1) For all purposes of this Agreement, the following terms shall have the following meanings:
"Account" means an account maintained on behalf of a Member in which Miles are held;
"Agreement" means this SkyMiles Transfer Agreement, as it may, from time to time, be amended or modified in writing;
"Delta" means Delta Air Lines, Inc.;
"DLMS" has the meaning assigned to such term in the preamble to this Agreement;
"Losses" has the meaning assigned to such term in paragraph 18) of this Agreement;
"Member" has the meaning assigned to such term in the preamble to this Agreement;
"Miles" means the points or mileage accrued under the SkyMiles® Program by Members for (i) travel with Delta or Delta Connection®, (ii) travel with, and/or the purchase of goods or services from, SkyMiles® Participants, or (iii) any other reason permitted by DLMS;
"Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any group or political subdivision thereof;
"Points.com" has the meaning assigned to such term in the preamble to this Agreement;
"SkyMiles® Awards" means the awards , products and services that Members can receive pursuant to the SkyMiles® Program Rules in exchange for the redemption of accrued Miles, and, if applicable, other consideration;
"SkyMiles® Participant" means any Person that, pursuant to the SkyMiles® Program Rules and an agreement between DLMS 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 Miles, or (ii) in connection with the sale of goods or services by such Person to a Member, offers Miles to such Member;
"SkyMiles® Program" means the travel awards program established and governed by DLMS through the SkyMiles® Program Rules, as such program may be in effect from time to time, pursuant to which, among other things, Members receive Miles;
"SkyMiles® Program Rules" means the rules, regulations, terms and conditions established or modified, from time to time, by DLMS, in its sole discretion, which govern the SkyMiles® Program and are located at www.delta.com under the heading "SkyMiles Rules & Conditions".
2) If the recipient and/or transferee of any Miles is not a Member, the recipient and/or transferee must enroll in the SkyMiles® Program prior to being able to receive any such Miles. Transferor must transfer the minimum transaction amount (1,000 Miles) per transaction. Transferred Miles will not count toward qualifications for any SkyMiles® Medallion or Million Miler status.
3) Transferor agrees that it will not charge any fee to any transferee for Miles transferred under this Agreement. In any calendar year, the number of Miles that Transferor may transfer to any other Account is limited to 150,000 and the number of Miles that a Member may receive from any Transferor is 300,000. Any miles beyond this limit will not be transferred from member's account or posted to any recipient's account.
4) All requests to transfer Miles from one Member's account to a recipient Member's account orders are subject to acceptance by DLMSI. The transfer and use of Miles is subject to all of the rules, terms and conditions of the Delta SkyMiles Membership Guide and Program Rules. SkyMiles Program rules, terms and conditions are subject to change without notice. The sale or barter of mileage credit by SkyMiles Members is prohibited. Your submission of an Order Form and credit card number for the transfer of Miles authorizes DLMS, or Points.com, to charge the credit card that you provided under the SkyMiles Transfer Program for the amount stated, based on the number of Miles you are requesting to transfer, plus taxes and fees, as applicable. All charges and related handling fees for Miles transferred through the SkyMiles Transfer Program website should appear on your monthly credit card statement. In the event of any mileage or financial discrepancy, payment calculations under shall be based upon data maintained by DLMS or Points.com.
5) If Transferor transfers any Miles hereunder for a fee or any consideration whatsoever, or transfers Miles for improper purposes as defined by Points.com, acting reasonably, or DLMS in its sole and absolute discretion, or a transfer of Miles is effected through credit card abuse or fraud or other illegal means, Points.com or DLMS may, at their option, cancel, void, refuse to honor and/or confiscate such transferred Miles and pursue any and all other rights and remedies that may be available. Transferor acknowledges that transfer of Miles in any manner prohibited by this Agreement will give rise to irreparable injury to Points.com and DLMS that is inadequately compensable in damages. Accordingly, Transferor agrees that Points.com and/or DLMS shall be entitled to obtain injunctive relief to prevent such unauthorized or improper transfer and/or to prevent any breach of this Agreement and/or to compel specific performance.
6) The transferred miles will automatically be deducted from your SkyMiles Program account and deposited into the SkyMiles Program account you identified within seven (7) business days. In order to transfer miles, the intended recipient must be enrolled in the Delta SkyMiles Program and you must have the intended recipient's SkyMiles Program account number. You will receive email notification of the transfer. When you provide the email address of an individual to whom you are transferring your miles, DLMSI or its agent will send an email to that individual that will include information about the transferred miles along with your name and email address. You grant to DLMSI or its agent consent to use your name and email address for the purpose of sending such email to the individual to whom you are transferring your miles.
7) Once transferred, the fees for such transfer are non-refundable. The transfer, posting or receipt of Miles is not a guarantee of the availability of any SkyMiles Awards, or that a seat eligible for award travel will be available on a specific date, flight or to a specific destination.
8) Transferor will pay Points.com in full in U.S. dollars by credit card prior to any Miles being transferred to any Member's Account. Transferor may use any credit card from American Express (including the Delta SkyMiles® Credit Card from American Express), Visa, MasterCard, Discover, and Diners Club. Transferor's acceptance of the terms of this Agreement authorizes Points.com or its representative, to charge the credit card that Transferor provided on the transfer form for the amount stated, based on the number of Miles transferred by Transferor.
9) THE GOODS AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10) Transferor shall cooperate with all reasonable requests of Points.com and/or DLMS 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 Points.com and/or DLMS in verifying Members' SkyMiles® Program membership status and cooperating with any civil or criminal prosecution.
11) Neither party hereto 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.
12) Transferor may not assign or transfer this Agreement, or any right or obligation under it, without the prior written consent of Points.com.
13) This Agreement, along with the transfer form, constitutes the entire agreement between Transferor and Points.com 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 Points.com. Such acceptance by Points.com shall be evidenced only by the actual delivery and/or transfer of the Miles to the applicable Member, at which time this Agreement shall become fully enforceable without the need for any signing of the Agreement by Points.com. No modification, 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 hereto.
14) Transferor shall comply with all federal, state and local laws, rules and regulations with respect to this Agreement and the transfer of any Miles.
15) By completing this Agreement or the transfer form to transfer Miles, or by providing a credit card number for the transfer of Miles, Transferor acknowledges and accepts the terms and conditions stated herein.
16) Transferor hereby acknowledges and agrees that:
(a) the awarding, transferring and use of all Miles, including those transferred hereunder, are subject to the terms, conditions, exclusions and limitations of the SkyMiles Program Rules;
(b) DLMS has the sole and exclusive authority to operate, modify or terminate the SkyMiles® Program and any related activities as provided in the SkyMiles program rules; and
(c) Points.com shall have no liability to Transferor for, and has no obligation to notify Transferor of, any action or decision taken by DLMS or Delta in connection with the SkyMiles® Program or any related activities or in connection with fulfilling the use of Miles.
17) Transferor hereby acknowledges and agrees that Points.com does not operate the SkyMiles® Program, does not redeem Miles and shall not be treated as the agent of DLMS or Delta for any purpose. Transferor hereby agrees not to make any claim against Points.com for any action, inaction or decision taken by DLMS or Delta in connection with the SkyMiles® Program or any related activities or in connection with fulfilling the use of Miles.
18) Transferor shall indemnify, defend and hold Points.com (including its directors, officers, employees, contractors, agents, affiliates, successors and assigns) harmless from and against any and all losses, obligations, claims, damages, demands, liabilities, suits, actions, costs, fees and expenses whatsoever (including reasonable legal fees and disbursements on a solicitor-client basis and accountant's fees and disbursements) ("Losses") incurred, suffered or borne by or asserted against Points.com in any way relating to, arising out of or resulting from any claim relating to, arising out of or resulting from (i) Transferor's use of the SkyMiles® Program, (ii) the performance or failure to perform by Transferor hereunder or (iii) any breach by Transferor of this Agreement; provided, however, that such liability and indemnification to Points.com will not extend to or include any part of the Loss, if any, arising from or caused by the gross negligence or wilful misconduct of Points.com, or its directors, officers or employees.
19) NOTWITHSTANDING ANY OTHER PROVISION HEREOF, POINTS.COM'S ENTIRE LIABILITY, REGARDLESS OF THE FORM OF CAUSE OF ACTION, DEMAND OR CLAIM, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY TRANSFEROR TO POINTS.COM IN CONNECTION WITH THIS AGREEMENT.
20) NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED IN CONNECTION WITH THIS AGREEMENT HOWSOEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, DEMAND OR CLAIM AND EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE OTHER PARTY OR PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS REVENUE, LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND OR ANY CLAIM AGAINST A PARTY BY ANY OTHER PERSON.
21) Paragraphs 18) through 20) shall survive any termination of this Agreement.
22) This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to the principles of conflicts of law. Each party hereto irrevocably submits and attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario.
23) Each party shall at any time and from time to time execute and deliver suc