Buy Miles / Gift Miles Purchase Agreement Terms & Conditions

You acknowledge and accept these Terms and Conditions, as such Terms and Conditions may change from time to time, by completing and submitting the accompanying order form ("Order Form") or by providing your credit card number for the purchase of Miles from your Delta SkyMiles Program account.

Agreement between Points.com Inc., ("Points.com") and the purchaser ("Purchaser") in connection with Purchaser's desire to purchase Miles in the SkyMiles® Program.

Whereas Delta Loyalty Management Services, LLC ("DLMS") has developed the SkyMiles® Program, under which individuals who, as of any date, are members in good standing of the SkyMiles® Program ("Members"), receive Miles and, in exchange for such Miles, can obtain award travel and other SkyMiles Program Awards; and

Whereas Points.com has entered into a reseller agreement with DLMS for the purpose of selling Miles to Members on an exclusive basis; and

Whereas Purchaser desires to purchase Miles from Points.com for posting to a Member's individual Account and Purchaser acknowledges that Purchaser will be charged certain fees for such purchase; and

Whereas Points.com is willing to sell Miles to Purchaser 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. 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 Purchase 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 17) 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 of any Miles is not a Member, the recipient must enrol in the SkyMiles® Program prior to being able to receive any such Miles. Purchaser must purchase the minimum transaction amount per transaction of 2,000 miles. Purchased Miles will not count toward qualifications for any SkyMiles® Medallion or Million Miler status.
3. The number of Miles that Purchaser may purchase for any other Member's Account is not limited. The number of Miles that a Member may receive as a gift from any other Person for posting to such Member's Account is not limited. Purchaser, however, may not purchase more than [60,000] Miles for posting to his or her own Account during any one calendar year. Any such Miles purchased by Purchaser in excess of [60,000] Miles in any one calendar year will not be posted to Purchaser's own Account, and Points.com has no obligation to reimburse Purchaser for any amounts paid by Purchaser in respect thereof. When Purchaser exceeds the annual limit for his or her own Account, Purchaser will receive an email notification of the limit and have the option to either wait for the next calendar year to claim the excess Miles or give the Miles as a gift to another Member. Once claimed, Purchaser shall allow up to [five] business days for Miles purchased under this Agreement to be posted to the appropriate Account.
4. If Miles purchased by Purchaser hereunder are resold, distributed or used for improper purposes as defined by Points.com, acting reasonably, or DLMS in its sole and absolute discretion, or obtained 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 Miles and pursue any and all other rights and remedies that may be available. Purchaser acknowledges that distribution or use of Miles for improper purposes will give rise to irreparable injury to Points.com and DLMS that is inadequately compensable in damages. Accordingly, Purchaser agrees that Points.com and/or DLMS 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.
5. Once purchased, Miles are non-refundable. The purchase of Miles is not a guarantee of the availability of any SkyMiles® Awards.
6. Purchaser will pay Points.com in full in U.S. dollars by credit card prior to any being posted Miles to any Member's Account. Purchaser may use any credit card from American Express (including the Delta SkyMiles® Credit Card from American Express), Visa, MasterCard, Discover, and Diners Club. Purchaser's acceptance of the terms of this Agreement authorizes Points.com or its representative, to charge the credit card that Purchaser provided on the purchase form for the amount stated, based on the number of Miles purchased by Purchaser.
7. All amounts paid by Purchaser for the purchase of Miles pursuant to this Agreement are exclusive of a U.S. federal excise tax (currently seven and one-half percent (7.5%) and subject to change). An additional 5% GST applies to purchases by Canadian residents. Points.com will remit the excise tax to the applicable U.S. and Canadian authorities on behalf of Purchaser. All amounts paid by Purchaser under this Agreement are exclusive of sales, use or privilege taxes, or tax-like charges, fees or similar liabilities.
8. 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.
9. Purchaser 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.
10. 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.
11. Purchaser may not assign or transfer this Agreement, or any right or obligation under it, without the prior written consent of Points.com. If a recipient has not yet claimed his or her Miles at www.delta.com/getmiles, Purchaser may, subject to paragraph 2), give such Miles as a gift to another Person by providing such Person with the unique "Claim Code" associated with such Miles.
12. This Agreement, along with the purchase form, constitutes the entire agreement between Purchaser 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 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.
13. Purchaser shall comply with all federal, state and local laws, rules and regulations with respect to this Agreement and the purchase of any Miles.
14. By completing this Agreement or the purchase form for Miles, or by providing a credit card number for the purchase of Miles, Purchaser acknowledges and accepts the terms and conditions stated herein.
15. Purchaser hereby acknowledges and agrees that:
• the awarding and use of all Miles, including those purchased hereunder, are subject to the terms, conditions, exclusions and limitations of the SkyMiles Program Rules;
• 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
• Points.com shall have no liability to Purchaser for, and has no obligation to notify Purchaser of, any action or decision taken by DMLS or Delta in connection with the SkyMiles® Program or any related activities or in connection with fulfilling the use of Miles.
16. Purchaser 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. Purchaser 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.
17. Purchaser 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) Purchaser's use of the SkyMiles® Program, (ii) the performance or failure to perform by Purchaser hereunder or (iii) any breach by Purchaser 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.
18. 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 PURCHASER TO POINTS.COM IN CONNECTION WITH THIS AGREEMENT.
19. 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.
20. Paragraphs 17) through 19) shall survive any termination of this Agreement.
21. 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].
22. Each party shall at any time and from time to time execute and deliver such further assurances and other documents and do such further acts and things as may be necessary or desirable to implement, carry out and give full effect to the terms, conditions and intent of this Agreement.