When signed by your company's authorized representative or by placing an order electronically through www.delta.com, this document will be the agreement by and between Delta Loyalty Management Services, Inc. ("DLMSI") and your company, as indicated below or on the Purchase Form ("Company") in connection with Company's participation in the Delta SkyMiles Incentives Program (the "Program"). DLMSI, at its sole discretion, reserves the right to approve Company's participation in the Program.
Whereas, DLMSI has developed the SkyMiles® Program, under which Members are awarded mileage for travel on Delta Air Lines, Inc. ("Delta") and certain other SkyMiles Participants, and for the purchase of goods or services from other SkyMiles Participants in association with the SkyMiles Program, and can obtain bonus travel and other SkyMiles Awards for such SkyMiles activity; and
Whereas, Company desires to purchase SkyMiles mileage to provide to Members as an incentive; and
Whereas, Delta is willing to sell SkyMiles mileage to Company on the following terms and conditions;
Now therefore, in consideration of the mutual covenants and promises in this Agreement, the parties hereto agree as follows:
1. Definitions
For all purposes of this Agreement, the following terms shall have the following meanings:
"SkyMiles Awards" means the awards or benefits that Members can receive from Delta, Delta Connection® and/or certain SkyMiles Participants pursuant to the SkyMiles Program Rules in exchange for the redemption of accrued SkyMiles Program miles, and, if applicable, other consideration.
"Program" or "DSR" means the program established and governed by DLMSI, as such program may be in effect from time to time, whereby Company, operating in the U.S., distributes SkyMiles Program miles, via SkyMiles Incentives Certificates or electronically, to qualified Participants in an incentive program as defined in Section 3.
"SkyMiles Activity" means the points or miles accrued under the SkyMiles Program by Members for (i) travel on Delta or Delta Connection, (ii) travel on, and/or the purchase of goods or services from SkyMiles Participants, or (iii) any other reason permitted by DLMSI.
"SkyMiles Incentives Certificates" or "Certificates" means the document distributed to a Member by Company in a Company incentive program that entitles such Member to SkyMiles Awards based on the terms and conditions and the denomination specified on such document or communicated to Delta on diskette or other acceptable electronic means.
"SkyMiles Participant" means any Person that, pursuant to the SkyMiles Program Rules and an agreement between Delta and such Person regarding such Person's participation in the SkyMiles Program: (i) provides goods or services to Members in exchange for the redemption of SkyMiles Program miles, or (ii) in connection with the sale of goods or services by such Person to Member, offers SkyMiles Program miles to such Member.
"SkyMiles Program" means the travel awards program established and governed by DLMSI, as such program may be in effect from time to time, pursuant to which, among other things, Members receive miles for (i) travel on Delta or Delta Connection, (ii) travel on and/or the purchase of goods or services from SkyMiles Participants, or (iii) any other reason permitted by DLMSI.
"SkyMiles Program Rules" means the rules, regulations, terms and conditions established or modified, from time to time, by DLMSI, in its sole discretion, which shall govern the SkyMiles Program.
"Agreement" means this SkyMiles Incentives Program Agreement, together with the SkyMiles Incentives Program Application and SkyMiles Incentives Purchase Order, if any, submitted by Company online or signed by the Company and submitted by Company to DLMSI via fax or mail.
"Delta" has the meaning assigned to such term in the preamble to this Agreement.
"DLMSI" has the meaning assigned to such term in the preamble of this Agreement.
"Miles" means the miles posted to a Member's account that have been purchased by Company for its incentive program, and that may be redeemed by such Member in the same manner as any other SkyMiles Program mileage credit.
"Company Customer" or "Customer" means an individual with whom Company conducts business.
"Company Employee" or "Employee" means an individual who is on Company's regular payroll.
"Marks" shall have the meaning set forth in Section 5 of this Agreement.
"Member" means, as of any date, an individual who is a member in good standing of the SkyMiles Program.
"Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any group or political subdivision thereof.
2. . Company agrees that it will distribute Miles without charge, either electronically via e-mail or via distribution of Certificates, only to qualified Participants in Company's incentive program, and that the Miles shall only be distributed for one or more of the following purposes: a) Company Employee sales and/or job performance awards, recognition or incentives; or b) Company Customer awards, recognition or incentives, as described by Company in its SkyMiles Incentives Program Application. Company agrees that it will not distribute Miles or Certificates to Company Employees for use in Company's business travel. Miles and Certificates not distributed as permitted by this Agreement within two (2) years from the date of Company’s purchase of them shall expire, and are not renewable, exchangeable, extendable, or endorsable. Company shall receive no refund or other value in connection with expired Miles or Certificates.
3. If Miles or Certificates purchased by Company hereunder are resold, distributed or used for improper purposes, DLMSI may, at its option, cancel, void, refuse to honor and/or confiscate such Certificates or Miles and any remaining Certificates in the possession of Company and pursue any and all other rights and remedies that may be available. Company acknowledges that distribution or use of Miles or Certificates for improper purposes will give rise to irreparable injury to DLMSI inadequately compensable in damages. Accordingly, Company agrees that DLMSI shall be entitled to obtain injunctive relief to prevent such unauthorized or improper distribution or use and/or to prevent any breach of this Agreement and/or to compel specific performance.
4. DLMSI reserves the right in its sole and absolute discretion to approve all companies who participate in DSR.
5. All advertising and promotional materials using "Delta Air Lines," "Sky Rewards," "SkyMiles" or any other of Delta's (or its affiliates') marks or logos ("Marks") shall be subject to DLMSI's prior written approval. Any unauthorized use of such Marks shall constitute a material breach of this Agreement and an infringement of Delta's rights in and to such Marks. Nothing herein shall be construed as transferring to Company any ownership or interest in the Marks.
6. Company will indemnify, defend and hold harmless DLMSI, its parent company, subsidiaries and affiliates, and all of their officers, directors, employees and agents 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 Company's performance, nonperformance or improper performance of the provisions of this Agreement in connection with Company's incentive program, including without limitation any claim by a program Participant of Company's breach, violation or failure to comply with Company's incentive program.
7. Company will pay Delta in full in U.S. dollars by credit card, company check, certified check, cashier's check or money order prior to DLMSI's delivery of Miles or Certificates to Company or the posting of any Miles to any Member's account. No refunds will be given by DLMSI for Miles or Certificates purchased by Company, except as set forth in Section 19 of this Agreement.
8. All taxes arising out of this Agreement and the purchase and distribution of Certificates or Miles by Company hereunder, except for taxes on the net income of DLMSI, shall be the responsibility of Company. Company will also be responsible for all tax reporting requirements related to such taxes.
9. Company will retain records concerning distribution of Certificates or Miles for a minimum of one year from the last date of distribution, and will deliver such records to DLMSI upon request. Company will direct all inquiries about the SkyMiles Program, the SkyMiles Incentives Program and the posting of Miles to DLMSI at 1-800-323-2323.
10. Company shall cooperate with all reasonable requests of DLMSI or Delta concerning any investigation and/or prosecution of anyone engaging in or suspected of engaging in SkyMiles Program abuse or fraud, including but not limited to assisting DLMSI and Delta in verifying an incentive program participant's SkyMiles Program membership status and cooperating with any civil or criminal prosecution.
11. DLMSI will not be responsible for lost, stolen, damaged or destroyed Certificates once Certificates are delivered to Company. Company, at its option and sole expense, may distribute replacement Certificates to participants in Company's incentive program.
12. Neither party shall be liable for delays or failure in its performance hereunder caused by any act of God, war, strike, labor dispute, work stoppage, fire, act of government, or any other cause, whether similar or dissimilar beyond the control of that party.
13. Both parties understand and agree that this is a non-exclusive agreement and that DLMSI may sell Certificates, Miles or comparable products to, and Company may purchase comparable products from, any other Person or business.
14. Company may not assign or transfer this Agreement, or any right or obligation under it, without the prior written consent of DLMSI.
15. Nothing contained herein shall be deemed to create an association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties hereto or any affiliates or subsidiaries thereof, or to provide either party with the right, power, or authority whether expressed or implied, to create any such duty or obligation on behalf of the other party.
16. "DLMSI's Confidential Information" shall mean this Agreement, and any information regarding identifiable individuals, including Member data that DLMSI chooses to give access to Company ("PII" or "Personally-Identifiable Information") and any information identified orally or in writing by DLMSI as confidential immediately prior to or immediately after disclosure by DLMSI to Company. Company acknowledges that DLMSI's Confidential Information is the sole and exclusive property of DLMSI. Company shall reveal DLMSI's Confidential Information only to such Company employees who have need to know such information in order to carry out the terms, conditions and purposes of this Agreement. Company shall, and shall cause its Employees to, for a period of five years after the date hereof, hold and maintain as confidential all of DLMSI's Confidential Information and will not release or disclose same to any third party, except as necessary for the performance of this Agreement when authorized by DLMSI in writing. Information shall not be subject to the foregoing confidentiality restrictions to the extent such information (i) was in possession of or known to Company prior to Company's execution of this Agreement; (ii) is or becomes public knowledge other than by means of a breach of confidentiality by Company; (iii) is received by Company from a third party that is lawfully in possession of such information and under no duty to keep it in confidence; or (iv) is required by law or court order to be disclosed to governmental or regulatory authorities. Company will not use DLMSI's Confidential Information for any purpose other than the purposes stated herein.
In addition to the other obligations in this Section 16, Company shall abide by the provisions of this paragraph concerning PII. For the purposes of these provisions: the term "Data Subject" means an individual from whom PII is collected; and the terms "process," "processing" or "processed" in relation to PII include, without limitation, collection, recording, organization, storage, amendment, retrieval, consultation, manipulation, and erasure.
17. This Agreement, together with the SkyMiles Incentives Application and SkyMiles Incentives Purchase Order, constitutes the entire agreement between Company and DLMSI with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, if any, whether written or oral, relating to such subject matter. This Agreement shall not be effective or enforceable until accepted by DLMSI at its headquarters in Atlanta, Georgia. Such acceptance by Delta shall be signified only by the actual delivery of the Certificates to Company, or, if applicable, the posting of Miles to a Member's SkyMiles Program account by DLMSI pursuant to tape, electronic transmission or any other means of reporting from Company, at which time this Agreement shall become fully enforceable without the need for any signing of the Agreement by Delta. No modifications, amendment or waiver of this Agreement or any of its terms shall be effective or binding unless made in writing and signed by both parties.
18. Each Voucher is subject to all of the terms and conditions stated thereon, and cannot be modified or waived by Company.
19. DLMSI may suspend or cancel the DSR program or Company's participation in the DSR program at any time upon notification to Company. In such event, Company shall promptly return to DLMSI all undistributed Certificates, and if there shall be no default by Company hereunder, DLMSI shall, upon receipt of such Certificates, reimburse Company the amount paid by Company to DLMSI for such Certificates.
20. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, excluding its principles of conflict of laws. The courts of the State of Georgia shall have exclusive jurisdiction to settle any dispute arising out of or relating to this Agreement. Company expressly consents to the exclusive personal jurisdiction and venue of the courts of the State of Georgia, and Company expressly consents to extra-territorial service of process.
21. DLMSI reserves the right to terminate the SkyMiles Program with six months notice. This means the right to accumulate mileage and claim awards can be terminated six months after notice is given. DLMSI and its program partners reserve the right to change the program rules, regulations, travel awards, mileage award levels, and special offers at any time without notice. This means that DLMSI may initiate changes, for instance, impacting partner affiliations, rules for earning mileage credit, continued availability of awards and blackout dates or limit the number of seats available for award travel to any or all destinations. Such changes to the SkyMiles Program may include modifications which (i) govern mileage credits earned on and after the date of the change, (ii) change the value of already accumulated mileage credits or (iii) govern mileage credits earned on and after the date of the change and change the value of already accumulated mileage credits. Unless otherwise stated, the terms and conditions of the program's current Membership Guide and Program Rules govern the program.
22. Warning Notice: The sale, purchase, or barter of mileage credit, Certificates, award certificates and award tickets violates DLMSI's SkyMiles Program rules, is illegal,and subjects the violator to liability for damages and litigation and transaction costs. Violators are subject to having their SkyMiles Program accounts terminated or deductions of mileage from their accounts. Improperly obtained certificates/ tickets are VOID and will be confiscated. Persons trying to use such tickets must pay applicable fare to Delta in order to travel.
23. DELTA, DLMSI, THEIR SUBSIDIARIES, AND AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST REVENUES, LOST PROFITS OR LOST PROSPECTIVE ECONOMIC ADVANTAGE, ARISING FROM ANY PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, AND COMPANY HEREBY RELEASES AND WAIVES ANY CLAIMS AGAINST DELTA, DLMSI, THEIR SUBSIDIARIES AND AFFILIATES REGARDING SUCH DAMAGES.
24. THE SOLE AND MAXIMUM LIABILITY OF DLMSI FOR ANY REASON, AND COMPANY'S SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY COMPANY FOR THE MILES OR CERTIFICATES PURCHASED PURSUANT TO THIS AGREEMENT. ANY CAUSE OF ACTION BROUGHT BY COMPANY MUST BE INSTITUTED WITHIN SIX (6) MONTHS AFTER THE FINAL PURCHASE OF CERTIFICATES OR MILES UNDER COMPANY'S INCENTIVE PROGRAM OR BE FOREVER WAIVED AND BARRED.
25. THE GOODS OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED TO COMPANY "AS-IS" AND "AS AVAILABLE," AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
26. Company shall comply with all applicable federal, state and local laws, rules and regulations with respect to its performance under this Agreement.
27. By signing or electronically accepting this Agreement, or submitting the SkyMiles Incentives Application or Purchase Order, and by submitting any subsequent orders through any medium whatsoever, Company acknowledges and signifies its agreement to the terms and conditions stated herein and in the SkyMiles Incentives Application and Purchase Order. The parties agree that a signature sent by facsimile machine will be accepted as an original signature for the purposes of this Agreement.
Company: _________________________________________________________
By: ______________________________________________________________
Name: ____________________________________________________________
Title: _____________________________________________________________