EXHIBIT 10.26
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED (BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2.
NETCENTIVES INC.
INCENTIVES MANAGEMENT PROGRAM AGREEMENT
This Incentives Management Program Agreement (the "Agreement") is
entered into between Netcentives Inc., a Delaware corporation with offices at
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Netcentives") and
ValueStar, Inc., a California corporation with offices at 000 00xx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxxxx 00000 ("ValueStar") and shall be effective for all
purposes as of May 9, 2000 (the "Effective Date").
RECITALS
WHEREAS, Netcentives has developed an Internet-based, custom loyalty
program based on a private currency, administered by Netcentives on behalf of a
client, in which points or incentives are awarded to Internet end-users (the
"Incentives Management System");
WHEREAS, ValueStar maintains a site on the Internet at
xxxx://xxx.xxxxxxxxx.xxx (the "ValueStar Site") and other properties owned or
managed by ValueStar, which provides an online customer satisfaction rating
service for local service and professional businesses to Internet end-users;
WHEREAS, ValueStar wishes to implement a web-based loyalty incentives
program as set forth herein;
WHEREAS, Netcentives wishes to license the Incentives Management System
to ValueStar, and ValueStar wishes to license the Incentives Management System
from Netcentives; and
NOW THEREFORE, in consideration of the foregoing and the mutual
consideration provided for herein, the parties hereby agree as follows:
SECTION I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 "Affiliate" of an entity means any other entity that controls, is
controlled by or is under common control with such entity, where "control" means
having the right to vote a majority of the shares of voting stock of such
entity.
1.2 "Breakage" means the Redemption Point Value of Points which have
been credited to a Consumer Account, but which have expired prior to redemption
for a Reward.
1.3 "Business Days" means any weekday other than one on which
California banks are required or authorized to remain closed.
-1-
1.4 "ClickMiles" means the currency of the ClickRewards Program.
1.5 "ClickRewards Program" means the branded consumer loyalty network
provided by Netcentives which is currently located at xxx.xxxxxxxxxxxx.xxx, in
which end users can accrue ClickMiles and redeem them for a variety of goods and
services.
1.6 "Confidential Information" means any proprietary information,
technical data, or know-how, including, but not limited to, that which relates
to Consumers, research, product plans, products, services, customers, markets,
software, developments, inventions, processes, designs, drawings, engineering,
hardware configuration information, marketing or finances of a party, and any
other information which is (A) reasonably understood to be confidential and
proprietary, (B) designated in writing to be confidential or proprietary, or (C)
if given orally, is identified in writing as confidential or proprietary within
30 days of the time of disclosure. Confidential Information does not include
information, technical data or know-how which (i) is rightfully in the
possession of the receiving party at the time of disclosure, (ii) prior to or
following the time of disclosure becomes part of the public domain through no
fault of the receiving party hereunder, or (iii) is approved by the disclosing
party, in writing, for release.
1.7 "Consumer Account" means the Points deposit account held by
Netcentives for the benefit of a Consumer, which holds such Consumer's Points
until such Points are redeemed or expired.
1.8 "Consumer(s)" means Members together with End-Users.
1.9 "Contract Year" means the one year period beginning on the Launch
Date, and each consecutive one year period thereafter during the Term.
1.10 "Direct Competitor of Netcentives" means: (a) any entity listed in
Exhibit J, and/or (b) any Affiliate of any entity listed in Exhibit J.
Netcentives may amend Exhibit J no more than once per Quarter with ValueStar's
prior written consent, which will not be unreasonably withheld or delayed.
1.11 "Direct Competitor of ValueStar" means: (a) any entity listed in
Exhibit K, and/or (b) any Affiliate of any entity listed in Exhibit K. ValueStar
may amend Exhibit K no more than once per Quarter with Netcentives' prior
written consent, which will not be unreasonably withheld or delayed.
1.12 "Earn Catalog" means the catalog of Points earning opportunities,
which includes a description of each Qualifying Activity (including product
purchase price or action required) and the number of Points to be awarded for
each Qualifying Activity.
1.13 "End-User" means any Internet end-user, who is not a Member, that
transacts with ValueStar pursuant to a Promotion.
1.14 "Guaranteed Commitment" means ValueStar's minimum payments
commitment set forth in Section 4.6 below.
1.15 "Launch Date" means the first day on which the ValueStar Program
is implemented and made available for Consumer participation.
-2-
1.16 "Licensed Software" means the Netcentives Inc. Incentives
Management Services Client Software, in object code form only, made available to
ValueStar by Netcentives, and any documentation provided therewith. The term
"Licensed Software" shall also include source code solely to the extent
Netcentives, in its sole discretion, provides source code to ValueStar.
1.17 "Manual" means the guide published by Netcentives, as amended from
time to time, subject to ValueStar's prior consent, not to be unreasonably
withheld or delayed, currently entitled "Incentives Management System Policy
Manual," which contains the operating restrictions on Promotions, as well as
security provisions and customer service policies for both ValueStar and
Netcentives, a copy of which (effective as of the Effective Date) is attached
hereto as Exhibit B.
1.18 "Master Account" means ValueStar's primary Points deposit account,
which holds all Points purchased by ValueStar until such Points are transferred
to a Promotion Account.
1.19 "Member Data" means the personal information relating to Members,
including Member names and e-mail addresses, and other personal identifying
information relating to Members.
1.20 "Member Information Database" means the database containing Member
information, including the Member Data and a frequency database storing
information relating to Consumer Accounts, including Point balances.
1.21 "Member" means any individual enrolled in and in good standing
with the ValueStar Program.
1.22 "Minting" means the process by which Netcentives creates Points
and credits such Points to ValueStar's Master Account.
1.23 "Netcentives Marks" means the trademarks and logos of Netcentives
set forth in Exhibit A2 attached hereto, as the same may be amended by
Netcentives from time to time upon notice to ValueStar.
1.24 "Netcentives Site" means Netcentives' corporate web site currently
located at xxxx://xxx.xxxxxxxxxxx.xxx, and any successor and mirror sites
thereof.
1.25 "Patents" means United States Patent #5,774,870, issued June 30,
1998, entitled "Fully Integrated, On-Line Interactive Frequency and Award
Redemption Program", and United States Patent #6,009,412, issued December 28,
1999, entitled "Fully Integrated, On-Line Interactive Frequency and Award
Redemption Program".
1.26 "Points" means the points accrued by Consumers under the ValueStar
Program.
1.27 "Promotion Account" means the Points deposit account, held by
Netcentives for the benefit of ValueStar or a ValueStar Merchant, which holds
all Points for a specific Promotion until such Points are distributed to a
Consumer, or following the scheduled expiration of a Promotion, transferred back
into the Master Account.
1.28 "Promotion" means a promotional or incentive program conducted by
ValueStar or by a ValueStar Merchant for the issuance of Points to Consumers.
-3-
1.29 "Qualifying Activity" means the activity (ies) for which Points
are awarded to Consumers in exchange for their participation in a Promotion,
which may include, without limitation, the online or off-line purchase of
products or services from ValueStar or ValueStar Merchants, or the fulfillment
of a given activity such as registration for a service offered by ValueStar or
ValueStar Merchants.
1.30 "Quarter" means the three (3) month period beginning on the first
day of the first Contract Year, and each consecutive three month period
thereafter during the Term.
1.31 "Redemption Price" for a Reward means the number of Points
required to redeem such Reward as set forth in Section 3.6(C).
1.32 "Reversals and Adjustments" means the return transfer to a
ValueStar Account of all (for Reversals) or a portion (for Adjustments) of
Points previously awarded to a Consumer Account pursuant to a Promotion.
1.33 "Reward(s)" means awards, which may be goods and/or services, for
which Consumers may redeem Points.
1.34 "Rewards Catalog" means the catalog of Rewards, which contains
descriptions of the Rewards and the Redemption Price for each Reward.
1.35 "RPV" or "Redemption Point Value" means the value per Point that a
Member receives upon redemption for Rewards.
1.36 The "Sale" of a party means the sale by such party of all or
substantially all of its assets to another entity, or the acquisition of such
party by another entity by means of merger, consolidation or other transaction
as a result of which shareholders of such party immediately prior to such
transaction no longer hold a majority of voting power of such party, after such
sale, merger, consolidation, or other transaction.
1.37 "Software License" means the royalty-free license agreement for
use of the Licensed Software, entitled "Netcentives Inc. Incentives Management
System Client Software License Agreement", attached hereto as Exhibit E.
1.38 "Term" shall have the meaning given it in Section 5.1 of this
Agreement.
1.39 "ValueStar's Account(s)" means, collectively, the Master Account
and all Promotion Accounts held by Netcentives for the benefit of ValueStar
pursuant to this Agreement.
1.40 "ValueStar Marks" means the trademarks and logos of ValueStar set
forth in Exhibit A1 attached hereto, as the same may be amended by ValueStar
from time to time upon notice to Netcentives.
1.41 "ValueStar Merchant" means a third party participant in the
ValueStar Program who has entered into a binding agreement with ValueStar for
the purchase and distribution of Points to Consumers pursuant to Promotions.
-4-
1.42 "ValueStar Partners" means collectively the ValueStar Merchants
and the ValueStar Suppliers.
1.43 "ValueStar Program" means the Incentives Management System,
implemented and maintained by Netcentives on behalf of ValueStar.
1.44 "ValueStar Properties" means all properties, ventures and services
worldwide marketed under the ValueStar Brand Features including, without
limitation, the ValueStar Site and all other properties, ventures and services
which ValueStar owns, operates, or manages during the Term.
1.45 "ValueStar Supplier" means a third party who has entered into a
binding agreement with ValueStar to supply Rewards for the ValueStar Program.
SECTION II
TECHNOLOGY LICENSES
2.1 Patent License. During the term of this Agreement, and subject to
the terms and conditions contained herein, Netcentives hereby grants to
ValueStar a non-exclusive, non-transferable license (without the right to
sublicense) under the Patents, to use, operate and display the Incentives
Management System on the web pages of the ValueStar Site solely to the extent
necessary to fulfill its obligations related to operation of the ValueStar
Program, and strictly in accordance with the terms of this Agreement. ValueStar
agrees to display a notice of the patent license ("Licensed under U.S. Patent
Nos. 5,774,870 and 6,009,412", or similar language), in a prominent place on the
primary web pages of the ValueStar Program, to the extent necessary for
Netcentives to satisfy the notice requirements set forth in 35 U.S.C. ss.287 and
applicable case law.
2.2 Software License. ValueStar agrees that it shall execute the
Software License on the Effective Date of this Agreement. In the case of any
conflict between this Agreement and the Software License, this Agreement shall
control.
2.3 ValueStar Merchant Software. Netcentives shall either deliver or
make available the Licensed Software to each ValueStar Merchant, subject to the
prior execution by such ValueStar Merchant of the Netcentives Inc. Incentives
Management System Client Software License Agreement, in the form set forth in
Exhibit H, attached hereto (the "Merchant Software License"). ValueStar will
provide the Netcentives legal department with executed copies of the Merchant
Software License Agreement prior to requesting the delivery of the Licensed
Software to a given ValueStar Merchant.
SECTION III
VALUESTAR PROGRAM IMPLEMENTATION AND ADMINISTRATION
3.1 Launch. ValueStar shall deliver the deliverables set forth in
Exhibit I in accordance with the schedule and requirements set forth therein.
Subject to ValueStar's timely delivery of such deliverables in accordance with
the schedule and requirements set forth in Exhibit I, Netcentives agrees to
deliver the deliverables set forth on Exhibit L (the "Netcentives Deliverables")
in accordance with the schedule set forth therein. The parties each agree to use
all commercially reasonable efforts to
-5-
implement and launch the ValueStar Program by June 30, 2000, or such other date
as may be mutually agreed upon by the parties (the "Target Launch Date").
3.2 Branding. The ValueStar Program will be named "ValueStar Ratings
Rewards". ValueStar shall retain all ownership rights in and to such name,
together with all intellectual property rights therein. On any web pages of the
ValueStar Properties associated with the (i) registration of Members, (ii)
redemption of Points by Members, (iii) a description of the ValueStar Program,
and (iv) other appropriate pages mutually agreed to by the parties, including
without limitation the Earn Catalog (collectively, the "ValueStar Program
Pages"), Netcentives shall receive an attribution stating "Powered by
Netcentives" or some similar, mutually agreeable language. The placement and
prominence of such attribution shall be comparable to that of other primary
ValueStar partners within the ValueStar Site.
3.3 Points.
(A) Point Value. The Redemption Point Value (RPV) shall be
deemed to be *****. This RPV may not be changed without the prior written
approval of Netcentives.
(B) No Exchange for Cash. Subject to Section 3.3(C) below,
Points distributed to Consumers may not be refunded or exchanged for cash value
or for any other currency, except as agreed in writing by both parties in
advance on a case-by-case basis.
(C) Redemption of Points for ClickMiles.
(i) Consumers may redeem Points for ClickMiles. As of the
Effective Date, ClickMiles are redeemable for frequent flyer miles on certain
airlines, in addition to merchandise. Notwithstanding the foregoing, ValueStar
acknowledges that the redemption of ClickMiles for frequent flier miles and/or
certain merchandise may be subject to additional restrictions, and redemption
options generally available in exchange for ClickMiles may not be available for
ClickMiles received through redemption of Points in connection with this
Agreement. Netcentives will use commercially reasonable efforts to provide
notice to ValueStar of such restrictions prior to implementation of ValueStar
promotions. Redemption options with respect to ClickMiles may be subject to the
approval of the applicable supplier. Where supplier approval is necessary,
Netcentives will use reasonable commercial efforts to obtain it. Any use of
airline trademarks and names will be subject to the airline's prior written
approval. Netcentives reserves the right to make changes to the goods and
services in the ClickRewards Program redemption catalog at its sole discretion.
Any text regarding ClickMiles and ClickRewards appearing on the ValueStar
Properties is subject to Netcentives' prior written approval. ValueStar will
provide information regarding the ClickRewards Program, the text of which will
be provided by Netcentives subject to ValueStar's reasonable approval, which
will be included prominently near the ClickMiles redemption opportunity.
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-6-
(ii) The conversion rate for ValueStar Points to
ClickMiles will be as follows: one (1) ClickMile may be obtained through the
Rewards Catalog in exchange for the number of Points whose total RPV equals
***** (the "Conversion Price"). Members may obtain one (1) ClickMile through the
Rewards Catalog in exchange for the number of Points whose total RPV equals $
***** (the "Member Conversion Price"), and ValueStar shall pay Netcentives the
difference between the Conversion Price and the Member Conversion Price for any
Points converted to ClickMiles.
(D) Expiration of Points. Subject to Sections 5.3 - 5.5,
Points will expire on December 31 of the calendar year that is ***** years after
the year in which such Points were earned and transferred from the applicable
Promotion Account to the applicable Consumer Account. (For example, Points
earned and transferred from the applicable Promotion Account to the applicable
Consumer Account on ***** will expire on *****.)
(E) Cancellation of Points. Any Points which are not
distributed to a Consumer Account within ***** months after the date such Points
are Minted shall be cancelled ("Cancelled Points"). Upon any such cancellation,
the number of the Cancelled Points shall be deducted from the Master Account
balance or any applicable Promotion Account balance.
(F) Manual. The terms of the Manual shall at all times govern
the conduct of Promotions and the distribution of Points, and are hereby
incorporated herein by reference. In the case of any conflict between this
Agreement and the Manual, this Agreement shall control.
(G) Distribution of Points. ValueStar shall only award Points
to Consumers in exchange for their participation in Promotions, and in
accordance with the terms of the Manual.
3.4 Promotions.
(A) Implementation of Promotions. For each new Promotion,
ValueStar will submit to Netcentives in writing the information necessary for
Netcentives to implement such Promotion at least twenty (20) Business Days prior
to the launch of such Promotion. Such information will include: the number of
Points to be deposited initially in the Promotion Account, an approximation of
the number of Points to be awarded during the Promotion, the start and end dates
of the Promotion, a description of the Qualifying Activity, the maximum number
of Points to be awarded pursuant to the Promotion, and any other information
reasonably necessary for the secure operation of the Promotion. Netcentives will
supply promotion codes to ValueStar or to the applicable ValueStar Merchants, as
set forth in the Manual. Such codes will be used in processing transactions and
generating reports.
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-7-
(B) Nonconforming Promotions. In the event that ValueStar
requests that Netcentives implement or administer Promotions which do not
substantially conform to the standard Promotion types listed in Exhibit F,
Netcentives will notify ValueStar within a reasonable time of an estimate of the
additional administration and/or set-up to implement such Promotion. ValueStar
will notify Netcentives within a reasonable time whether it wishes to implement
such Promotion, and pay such additional fees. ValueStar agrees that Netcentives
will not be responsible for, nor liable for any losses or damages, relating to
any award, redemption, or conversion of Points arising out of a fraudulent or
invalid Qualifying Activity with regard to Promotions: (i) that do not conform
to those set forth in Exhibit F; or (ii) that contain a proposed Qualifying
Activity that does not require sufficient authentication of the Consumer as a
unique user in accordance with Netcentives' security and validation practices.
(C) Fees for Promotions. Any fees payable pursuant to this
Section 3.4 shall be due thirty (30) days following receipt by ValueStar of
Netcentives' invoice.
3.5 ValueStar Merchants and Members.
(A) Merchants. ValueStar may, at its option, provide ValueStar
Merchants with the right to award Points to Consumers pursuant to Section 4.7(C)
below. Any such award of Points by a ValueStar Merchant or other participation
in the ValueStar Program by a ValueStar Merchant must be pursuant to a written
agreement between ValueStar and such ValueStar Merchant (the "ValueStar Merchant
Agreement"). ValueStar agrees that the ValueStar Merchant Agreement will: (i) be
consistent with the terms of this Agreement; (ii) require the ValueStar Merchant
to execute and comply with the terms of the Merchant Software License; and (iii)
require the ValueStar Merchant to comply with the terms of the Manual.
Netcentives makes no representations and assumes no liability for the
sufficiency or enforceability of the ValueStar Merchant Agreement. ValueStar
shall be solely responsible for any failure by a ValueStar Merchant to comply
with the Merchant Software License, the Manual, the applicable ValueStar
Merchant Agreement, or the terms of this Agreement. Notwithstanding this Section
3.5(A), as between ValueStar and the ValueStar Merchants, all Points are deemed
to be owned by ValueStar. ValueStar acknowledges and agrees that Netcentives
shall have the right to act on Point deposit requests received from ValueStar or
any ValueStar Merchants which comply with the Manual and which reasonably appear
to be valid, and Netcentives shall not be liable in any manner for complying
with such deposit requests.
(B) Members. ValueStar agrees that membership in the ValueStar
Program, and accrual and redemption of Points by Members or Consumers, will be
subject to a Member agreement, the form of which shall be approved by
Netcentives (the "ValueStar Member Agreement"), and to all applicable laws and
regulations. Upon request, Netcentives will provide ValueStar with a sample
merchant and/or member agreement; however, Netcentives makes no representations
and assumes no liability for the sufficiency or enforceability of such samples,
or for the ValueStar Member Agreement.
(C) Netcentives' Obligations. Netcentives shall perform
Standard Integrations for ValueStar Partners as set forth in Section 4.9(A) and
(B) below.
(D) ValueStar's Obligations. ValueStar shall be responsible
for all aspects of billing, collection, sales, and marketing relationships with
ValueStar Merchants. ValueStar acknowledges and agrees that Netcentives shall
act on ValueStar's instructions with respect to ValueStar Merchants' Promotions
and Promotion Accounts (including without limitation, funding and
-8-
termination of such Promotion Accounts), and that Netcentives will not be liable
in any manner for complying with such instructions. Notwithstanding the
foregoing, Netcentives shall be under no obligation to follow ValueStar's
instructions to transfer Points to any Promotion Account(s) or to award Points
to any Consumer, where the Master Account balance contains an insufficient
amount of Points.
3.6 Rewards Redemption.
(A) Rewards Catalog. Pursuant to the Consulting Services
Agreement (as defined in Section 3.10 below), ValueStar will engage Netcentives
to provide the strategy and design work for the Rewards Catalog. Netcentives
also will be responsible for the set-up of a basic Rewards Catalog. As of the
Launch Date, the Rewards Catalog shall include, subject to any applicable
restrictions, up to ***** Reward options from existing Netcentives suppliers and
other suppliers for whom Netcentives has completed the necessary technical
integration prior to the Launch Date.
(B) Rewards Suppliers. Netcentives shall be primarily
responsible for acquiring goods and services for inclusion in the Rewards
Catalog, although ValueStar may also acquire such goods and services for the
Rewards Catalog. Suppliers of Rewards must sign a binding contract with
Netcentives or ValueStar, as the case may be, on terms substantially similar to
Netcentives' standard ClickRewards supplier contract, an example of which is
attached hereto as Exhibit G (the "Supplier Agreement"). In addition, ValueStar
may contribute its own products and services as Rewards for the Rewards Catalog
(including without limitation its own gift certificates that may be used at
ValueStar Merchants), provided that Netcentives receives the Guaranteed Margin
as set forth in Section 3.6(C) for each such Reward. ValueStar agrees that it
shall execute the Supplier Agreement on the Effective Date of this Agreement. In
the case of any conflict between this Agreement and the Supplier Agreement, this
Agreement shall control.
(C) Pricing of Rewards. The Redemption Price for a Reward will
be the sum of: (i) the *****, (ii) shipping, handling and other fulfillment
costs (to the extent not paid by the supplier) to be mutually agreed to by the
parties but in no event less than the actual out-of-pocket costs to the party
sourcing the Reward, and (iii) any additional costs (including without
limitation all applicable taxes and/or import tariffs), which sum shall then be
divided by the RPV. Notwithstanding the foregoing, Netcentives reserves the
right to adjust the Redemption Price for any Reward from any source to ensure
that Netcentives receives a guaranteed margin (the "Guaranteed Margin") for such
Reward equal to: (i) for the first ***** of RPV in redemptions, at least *****
percent (*****) of the manufacturer's suggested retail price for the Reward; and
(ii) for any amounts in excess of the first ***** of RPV in redemptions, at
least ***** percent (*****) of the manufacturer's suggested retail price for the
Reward. ValueStar shall receive in cash any margin in excess of the Guaranteed
Margin for a Reward.
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-9-
3.7 Exclusivity.
(A) Definitions. For purposes of this Section 3.7 only,
"Points" are defined as units or stores of value that, when accumulated, may be
later exchanged or redeemed for rewards such as merchandise, services, or other
types of points. Points do not include dollar-off or percent-off coupons,
discounts at merchants or gift certificates.
(B) Restrictions. ValueStar hereby agrees that, during the
Term: (i) *****; and (ii) *****.
(C) Other Customers of Netcentives. Nothing in this Agreement
shall prevent Netcentives from working with any third party to build and manage
an Incentives Management System.
3.8 Reports. Netcentives will provide reports via e-mail on a weekly
basis, which are substantially similar in form to the sample reports set forth
in Exhibit C.
3.9 Customer Service.
(A) Obligations. All customer service inquiries related to the
ValueStar Program will be directed to Netcentives, and Netcentives shall provide
first line support via e-mail during Netcentives' regular business hours to
Members for questions relating to Consumer Point balances and Accounts, and
Rewards fulfillment. Netcentives will forward inquiries regarding the ValueStar
Program to ValueStar following reasonable verification by Netcentives that the
problem is not being caused by Netcentives. In the event of a dispute between a
Consumer and a ValueStar Merchant, ValueStar shall be responsible for resolving
such dispute with the ValueStar Merchant, with reasonable assistance to be
provided by Netcentives. Netcentives shall have no obligation to provide
customer service for any inquiries not relating to the ValueStar Program.
ValueStar shall post clear messaging regarding the use of the ValueStar Program
customer service contact information (the "CS Contact") provided on the
ValueStar Site (i.e., "This contact information is ONLY for the ValueStar
Program. For all other inquiries, contact . . ."), which messaging is intended
to minimize the number of non-ValueStar Program-related inquiries addressed to
Netcentives. Netcentives shall have the right to approve the location and text
of such messaging. The CS Contact will be posted only on the ValueStar Program
Pages, and on no other pages of the ValueStar Site.
(B) Fees. Netcentives will provide Consumers with customer
service as set forth in Section 3.9(A) above in accordance with the pricing
schedule set forth in Exhibit D2.
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-10-
(C) Service Level. Both parties shall abide by the customer
service provisions set forth in the Manual, and shall work together to promptly
resolve customer service disputes in a prompt and efficient manner. In the event
that ValueStar fails to respond to Netcentives' request for assistance with a
customer service complaint within five (5) Business Days after notice,
Netcentives shall have the right to award the disputed or otherwise applicable
number of Points directly from the Promotion Account or the Master Account to
the Consumer making such complaint. In the event that Netcentives fails to
respond to ValueStar's request for assistance with a customer service complaint
relating to the ClickRewards Program, ClickMiles, or another similar program
administered by Netcentives in which ValueStar is participating, within five (5)
Business Days after notice, Netcentives shall award the disputed or otherwise
applicable number of ClickMiles (or the applicable currency of such other
program, as appropriate) directly from its account to the Consumer making such
complaint.
(D) Consumer Dispute Resolution. ValueStar will cooperate with
Netcentives to resolve in good faith any Consumer disputes related to the
ValueStar Program or its Promotion(s). In the event that a Consumer complaint
arises out of a dispute over whether the Consumer sufficiently completed a
Qualifying Activity, ValueStar will have five (5) Business Days from receipt of
notification of such complaint to investigate, contact such Consumer, and
resolve such dispute in good faith. If ValueStar fails to make such contact
within the specified time period, Netcentives may credit the disputed amount of
Points to the applicable Consumer Account, and debit the Promotion Account
accordingly. If ValueStar is unable to resolve the dispute despite a good faith
effort to do so, ValueStar's final determination of whether the Qualifying
Activity was sufficiently completed by Consumer will control, and Netcentives
will transfer Points accordingly.
3.10 Consulting Services Agreement. Netcentives and ValueStar
acknowledge and agree that pursuant to a certain independent consulting services
agreement (the "Consulting Services Agreement") which has been or which
hereafter may be executed between the parties, Netcentives may provide services
regarding the Incentives Management System. ValueStar understands and agrees
that the Consulting Services Agreement that may be signed is a separate and
independent contractual obligation from this Agreement and any amendment hereto
relating to the Incentives Management System. ValueStar shall not withhold
payments that are due and payable pursuant to this Agreement or amendment(s)
hereto because of the status of work performed under the Consulting Services
Agreement. In addition, the parties acknowledge that the ability to provide such
services: (i) are not exclusive or specific to Netcentives; and (ii) are
commercially available from a variety of third party service providers.
3.11 ValueStar Participation in ClickRewards Program. ValueStar may
purchase and distribute ClickMiles, subject to the ClickRewards Merchant
Promotion Agreement (the "ClickRewards Merchant Agreement") entered into by the
parties as of the Effective Date.
3.12 Additional Obligations of the Parties.
(A) Program Web Site. ValueStar will provide to Netcentives
the technical resources and deliverables set forth in Exhibit I, in accordance
with the schedule and the terms set forth therein.
-11-
(B) Updates to Program Web Site. As part of its ongoing
operation of the ValueStar Program, Netcentives will make up to *****updates per
month to those web pages hosted by Netcentives in connection with the operation
of the ValueStar Program. Netcentives will provide up to *****hours of such
services per update at no additional charge. Additional hours will be billed in
accordance with the schedule set forth in Exhibit D1.
(C) Marketing Consulting Services. As part of its ongoing
operation of the ValueStar Program, Netcentives will provide up to ***** hours
of base-level marketing consulting services per Quarter at *****. Additional
hours of marketing consulting services will be charged per the fee schedule set
forth in Exhibit D1. Marketing agency services and campaign management services
are also available from Netcentives, the details and pricing of which shall be
provided to ValueStar on request.
(D) Administration. Netcentives will manage Point creation,
Member sign-up, tracking, Point balances, statement presentation, Rewards
redemption requests, and fulfillment.
(E) ValueStar Software Integration and Technical Consulting.
ValueStar will install the Licensed Software on its system in accordance with
the terms of the Manual and the documentation provided with the Licensed
Software. Netcentives will provide the systems integration consulting reasonably
necessary to integrate the Licensed Software into ValueStar's systems (the
"Integration Services"). Such services will be provided on-site at mutually
agreed upon times and locations. ValueStar may request additional systems
integration consulting services. The rates for such services will be in
accordance with the fee schedule set forth in Exhibit D1. Netcentives agrees to
provide such services in a professional and workmanlike manner, but in no event
warrants the outcome of any such services.
(F) Program Promotion by ValueStar. Beginning on the Launch
Date and for the remainder of the Term thereafter, ValueStar shall include a
reference to Netcentives on the page of the ValueStar Site about ValueStar's
strategic partners. ValueStar will market the ValueStar Program to the
registered users of the ValueStar Properties. ValueStar will deliver to
Netcentives a preliminary marketing plan no later than thirty (30) days prior to
the Target Launch Date, and will provide updated marketing plans on a quarterly
basis. Such marketing plans will describe target goals consistent with the terms
of this Section and the methods to be implemented to achieve such target goals.
(G) Program Promotion by Netcentives. Beginning on the Launch
Date and for the remainder of the Term thereafter, Netcentives shall include a
reference to the ValueStar Program on the "Custom Loyalty Networks" page of the
Netcentives Site. Netcentives also shall include a reference to ValueStar in the
"About Netcentives" portion of press releases issued by Netcentives during the
six (6) month period following launch of the ValueStar Program. Netcentives
shall include references to ValueStar in press releases issued after the
expiration of such six (6) month period on a rotational basis throughout the
remainder of the Term.
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-12-
(H) International Programs. In the event that ValueStar
decides to implement a loyalty program targeted at consumers in any
international territory, ValueStar will notify Netcentives in writing, and
Netcentives shall have the right of first negotiation with respect to the
implementation of such program(s) for ValueStar. ValueStar shall negotiate
exclusively and in good faith with Netcentives for a period of sixty (60) days
(the "Negotiation Period") for the purposes of coming to an agreement regarding
Netcentives' implementation and management of such international loyalty
program(s). If an agreement is not entered into during such period, ValueStar
may enter into such an agreement with a third party ("Third Party Loyalty
Program") on any terms it may see fit, in its sole discretion. Notwithstanding
the foregoing, ValueStar agrees that: (i) the currency for the Third Party
Loyalty Program shall not include, or be convertible into, Points; (ii) any
promotions pursuant to which Points can be earned in both the Value Star Program
and the Third Party Loyalty Program shall be mutually agreed upon by both
parties; (iii) the Licensed Software shall not be used, in whole or in part, to
implement, operate or administer any part of the Third Party Loyalty Program;
(iv) no trademarks or logos associated with the ClickRewards Program shall be
used in connection with the Third Party Loyalty Program; and (v) ValueStar shall
not imply any endorsement of the Third Party Loyalty Program by Netcentives.
Netcentives makes no representations regarding the legality of the operation of
the ValueStar Program in any international territory, and ValueStar shall be
solely responsible for any liability arising from its decision to operate any
international loyalty program.
SECTION IV
PURCHASE AND SALE; FEES
4.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Netcentives agrees to sell to ValueStar, and ValueStar agrees to
purchase from Netcentives, Points.
4.2 Payment. Unless otherwise specified herein, all payments will be
due thirty (30) days from ValueStar's receipt of Netcentives' invoice.
4.3 Crediting of Points. Points will be Minted within five (5) Business
Days of Netcentives' receipt of ValueStar's payment.
4.4 Pricing of Points.
(A) Price. In consideration for the license granted to the
Patents hereunder, and for the Points accounting, management, and maintenance
services provided by Netcentives hereunder, ValueStar will pay Netcentives the
RPV plus a xxxx-up on the RPV (the "Xxxx-Up") for each Point Minted during the
Term. The RPV plus the Xxxx-Up shall be deemed to be the "Price" per Point. The
Xxxx-Up shall be based on the volume of Points purchased to date, in accordance
with the schedule set forth in Section 4.4(B) below.
(B) Xxxx-Up. ValueStar will pay the Xxxx-Up based on the
volume of all Points purchased during the Term as set forth in the following
pricing schedule:
-13-
--------------------------------------- --------------------------------
RPV Purchase Level Xxxx-Up % on RPV
--------------------------------------- --------------------------------
***** *****
--------------------------------------- --------------------------------
***** *****
--------------------------------------- --------------------------------
***** *****
--------------------------------------- --------------------------------
***** *****
--------------------------------------- --------------------------------
***** *****
--------------------------------------- --------------------------------
***** *****
--------------------------------------- --------------------------------
The Xxxx-Up will be calculated as a weighted average
xxxx-up based on the volume of Points falling into each RPV Purchase Level. (For
example, an RPV Purchase Level of ***** would receive a xxxx-up of ***** on the
first ***** and ***** on the second *****, which would equal a weighted average
xxxx-up of ***** on the total purchase of *****.)
(C) No Refunds. Except to the extent otherwise expressly set
forth in Sections 5.3(F) and 5.3(G) below, Points purchased by ValueStar are not
refundable for any reason.
(D) Taxes. Any prices quoted herein are net of any taxes,
levies, imposts, deductions, charges or withholdings (collectively, the "Taxes")
on the sale or distribution of Points. In the event that Taxes are imposed on
the sale of Points, ValueStar shall be solely responsible for remitting any such
Taxes to the appropriate government authority.
4.5 Initial Fees.
(A) Initial Points Purchase. ValueStar will make a
nonrefundable initial purchase in cash of at least ***** in Points (exclusive of
associated Xxxx-Ups) (the "Initial Points Purchase"). Payment for the Initial
Points Purchase, plus associated Xxxx-Ups, will be due on the Launch Date.
(B) Additional Service Fees. Additional marketing and
technical consulting services that are not necessary to deliver the Netcentives
Deliverables, and any custom feature or functionality development services, will
be billed in accordance with the schedule set forth in Exhibit D.
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-14-
4.6 Guaranteed Commitments. In consideration for Netcentives' provision
of continuing support and capacity for the ValueStar Program during the Term,
ValueStar will make the following Guaranteed Commitments:
(A) During the period beginning on the Launch Date and ending
on the ***** anniversary of the Launch Date (the "Initial ***** Period"),
ValueStar will pay Netcentives at least ***** in connection with its purchases
of Points (including associated Xxxx-Ups) and services. The amount of the
Initial Points Purchase made by ValueStar pursuant to Section 4.5(A) above shall
be credited towards ValueStar's Guaranteed Commitment for the Initial *****
Period. For each Quarter after the first Quarter during the Initial *****
Period, ValueStar shall have paid the following specified amounts of the
Guaranteed Commitment by the end of such Quarter: (i) ***** by the end of the
second Quarter; (ii) ***** each by the end of each of the third Quarter and the
fourth Quarter; and (iii) ***** each by the end of each of the fifth Quarter and
the sixth Quarter. In addition to the foregoing schedule, ValueStar will pay
Netcentives at least ***** as consideration for marketing consulting services,
to be paid in ***** equal installments, each due on the first day of each
calendar quarter beginning with *****.
(B) During the period beginning on the expiration of the
Initial ***** Period and ending on the ***** month anniversary of the Launch
Date (the "***** Period"), ValueStar will pay Netcentives at least ***** in
connection with its purchases of Points (including associated Xxxx-Ups) and
services. For each Quarter during the ***** Period, ValueStar shall have paid
the following specified amounts of the Guaranteed Commitment by the end of such
Quarter: (i) ***** by the end of the first Quarter; (ii) ***** by the end of the
second Quarter; (iii) ***** by the end of the third Quarter; and (iv) ***** by
the end of the fourth Quarter.
4.7 Accounts and Point Orders.
(A) Order and Acceptance. In the event that ValueStar wishes
to, or is required to, purchase Points, ValueStar shall deliver orders in
writing to Netcentives for Points (the "Orders"). The Orders shall specify, at a
minimum, the number of Points to be ordered, and the date of the Order. If
ValueStar wishes to immediately transfer the Points to a Promotion Account,
ValueStar may include such transfer request in the Order, and shall specify the
Promotion Account to which the Points should be credited.
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-15-
(B) Account Balance. ValueStar agrees to maintain a sufficient
amount of Points in ValueStar's Accounts to provide for the award of Points to
Consumers entitled to receive them, as set forth in this Section. Netcentives
will determine the expected weekly consumption of Points based on past trends
and forecasted usage of Points in Promotions (the "Weekly Consumption Rate"). At
all times, ValueStar shall maintain a minimum account balance of Points in its
Master Account equal to the greater of (a) ***** times the Weekly Consumption
Rate for the Master Account, or (b) ***** Points (the "Minimum Account
Balance"); provided, however, that until Netcentives makes a determination of
the Weekly Consumption Rate, the Minimum Account Balance in the Master Account
shall be ***** Points. Netcentives will notify ValueStar when the applicable
Master Account balance is approaching ***** times the Weekly Consumption Rate,
and will invoice ValueStar for approximately ***** weeks worth of additional
Points. Payment of such Points will be due within thirty (30) days of
Netcentives' invoice, provided, however, that in the event that the Master
Account balance falls below the Minimum Account Balance, payment shall be due
immediately. Netcentives shall have the right, in its discretion, to transfer
Points from the Master Account to a Promotion Account to keep such Promotion
Account from being depleted. Such transfers, if any, will be reported to
ValueStar.
(C) Merchant Distribution of Points. ValueStar shall be
responsible for granting to ValueStar Merchants the right to distribute Points.
Any fees charged by ValueStar to such ValueStar Merchants shall be at
ValueStar's sole discretion. Points purchased by ValueStar which are distributed
by ValueStar Merchants will count towards ValueStar's Guaranteed Commitments.
(D) Account Transfer Requests. Subject to Section 4.7(B)
above, ValueStar may, upon notice to Netcentives, transfer Points between
ValueStar's Accounts, or from ValueStar's Accounts to Promotion Accounts held
for the benefit of ValueStar Merchants. Such notice shall be in the form of an
Order, and shall be subject to the terms of Section 4.7(A).
4.8 Breakage. ValueStar and Netcentives will share in Breakage in
accordance with the following table:
------------------------------------------- ---------------------------------------- ----------------------------------------
Overall Program Breakage (quarterly) ValueStar Share of Breakage Netcentives Share of Breakage
------------------------------------------- ---------------------------------------- ----------------------------------------
***** ***** *****
------------------------------------------- ---------------------------------------- ----------------------------------------
***** ***** *****
------------------------------------------- ---------------------------------------- ----------------------------------------
***** ***** *****
------------------------------------------- ---------------------------------------- ----------------------------------------
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-16-
The split in Breakage between ValueStar and Netcentives is calculated
as a weighted average based on the overall program Breakage levels (i.e., for an
overall program Breakage level of *****, the first ***** of Breakage would be
calculated at the ***** percentage split, and the remaining ***** of Breakage
would be calculated using the ***** percentage split). The Overall Program
Breakage during each Quarter shall be calculated as (a) the number of Points
expiring unused, or cancelled or terminated during such Quarter, divided by (b)
the total number of Points which would have expired unused or been cancelled or
terminated during such Quarter if no such Points had been redeemed. Within
thirty (30) days following the end of each Quarter, Netcentives will credit to
ValueStar's Master Account an amount of Points whose Price is equal to
ValueStar's share of the Breakage occurring in that Quarter (in accordance with
the table above) ;provided that such amount of Points shall be applied towards
any Guaranteed Commitment applicable at that time. The provisions of this
Section 4.8 shall not apply to: (i) any Cancelled Points, or (ii) any
conversions of Points into ClickMiles.
4.9 ValueStar Partner Integration and Maintenance.
(A) Definition of Standard Integration. For purposes of this
Agreement:
(i) a "Standard Merchant Integration" shall include: (1)
cursory prior review by Netcentives technical staff of potential ValueStar
Merchants for the purpose of advising ValueStar on compatibility and potential
integration issues; and (2) any Netcentives technical integration work, up to
***** hours per ValueStar Merchant, necessary to place the Licensed Software
demonstrably in service prior to the start date of the applicable ValueStar
Promotion;
(ii) a "Standard Supplier Integration" shall include:
(1) cursory prior review by Netcentives technical staff of potential ValueStar
Suppliers for the purpose of advising ValueStar on compatibility and potential
integration issues; and (2) any Netcentives technical integration work, up to
***** hours per ValueStar Supplier, necessary to enable electronic data
transmission in a file format to be determined by Netcentives (Standard Supplier
Integration shall not include any of the aforesaid work performed to make
ValueStar capable of acting as if it were a ValueStar Supplier); and
(iii) "Standard Integrations" shall mean, collectively,
Standard Merchant Integrations and Standard Supplier Integrations.
Standard Integrations shall not include any custom
software development services, which shall be available at the applicable rates
set forth in Exhibit D1.
(B) Integration Fees. Netcentives will provide up to *****
Standard Integrations for ValueStar Partners at no charge, provided that:
(i) no more than ***** of the ***** included Standard
Integrations shall be Standard Supplier Integrations;
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-17-
(ii) if any ValueStar Partner is both a ValueStar
Merchant and a ValueStar Supplier, then a Standard Merchant Integration
performed for that ValueStar Partner shall count as one Standard Integration,
and a Standard Supplier Integration for that ValueStar Partner shall also count
as one Standard Integration; and
(iii) ValueStar shall reimburse Netcentives for
reasonable expenses incurred in providing such services (including, without
limitation, travel and lodging expenses).
ValueStar agrees to pay Netcentives those fees set forth in
the pricing schedule in Exhibit D2 for any of the following services performed
by Netcentives for ValueStar Partners: (i) initial setup, (ii) Standard
Integrations of ValueStar Partners in excess of the ***** included Standard
Integrations, (iii) Standard Supplier Integrations of ValueStar Suppliers in
excess of the ***** included Standard Supplier Integrations, and (iv) any
integration services that are not Standard Integration services.
(C) Maintenance Fees. ValueStar agrees to pay Licensed
Software maintenance fees for any ValueStar Merchants at the rates set forth in
Exhibit D2.
4.10 Reversals and Adjustments. Provided that ValueStar and ValueStar
Merchants are using the Licensed Software to process Reversals and Adjustments,
all fees for such Reversals and Adjustments shall be waived. If ValueStar or
ValueStar Merchants are using any other technology to process Reversals and
Adjustments, ValueStar shall pay to Netcentives fees for each Reversal and/or
Adjustment in according with price schedule set forth in Exhibit D2.
SECTION V
TERM AND TERMINATION
5.1 Term. This Agreement will become effective as of the Effective Date
and, unless sooner terminated pursuant to Section 5.2, shall remain in effect
for a period of three (3) years following the first day of the first month
immediately following the Launch Date (the "Initial Term"). The parties agree to
begin discussing renewal in good faith at least one hundred and twenty (120)
days prior to the end of the Initial Term. For purposes of this Agreement,
"Term" means the Initial Term together with any extension terms.
5.2 Termination.
(A) This Agreement may be terminated immediately by a party
upon notice:
(i) if the other party defaults in the performance of
any material provision of this Agreement, which default is not cured within
thirty (30) days after written notice from the non-defaulting party;
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-18-
(ii) if such party reasonably detects, and reasonably
substantiates to the other party, fraud or gross negligence on the part of the
other party with regard to the distribution of Points or the operation of any
Promotion; or
(iii) if the other party becomes insolvent, files a
petition in bankruptcy, which is not dismissed within ninety (90) days of
commencement, or makes an assignment for the benefit of its creditors.
(B) ValueStar may terminate this Agreement immediately upon
written notice in the event of a Sale of Netcentives to a Direct Competitor of
ValueStar. Netcentives will provide ValueStar with written notice of any such
Sale within one (1) business day of entering into a definitive agreement for
such Sale. A nonbinding letter of intent is not a `definitive agreement' for the
purposes of this subsection.
(C) Netcentives may terminate this Agreement immediately upon
written notice in the event of a Sale of ValueStar to a Direct Competitor of
Netcentives. ValueStar will provide Netcentives with written notice of any such
Sale within one (1) business day of entering into a definitive agreement for
such Sale. A nonbinding letter of intent is not a `definitive agreement' for the
purposes of this subsection.
5.3 Effect of Termination or Expiration. Immediately upon expiration or
notice of termination of this Agreement for any reason whatsoever, the parties
shall work together to either (i) implement an up to one hundred eighty (180)
day wind-down period (the "Wind-Down Period"), during which Members can continue
to redeem the Points they have accrued, or (ii) implement an up to ninety (90)
day transfer period during which Members' Point balances shall be transferred to
a new loyalty program implemented by ValueStar. In either case, the following
shall apply:
(A) Netcentives will credit the Consumer Accounts of Consumers
for which ValueStar has requested a grant of Points prior to the effective date
of expiration or termination;
(B) Subject to Section 5.4 below, all Points in Consumer
Accounts will expire;
(C) ValueStar will shut down any Promotions, and no Points
will be distributed to Consumer Accounts;
(D) Netcentives will no longer be obligated to make any sales
of Points to ValueStar;
(E) All Points in ValueStar's Accounts shall immediately be
deemed Cancelled Points;
(F) Solely in the event of termination by ValueStar for
Netcentives' breach pursuant to Section 5.2(A)(i), ValueStar shall be refunded
the RPV it paid for Points Cancelled pursuant to Section 5.3(E);
(G) Solely in the event of expiration of this Agreement,
ValueStar shall receive a refund of the RPV it paid for that number of Points
that is equal to or less than the number of Points required to maintain the
Minimum Account Balance (as determined as of the date of expiration); provided,
however, that Points purchased pursuant to the Guaranteed Commitment shall not
be refunded upon expiration;
-19-
(H) Subject to Section 5.4(B) below, all license grants
pursuant to Section 2 and Section 6.4 shall immediately terminate;
(I) Subject to Sections 5.4(D)(ii) and 5.5(A) below, each
party shall return or, at the disclosing party's request, destroy the
Confidential Information of the other party; and
(J) Sections 1 (Definitions), 3.3(F) (Manual), 5.3 (Effect of
Termination or Expiration), 5.4 (Wind-Down Period), 5.5 (Transfer to a New
Program), 5.6 (Survival), 6.1 (Confidential Information), 6.4(C) (Ownership),
7.2 through 7.13 (Miscellaneous), and any payment obligations accrued as of the
effective date of expiration or termination, shall survive termination or
expiration of this Agreement.
5.4 Wind-Down Period. In the event that the parties establish a
Wind-Down Period in accordance with Section 5.3 herein, the following shall
apply, in addition to the obligations set forth in Section 5.3:
(A) The parties will work together to inform Members that the
ValueStar Program is being discontinued;
(B) Subject to ValueStar's payment of the Wind-Down Period
fees set forth in Section 5.4(C), the patent licenses granted pursuant to
Section 2.1 and the trademark licenses granted pursuant to Section 6.4 shall
remain in effect until the expiration of the Wind-Down Period, at which time
such license grants shall immediately terminate;
(C) In consideration of the continuation of the patent and
trademark licenses and the services to be provided by Netcentives during the
Wind-Down Period, ValueStar shall pay to Netcentives the following fees: (i)
***** for the first thirty (30) day period in the Wind-Down Period, and (ii)
***** for each thirty (30) day period in the Wind-Down Period after the first
thirty (30) days. (The fees for partial months shall be pro-rated.) Such fees
shall be due within ten (10) days following the commencement of the thirty (30)
day period to which they relate.
(D) At the end of the Wind-Down Period:
(i) All Points held in Consumer Accounts shall
immediately expire, and the terms of Section 4.8 will apply to any Breakage
resulting from such expiration; and
(ii) At ValueStar's request, all Member Information
shall be transferred to ValueStar in a mutually agreed upon format.
5.5 Transfer to a New Program. In the event that, upon expiration or
termination of this Agreement, ValueStar creates its own loyalty program in
which Members will continue to participate, then the following shall apply, in
addition to the obligations set forth in Section 5.3:
(A) At ValueStar's request, all Member Information shall be
transferred to ValueStar in a mutually agreed upon format;
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-20-
(B) ValueStar shall transfer Members' Point balances to
accounts in the new loyalty program;
(C) All Points transferred will be flagged with their previous
expiration dates;
(D) Netcentives and ValueStar shall, pursuant to the terms of
Section 4.8, share in the Breakage for flagged Points not redeemed by their
previous expiration dates;
(E) Netcentives will pay ValueStar the RPV upon redemption of
flagged Points under the new loyalty program. Flagged Points will be deemed to
be used prior to points accrued under the new loyalty program for purposes of
this Section 5.5(E); and
(F) ValueStar will pay to Netcentives program transfer fees in
the amount of ***** to cover the costs of Netcentives' continued performance
during the transfer to the new loyalty program; provided, however, that no such
transfer fees shall apply in the event Netcentives and ValueStar mutually agree
to renew this Agreement for any additional extension terms.
SECTION VI
PROPRIETARY INFORMATION
6.1 Confidential Information. Each party agrees not to use any
Confidential Information disclosed to it by the other party for its own use or
for any purpose other than to carry out its obligations under this Agreement.
Neither party will disclose any Confidential Information of the other party to
third parties or to employees of the party receiving Confidential Information,
other than employees who are required to have the information in order to carry
out such party's obligations under this Agreement. Each party agrees that it
will take all reasonable measures to protect the secrecy of and avoid disclosure
or use of Confidential Information of the other party in order to prevent it
from falling into the public domain or the possession of persons other than
those persons authorized under this Agreement to have any such information,
including (without limitation) ensuring that recipients of the disclosing
party's Confidential Information adhere to confidentiality terms in content
substantially similar to the terms in this Agreement. Such measures shall
include the highest degree of care that the receiving party utilizes to protect
its own Confidential Information of a similar nature. Each party agrees to
notify the other in writing of any misuse or misappropriation of Confidential
Information of the disclosing party which may come to the receiving party's
attention. The terms of this Agreement, any information contained in the reports
or the data feed provided to ValueStar pursuant to Section 3.8, and any notice
provided by a party pursuant to Sections 5.2(C) and/or (D) will be considered
Confidential Information under the definition set forth herein.
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-21-
6.2 Member Information. Netcentives shall maintain and manage the
Member Information Database on behalf of ValueStar. ValueStar will retain
ownership of all information in the Member Information Database. The information
in the Member Information Database is deemed to be Confidential Information.
Notwithstanding the foregoing, Netcentives shall have the right to use aggregate
information and results (which information will contain no identifying
information about individual Consumers or the ValueStar Program) in its sole
discretion for the purposes of marketing its own products and services.
Netcentives shall not use any Member Data it received directly from its
administration and operation of the ValueStar Program to contact any ValueStar
Members for any purpose not directly related to the ValueStar Program; provided,
however, that if Netcentives receives contact information for any ValueStar
Member from any third party or in connection with any other programs run by
Netcentives, including without limitation the ClickRewards Program, then
Netcentives may use such information for any purpose and in its sole discretion.
Other than its maintenance and management of the Member Information Database,
Netcentives shall have no direct access to or right to use any information in
the Member Information Database, unless otherwise authorized by ValueStar.
Except for the information directly relating to the redemption of Points for
ClickMiles by ValueStar Members, notwithstanding anything in this paragraph to
the contrary, nothing in this Agreement shall give ValueStar any rights to any
information relating to consumers participating in other programs run by
Netcentives, including without limitation the ClickRewards Program (the
"Netcentives Member Information"), even if such information also relates to a
ValueStar Member. Netcentives shall retain complete and exclusive ownership of
all Netcentives Member Information.
6.3 Publicity. The parties shall issue mutually agreeable press
releases promptly following each of the following events: (i) the execution of
this Agreement by both parties, (ii) the launch of the ValueStar Program, and
(iii) the achievement of certain mutually agreeable milestones. The parties also
shall, at mutually agreeable times, issue other mutually agreeable press
releases which may, among other things, confirm the existence of a relationship
between the parties. Neither party shall issue a press release or make any
statement to the general public concerning this Agreement, or the relationship
created hereby, without the express prior written consent of the other party,
which consent shall not be unreasonably withheld or delayed; provided, however,
that each party may make such disclosures required by law or that such party
reasonably determines is required for any governmental or regulatory filings,
without the prior written consent of the other party.
6.4 Trademarks.
(A) ValueStar Marks. ValueStar hereby grants to Netcentives a
limited, non-exclusive, nontransferable license, without the right to
sublicense, to use, reproduce, display, and transmit the ValueStar Marks in
Netcentives' promotional materials, on the Netcentives Site and on the ValueStar
Program web site, provided, however, that (a) any use of the ValueStar Marks
shall be for the purpose of promoting the ValueStar Program or reflecting the
relationship between the parties, and (b) such use shall be in conformance with
the style guide of ValueStar, as amended from time to time, or as otherwise
approved in writing by ValueStar.
(B) Netcentives Marks. Netcentives hereby grants to ValueStar
a limited, non-exclusive, nontransferable license, with the right to sublicense
to ValueStar Merchants, to use, reproduce, display, and transmit the Netcentives
Marks in ValueStar's promotional materials and on
-22-
the ValueStar Program web site, provided, however, that (a) any use of the
Netcentives Marks shall be for the purpose of promoting the ValueStar Program or
reflecting the relationship between the parties, and (b) such use shall be in
conformance with the style guide of Netcentives, as amended from time to time,
or as otherwise approved in writing by Netcentives.
(C) Ownership. Nothing herein shall be deemed to grant either
party any ownership rights in the Marks of the other party or deemed to grant
any rights in any Marks other than those provided by the providing party.
SECTION VII
MISCELLANEOUS
7.1 Representations and Warranties.
(A) By Netcentives. Netcentives warrants that the ValueStar
Rewards Program will operate in substantially the same manner as is represented
in the Manual.
(B) By ValueStar. ValueStar warrants that: (i) any Promotion
will be operated in substantial conformance with the Manual at all times; and
(ii) it will make no representations and warranties regarding the ValueStar
Program to ValueStar Merchants or Members in excess of those made by Netcentives
in the Manual.
(C) By Each Party. Each party to this Agreement represents and
warrants to the other that (a) such party has the full corporate right, power,
and authority to enter into this Agreement and perform the acts required of it
hereunder, (b) the execution of this Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not and
will not violate any agreement to which such party is a party or by which it is
otherwise bound, and (c) when executed and delivered by such party, this
Agreement will constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms.
7.2 Disclaimer of Any Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES
STATED IN SECTION 7.1, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, WITH RESPECT TO NETCENTIVES' CONSULTING SERVICES, THE
INCENTIVES MANAGEMENT SYSTEM OR THE VALUESTAR PROGRAM, AND EACH PARTY
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION,
NETCENTIVES DOES NOT WARRANT THAT ITS SYSTEMS OR SERVERS (AS DEFINED IN THE
MANUAL), OR THE INFORMATION CONTAINED THEREON ARE ERROR-FREE.
7.3 Limitation of Liability. EXCEPT FOR LIABILITY ARISING UNDER SECTION
7.5, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT
EXCEED THE NET CASH AMOUNTS RECEIVED BY NETCENTIVES FROM VALUESTAR HEREUNDER.
EXCEPT FOR LIABILITY ARISING UNDER SECTION 7.5, IN NO EVENT SHALL EITHER PARTY
BE LIABLE TO THE OTHER FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
LOST PROFITS, LOST DATA, OR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL,
OR INDIRECT DAMAGES,
-23-
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT
LIABILITY), ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7.4 Independent Contractors. The relationship of Netcentives and
ValueStar established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be construed to constitute the parties
as agents, partners, joint venturers, co-owners or otherwise as participants in
a joint or common undertaking.
7.5 Indemnification.
(A) By Netcentives. Netcentives hereby agrees to indemnify,
defend and hold harmless ValueStar, its successors, assigns, agents, officers,
directors, and employees, from and against any and all claims, losses, damages,
suits, judgments, costs and expenses (including litigation costs and reasonable
attorneys' fees) arising out of or relating to: (i) an allegation that
ValueStar's use of Netcentives' Marks in strict accordance with the terms of
this Agreement infringes any copyright or trademark, (ii) a breach of any
representation or warranty set forth in Section 7.1(A) and (C), (iii) any
damages resulting from Netcentives' gross negligence or willful misconduct, (iv)
any claims relating to the Patents, (v) a claim that the Licensed Software
infringes any copyright or patent of any third party (subject to the mitigation
procedure set forth in the Software License), and (vi) a Consumer complaint or
dispute to the extent covered by Netcentives' indemnity obligation set forth in
the "Error and Dispute Procedures" section in the Manual; provided, however,
that in each such case ValueStar (x) promptly notifies Netcentives in writing of
any such allegation or claim, (y) provides Netcentives with sole control and
authority over the defense or settlement thereof (provided that Netcentives will
not enter into any settlement without ValueStar's prior written consent); and
(z) provides reasonable cooperation to Netcentives in defending or settling any
such claim at Netcentives' sole expense. Netcentives shall not be required to
indemnify ValueStar under this Agreement to the extent any claims, losses,
damages, suits, judgments, costs and expenses for which indemnification is
sought are determined to be a direct result of the gross negligence or willful
misconduct of ValueStar in the performance of its services hereunder.
(B) By ValueStar. ValueStar hereby agrees to indemnify, defend
and hold harmless Netcentives, its successors, assigns, agents, officers,
directors, and employees, from and against any and all claims, losses, damages,
suits, judgments, costs and expenses (including litigation costs and reasonable
attorneys' fees) arising out of or relating to: (i) an allegation that
Netcentives' use of ValueStar's Marks in strict accordance with the terms of
this Agreement infringes any copyright or trademark, (ii) a breach of any
representation or warranty set forth in Section 7.1(B) and (C), (iii)
ValueStar's failure to collect or remit any Taxes relating to its purchase or
distribution of Points, (iv) any award, redemption, or conversion of Points
arising out of a fraudulent or invalid Qualifying Activity with regard to
Promotions that do not conform to those set forth in Exhibit F, or that contain
a proposed Qualifying Activity that does not require sufficient authentication
of the Consumer as a unique user in accordance with Netcentives' security and
validation practices; (v) the ValueStar Program, except where Netcentives has
the obligation to indemnify ValueStar pursuant to the terms of Section 7.5(A)
above; (vi) any damages resulting from ValueStar's gross negligence or willful
misconduct; (vii) any claims relating to any Third Party Loyalty Program; and
(viii) a Consumer complaint or dispute to the extent covered by ValueStar's
indemnity obligation set forth in the "Error
-24-
and Dispute Procedures" section in the Manual; provided, however, that in each
such case Netcentives (x) promptly notifies ValueStar in writing of any such
allegation or claim, (y) provides ValueStar with sole control and authority over
the defense or settlement thereof (provided that ValueStar will not enter into
any settlement without Netcentives' prior written consent); and (z) provides
reasonable cooperation to ValueStar in defending or settling any such claim at
ValueStar's sole expense. ValueStar shall not be required to indemnify
Netcentives under this Agreement to the extent any claims, losses, damages,
suits, judgments, costs and expenses for which indemnification is sought are
determined to be a direct result of the gross negligence or willful misconduct
of Netcentives in the performance of its services hereunder.
7.6 Notices. All notices and demands hereunder shall be in writing and
shall be delivered by personal service or by facsimile, certified or registered
mail, or return receipt express courier to the address of the receiving party
set forth on the signature page of this Agreement, or to any other address of
the receiving party designated by written notice in accordance with this
paragraph. A copy of notices to Netcentives shall be sent to the Executive Vice
President, Operations and Chief Financial Officer of Netcentives. A copy of
notices to ValueStar shall be sent to the General Manager, Chief Operating
Officer and Chief Financial Officer of ValueStar.
7.7 Waiver, Amendment and Modification. No waiver, amendment or
modification of any provision hereof shall be effective unless in writing and
signed by the party against whom such waiver, amendment or modification is
sought to be enforced. No failure by either party to exercise and no delay by
either party in exercising any right, power or remedy with respect to the
obligations secured hereby shall operate as a subsequent waiver of any such
right, power or remedy. Notwithstanding the foregoing, nothing shall limit the
right of Netcentives to amend the Manual, which amendment will have the effect
of being binding on ValueStar and ValueStar Merchants with respect to the future
operation of Promotions.
7.8 Assignment. Each of the parties agrees that its rights and
obligations under this Agreement may not be transferred or assigned directly or
indirectly without the prior written consent of the other party (which consent
will not be unreasonably withheld or delayed), and any assignment made without
such consent shall be void. Notwithstanding the foregoing, no consent shall be
required for an assignment of this Agreement made pursuant to a merger or sale
of all or substantially all of the assets, or sale of all the outstanding stock
of a party, subject to Sections 5.2(C) and (D). This Agreement will bind and
inure to the benefit of the parties and their successors and permitted assigns.
7.9 Severability. In the event that any of the provisions of this
Agreement shall be held by a court of competent jurisdiction to be
unenforceable, such provision will be enforced to the maximum extent permissible
and the remaining portions of this Agreement shall remain in full force and
effect. The parties agree to negotiate in good faith a substitute, valid and
enforceable provision that most nearly effects the parties' intent and to be
bound by the mutually agreed substitute provision.
7.10 Force Majeure. Neither party shall be responsible for any failure
to perform (except for payment obligations) due to unforeseen circumstances or
to causes beyond its control, including but not limited to acts of God, war,
riot, embargoes, acts of civil or military authorities, fire, floods, accidents,
strikes, shortages of transportation facilities, fuel, energy, labor or
materials or failures of telecommunications or electrical power supplies. A
party whose performance is affected by a force majeure condition shall be
excused from such performance to the extent required by the force majeure
condition so long as such party takes all reasonable steps to avoid or remove
such causes of
-25-
nonperformance and immediately continues performance whenever and to the extent
such causes are removed.
7.11 Entire Agreement; Amendment. This Agreement, together with the
ClickRewards Merchant Agreement, the Software License, the Manual, the Supplier
Agreement and all exhibits to this Agreement, constitutes the final and entire
agreement between the parties and may not be modified or amended except by a
writing signed by both of the parties.
7.12 Settlement of Disputes. To the fullest extent permitted by law,
any dispute, claim or controversy of any kind arising is connection with, or
relating to, this Agreement, except for a dispute, claim or controversy arising
under Sections 6.4 (Trademarks) and/or 6.1 (Confidentiality), shall be resolved
exclusively by binding arbitration in San Francisco County, California, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect, by three (3) arbitrators appointed in accordance
with said rules. Judgment on the award rendered by the arbitrators my be entered
into any court of competent jurisdiction.
7.13 Additional Matters. The headings and captions used in this
Agreement are for convenience only, and shall not in any way affect the
interpretation of the provisions of this Agreement. This Agreement may be
executed in counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument and shall be governed by and
construed in accordance with the laws of the State of California, without
reference to conflict of laws provisions thereof.
{SIGNATURE PAGE FOLLOWS}
-26-
AGREED AND ACCEPTED BY:
NETCENTIVES INC.
Address:
Date:
------------------------------------
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
By: /s/ X X XXXXXXXXXX Facsimile: (000) 000-0000
-------------------
Name: J X. Xxxxxxxxxx
Title: COO
VALUESTAR CORPORATION
Address:
Date:
------------------------------------
000 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
By: /s/ XXX XXXXX Facsimile: (000) 000-0000
Name: Xxx Xxxxx
Title: CEO
-27-
EXHIBIT A1
TRADEMARKS AND LOGOS OF VALUESTAR
VALUESTAR
TO BE PROVIDED BY 5-12-00
EXHIBIT A2
TRADEMARKS AND LOGOS OF NETCENTIVES
NETCENTIVES
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CONFIDENTIAL -28-
EXHIBIT B
INCENTIVES MANAGEMENT SYSTEM POLICY MANUAL
[GRAPHIC OMITTED][GRAPHIC OMITTED]
Incentives Management System Policy Manual
1. Description
Netcentives has developed the Incentives Management System, which provides a
branded promotional currency that you (the "Licensee") can use to enhance
marketing efforts to Consumers. This Incentives Management System Policy Manual,
as amended from time to time, (the "Manual") constitutes part of the Incentives
Management Program Agreement (the "Agreement") between Licensee and Netcentives.
To the extent there is any direct and irreconcilable conflict between the
Agreement and this Manual, the Agreement shall control.
2. Definitions
The following definitions shall apply for purposes of this Manual. All
capitalized terms not defined herein shall have the meaning given them in the
Agreement.
"Adjustment" means the return transfer to a Promotion Account of a portion of
Points previously Granted to a Consumer Account or a New Account under a
Qualifying Activity.
"Client Software" means the software, in object code form, used to access the
Server Software.
"Client System" means the designated system that runs the Client Software.
"Cryptographic Key" means the data used to encrypt and digitally sign data for
secure storage and transmission.
"Deposit Request Authorization" (or "DRA") means the digital message provided by
Netcentives to Licensee, in response to a DRM, indicating approval of a Grant to
a Consumer Account or New Account, and confirming that Points are being
transferred in accordance with the corresponding DRM.
"Deposit Request Message (or "DRM")" means the digital message provided by
Licensee to Netcentives requesting Grant authorization and the transfer of
Licensee's Points to a Consumer Account or New Account on the behalf of a Member
or Consumer, respectively.
A "Grant" occurs when Licensee determines that a Consumer has earned Points
under a Qualifying Activity, grants the designated number of Points for such
Qualified Activity to such Consumer, and notifies such Consumer of his or her
earning activity.
"New Account" means the temporary account established by Netcentives on a
Consumer's behalf following such Consumer's initial Qualifying Activity. The New
Account will maintain a temporary record of balances of such Consumer's
accumulated Points until such Consumer becomes a Member, at which time the
balance of Points will be transferred to such Consumer's Consumer Account.
CONFIDENTIAL -29-
"Password" means the identifying information that confirms that a Consumer
Account belongs to a specific Consumer or Member.
"Program" means the consumer incentives program which is the subject of the
Agreement.
"Reversals" means the return transfer to a Promotion Account of all Points
previously Granted to a Consumer Account or a New Account under a Qualifying
Activity.
"Server Software" means the software, in object code format, used to deliver
DRMs to Netcentives.
"Server System" means the dedicated system that runs the Server Software.
"Software" means the Client Software together with the Server Software,
collectively known as the RewardBroker software.
"System" means the Client System together with the Server System.
3. Transactions; General
Licensee will designate at least one authorized contact person responsible for
day-to-day maintenance of Promotion Accounts, and provide Netcentives with the
name and contact information for such person. Both parties will respond promptly
to requests for assistance and information relating to the Incentives Management
System. Both parties will use reasonable commercial efforts to minimize service
disruptions and customer service issues, and to facilitate software maintenance.
Transaction Processing
The transaction processing procedure and respective responsibilities are
outlined below:
Deposit Request Messages (DRMs)
For every Qualifying Activity performed by Consumer, Licensee will submit a DRM
to Netcentives requesting the transfer of Points from Licensee's Account to the
applicable Consumer Accounts or New Accounts. Each DRM shall contain the
identifying data specified below, and any other information that Netcentives and
Licensee mutually agree will be supplied under that particular Promotion.
The DRM identifying data shall include:
a) Consumer's e-mail address;
b) Consumer ID information;
(i) Last four digits of Consumer's home or office Zip Code; or
(ii)Last four digits of Consumer's home or office phone number.
a) Licensee's Promotion ID number (supplied by Netcentives upon registration
of Promotion);
b) Number of Points to be awarded to the Consumer;
c) AUTH_STRING (used to authenticate messages sent from Licensee's server to
Netcentives' server);
d) Host Name (name of the host on which the IMS runs); and
e) Port Number (Port on the IMS-API which sends messages to the IMS).
CONFIDENTIAL -30-
For each Qualifying Activity, Licensee shall submit a DRM within 24 hours of the
performance of the Qualifying Activity, provided, however, that for Qualifying
Activities involving purchases, Licensee may choose to submit a DRM within 24
hours of the confirmation, credit authorization or completion of the payment
required for such purchase. Licensee will clearly communicate to the Consumer,
in the manner specified by Netcentives, that Points will be Granted once the
purchase transaction has been processed.
Licensee understands that Netcentives will rely on and act upon any DRM that
reasonably appears to be valid, and Licensee agrees to be liable for any Points
transferred pursuant to such DRM.
Deposit Request Authorizations (DRAs)
Upon approval of a DRM, Netcentives will issue a DRA to Licensee authorizing the
Grant of Points to Consumers and notifying Licensee that the appropriate amount
of Points will be debited from the Promotion Account and transferred to the
applicable Consumer Account or New Account. Issuance of the DRA may be subject
to earning limits placed on Consumer Accounts or other restrictions established
by Netcentives.
In the event of System failure, or if the DRM process is interrupted or delayed,
Licensee will post a message to Consumer indicating that Point earning activity
is pending approval.
If Netcentives does not approve a DRM, Netcentives will provide a digital
message stating that such DRM has been denied, and Licensee shall follow the
applicable procedures provided by Netcentives.
Debiting and Crediting Accounts
Upon the Grant of Points to a Consumer, Netcentives will debit the requested and
authorized amount from the Promotion Account and credit such amount to the
applicable Consumer Account (or, in the event that such Consumer has not yet
opened a Consumer Account, to a new Consumer Account based on such Consumer's
e-mail address).
Reversals and Adjustments
Licensee may request Reversals or Adjustments of Grants to Consumers under
appropriate circumstances, such as return of goods purchased by Consumers.
Netcentives will debit the designated amount of Points from the appropriate
Consumer Account and credit those Points back to the applicable Promotion
Account. Netcentives reserves the right to refuse to process a Reversal or
Adjustment for any reason, including (i) an insufficient balance of Points in
the applicable Consumer Account or (ii) the fact that all or any portion of the
specific Grant to be reversed has already been redeemed. Licensee shall pay to
Netcentives the fee set forth in the Agreement for each Reversal or Adjustment
performed.
In all requests for Reversals or Adjustments, Licensee will include the date of
the request, the Consumer Account e-mail address, and the amount of Points to be
debited from the Consumer Account. Such amount may not exceed the amount of the
Grant associated with the initial transaction.
Customer Service
Netcentives will provide e-mail support for Consumers and Licensee during
Netcentives' regular customer support hours (Monday to Friday, 9 a.m. to 5 p.m.
PST, excluding holidays). Licensee will forward or refer all Member inquiries
related to the Program it receives to Netcentives. Netcentives will refer all
inquiries related to Licensee's products, services, or promotion to Licensee.
CONFIDENTIAL -31-
Records
Licensee agrees to maintain the following records relating to Qualifying
Activity transactions. Such records shall be treated as Confidential Information
in accordance with the terms of the Agreement, and shall be provided to
Netcentives upon request to settle Consumer disputes. Licensee understands and
agrees that Netcentives will rely on the accuracy of such records in the
transferring of ClickMiles and in the Consumer dispute resolution process.
Additionally, Netcentives may request copies of Licensee dispute and operating
procedures, and Licensee agrees to notify Netcentives of any changes to such
procedures affecting the Program.
o Licensee and Netcentives will maintain, in a secure and confidential
manner, an original record, or a complete and legible copy, of every
Qualifying Activity completed by a Consumer. Qualifying Activity records
shall be contained in files named "audit.dat" and "audit.dat.(mnth).(yr)"
and should be kept indefinitely. Such records shall be treated as
Confidential Information in accordance with the terms of the Agreement, and
shall be provided to Netcentives upon request to settle Consumer disputes.
Licensee understands and agrees that Netcentives will rely on the accuracy
of such records in the transferring of Points and in the Consumer dispute
resolution process. Additionally, Netcentives may request copies of
Licensee dispute and operating procedures, and Licensee agrees to notify
Netcentives of any changes to such procedures affecting the Program.
o Licensee will maintain Qualifying Activity records named
"CURRENCY_TRANSFER" that appear in the database table at Licensee's site.
Such records will contain, among other things, the consumer's email
address, amount of points transferred, promotion ID of the award, and the
xxxx-to postal code of the consumer's credit card used for the Qualifying
Activity.
o Licensee will provide and maintain data in a database at Licensee's site in
the following tables: NETC_TRANSACTIONS, NETC_TransNotOptIn and
NETC_TransItems. The data in these tables shall include the following
information relating to each purchase transaction executed at Licensee's
site: consumer's email address, date consumer submitted credit card, date
credit card was billed, amount of purchase, consumers' xxxx-to postal code,
and the list of SKU codes for items purchased. Such data shall be retained
by Licensee for at least six months prior to being archived. Netcentives
agrees that no such data shall be removed from Licensee's site.
Error and Dispute Procedures
Licensee and Netcentives agree that they will at all times operate the Program
in a manner intended to limit Consumer complaints. Licensee will notify
Netcentives of any Consumer complaint or dispute that comes to its attention.
Netcentives will investigate all Consumer complaints or disputes related to the
Program, and Licensee will cooperate with such investigation to the extent such
complaint or dispute is related to Licensee's participation in the Program.
In the event that a Consumer complaint or dispute arises out of Licensee's
failure to comply with this Manual or the material terms of the Agreement,
Licensee shall be responsible for any money damages or other costs arising out
of such complaint or dispute, and shall reimburse Netcentives for any
out-of-pocket costs attributable to such complaint or dispute. In the event that
a Consumer complaint or dispute arises out of Netcentives' failure to comply
with this Manual or the material terms of the Agreement, Netcentives shall be
responsible for any money damages or other costs arising out of such
CONFIDENTIAL -32-
complaint or dispute, and shall reimburse Licensee for any out-of-pocket costs
attributable to such complaint or dispute.
Fraud and Program Abuse
Licensee and Netcentives will take all reasonable actions to investigate
potential acts of fraud or abuse. Licensee will cooperate with all reasonable
requests of Netcentives concerning investigation and/or prosecution of anyone
engaging in, or suspected of engaging in, fraud or abuse, including cooperating
with any civil or criminal prosecution.
In the event that Licensee detects any fraud or abuse in relation to the
issuance, earning, or redemption of Points, Licensee shall immediately notify
Netcentives of such detection. Licensee may at its discretion void a transaction
electronically if it reasonably determines that such transaction involves fraud
or abuse. Netcentives may at its discretion suspend or cancel a Consumer Account
if it suspects fraud or abuse.
Netcentives may from time to time request Licensee's cooperation in developing
improved procedures for fraud and abuse detection, investigation and
elimination.
Netcentives may suspend any Promotion Accounts and delay the debiting or
crediting of any transactions with respect thereto during a pending, good faith
investigation into any suspected acts of fraud. Licensee agrees that it shall
respond promptly to Netcentives' requests for information relating to such
suspected acts of fraud, and shall provide reasonable assistance to Netcentives
for the purposes of minimizing such acts of fraud and their operational impact.
Risk Management and Security
Software Installation and Maintenance
Netcentives will provide Client Software and Server Software to be installed on
the Client System and Server System, respectively, which will enable the
Licensee to submit Deposit Request Messages and Grant Points to Consumers. Usage
of the Software will be governed by the Incentives Management System Client
Software License Agreement. Netcentives will provide telephone technical support
to assist Licensee in its use of the Software. Licensee will install any
upgrades to Cryptographic Keys provided by Netcentives within twenty-four (24)
hours following delivery by Netcentives to Licensee.
Software Physical and Logical Security
Licensee shall run the Client Software on a designated Client System and run the
Server Software on a dedicated Server System. Only applications needed for the
proper operation of the Server Software can be run on the Server System.
Licensee shall ensure security of these Systems and Software at all times such
Systems and Software are stored by the Licensee. Licensee's security system
shall contain the following security controls:
|X| Physical security controls isolating the Systems from physical access by
anyone not directly authorized to manage the Systems.
|X| Logical access controls that enforce positive control over access to the
Systems and Software.
|X| Code integrity controls that verify the integrity of the Software.
|X| Connectivity controls that ensure that all network connections to the
Systems are under the positive control of those personnel with direct
responsibility for the security of the Software.
CONFIDENTIAL -33-
|X| Physical security controls isolating the Cryptographic Key ignition strings
from physical access by anyone not directly authorized to manage such
strings. The key ignition strings shall not be stored on any magnetic media
or in any electronic form.
|X| All Cryptographic Keys that support security functionality for the Program
will be used and stored solely within secure, dedicated Software and
Systems.
|X| Positive controls over all Consumer information and data, including, but
not limited to, an encrypted system commensurate with SSL for the transfer
and receipt of (a) newly assigned Consumer passwords and (b) sign-up and
earning data provided by Consumers.
The above-listed security controls shall generate effective audit trails that
are secure from modification and unauthorized access, and that may be made
available to Netcentives upon request.
All storage and security systems are subject to inspection and approval by
Netcentives prior to the delivery of the Software.
Licensee's General Duties
Licensee will, at all times:
a) submit a DRM to Netcentives for any valid request for Points presented by
Consumers;
b) not Grant Points without receiving a DRA;
c) not request a Member Password or any other means of Consumer Account
verification on behalf of Netcentives unless agreed upon in writing by
Netcentives;
d) not knowingly request a DRA, or knowingly Grant Points to a Consumer
Account or New Account, for earning activity which is performed by any
person other than the individual for which the request is made;
e) not convert Points into cash or sell Points to Consumers or any other
individuals directly for cash;
f) not indicate or suggest in any manner that Netcentives endorses Licensee's
products, activities, or services.
g) not impose any extra surcharges, including tax, upon Consumers for
participation in the Program other than those permitted under this Manual,
the Promotion, or in the Agreement;
h) make its general policies clear and available to Consumers;
i) Grant Points to Consumers in amounts equal to those originally offered
and/or advertised to Consumers at the point of sale under a Qualified
Activity;
j) follow the security, fraud prevention and other procedures outlined in this
Manual;
k) not impair Netcentives' ability to enforce the terms and conditions of
membership in the Program or encourage Members to violate such terms and
conditions;
l) comply with applicable laws, rules and regulations with respect to its
operations, its marketing and sale of its products or services, and its
representation of the Program and Licensee's involvement in the Program.
CONFIDENTIAL -34-
Netcentives General Duties
Netcentives will, at all times:
a) provide a response to all DRMs posted by Licensee to Netcentives;
b) be responsible for accurately crediting Consumer Accounts and debiting
Promotion Accounts for Grants requested by the Licensee and authorized by
Netcentives;
c) use its best efforts to ensure the secure transmission of data transmitted
by Licensee to Netcentives via the Server Software.
d) follow the security, fraud prevention, and other procedures outlined in
this Manual;
e) provide customer service to Members;
f) maintain the Program, and permit Members to realize benefits through
redemption of Points earned through participation in the Program and
Promotions;
g) comply with applicable laws, rules and regulations with respect to its
operation of the Program.
Miscellaneous
Amendments to Manual
Netcentives may from time to time update or modify this Manual, in whole or in
part, in its discretion. Any such updates or modifications (the "Modifications")
will be effective thirty (30) days following Licensee's receipt of the new
version of this Manual. It is Licensee's responsibility to read and comply with
any Modifications to the Manual.
Enforcement
Netcentives' failure to exercise or enforce any of its rights under this Manual
will not act as a waiver of such rights or of any of its rights under the
Agreement.
CONFIDENTIAL -35-
EXHIBIT C
BASIC REPORT
WEEKLY REPORT FOR WEEK ENDING Nov ##, 1998 FROM SERVER XXXXXXXXXXXX
*****
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
CONFIDENTIAL -36-
EXHIBIT D1
CONSULTING FEE SCHEDULE
The Agreement provides for services to be delivered by Netcentives up to
specified limits of hours worked or deliverables completed. The following fee
schedule applies to services ValueStar may contract for beyond those specified
in the Agreement:
--------------------------------------------------- --------------------
Service Description Fee
--------------------------------------------------- --------------------
Marketing Consulting Services
--------------------------------------------------- --------------------
Marketing Promotion Consulting *****
--------------------------------------------------- --------------------
Strategic Promotion Consulting *****
--------------------------------------------------- --------------------
Reward Strategy and Sourcing Consulting *****
--------------------------------------------------- --------------------
Web Site Production
--------------------------------------------------- --------------------
HTML production *****
--------------------------------------------------- --------------------
Art production *****
--------------------------------------------------- --------------------
Art direction and design *****
--------------------------------------------------- --------------------
Copy development *****
--------------------------------------------------- --------------------
Partner Integrations
--------------------------------------------------- --------------------
Standard Integration for Merchant Partners See Exhibit D2
--------------------------------------------------- --------------------
Standard Integration for Suppliers See Exhibit D2
--------------------------------------------------- --------------------
Additional Integration Consulting *****
--------------------------------------------------- --------------------
Software Integration
--------------------------------------------------- --------------------
Software Integration Project Management *****
--------------------------------------------------- --------------------
Software Integration Consulting *****
--------------------------------------------------- --------------------
Netcentives will provide services as mutually agreed between ValueStar and
Netcentives, subject to resource availability. *****] ValueStar will reimburse
Netcentives for all reasonable expenses incurred in providing such services
(including, without limitation, travel, travel time and lodging expenses).
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
-37-
EXHIBIT D2
SERVICE FEES
--------------------- ------------------------------------------ ------------------------- ---
Service Definition Price
--------------------- ------------------------------------------ ------------------------- ---
Standard Customer Up to ***** contacts per ***** *****
Service transactions
--------------------- ------------------------------------------ ------------------------- ---
Extended Customer Above ***** contacts per ***** *****
Service transactions
----------------------------------------------------------------------------------------------
Customer service metrics and fees and calculated based on a quarterly average and billed
quarterly. Payments due net 30. More frequent updates about customer service metrics (as
frequently as monthly) are available from your account manager upon request. Transactions are
defined as any earning or redemption activity in the ValueStar Program. A "contact" is defined
as an email or other response that is generated by Netcentives' customer service department in
response to or as a result of any ValueStar-specific inquiry made by a consumer that is
prompted by ValueStar's action, ValueStar's failure to perform a necessary action or issues
relating to the ValueStar Program.
----------------------------------------------------------------------------------------------
--------------------- ------------------------------------------ ------------------------- ---
Standard Reversals Using RewardBroker architecture *****
--------------------- ------------------------------------------ ------------------------- ---
Non-Standard Using means other than RewardBroker *****
Reversals architecture
--------------------- ------------------------------------------ ------------------------- ---
Reversal fees will be calculated and billed quarterly. Payments due net 30.
----------------------------------------------------------------------------------------------
--------------------- ------------------------------------------ ------------------------- ---
New Partner o Up to ***** hours for Standard *****
Integrations (in Integration, set-up, and training
excess of included *****
Partner
Integrations)
--------------------- ------------------------------------------ ------------------------- ---
Reward Broker Annual Maintenance Fee for Software *****
Maintenance Fee
--------------------- ------------------------------------------ ------------------------- ---
Web Deposit Service Monthly Maintenance/Service Fee *****
Fee
----------------------------------------------------------------------------------------------
Setup and maintenance fees billed monthly. Payment due net 30.
----------------------------------------------------------------------------------------------
--------------------- ------------------------------------------ ------------------------- ---
Merchant Center Access to Online Reporting *****
--------------------- ------------------------------------------ ------------------------- ---
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
CONFIDENTIAL -38-
EXHIBIT E
NETCENTIVES INC. INCENTIVES MANAGEMENT SYSTEM
CLIENT SOFTWARE LICENSE AGREEMENT
This license agreement (the "License") authorizes ValueStar Corporation (the
"Licensee") to use the Licensed Software (as defined below) and related
documentation subject to the conditions set forth below. Please read this
Agreement carefully before installing the Licensed Software. By downloading,
installing and/or using the Licensed Software, Licensee agrees to be bound by
the terms and conditions stated below. If Licensee does not agree to all the
terms and conditions of this Agreement, Licensee may not download, install, or
use the Licensed Software.
1. DEFINITIONS. As used in this Agreement, the term "Licensed Software" means
the Netcentives Inc. Incentives Management Services Client Software, in object
code form only, made available to Licensee for download or otherwise provided to
Licensee by Netcentives in connection with the ValueStar Program, and any
documentation provided therewith. The term "Licensed Software" shall also
include source code solely to the extent Netcentives makes source code available
to Licensee. The term "Agreement" means the Incentives Management Program
Agreement between ValueStar and Netcentives. Capitalized terms not defined
herein shall have the meanings given them in the Agreement.
2. INTELLECTUAL PROPERTY AND TITLE. All title in and intellectual property
rights related to the Licensed Software are owned by and retained by Netcentives
and its licensors, and its structure, organization, and underlying source code
are the valuable trade secrets of Netcentives and its licensors. Licensee
acknowledges that no title to the intellectual property in the Licensed Software
is transferred to Licensee, and Licensee will not acquire any rights to the
Licensed Software except for the license as set forth herein. Netcentives
reserves all rights not expressly granted herein.
3. LICENSE AND USE. Netcentives hereby grants to Licensee a nonexclusive,
nontransferable license, without the right to sublicense, (i) to install the
Licensed Software onto a computer hard disk or other permanent storage media of
one (1) computer and to load the Licensed Software from the permanent storage
media into a central processing unit for purposes of executing the Licensed
Software for the sole purpose of participating in the ValueStar Program and
performing its obligations related thereto, and (ii) to use, modify, and
incorporate into Licensee's software or systems, the source code made available
to Licensee by Netcentives for the sole purpose of customizing the Licensed
Software for Licensee's systems. Licensee may not copy, modify, make derivative
works of, or distribute the Licensed Software, except: Licensee may make one (1)
copy of the Licensed Software on magnetic media as an archival back-up copy.
Licensee must reproduce and include all copyright, trademark, and other
proprietary notices of Netcentives with any copies Licensee makes of the
Licensed Software. Licensee's agents shall be entitled to exercise the rights
granted under this Section 3 on Licensee's behalf, provided that any such
agent(s) agree in writing to be bound by the terms of this License.
CONFIDENTIAL -39-
4. OTHER RESTRICTIONS. The Licensed Software is owned by Netcentives and its
licensors and is protected by United States copyright laws and international
treaty provisions. Licensee may not copy, export, re-export, sublicense, rent,
lease, or distribute the Licensed Software except as expressly permitted under
this License. Licensee may not reverse engineer, reverse compile, or disassemble
the Licensed Software.
5. SUPPORT. Netcentives will provide telephone and e-mail technical support to
Licensee with regard to Licensee's use of the Licensed Software during
Netcentives' regular business hours.
6. ERRORS AND BUG FIXES. Licensee agrees to notify Netcentives of any errors,
bugs, or defects in the Licensed Software promptly upon discovery thereof.
Netcentives will use its reasonable commercial efforts to fix any such errors,
bugs, or defects.
7. UPGRADES. Netcentives intends to create and provide to Licensee enhancements,
updates, and/or upgrades to the Licensed Software, but is under no obligation to
do so. Licensee agrees to download and install any such enhancements, updates,
and/or upgrades within (30) days following receipt of notice from Netcentives
that such enhancements, updates, and/or upgrades are available for download by
Licensee.
8. SECURITY AND INSPECTION. Licensee agrees that at all times Licensee will
comply with the physical and logical security obligations related to the
Licensed Software set forth in the Policy Manual provided to Licensee by
Netcentives. Licensee agrees to permit Netcentives, its agents, or employees,
upon reasonable notice and during regular business hours, to inspect all
premises under Licensee's control where the Licensed Software is copied, used or
stored, for the sole purpose of verifying compliance with this License.
9. CONFIDENTIALITY. Licensee hereby acknowledge that the Licensed Software
contains Netcentives' confidential and proprietary information. Licensee hereby
agrees that as to any of the Licensed Software believed by Licensee or
identified to Licensee by Netcentives as being confidential or proprietary,
Licensee will keep such Licensed Software, or portion thereof, in strict
confidence and will not reveal it to anyone unless Licensee is required to
disclose it by order of a judicial tribunal or government agency.
Notwithstanding any failure to so identify it, any source code made available to
Licensee by Netcentives shall be deemed confidential and proprietary
information.
10. TERMINATION. This License is effective until terminated. Licensee may
terminate this License at any time with notice to Netcentives. Licensee's
license rights will automatically terminate immediately without notice if (i)
Licensee fails to comply with any material provision of this License, or (ii)
the Agreement expires or is terminated for any reason. In the event of
termination, Licensee must destroy the original and all copies of the Licensed
Software.
CONFIDENTIAL -40-
11. WARRANTIES.
(A) LIMITED WARRANTY. Netcentives warrants and represents to Licensee
that: (a) for a period of ninety (90) days from delivery, the Licensed Software,
when used for the purpose and in the manner specifically authorized by the
Agreement, shall perform as described in its documentation; and (b) the media on
which the Licensed Software is recorded shall be free from defects in materials
and workmanship under normal use for a period of ninety (90) days following
delivery. This limited warranty shall not apply if the Licensed Software has
been: (i) altered or modified except by or at the written direction of
Netcentives; (ii) used in a hardware or operating system environment that has
not been approved by Netcentives, or (iii) subjected to negligence, or computer
or electrical malfunction. In the event of a breach of the express limited
warranties set forth above, Licensee's sole and exclusive remedy, and
Netcentives sole and exclusive liability shall be, at Netcentives' option,
repair or replacement of the Licensed Software.
(B) WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET
FORTH IN SUBSECTION (A) ABOVE, NETCENTIVES AND ITS LICENSORS DISCLAIM ALL
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT
TO THE LICENSED SOFTWARE. NETCENTIVES DOES NOT WARRANT THAT THE OPERATION OF THE
LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
12. LIMITATION OF LIABILITY. IN NO EVENT WILL NETCENTIVES OR ITS LICENSORS BE
LIABLE FOR ANY LOST PROFITS, LOST DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES, OR FOR ANY, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR
INCIDENTAL DAMAGES, ARISING OUT OF THE USE OF THE LICENSED SOFTWARE OR THIS
LICENSE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THESE LIMITATIONS
SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
13. INJUNCTION. In the event that any Licensed Software is, or in Netcentives'
sole opinion is likely to be, enjoined due to infringement, Netcentives, at its
option and expense, may either (i) modify the Licensed Software so that it
becomes noninfringing, (ii) replace the Licensed Software with functionally
equivalent non-infringing software, or (iii) if the foregoing alternatives are
not reasonably available to Netcentives, accept return of the Licensed Software
and terminate this License.
14. SOLE LIABILITY AND REMEDY. THE FOREGOING SECTIONS 12 AND 13 STATE THE ENTIRE
LIABILITY AND OBLIGATION OF NETCENTIVES AND LICENSEE'S EXCLUSIVE REMEDY, WITH
RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE
SECRETS, OR TRADEMARKS BY THE LICENSED SOFTWARE.
CONFIDENTIAL -41-
15. GOVERNING LAW. This License shall be construed and interpreted according to
the laws of the State of California, without regard for conflicts of law
provisions.
16. EXPORT RESTRICTIONS. Licensee acknowledges that any obligation of
Netcentives to provide the Licensed Software under this License shall be subject
in all respects to all United States laws and regulations governing the license
and delivery of technology and products abroad by persons subject to the
jurisdiction of the United States. Licensee shall not export, directly or
indirectly, any Licensed Software or related information without first obtaining
all required licenses and approvals from the appropriate government agencies.
17. GENERAL. This License constitutes the full and complete understanding of the
parties with respect to the subject matter herein and may not be altered or
modified, except by written consent of both parties. If any provision of this
License is found invalid or unenforceable, that provision will be enforced to
the maximum extent permissible, and the other provisions of this License will
remain in full force and effect.
AGREED AND ACCEPTED:
ValueStar Corporation: Date:
----------------------- ---------------------
By:
---------------------------------------
Print Name:
------------------------------
Title:
------------------------------------
CONFIDENTIAL -42-
EXHIBIT F
STANDARD PROMOTION TYPES
-------------------------- ----------------------------- --------------------------- -----------------------------------
Promotion Type Marketing Objective Qualifying Activity Example
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
***** ***** ***** *****
-------------------------- ----------------------------- --------------------------- -----------------------------------
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT)
AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
CONFIDENTIAL -43-
EXHIBIT G
EXAMPLE OF SUPPLIER CONTRACT
[Date, 2000]
Name
Address
Dear Name:
This letter agreement (the "Letter") sets forth the understanding between
Netcentives Inc. ("Netcentives") and SUPPLIER ("SUPPLIER") regarding the
purchase and sale of items for Netcentives' online rewards catalogs. Please
indicate your acceptance of the terms and conditions set forth below by having a
copy of this Letter executed on behalf of SUPPLIER, and returning to Netcentives
a signed original.
General Scope of Agreement. Netcentives operates Internet-based incentives
programs, (the "Programs") for itself and certain third parties ("Netcentives'
Clients"). SUPPLIER is in the business of _____________. SUPPLIER has formed
relationships with manufacturers (the "Manufacturers") of various products for
the purchase and shipping of such products to consumers. Pursuant to this
Letter, Netcentives shall have the right to include specific products from
SUPPLIER in one or more of Netcentives' online rewards catalog(s), and SUPPLIER
shall sell such products to Netcentives and arrange for the shipping of such
products to members of the Program(s). Netcentives shall pay for such products
that have been redeemed by members of the Program(s) at the time the redemption
is made.
1) Term. This Letter will become effective as of [Date, 2000] and shall remain
effective for one (1) year (the "Initial Term"). The Letter shall automatically
renew for an additional one year at the end of the Initial Term (the "Extension
Term"), unless terminated by either party in writing prior to the end of the
Initial Term.
2) Exclusivity. Netcentives shall be the exclusive point-based loyalty,
incentives, and reward program partner for SUPPLIER, for the term of this
Letter. As such, SUPPLIER agrees to supply its products to no online rewards
catalogs other than those operated by Netcentives.
3) Products. Netcentives shall have the right to purchase from SUPPLIER specific
products (the "Products") to be mutually agreed upon by the parties. SUPPLIER
shall supply information about each Product (the "Product Information") as
specified in Exhibit A, including without limitation the price, warranty
information, product features, manufacturer name and logos (the "Manufacturer
Marks"), and a photograph or drawing appropriate for catalog publication.
SUPPLIER shall ensure that consumers ordering such Products through Netcentives
shall receive a manufacturer's warranty and customer service level which is at
least as favorable as those provided to SUPPLIER's direct customers.
4) Customer Service. SUPPLIER shall ensure that consumers ordering such Products
through the Program(s) shall receive a customer service level which is at least
as favorable as that provided to SUPPLIER's direct customers. SUPPLIER agrees to
respond to inquiries from Netcentives within one (1) business day in order to
enable Netcentives to respond to inquiries from participants in the Program(s)
in a timely manner.
5) Standard Integration. SUPPLIER and Netcentives shall comply with all
Redemption Partner Integration practices as outlined in Exhibit A.
6) Orders and Shipping. On a regular, mutually agreed upon schedule, Netcentives
shall deliver orders to SUPPLIER in a format to be mutually agreed upon by the
parties, as described in Exhibit A. Such orders shall include, without
limitation, the name and quantity of the Product to be shipped, and the name and
shipping address of the consumer to whom the Product should be shipped. SUPPLIER
agrees to ship, or cause the applicable Manufacturer to ship, the applicable
Product to the consumer named in such orders at the shipping address provided by
Netcentives, within three (3) business days of receipt of Netcentives' order.
SUPPLIER agrees to send a confirmation email to the consumer when the order is
CONFIDENTIAL -44-
shipped, as outlined in Exhibit A. SUPPLIER also agrees to send a response file
to Netcentives as outlined in Exhibit A indicating successfully shipped orders
and errors.
7) Returns. SUPPLIER shall accept the return of a Product only in the event that
the Product is damaged or defective. In the event that a consumer returns a
damaged or defective Product, SUPPLIER shall, or shall cause the applicable
Manufacturer to, provide the consumer with a new Product. SUPPLIER shall ensure
that the applicable Manufacturer also abides by this Paragraph.
8) Out of Stock Inventory. SUPPLIER shall be responsible for notifying
Netcentives at least ten (10) business days prior to when a Product will be out
of stock ("Out of Stock Notification"). In the event that SUPPLIER fails to
deliver Out of Stock Notification to Netcentives and a consumer redeems points
for such Product, SUPPLIER must agree to offer the consumer the choice of the
following options ("Out of Stock Alternatives"): (1) an alternative Product of
equal or greater value at no additional charge to the consumer or to
Netcentives, (2) the requested Product to be shipped at a specified later date
at no additional charge to the consumer or to Netcentives, or (3) cancellation
of the redemption request. In the event that the consumer selects Out of Stock
Alternative #3 (cancellation of the redemption request), SUPPLIER shall pay
Netcentives a $45 per Product processing fee. In the event that SUPPLIER is
required to offer the Out of Stock Alternatives in three (3) or more instances,
Netcentives has the right to terminate this Letter.
9) Price. For each Product selected by Netcentives, SUPPLIER will provide
Netcentives with an officer's certificate stating the direct cost of goods to
SUPPLIER (the "Cost") of such Product, the retail price of such Product on the
SUPPLIER web site (the "Retail Price"), and the shipping cost of such Product.
Such officer's certificate will be addressed to the Controller of Netcentives,
with a copy to the Chief Financial Officer of Netcentives. SUPPLIER will notify
Netcentives of any change. The price to Netcentives for merchandise shall be
__________ All taxes associated with the fulfillment of the Products shall be
the responsibility of SUPPLIER. Nothing in this Supply Agreement shall limit
Netcentives' right to set the redemption price of the Products in the rewards
catalogs at its sole discretion.
10) Shipping Costs. SUPPLIER shall be responsible for 100% of the shipping costs
for items redeemed in the Programs.
12) Payment. SUPPLIER shall invoice Netcentives monthly for Products ordered and
shipped. Payment for such invoices shall be due within thirty (30) days of
Netcentives' receipt of SUPPLIER's invoice.
13) Trademarks. SUPPLIER hereby grants to Netcentives a limited, non-exclusive,
nontransferable license, without the right to sublicense, to use, reproduce,
display, and transmit the Manufacturer Marks in Netcentives' promotional
materials and on any Netcentives, ClickRewards or Netcentives' Clients' web
sites, and any co-branded or mirror web site of any of the foregoing; provided,
however, that (a) any use of the Manufacturer Marks shall be for the sole
purposes of promoting one or more of the Program(s), or reflecting the
availability of the Products as incentive awards in one or more of the
Program(s).
14) Confidential Information.
(A) "Confidential Information" shall mean any Netcentives' or Netcentives'
Clients' consumer order information or identifying information (including,
without limitation, consumer names and shipping addresses) or other information
including, but not limited to, that which relates to research, product plans,
products, services, customers, markets, software, developments, inventions,
processes, designs, drawings, marketing or finances of or relating to
Netcentives, which is (a) reasonably understood to be confidential or
proprietary, (b) designated in writing to be confidential or proprietary, or (c)
if given orally, confirmed promptly in writing as having been disclosed as
confidential or proprietary, provided, however, that information shall not be
deemed to be Confidential Information if such information is generally known by
or available to the public, or is known by SUPPLIER at the time of disclosure.
(B) SUPPLIER agrees not to use any Confidential Information disclosed to it
by Netcentives for its own use or for any purpose except to carry out the
undertaking of its obligations under this Letter. SUPPLIER will not disclose any
Confidential Information of Netcentives to third parties or to employees of
SUPPLIER except (1) employees who are required to have the information in order
to carry out SUPPLIER's obligations under this Letter, and (2) manufacturers of
the Products to be shipped to
CONFIDENTIAL -45-
Consumers, if necessary for such shipping. SUPPLIER agrees that it will take all
reasonable measures to protect the secrecy of and avoid disclosure or use of
Confidential Information. SUPPLIER agrees to notify Netcentives in writing of
any misuse or misappropriation of Confidential Information of Netcentives which
may come to SUPPLIER's attention.
(C) The foregoing commitments of SUPPLIER shall survive any termination
this agreement and shall continue for a period of two (2) years following the
date of this Letter.
(D) SUPPLIER agrees that the obligations of SUPPLIER provided herein are
necessary and reasonable in order to protect Netcentives and its business, and
SUPPLIER expressly agrees that monetary damages would be inadequate to
compensate Netcentives for any breach by SUPPLIER of its covenants and
agreements set forth herein. Accordingly, SUPPLIER agrees and acknowledges that
any such violation or threatened violation will cause irreparable injury
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 the threatened breach of this agreement or the
continuation of any such breach by SUPPLIER, without the necessity of proving
actual damages.
15) Indemnification. SUPPLIER shall indemnify, defend and hold harmless
Netcentives, its officers, directors and employees from any claims, losses,
attorney's fees, damages, liabilities, costs, expenses, or suits for injury to
any person, damage to or loss of property, or any other claim arising out of or
resulting from (a) any act or omission of SUPPLIER, its employees, or
subcontractors, or (b) the breach of any representation, warranty, or covenant
by SUPPLIER contained herein. Notwithstanding the foregoing, in no event shall
SUPPLIER be responsible for injuries or events which are solely a result of the
gross negligence of Netcentives.
16) Representations and Warranties of Each Party. Each party to this Letter
represents and warrants to the other that (a) such party has the full corporate
right, power, and authority to enter into this Letter and perform the acts
required of it hereunder, (b) the execution of this Letter by such party, and
the performance by such party of its obligations and duties hereunder, do not
and will not violate any agreement to which such party is a party or by which it
is otherwise bound, and (c) when executed and delivered by such party, this
Letter will constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms.
17) Representations and Warranties of SUPPLIER. SUPPLIER represents and warrants
that: (i) the Product Information set forth on Exhibit A is complete and
accurate; and (ii) SUPPLIER owns, or has obtained all necessary rights to
sublicense to Netcentives as set forth in this Letter, the Manufacturer Marks.
18) Independent Contractors. The relationship of Netcentives and SUPPLIER
established by this Letter is that of independent contractors, and nothing
contained in this Letter shall be construed to constitute the parties as agents,
partners, joint venturers, co-owners or otherwise as participants in a joint or
common undertaking.
19) Notices. All notices and demands hereunder shall be in writing and shall be
delivered by personal service or by facsimile, certified or registered mail, or
return receipt express courier to the address of the receiving party set forth
on the signature page of this Letter, or to any other address of the receiving
party designated by written notice in accordance with this paragraph.
20) Waiver, Amendment and Modification. No waiver, amendment or modification of
any provision hereof shall be effective unless in writing and signed by the
party against whom such waiver, amendment or modification is sought to be
enforced. No failure by either party to exercise and no delay by either party in
exercising any right, power or remedy with respect to the obligations secured
hereby shall operate as a subsequent waiver of any such right, power or remedy.
21) Assignment. Each of the parties agrees that its rights and obligations under
this Letter may not be transferred or assigned directly or indirectly without
the prior written consent of the other party, and any assignment make without
such consent shall be void; provided, however, that such consent shall not be
required for an assignment of this contract pursuant to a merger, sale of
substantially all of the assets, or sale of all of the outstanding stock of
either party. This Letter shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns.
22) Severability. In the event that any of the provisions of this Letter shall
be held by a court of competent jurisdiction to be unenforceable, such provision
will be enforced to the maximum extent
CONFIDENTIAL -46-
permissible and the remaining portions of this Letter shall remain in full force
and effect. The parties agree to negotiate in good faith a substitute, valid and
enforceable provision that most nearly effects the parties' intent and to be
bound by the mutually agreed substitute provision.
23) Force Majeure. Neither party shall be responsible for any failure to perform
due to unforeseen circumstances or to causes beyond its control, including but
not limited to acts of God, war, riot, embargoes, acts of civil or military
authorities, fire, floods, accidents, strikes, shortages of transportation
facilities, fuel, energy, labor or materials or failures of telecommunications
or electrical power supplies. A party whose performance is affected by a force
majeure condition shall be excused from such performance to the extent required
by the force majeure condition so long as such party takes all reasonable steps
to avoid or remove such causes of nonperformance and immediately continues
performance whenever and to the extent such causes are removed.
24) Entire Agreement; Amendment. This Letter, together with the Exhibit,
constitutes the final and entire agreement between the parties and may not be
modified or amended except by a writing signed by both of the parties.
25) Additional Matters. The headings and captions used in this Letter are for
convenience only, and shall not in any way affect the interpretation of the
provisions of this Letter. This Letter may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
instrument and shall be governed by and construed in accordance with the laws of
the State of California, without reference to conflict of laws provisions
thereof.
CONFIDENTIAL -47-
AGREED AND ACCEPTED:
NETCENTIVES INC.
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
-------------------------
By:
Title:
SUPPLIER
Address
-------------------------
By:
Title:
CONFIDENTIAL -48-
EXHIBIT A
PRODUCT INFORMATION SHEET
Product Name and Description:
Product Specifications and Features:
Product Warranty Information:
Manufacturer Name:
Product Price:
Estimated Shipping Time from Date of Order:
Special Terms and Conditions:
Manufacturer Xxxx Authorized for Use on _________________ Site:
Product Photograph:
CONFIDENTIAL -49-
EXHIBIT H
MERCHANT SOFTWARE LICENSE
This license agreement (the "Agreement") authorizes you (the "Licensee") to use
the Licensed Software (as defined below) and related documentation subject to
the conditions set forth below. Please read this Agreement carefully before
installing the Licensed Software. By downloading, installing and/or using the
Licensed Software, Licensee agrees to be bound by the terms and conditions
stated below. If Licensee does not agree to all the terms and conditions of this
Agreement, Licensee may not download, install, or use the Licensed Software.
1. DEFINITIONS. As used in this Agreement, the term "Licensed Software" means
the Netcentives Inc. Incentives Management Services Client Software, in object
code form only, made available to Licensee for download or otherwise provided to
Licensee by Netcentives in connection with the ValueStar Program, and any
documentation provided therewith. The term "Licensed Software" shall also
include source code solely to the extent Netcentives makes source code available
to Licensee. The term "Merchant Agreement" means the agreement between Licensee
and ValueStar governing Licensee's participation in the ValueStar Program.
2. INTELLECTUAL PROPERTY AND TITLE. All title in and intellectual property
rights related to the Licensed Software are owned by and retained by Netcentives
and its licensors, and its structure, organization, and underlying source code
are the valuable trade secrets of Netcentives and its licensors. Licensee
acknowledges that no title to the intellectual property in the Licensed Software
is transferred to Licensee, and Licensee will not acquire any rights to the
Licensed Software except for the license as set forth herein. Netcentives
reserves all rights not expressly granted herein.
3. LICENSE AND USE. Netcentives hereby grants to Licensee a nonexclusive,
nontransferable license, without the right to sublicense, (i) to install the
Licensed Software onto a computer hard disk or other permanent storage media of
one (1) computer and to load the Licensed Software from the permanent storage
media into a central processing unit for purposes of executing the Licensed
Software for the sole purpose of participating in the ValueStar Program and
performing its obligations related thereto, and (ii) to use, modify, and
incorporate into Licensee's software or systems, the source code made available
to Licensee by Netcentives for the sole purpose of customizing the Licensed
Software for Licensee's systems. Licensee may not copy, modify, make derivative
works of, or distribute the Licensed Software, except: Licensee may make one (1)
copy of the Licensed Software on magnetic media as an archival back-up copy.
Licensee must reproduce and include all copyright, trademark, and other
proprietary notices of Netcentives with any copies Licensee makes of the
Licensed Software. Licensee's agents shall be entitled to exercise the rights
granted under this Section 3 on Licensee's behalf, provided that any such
agent(s) agree in writing to be bound by the terms of this Agreement.
4. OTHER RESTRICTIONS. The Licensed Software is owned by Netcentives and its
licensors and is protected by United States copyright laws and international
treaty provisions. Licensee may not copy, export, re-export, sublicense, rent,
lease, or distribute the Licensed Software except as expressly permitted under
this Agreement. Licensee may not reverse engineer, reverse compile, or
disassemble the Licensed Software.
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5. SUPPORT. Netcentives will provide telephone and e-mail technical support to
Licensee with regard to Licensee's use of the Licensed Software during
Netcentives' regular business hours.
6. ERRORS AND BUG FIXES. Licensee agrees to notify Netcentives of any errors,
bugs, or defects in the Licensed Software promptly upon discovery thereof.
Netcentives will use its reasonable commercial efforts to fix any such errors,
bugs, or defects.
7. UPGRADES. Netcentives intends to create and provide to Licensee enhancements,
updates, and/or upgrades to the Licensed Software, but is under no obligation to
do so. Licensee agrees to download and install any such enhancements, updates,
and/or upgrades within (30) days following receipt of notice from Netcentives
that such enhancements, updates, and/or upgrades are available for download by
Licensee.
8. SECURITY AND INSPECTION. Licensee agrees that at all times Licensee will
comply with the physical and logical security obligations related to the
Licensed Software set forth in the Policy Manual provided to Licensee by
ValueStar. Licensee agrees to permit Netcentives, its agents, or employees, upon
reasonable notice and during regular business hours, to inspect all premises
under Licensee's control where the Licensed Software is copied, used or stored,
for the sole purpose of verifying compliance with this Agreement.
9. CONFIDENTIALITY. Licensee hereby acknowledge that the Licensed Software
contains Netcentives' confidential and proprietary information. Licensee hereby
agrees that as to any of the Licensed Software believed by Licensee or
identified to Licensee by Netcentives as being confidential or proprietary,
Licensee will keep such Licensed Software, or portion thereof, in strict
confidence and will not reveal it to anyone unless Licensee is required to
disclose it by order of a judicial tribunal or government agency.
Notwithstanding any failure to so identify it, any source code made available to
Licensee by Netcentives shall be deemed confidential and proprietary
information.
10. TERMINATION. This Agreement is effective until terminated. Licensee may
terminate this Agreement at any time with notice to Netcentives. Licensee's
license rights will automatically terminate immediately without notice if (i)
Licensee fails to comply with any material provision of this Agreement, (ii) the
Merchant Agreement expires or is terminated for any reason; or the Agreement
between Netcentives and ValueStar expires or is terminated for any reason. In
the event of termination, Licensee must destroy the original and all copies of
the Licensed Software.
11. WARRANTIES.
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(A) LIMITED WARRANTY. Netcentives warrants and represents to Licensee
that: (a) for a period of ninety (90) days from delivery, the Licensed Software,
when used for the purpose and in the manner specifically authorized by the
Merchant Agreement, shall perform as described in its documentation; and (b) the
media on which the Licensed Software is recorded shall be free from defects in
materials and workmanship under normal use for a period of ninety (90) days
following delivery. This limited warranty shall not apply if the Licensed
Software has been: (i) altered or modified except by or at the written direction
of Netcentives; (ii) used in a hardware or operating system environment that has
not been approved by Netcentives, or (iii) subjected to negligence, or computer
or electrical malfunction. In the event of a breach of the express limited
warranties set forth above, Licensee's sole and exclusive remedy, and
Netcentives sole and exclusive liability shall be, at Netcentives' option,
repair or replacement of the Licensed Software.
(B) WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET
FORTH IN SUBSECTION (A) ABOVE, NETCENTIVES AND ITS LICENSORS DISCLAIM ALL
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT
TO THE LICENSED SOFTWARE. NETCENTIVES DOES NOT WARRANT THAT THE OPERATION OF THE
LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
12. LIMITATION OF LIABILITY. IN NO EVENT WILL NETCENTIVES OR ITS LICENSORS BE
LIABLE FOR ANY LOST PROFITS, LOST DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES, OR FOR ANY, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR
INCIDENTAL DAMAGES, ARISING OUT OF THE USE OF THE LICENSED SOFTWARE OR THIS
AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THESE LIMITATIONS
SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
13. INJUNCTION. In the event that any Licensed Software is, or in Netcentives'
sole opinion is likely to be, enjoined due to infringement, Netcentives, at its
option and expense, may either (i) modify the Licensed Software so that it
becomes noninfringing, (ii) replace the Licensed Software with functionally
equivalent non-infringing software, or (iii) if the foregoing alternatives are
not reasonably available to Netcentives, accept return of the Licensed Software
and terminate this Agreement.
14. SOLE LIABILITY AND REMEDY. THE FOREGOING SECTION 12 AND 13 STATE THE ENTIRE
LIABILITY AND OBLIGATION OF NETCENTIVES AND LICENSEE'S EXCLUSIVE REMEDY, WITH
RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE
SECRETS, OR TRADEMARKS BY THE LICENSED SOFTWARE.
15. GOVERNING LAW. This Agreement shall be construed and interpreted according
to the laws of the State of California, without regard for conflicts of law
provisions.
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16. EXPORT RESTRICTIONS. Licensee acknowledges that any obligation of
Netcentives to provide the Licensed Software under this Agreement shall be
subject in all respects to all United States laws and regulations governing the
license and delivery of technology and products abroad by persons subject to the
jurisdiction of the United States. Licensee shall not export, directly or
indirectly, any Licensed Software or related information without first obtaining
all required licenses and approvals from the appropriate government agencies.
17. GENERAL. This Agreement constitutes the full and complete understanding of
the parties with respect to the subject matter herein and may not be altered or
modified, except by written consent of both parties. If any provision of this
Agreement is found invalid or unenforceable, that provision will be enforced to
the maximum extent permissible, and the other provisions of this Agreement will
remain in full force and effect.
AGREED AND ACCEPTED:
Company Name: Date:
--------------------------- ---------------------
By:
-------------------------------------
Print Name:
----------------------------
Title:
----------------------------------
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EXHIBIT I
VALUESTAR DELIVERABLES
TO BE DELIVERED BY 5-12-00
CONFIDENTIAL -54-
EXHIBIT J
DIRECT COMPETITORS OF NETCENTIVES
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
*****
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
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EXHIBIT K
DIRECT COMPETITORS OF VALUESTAR
*****, *****, *****,
*****, *****, *****, *****, *****, *****, *****,
*****
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
CONFIDENTIAL -56-
EXHIBIT L
IMPLEMENTATION AND LAUNCH SCHEDULE
Task Name Duration Start Finish
****** ****** ***** *****
****** ****** ***** *****
****** ****** ***** *****
* PORTIONS OF THIS EXHIBIT DENOTED HEREIN BY ***** HAVE BEEN OMITTED (BASED UPON
A REQUEST FOR CONFIDENTIAL TREATMENT) AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2.
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Page 59 of 58
EXHIBIT M
VALUESTAR PROGRAM SPECIFICATIONS
To be delivered by 5-12-00
CONFIDENTIAL -58-
