election, or other communication required or submitted
hereunder shall be made in writing and will be:
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(i) delivered by hand;
(ii) sent by the appropriate postal service, return receipt requested,
postage and charges prepaid, or overnight delivery service; or
(iii) sent by wire with delivery confirmed, to the following address:
To Delta:
Xxxxxx X. Xxxxx
Vice President Consumer Marketing
Delta Air Lines, Inc.
Xxxxxxxxxx Atlanta International Airport
Xxxxxxx, Xxxxxxx 00000
XXX
To Netcentives:
Chief Financial Officer
Netcentives Inc.
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
CC: Vice President, Relationship Marketing
Notices delivered by hand or by wire shall be effective upon delivery.
Notices delivered by mail will be effective on the tenth business day after
the postmark date, or if earlier, upon the date of actual receipt.
21. USE OF TRADENAMES, TRADEMARKS AND SERVICE MARKS
-----------------------------------------------
Delta and Netcentives each grants to the other a non-exclusive license to
use each party's tradename, trademarks and service marks only in joint
promotion of the SkyMiles Program, and to represent that Netcentives Points
are exchangeable for SkyMiles, as specified below:
A. In connection with the program, Netcentives will not use any Delta
logotype, trade name, service xxxx, or other proprietary xxxx or word,
including but not limited to, the names "Delta Air Lines", "Delta",
"Delta SkyMiles Program", or Delta's logo in any public statements,
press releases, or advertising or promotional materials, except where
each specific use has been approved in
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advance and in writing by Delta. Materials which are substantially
similar to materials already approved by Delta do not require Delta's
further approval. Subject to Delta's approval of a type of use,
Netcentives may authorize web sites participating in any Netcentives
Program to publish a page which explains such Netcentives Program,
which page may include the Delta logotype or trade name. Approval or
comments on materials submitted will be provided by the next business
day following receipt of materials.
B. In connection with the program, Delta will not use any Netcentives
logotype, trade name, service xxxx, or other proprietary xxxx or word,
in any public statements, press releases, or advertising or
promotional materials, except where each specific use has been
approved in advance and in writing by Netcentives. Materials which are
substantially similar to materials already approved by Netcentives do
not require Netcentives' further approval. Approval of or comments on
materials submitted will be provided by the next business day
following receipt of materials.
22. HEADINGS
--------
All paragraph headings in this Agreement are solely for the purpose of
reference and do not supplement, limit or define the scope or content of
this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto by
their duly authorized representatives as of the date first above written.
DELTA AIR LINES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx
Vice President -- Consumer Marketing
NETCENTIVES INC.
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxxx
EVP, CFO
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Attachment A
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Partner Conflicts (includes any web site visits that offer awards in conjunction
with any of the following):
A. Telecommunications
-----------------------
Awards associated with:
hardware
software
long distance service
prepaid and non prepaid calling cards
consulting services
local toll dialing
local service
paging
cellular
second line
Internet access software
other products and services that may be added from time to time
B. Credit/Debit Cards: (American Express is current partner)
---------------------------------------------------------------
Awards associated with:
credit cards
charge cards
stored value cards
debit cards
C. Financial: (Xxxxxxx Xxxxxx is current partner)
------------------------------------------------------------------
Awards associated with:
stocks
bonds
mutual funds
money market account
financial software
financial advice
D. Mortgage: North American Mortgage Company is current partner
------------------------------------------------------------------
Awards associated with:
mortgage
refinance
equity loans
E. Auto Insurance: American International Group is current partner
---------------------------------------------------------------------
F. Restaurant:
----------------
Awards associated with:
restaurant dining
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F. Other:
-----------
[******]
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omittted portions.
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Attachment B
------------
Direct Competitors of Netcentives
---------------------------------
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omittted portions.
Attachment C
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Airline Partners
. Aer Lingus
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. AeroMexico(R)
----------
. Air France
----------
. Air Jamaica(TM)
. Austrian Airlines
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. China Southern(TM)
--------------
. Korean Airlines
---------------
. Malaysia
--------
. Sabena
------
. Singapore Airlines
------------------
. Swissair
--------
. TAP Air Portugal
----------------
. United Airlines
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Car Rental
. Alamo
-----
. Avis
----
. Dollar Rent A Car
-----------------
. Hertz
-----
. National
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Hotels
. Best Western
------------
. Xxxxxx International Hotels
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. Crowne Plaza
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. Forte
-----
. Four Points Hotels
------------------
. Hilton Hotels Worldwide
-----------------------
. Holiday Inn
-----------
. Hyatt
-----
. Inter-Continental
-----------------
. Marriott
--------
. Preferred
---------
. Radisson
--------
. Renaissance Hotel
-----------------
. Sheraton
--------
. St Regis Luxury Collection
--------------------------
. Swissotel
---------
. W Hotels
--------
. Westin Hotels and Resorts
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Other Partners
. Better Homes & Gardens(R) Real Estate Service
---------------------------------------------
. Delta SkyMiles Credit Card from American Express
------------------------------------------------
. Delta Vacations(TM) Europe/Turkey/Russia
--------------- --------------------
. 1-800-Flowers
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. North American Mortgage Company
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. Radisson Seven Seas Cruises
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. Renaissance Cruise Lines
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2
. SCANA Energy (Georgia residents only)
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. SkyMiles Auto Buying Program
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. SkyMiles Dining Program
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. MCI
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