Exhibit

10.2




 




E-CENTIVESTM [LOGO]




 




[*]




 




September

24, 2002




 




Dear [*]:




 




The purpose of this letter is to confirm the renewal

effective September 24, 2002 of the Master Services Agreement between

E-centives, Inc. (“E-centives”) and [*]

(the “Agreement”) in conformance with Section 9.1 of the Agreement on the same

terms and conditions, provided that the new or modified terms as previously

provided by E-centives to [*] and

incorporated into the following documents shall be deemed incorporated into the

Agreement:




 




(1)           Overall

Pricing Proposal;




(2)           Revised

Statement of Work ; and




(3)           Detailed

Pricing Worksheet 




 




(collectively, the “Amendment Documents”).  Copies of the Amendment Documents have been previously sent under

separate cover and are included with the letter for your convenience.  Specifically, in accordance with Section 1.3

of the Agreement, the parties confirm that the proposed changes in services and

pricing to be provided under the Agreement as incorporated in the Amendment

Documents have been reviewed and agreed upon in all material respects by the

parties.  As such, the Agreement shall

be deemed modified so as to incorporate the new Amendment Documents, which

shall be incorporated into and become part of Schedules A and B to the

Agreement as follows:




 




(1)           Revised

Statement of Work is incorporated into Schedule A;




(2)           Overall

Pricing Proposal and Detailed Pricing Worksheet are incorporated into Schedule

B.




 




In the case of any conflict in terms between the original Schedules A

and B and newly revised Schedules A and B, incorporating the Amendment

Documents, the new schedules shall govern.




 




	

  E-centives,

  Inc.


  	

   


  	

  Headquarters


  	

   


  	

  Regional Offices


  	

   


  
	

  www.e-centives.com


  	

   


  	

  6901 Rockledge Drive


  	

   


  	

  San Francisco


  	

   


  
	

   


  	

   


  	

  7th Floor


  	

   


  	

  New York


  	

   


  
	

   


  	

   


  	

  Bethesda, MD  20817


  	

   


  	

  London


  	

   


  
	

   


  	

   


  	

  tel. 240.333.6100


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  fax. 240.333.6250


  	

   


  	

   


  	

   


  





 




[*] page

1




/s/ Kamran Amjadi




 






















[*] Certain

confidential information contained in this document, marked by brackets, has

been omitted and filed separately with the Securities and Exchange Commission

pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




 





























 




Finally, all references to “e-centives” in the Agreement shall be

replaced with references to “E-centives” to reflect the change in E-centives

corporate name.  Other than the

modification expressly set forth in this letter agreement, all terms and

conditions of the Agreement shall remain unchanged.  It is agreed that the term of this renewal begins on November 1st 2002 and ends on October 31st,  2003.  The contract will automatically renew for

another year unless notice is given 30 days prior to the end of the new term,

which is on or before October 1, 2003.




 




This letter also confirms

our mutual understanding that 10% of the costs quoted in Overall Pricing

Proposal will be allocated to a pay for performance (“PFP”) program.  The criteria for earning PFP will be

mutually agreed upon and documented as soon as possible.  The establishment of the criteria for the

PFP portion of the price shall be in the sole but reasonable discretion of [*].  It is agreed that the a reasonable PFP will

be in the same spirit as the year 1 PFP with the application of the additional

knowledge of what is possible and reasonable given the results of the year 1

program.




 




Please acknowledge receipt

of the Amendment Documents and your assent to the agreement herein by executing

in the designated area below.  If you

have any questions or concerns, please do not hesitate to contact me.  We look forward to continuing our successful

relationship with [*].




 








	

   


  	

  Warmest regards,


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  /s/ Kamran Amjadi


  	

   


  
	

   


  	

  Kamran Amjadi


  	

   


  
	

   


  	

  Chairman and CEO


  	

   


  










 




ACKNOWLEDGED

AND AGREED:




 




	

  By:


  	

    [*]


  
	

   


  	

   


  
	

  Print:


  	

    [*]


  
	

   


  	

   


  
	

  Title:


  	

    [*]


  
	

   


  	

   


  
	

  Date:


  	

    26 Sept.

  2002


  





 




Enclosures




 




	

  E-centives,

  Inc.


  	

   


  	

  Headquarters


  	

   


  	

  Regional Offices


  	

   


  
	

  www.e-centives.com


  	

   


  	

  6901 Rockledge Drive


  	

   


  	

  San Francisco


  	

   


  
	

   


  	

   


  	

  7th Floor


  	

   


  	

  New York


  	

   


  
	

   


  	

   


  	

  Bethesda, MD  20817


  	

   


  	

  London


  	

   


  
	

   


  	

   


  	

  tel. 240.333.6100


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  fax. 240.333.6250


  	

   


  	

   


  	

   


  





 




[*] page

2




/s/ Kamran Amjadi




 




 




 





























 




MASTER SERVICES AGREEMENT




 




This Master Services Agreement (including any attached

exhibits, schedules and other attachments, the “Agreement”) is entered into

as of November 1, 2001 (the “Effective Date”), by and between e-centives,

Inc., a Delaware  corporation (“e-centives”), with principal

offices at 6901 Rockledge Drive, 7th Floor, Bethesda, MD 20817, and [*]

corporation (“Client”), with principal offices located at [*].




BACKGROUND




 




WHEREAS, e-centives utilizes and has the

technology and expertise to provide interactive marketing Services; and




 




WHEREAS, Client desires to retain e-centives

to provide such services in accordance with the terms and conditions of this

Agreement and to provide online to individual consumers (“User” or “Users”) the

means to obtain promotions, coupons, newsletters e-mail, and the other Services

described in this Agreement;




 




NOW THEREFORE, in consideration of the

mutual promises set forth herein and for other good and valuable consideration,

the receipt and sufficiency of which is hereby acknowledged, e-centives  and

Client agree as follows:




 




AGREEMENT




 




1.             Services




 




1.1                               e-centives

shall perform for Client the email marketing, agency, promotional offer

production and other services described on the Statement of Work (the “SOW”),

attached hereto as Schedule A (the “Services”).




 




1.2                               As

part of the Services to be provided under this Agreement, e-centives shall

adhere to the Service Level Agreement (the “SLA”) attached hereto as Schedule

C.




 




1.3                               The

scope of Services, and associated fees and rates set forth in this Agreement

shall not be modified unless in accordance with this Section 1.3.  If changes to the scope of Services, the

schedule for Deliverables, price, other modifications, and/or new Statements of

Work (hereinafter collectively “Changes”) may be necessary or desirable from

time to time, the parties agree to follow the procedures of this Section

1.3.  Either party may initiate a

request for a Change.  Change Requests

shall be submitted to the other party in writing.  Before work begins on any Change, the parties will jointly review

the impact such changes may cause on the schedule, price, or Services, and no

Change will be made without mutual written agreement to the Change, as

reflected in a copy of the




 






















[*]

Certain confidential information contained in this document, marked by

brackets, has been omitted and filed separately with the Securities and

Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of

1934, as amended.




 




1





























 




Change Request signed by

both parties.  For each proposed Change,

e-centives agrees to provide to Client at no additional charge, an analysis of

such Change, which shall include the following:  (a) an estimate of the fees and costs for each such Change, and

(b) an estimate of the effect such Change would have on the Services, including

the impact on outstanding and future deliverables and the delivery dates for

such deliverables.  In addition,

e-centives shall include in its analysis an explanation of any time constraints

that may apply with respect to the approval and implementation of the proposed

Change.  Changes authorized in writing

and signed by both parties shall amend this Agreement.




 




1.4.                            The

Services involve hosting Internet sites on the World Wide Web accessible by

Users of Client, as more fully described in the SOW.  Client shall provide a User agreement and privacy statement for

use on the Client Sites, to be available to each User upon access to the

applicable sections of the Client Sites. 

e-centives and Client shall coordinate the registration process by which

Users use the Client services to be provided in connection with this Agreement,

as set forth in the SOW.  The collection

and treatment of the User Data, as defined herein, shall be as set forth in

this Agreement and the SLA.  For those

Users who wish to subscribe to the coupon, promotions, or e-mail services, the

Parties shall ensure that as part of the subscription process, each User shall

be provided notice of the applicability of the User agreement to their

subscription for the services; and shall include a means to obtain from each

User his or her affirmative assent to the subscription agreement, verifiable,

recorded, and stored by e-centives for later use in the event a dispute arises

in connection with the consumer’s use of the website or the Services provided

through e-centives under this Agreement.




 




1.5                               Media

Planning and Buying Services. 

e-centives shall provide the media planning and buying services as set

forth on Schedule E hereto.




 




2.             License




 




2.1                               As

part of the Services, e-centives will provide certain coupon-related

functionality and host product, coupon, and subscription management microsites

and associated web pages (collectively, the “Client Sites”) and emails for

Client, as further described on Schedule A, which Services incorporate a software

application for creating, targeting, publishing, managing, tracking, analyzing

and reporting on promotional offers and consumer usage, and which software

application contains the current version of the e-centives MaestroTM Software

in machine executable object code format (collectively, “e-centives Promotions Product”).  Subject to the terms and conditions of this

Agreement, e-centives grants Client a worldwide, royalty-free, except for the

fees paid hereunder, non-exclusive, non-transferable, non-sublicensable,

license during the term of the Agreement to access and use the e-centives

Promotions Product to develop, test, display, and transmit coupons in email and

on the Client Sites, to support Users accessing and using such email or the

Client Sites (“User(s)”), or the promotion of Client’s products and

services.  Access shall be made

available with a confidential extranet Username and password given to Client by

e-centives.  Client agrees to




 




2





























 




limit access to the

e-centives Promotions Product to authorized personnel, as identified on

Schedule D hereto, and not to allow any unauthorized person access to it,

either before or after expiration or termination of this Agreement.  The persons identified on Schedule D shall

be modified from time-to-time upon Client’s request in the case of

replacements, and with e-centives’ approval (not to be withheld unreasonably)

in the case of additional names.




 




2.2                               All

rights and licenses granted to Client hereunder are, for purposes of Section

365(n) of the United States Bankruptcy Code (the “Bankruptcy Code”),

licenses of intellectual property within the scope of Section 101 of the

Bankruptcy Code.




 




3.             Charges and Payments




 




3.1                               Rates

and Expenses




 




Client shall pay e-centives for Services in accordance

with the rates set forth in Schedule B. 

e-centives reserves the right to charge additional fees for any services

provided that are not included on Schedule A, provided that such fees are

approved by Client in writing under Section 1.3 of this Agreement prior to

performance of the additional services. 

Upon the start of any renewal term of this Agreement, and assuming no

material  change in the overall project

scope or Deliverables as set forth on Schedule A, the charges for the Services

for the first and second renewal terms will be as set forth on Attachment 6 to

Schedule B, and changes to the pricing based on changes to the Services shall

be addressed under Section 1.3 of this Agreement.  The rates, fees or other monetary obligation of Client quoted on

Schedule B for the Services as specifically described on Schedule A hereto

shall not be increased more than once in any twelve month period, and any one

increase shall not exceed three percent (3%) of a period’s charges as quoted in

Schedule B.  This limitation shall not

apply to any Changes in accordance with Section 1.3.




 




3.2                               Invoice

and Payment




 




Payment for all undisputed charges shall be made in

accordance with the schedule set forth on Attachment 5 to Schedule B.  Except as otherwise provided herein, all

undisputed fees, including any applicable sales taxes, other taxes, or

pass-through charges due hereunder are payable within sixty (60) days of the

applicable invoice date.  In the event

that undisputed payments have not been made within such sixty (60) day period,

e-centives may send notice of a delinquency to Client. Thirty (30) days

following the date of such delinquency notice, if such delinquency is not

cured, e-centives may suspend provision of all Services hereunder without

liability.  In any collection efforts

for undisputed fees, Client shall be responsible for paying all costs,

including reasonable attorneys’ fees.




 




Client agrees to review e-centives invoices and to

notify in writing e-centives within thirty (30) days of the invoice date if any

charges are disputed.  Such




 




3





























 




notice must state the reasons for or the questions

about each disputed item.  Any charges

not disputed within such thirty (30) day period are deemed undisputed.




 




The parties agree to meet promptly (in no event to

exceed fifteen (15) days) after Client’s notice in order to resolve the

disputed charges.  In the event that the

parties are unable to resolve the disputed items within fifteen (15) days of

such meeting, the parties agree that the dispute shall be escalated to a senior

officer of each company for resolution within an additional fifteen (15) day

period, and if not so settled the dispute will be settled by binding

arbitration administered by the American Arbitration Association (“AAA”) in

accordance with its Commercial Arbitration Rules (to be submitted by the

Parties within thirty (30) days after the meeting of senior executives or the

expiration of fifteen days, whichever occurs first).  The arbitration shall be heard and determined by one arbitrator

selected by the AAA, and such arbitrator shall be an attorney having experience

and familiarity with eCommerce or direct marketing disputes, unless the

participation of such an attorney is not reasonably practicable.




 




3.3                               Reimbursement

of Expenses




 




Subject to e-centives’ compliance with Client’s

expense reimbursement policies and procedures as they exist on the date of this

Agreement, a copy of which has been provided to e-centives, or may be changed

from time to time with sixty (60) days prior written notice to e-centives,

Client will reimburse e-centives for all reasonable out-of-pocket expenses

incurred in connection with the provision of the Services and Deliverables

under this Agreement.  All expenses over

$1,000 shall be pre-approved by Client, and expense reimbursement invoices or

requests shall be submitted on forms required by Client, copies of which have been

provided to e-centives,  and shall be supported by original

receipts or a reasonable substitute therefor.




 




3.4                               [*]




 




3.5                               Pay

for Performance (“PFP”)




 




3.5.1                     Service

Level Agreement Calculation




 




All measurements of Service uptime in connection with

any PFP calculation (as set forth in Schedule B hereto) shall be governed by

the SLA.




 




3.5.2                     [*]




 




4





























 




4.             Proprietary Rights




 




4.1          Intellectual Property Rights




 




For purposes of this Agreement, the term Intellectual

Property Rights means any and all (by whatever name or term known or

designated) tangible and intangible and now known or hereafter existing (a)

rights associated with works of authorship throughout the world, including but

not limited to copyrights (including without limitation the sole and exclusive

right to prepare derivative works of the copyrighted work), moral rights, and

mask-works, (b) trademarks, service marks, trade names, goodwill, trade dress,

rights in packaging, merchandising rights, advertising rights and other

commercial rights, and all rights associated therewith, (c) trade secret

rights, (d) patent rights, (e) rights of privacy and rights of publicity, (f)

all other intellectual and industrial property and proprietary rights (of every

kind and nature throughout the world and however designated) whether or not

analogous to any of the foregoing rights (including without limitation logos,

character rights, “rental” rights and rights to remuneration), whether arising

by operation of law, contract, license or otherwise, and (g) all registrations,

applications, renewals, extensions, continuations, divisions or reissues

thereof now or hereafter in force throughout the universe (including without

limitation rights in any of the foregoing), whether now known or which

subsequently come into existence.




 




4.2                               e-centives

Property




 




e-centives has created, acquired or otherwise has

rights in, and may, in connection with the performance of Services hereunder,

employ, provide, modify, create, acquire or otherwise obtain rights in, various

concepts, ideas, methods, methodologies, procedures, processes, know-how, and

techniques; models (including, without limitation, function, process, system

and data models); templates, the generalized features of the structure,

sequence and organization of software, user interfaces and screen designs;

general purpose consulting and software tools, utilities and routines; and

logic, coherence and methods of operation of systems, and all associated

Intellectual Property Rights (collectively, the “e-centives Property”).




 




To the extent that e-centives utilizes any e-centives

Property in connection with the performance of Services and grant of license

hereunder, such property shall remain the property of e-centives and, except

for the limited license expressly granted herein, Client shall acquire no right

or interest in such property. 

Notwithstanding anything in this Agreement to the contrary, the parties

acknowledge and agree that e-centives will own all right, title, and interest,

including, without limitation, all Intellectual Property Rights, in and to the

e-centives Property.   All rights not

expressly granted are reserved to e-centives.




 




5





























 




4.3                               Client

Property




 




“Client Property” shall mean (a) various

concepts, ideas, methods, methodologies, procedures, processes, know-how, and

techniques; models (including, without limitation, function, process, system

and data models); templates; User interfaces and screen designs, and all

associated Intellectual Property Rights and Confidential Information therein,

which Client has created, acquired or otherwise has rights in, and may, in

connection with e-centives’ performance of Services hereunder, employ, provide,

modify, create, acquire or otherwise obtain rights in; (b) all Deliverables (as

further defined and described in Section 4.4); c) all User Data (as further

defined in Section 4.5) supplied, generated, collected and/or stored in

connection with the Services under this Agreement; (d) all Client Content (as

defined and described in Section 7.1 of this Agreement); (e) all URLs and

domain names used solely for the benefit of Client in connection with the

Services or the Deliverables; and (f) all Intellectual Property Rights and

Confidential Information in all of the foregoing, which are defined

collectively, as “Client Property”.  Client is the sole and exclusive owner of all Client

Property.  Notwithstanding the

foregoing, Client Property shall not be deemed to include, and Client shall not

obtain any ownership rights in, any of the e-centives Property, even if such

e-centives Property is used in connection with or for the creation of the

Deliverables.




 




Subject to licenses granted in connection with User

Data in section 4.5 herein, Client hereby grants to e-centives a worldwide,

non-exclusive, royalty-free, non-transferable, non-sublicensable, license to

use Client Property or other materials that are reasonably needed by e-centives

solely in order to perform the Services for Client, and for no other purposes

whatsoever.  To the extent that

e-centives utilizes any Client Property or other materials (including, without

limitation, any hardware or software of Client) in connection with the

performance of the Services hereunder, such Client Property and/or materials

shall remain the sole and exclusive property of Client and, except for the

license expressly granted herein, e-centives shall acquire no right or interest

in such property.  All rights not

expressly granted are reserved to Client.




 




4.4                               Ownership

of Deliverables




 




The tangible and intangible items developed,

performed, created, or otherwise specified as Client deliverables in connection

with the provision of Services under this Agreement, as specifically identified

in Schedule A as a Client “deliverable” (the “Deliverables”) will become

the property of Client. To the extent that any e-centives Property is contained

in any of the Deliverables, Client shall not obtain any ownership rights or

interest in such e-centives Property provided. e-centives hereby grants Client,

a royalty-free, worldwide, fully paid-up, non-exclusive license to use such

e-centives Property in connection with the Deliverables.




 




Client shall own the exclusive rights, title and

interest in and to all Intellectual Property Rights in all Deliverables.  Therefore, all Deliverables shall become and




 




6





























 




remain Client’s exclusive property and, unless

otherwise specifically agreed in writing by the parties, shall be considered

specially ordered for Client as “works made for hire” by an independent

contractor under the United States Copyright Laws (17 U.S.C. Section 101, and

any amendments thereto.)  If for any

reason the Deliverables are held not to be “work made for hire,” e-centives

hereby assigns all its right, title and interest in the Deliverables to

Client.  Any assignment of copyright

hereunder includes all rights of paternity, integrity, disclosure and

withdrawal and any other rights that may be known as or referred to as  “moral rights” (“Moral Rights”).  To the extent such Moral Rights cannot be

assigned under applicable law and to the extent allowed by law, e-centives

hereby waives such Moral Rights in favor of Client and consents to any action

of Client that would violate such Moral Rights in the absence of such consent.  As to all Intellectual Property rights that

are not rights of copyright, e-centives hereby irrevocably assigns all of its

right, title and interest in and to all Deliverables and all other Intellectual

Property rights therein to Client. 

Without limiting the generality of the foregoing, Client’s rights in the

Deliverables shall include, but shall not be limited to: the unrestricted and

exclusive right to reproduce, use, display or perform the Deliverables

throughout the world without name credit, for advertising, trade, or any other

lawful purpose, in and through all media now known or later created or

invented; the exclusive right throughout the world to protect the Deliverables

by copyright(s), patent(s) or trademark(s) in Client’s name and for the benefit

of Client and its affiliates, including the right to secure extensions and

renewals of such copyright(s), patent(s) or trademark(s) in Client’s name and

for Client’s benefit; the right to create derivative works from and to alter,

retouch or crop the Deliverables in any way; and the right to license,

distribute, assign or transfer any right, title, interest or intellectual

property in the Deliverables or otherwise dispose of the Deliverables or any

portion thereof for any purpose and in any manner.




 




Solely for the purpose of securing payment for

Deliverables, Client hereby grants to e-centives an unconditional first lien

and security interest in and to all Deliverables as defined above. Client

agrees that none of the foregoing shall be subjected to a superior lien or

interest, shall not be subordinated to any other lien or interest.  Client agrees that e-centives may file UCC-1

or similar documents to perfect its security interest, and further agrees to

execute all documents necessary to assist e-centives in the perfection of its

first priority security interest and to execute all document reasonable

necessary for these purposes. 

e-centives agrees to release the aforesaid security interest in and to

all Deliverables for which Client has paid in full, and further agrees to

execute all documents necessary to assist Client in the clearing the security

interest and to execute all document reasonable necessary for these purposes.




 




4.5                               User

Data




 




“User Data” means User’s name and email address

provided by Client to e-centives or otherwise collected by e-centives on behalf

of Client in connection with the provision of the Services hereunder, in the

Statement of Work attached as




 




7





























 




Schedule A, or in future statements of work; all

clickstream data, coupon redemption data and information, survey results, and

any other data or information created or collected with respect to Users and

their use of the Services in connection with the Parties’ performance under this

Agreement.  Notwithstanding anything to

the contrary herein, all User Data shall be the sole and exclusive property of

Client. Client grants to e-centives a non-transferable (except to a successor

of all or substantially all of the assets or shares of e-centives entitled to

vote for the election of directors who agrees to be bound by this Agreement)

worldwide, perpetual and royalty-free license to use and to disclose  Aggregated User Data, defined as that

derivative of the universe or of collected User Data that allows e-centives to

provide statistics about the use of its services and that does not identify

Client or any individual User or any personally identifiable information as the

source of such data or part of such data. 

Client also grants to e-centives a limited license to use User Data

internally solely in connection with its performance under this Agreement and

for statistical or reporting purposes, and without disclosure of the

disaggregated User Data. The parties acknowledge and agree that all User Data

is the Confidential Information of Client, as further defined in Section 5 of

this Agreement.




 




e-centives hereby grants to Client an unconditional

first lien and security interest in and to all Client Property as defined in

Section 4.3.  e-centives agrees that

none of the foregoing shall be subjected to a superior lien or interest, shall

not be subordinated to any other lien or interest, and that as of the date of

execution of this Agreement no competing or superior lien or interest exists.  e-centives agrees that Client may file UCC-1

or similar documents to perfect its security interest, and further agrees to

execute all documents necessary to assist Client in the perfection of its first

priority security interest and to execute all document reasonably necessary for

these purposes.




 




4.6                               Proprietary

Notices




 




The parties will reach mutual agreement on the

placement and appearance of proprietary notices indicating that the Client

Sites are “powered by” e-centives,  and other appropriate proprietary notices.




 




5.             Confidentiality




 




5.1                               Obligation




 




With respect to the Confidential Information (as

defined below) disclosed by a party (the “Disclosing Party”) to the receiving party

(the “Receiving

Party”), the Receiving Party agrees that it shall:  (i) take reasonable steps to safeguard the

Confidential Information from unauthorized access or use by others; (ii) not

disclose the Confidential Information to any third party (including consultants

and subcontractors) except on a need-to-know basis in connection with the

transactions contemplated by this Agreement and then only if the third party is

subject to a written confidentiality agreement; and (iii) not use the

Confidential




 




8





























 




Information for any purpose not related to this

Agreement, or (iv) to the detriment of the Disclosing Party, including in the

trading of such Disclosing Party’s securities. 

Notwithstanding the above, the parties agree that whether or not

Intellectual Property Rights of the parties is disclosed in confidence, the

Intellectual Property Rights of the parties shall remain in effect in

accordance with the laws applicable to the Intellectual Property Rights in

question.  “Confidential Information”

means all User Data, and all trade secret, confidential or proprietary

knowledge, data and information, including information related to the business,

customers and products of a Disclosing Party, specifications, know-how,

drawings, sketches, models, samples, reports, plans, forecasts, current and

historical data, computer programs, documentation, market research, market

plans, business plans, Intellectual Property, and other technical, financial or

business data in the possession of a Disclosing Party, which such Disclosing

Party desires to protect against unrestricted disclosure or competitive use,

and includes the terms of this Agreement.




 




5.2                               Exceptions




 




The obligations imposed hereunder shall not apply to

specific information whether or not designated Confidential Information

if:  (i) the information is part of the

public domain, or becomes part of the public domain through no fault of the

Receiving Party; (ii) the information is received from a third party without a

restriction of confidentiality, without a breach of this Agreement, and without

a breach of another agreement of confidentiality by the third party; (iii) the

information is independently developed by the Receiving Party through

individuals not exposed to the Confidential Information and without any

reference to it, as evidenced by the Receiving Party’s written records; or (iv)

the information is Aggregated User Data as defined in Section 4.5 of this

Agreement.




 




Neither party shall disclose to the other party any

Confidential Information obtained by such party from a third party on a confidential

basis unless such party has obtained written permission from such third party

to do so.  Evidence of such written

permission shall be provided to the requesting party upon request.




 




6.             Limitation of

Liability




 




NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN,

NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,

INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE

WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, ARISING OUT OF OR

RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY

(INCLUDING NEGLIGENCE).  E-CENTIVES’

AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT,

TORT OR OTHERWISE, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL THE FEES, EXPENSES

AND/OR OTHER CHARGES PAID TO E-CENTIVES BY CLIENT FROM THE INCEPTION OF THIS

AGREEMENT.




 




9





























 




7.             Representations and

Warranties




 




7.1                               By

Client




 




7.1.1                     Client

Content




 




Client hereby represents and warrants that any content

owned or licensed by Client from third parties, including, but not limited to,

all text, pictures, audio, video, logos and copy contained therein, data, email

addresses, and other information (“Content”) posted on any Client Site, or

otherwise provided to e-centives by Client hereunder (including, without

limitation any Client Property) or acquired or created by e-centives at

Client’s request, including the transmission of such Content through email, for

use under this Agreement will not: (i) infringe any third party’s valid

Intellectual Property Rights; (ii) knowingly violate any law or regulation

(including, without limitation, any law or regulation governing data

collection, spam, maintenance or privacy); (iii) be defamatory; (iv) be obscene

or contain pornographic material of any kind; (v) contain material that is

grossly offensive to the online community, including blatant expressions of

bigotry, prejudice, racism, hatred, or excessive profanity; display material

that exploits children under eighteen (18) years of age; promote or provide

instructional information about illegal activities, or promote physical harm or

injury against any group or individual; (vi) intentionally contain any viruses,

Trojan horses, worms, time bombs, cancelbots or other computer programming

routines that are intended to damage, detrimentally interfere with,

surreptitiously intercept or expropriate any system, data or personal

information.




 




7.1.2                     Client

further represents and warrants to e-centives as follows:




 




(a)                                  Client

is free to enter into and to perform this Agreement, and that the performance

of all the terms of this Agreement will not breach any confidential information

agreement, non-competition agreement or other agreement with any third party;

and




 




(b)                                 Client’s

use of the Services, and provision to Users, shall be in compliance with all

applicable laws, rules, and regulations.




 




7.1.3                     Authorization




 




Insofar as it is in Client’s control to do so, Client

warrants that it has taken reasonable steps to obtain authorization from each

individual to whom Client seeks to send email. 

Client shall provide tangible proof of the steps Client has taken and

any such authorization upon e-centives reasonable request.




 




10





























 




7.1.4                     Restrictions

on use of the Service




 




Except as otherwise expressly permitted in this

Agreement, and except to the extent the following restrictions are prohibited

by applicable law, Client will not: (i) disassemble, reverse engineer,

de-compile, or otherwise attempt to derive source code from the e-centives

Promotions Product software contained in the e-centives Property or otherwise

used in the provision of the Services; (ii) modify, adapt, create derivative

works based upon, or translate any such software or any part thereof; (iii)

copy, install or use any such software on any of its computer systems, servers,

or networks; (iv) transfer, lease, loan, resell for profit, distribute or

otherwise grant any rights in such software or the e-centives Property in any

form to any other party, including commercial time-sharing, rental, or service

bureau use.




 




7.2                               By

e-centives




 




7.2.1                     e-centives

hereby represents and warrants that the e-centives Property it uses to provide

the Services:  (i) will not infringe any

third-party Intellectual Property Rights arising under the laws of the United

States, the United Kingdom, Germany, , and any other country or territory where

e-centives provides the Services or Deliverables to Client; (ii) will not

violate any law or regulation (including, without limitation, any law or

regulation governing data collection, maintenance or privacy); and (iii) will

not intentionally contain any viruses, Trojan horses, worms, time bombs,

cancelbots or other computer programming routines that are intended to damage,

detrimentally interfere with, surreptitiously intercept or expropriate any

system, data or personal information.




 




7.2.2                     e-centives

further represents and warrants to Client as follows:




 




(a)                                  e-centives

is free to enter into and to perform this Agreement, and that the performance

of all the terms of this Agreement for Client will not breach any confidential

information agreement, non-competition agreement or other agreement with any

former or current consumer of e-centives’ services;




 




(b)                                 all

Services and Deliverables furnished to Client shall be in compliance with all

applicable laws, rules and regulations;




 




(c)                                  that

the e-centives Promotions Product and other software will perform substantially

in accordance with their written specifications and documentation;




 




(d)                                 that

as of the date of the execution of this Agreement, to the extent the

exclusivity provision of Section 11.2 applies, such provision would not cause

e-centives to violate, currently or at any time in the future, any contract it

currently has with a third party.




 




11





























 




7.3                               Acknowledgments

Regarding Dissemination of Email




 




e-centives may: 

(a) utilize a filtering system or other means at its disposal from time

to time for the purpose of removing from Client’s list of email addresses any

address which, in the sole and reasonable discretion of e-centives could result

in liability to or otherwise create the risk of negative publicity or other

attention for e-centives or Client if such address were to receive an email

through e-centives; and (b) if a disproportionate number of email addresses are

governed by the preceding clause (a), or in the event that an ongoing email

campaign results in an unusually high number of complaints, as determined by e-centives

in its sole and reasonable discretion, e-centives may halt such campaign or

take such other action as the parties mutually agree in order to minimize the

negative effects of such campaign, provided that in no event will e-centives be

required to continue such activity to the extent it may result in liability to

e-centives  reserves the right to refuse

to send any email instructed by Client if in e-centives sole but reasonable

discretion, such mailing is illegal, immoral, inappropriate for dissemination,

would create liability of negative publicity to e-centives.  In connection with all of the foregoing,

e-centives shall inform Client prior to its taking of any such action, or if

not reasonably feasible to provide such prior notice, as soon as reasonably

practicable after such action is taken.




 




7.4          Disclaimer




 




OTHER THAN AS EXPRESSLY SET FORTH HEREIN, E-CENTIVES

DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY.




 




8.             Indemnification




 




8.1                               General




 




Each party shall indemnify, defend, and hold the other

harmless from and against any and all claims, losses, liabilities, demands,

damages and costs (including, without limitation, settlement costs, judgments,

and the reasonable fees of attorneys’ and other professionals) arising from any

claim alleging facts that would constitute a breach of such party’s

representations or warranties under Section 7.




 




8.2                               Indemnification

by e-centives.  e-centives

shall indemnify, defend, and hold Client harmless from and against any and all

claims, losses, liabilities, demands, damages and costs (including, without

limitation, settlement costs, judgments and the reasonable fees of attorneys

and other professional) arising from any claim alleging that the Services or

any Deliverables furnished under this Agreement infringe or misappropriate any

Intellectual Property Right of a third party arising under the laws of the

United States, the United Kingdom, Germany, and any other country or territory

where e-centives provides Services or Deliverables to Client (an “Infringement

Claim”), or any claim that e-centives has used User Data




 




12





























 




outside the scope of this

Agreement, except where the claim or suit arises out of or results from: (A)

any enhancements to the e-centives products, Services, or Deliverables made in

accordance with specifications received solely from Client, (B) Client’s use of

the e-centives Services or Deliverables other than the most recent version of

the e-centives  Services or Deliverables, if such infringement or

misappropriation would have been avoided by the use of the most recent version

of the Services or Deliverables; (C) modification of the e-centives Services or

Deliverables by any party other than Client, e-centives,  its subcontractors or agents; (D) the use of the e-centives

Services or Deliverables other than in accordance with this Agreement, or (E)

Client Content.  In the event of any

Infringement Claim, e-centives will, at its sole expense and to the extent

commercially reasonable: (i) obtain for Client the right to use the infringing

Service or Deliverables; (ii) modify such Service or Deliverables in a manner

that maintains existing functionality and does not give rise to an infringement

claim; or (iii) substitute equivalent non-infringing Services or Deliverables

that are reasonably equivalent to the infringing Service or Deliverables.




 




8.3          Indemnification by Client




 




Client shall indemnify, defend and hold e-centives

harmless from and against any and all claims, losses, liabilities, demands,

damages, and costs (including, without limitation, settlement costs, judgments

and the reasonable fees of attorneys and other professionals) arising out of

(i) any use of or access to the Client Sites by Client or by an authorized

agent of Client;  (ii) any Client

Content displayed in email sent by e-centives on behalf of Client or available

through the Client Sites, or (iii) any use of Client Property by e-centives

permitted under this Agreement (iv) the provision of any goods or services through

the Client Sites or any claim that such goods or services constitute

infringement or misappropriation of any valid third-party Intellectual Property

Right; and (v) any of the exceptions in the preceding paragraph listed in

clauses (A) through (E).




 




8.4                               Procedures




 




The parties shall provide the indemnification provided

in this section provided that the indemnified party provides the indemnifying

party with (i) prompt written notice of any claim covered under this section

(“Covered Claim”), (ii) control over the defense and settlement of such Covered

Claim using counsel reasonably acceptable to the indemnified party, and (iii)

proper and full information and assistance to settle or defend any such Covered

Claim.  The indemnified party shall be

able to participate in the defense of the Covered Claim with counsel of its

choice at its own expense, and the indemnifying party shall not enter into any

settlement without the indemnified party’s written consent, which consent shall

not be unreasonably withheld.




 




13





























 




9.             Term and Termination




 




9.1                               Term




 




The initial term of this Agreement shall be for twelve

(12) months, commencing on the Effective Date, and shall renew for successive

one (1) year terms unless either party provides the other party with written

notice of non-renewal sixty (60) days prior to the end of such initial or

renewal term (“Renewal Notice Period”). If by the end of the Renewal Notice

Period of the initial term, and after undertaking commercially reasonable

efforts to reach a decision, Client is unable to provide notice of non-renewal,

then Client may provide notice to e-centives that Client must defer its renewal

decision (“Renewal Deferral”).  If

Client provides notice of Renewal Deferral, then after the expiration of the

initial term, e-centives shall continue to provide the Services in accordance

with this Agreement provided Client shall pay to e-centives an amount equal to

the year-one fees and charges, pro-rated based upon the additional sixty (60)

day time period during which such Services are performed, in addition to all

other fees due under this Agreement. 

The time period during which Client must provide e-centives written

notice of non-renewal shall be extended through the sixty day Renewal Deferral

period. If no such notice is received by e-centives during the Renewal Deferral

period, this Agreement shall automatically renew for the first renewal term

commencing upon the completion of the Post-Termination Services period.




 




9.2                               Termination

upon Default




 




A “Default” shall occur under this Agreement

upon: (i) Client’s failure to pay any undisputed invoice and such failure

remains uncorrected for ten (10) days after receipt of written notice that a

payment is past due; (ii) either party’s insolvency, apparent inability to pay

debts as they become due, or any filing of bankruptcy by or against either

party or a general assignment for the benefit of its creditors; (iii) either

party’s violation of any applicable laws, statutes, ordinances, codes or other

legal requirements with respect to any Services that are not remedied within

thirty (30) days after written notice thereof (or such shorter period as may be

required by law); or (iv) either party’s failure to perform or observe any

material term or condition of this Agreement and such failure remains uncured

for more than thirty (30) days from the date of the non-breaching party’s

written notice thereof.




 




Client may terminate this Agreement upon any Default

by e-centives not cured after the required notice and thirty (30)-day cure

period set forth in this Section by providing written notice of termination to

e-centives not less than five (5) business days following the expiration of

such cure period.




 




Upon any Default by Client of this Agreement not cured

after expiration of any applicable notice and/or cure period set forth herein,

e-centives may, in its sole discretion and without waiving any other rights or

remedies available to it, do any or all of the following: (i) suspend Service

to Client until such time as Client has corrected such noncompliance, including

paying any amounts owed hereunder; or




 




14





























 




(ii) terminate Service (either completely or only with

respect to an affected Service) or this Agreement.  If e-centives suspends Service pursuant to this Section, in

addition to any other charges due hereunder, Client shall pay e-centives any

fees or other costs imposed on or incurred by e-centives to restart Service.




 




9.3                               Effect

of Termination




 




9.3.1                     The

provisions of Sections 3, 4, 5, 6, 7, 8, 9 and 13 will survive the termination

of this Agreement for any reason, and upon such termination, Client shall pay

e-centives for all Services performed and expenses incurred by e-centives prior

to the effective date of termination in accordance with the provisions of

Section 3.




 




9.3.2                     In the event

of the natural expiration or any other termination of this Agreement neither

Party shall make any claim or demand for future damages, whether direct,

incidental, consequential, punitive or otherwise, on the basis that either

Party had any expectation that this Agreement would be renewed or would

continue beyond its stated initial or effective renewal Term(s).  Nothing in this paragraph shall affect

either Party’s rights accruing up through the time of any termination or

expiration.




 




9.3.3                     It is the

intent of the parties that consumers shall have, subject to the SLA, ongoing

and uninterrupted access to and use to all websites through which the Services

are provided under this Agreement even in the event of the termination or

expiration of this Agreement. 

Therefore, notwithstanding anything in this Agreement or in any

Statement of Work to the contrary, upon the termination or expiration of this

Agreement, however occurring and even in the case of default or breach by any

party (except in the case of non-payment of undisputed amounts by Client), the

following provisions shall apply:




 




(a)                                  All

websites shall remain active, accessible and usable by consumers following

termination or expiration for a period of at least 60 days in order to allow

for transition.  All of the applicable

terms and conditions shall remain in effect during the transition period,

including, without limitation, all licenses from e-centives to Client provided

the parties shall separately negotiate a fee for the post-termination services,

which fee shall be in accordance with e-centives ‘ standards rates and fees

then in effect.




 




(b)                                 e-centives

(and all successors and assigns) shall collect and deliver to Client, in such

form as the parties may agree but in all events in industry standard formats

that allow Client to transfer to, and use with, a third party, all

Deliverables, Confidential Information, Client Intellectual Property, User

Data, Client Content, and backups and archives of all the foregoing, and shall

deliver them to




 




15





























 




Client or to Client’s

designee as soon as practicable but no later than forty-five (45) days after

termination or expiration of this Agreement. 

Client agrees to reimburse e-centives for reasonable and actual

out-of-pocket expenses actually incurred (excluding the time of employees to

comply with this provision).  e-centives

further agrees that Client’s representatives may assist e-centives in this

process, and e-centives agrees to reasonably cooperate with Client in all

aspects of the transition.




 




(c)                                  To

the extent that e-centives has control over any domain name or URL identifying

websites used to provide Services to Client and to which Client has rights of

ownership, e-centives shall execute such documents and take such other

reasonable actions reasonably necessary to transfer those domain names and URLs

to the ownership and control of Client.




 




10.          Use of Name




 




e-centives may use all Client Content, names, and

logos for the purpose of performing under this Agreement.  e-centives may use Client’s name and logos

in its general marketing and advertising initiatives, provided that e-centives

complies with all Client trademark or logo usage specifications and guidelines

and that all Client trademarks and logos appear with equal size and prominence

as any other company logos used in such initiatives.  e-centives may disclose any of the terms of the business

relationship with Client upon Client’s prior written approval, which approval

shall not be unreasonably withheld. 

Nothing in this Agreement shall constitute a license to use any

trademark, service mark, trade name or logo.




 




11.          [*]




 




12.          Audit and Inspection




 




e-centives agrees that Client or its representatives

shall have the right to enter into any premises of e-centives or its

contractors with two (2) business days prior notice and during regular business

hours for the purposes of verifying e-centives’ compliance with this Agreement

and any Statement of Work hereunder. 

Client shall have this right of audit and inspection at least once per

calendar year, and as otherwise mutually agreed.  Client agrees to give e-centives at least ten (10) business days’

prior notice of its intent to exercise its rights hereunder.  Client agrees to perform the audit and

inspections at its own costs and expense, and during e-centives’ normal

business hours.  e-centives agrees to reasonably

cooperate in all respects, and agrees to allow Client or its representatives to

have access to and to copy such written or magnetically stored records and data

as are reasonable necessary to complete the audit.  All materials copied in accordance with the provisions herein

shall be considered Confidential Information, as further defined in this

Agreement, and shall be returned to e-centives (with Client’s legal department

retaining




 




16





























 




copies for record keeping purposes only, not to be

shared with anyone outside the legal department) immediately after completion

of the audit contemplated hereunder.




 




13.          General




 




13.1        Waiver and Amendment




 




No modification, amendment or waiver of any provision

of this Agreement shall be effective unless in writing and signed by both

parties.  No failure or delay by either

party in exercising any right, power, or remedy under this Agreement, except as

specifically provided herein, shall operate as a waiver of any such right,

power or remedy.




 




13.2        Notice




 




All notices, demands, requests, or other communications

which may be, or are required to be, given or served, or sent by any party to

any other party pursuant to this Agreement shall be in writing and will be

deemed to have been duly delivered or given when: (i) delivered by hand (with

written confirmation of receipt) before 5:00 p.m. EST on a business day (or

otherwise on the next succeeding business day); (ii) sent by facsimile before

5:00 p.m. EST on a business day (or otherwise on the next succeeding business

day) and a written confirmation of the transmission is received by the sender;

or (iii) the next business day after being deposited for delivery with a

nationally recognized overnight delivery service, such as Federal Express, and

addressed or sent, as the case may be, to the appropriate addresses or

facsimile numbers set forth below:




 




	

  To e-centives:


  	

   


  	

  e-centives, Inc.


  
	

   


  	

   


  	

  6901 Rockledge Drive


  
	

   


  	

   


  	

  7th Floor


  
	

   


  	

   


  	

  Bethesda, MD 

  20817


  
	

   


  	

   


  	

  Attn: 

  General Counsel


  
	

   


  	

   


  	

  Fax:  (240)

  333-6250


  
	

   


  	

   


  	

   


  
	

  To Customer:


  	

   


  	

  [*]


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  With a copy to:


  	

   


  	

  [*]


  





 




Each party may designate by notice in writing a new

address, to which any notice, demand, request or communication may thereafter

be so given, served or sent.




 




17





























 




13.3        Independent Contractors




 




The parties are independent contractors.  Neither party shall be deemed to be an

employee, agent, partner or legal representative of the other for any purpose

and neither shall have any right, power or authority to create any obligation

or responsibility on behalf of the other.




 




13.4                        Assignment




 




Neither party may assign or otherwise transfer any of

its rights or obligations under this Agreement, without the prior written

consent of the other party, unless such assignment is part of a merger,

reorganization or sale of all or substantially all of the assigning party’s

assets.




 




This Agreement is personal to e-centives, and

e-centives shall not delegate, outsource, or subcontract all of its obligations

without the express prior written permission of Client, which Client may grant

or withhold in its sole discretion.  Any

permitted delegee or subcontractor shall agree in a signed writing to be bound

by all of the terms and conditions of this Agreement.  Notwithstanding the foregoing, e-centives shall be permitted, in

its sole discretion and without Client’s consent, to hire suppliers,

contractors, third-party service providers, and enter into other subcontracts

in connection with the provision of the Services hereunder, but in all events

e-centives shall remain primarily responsible to Client for the fulfillment of

all Services and Deliverables required by this Agreement of any Statement of

Work.




 




13.5                        Taxes




 




Each party agrees to pay, and to indemnify and hold

the other party harmless from, any sales, use, excise, import or export, value

added or similar tax or duty not based on each party’s net income, including

any penalties and interest, as well as any costs associated with the collection

or withholding thereof, and all governmental permit fees, license fees, and

customs and similar fees levied upon the delivery by e-centives of the

Services.




 




13.6        Severability




 




In the event that any provision contained in this

Agreement, or the application of any such provision to either e-centives or

Client, is held by an arbitrator or a court of competent jurisdiction to be

contrary to any law or otherwise unenforceable, such provision shall be changed

and interpreted so as to best accomplish the objectives of the original

provision to the fullest extent allowed by law and the remaining provisions of

this Agreement will remain in full force and effect.




 




13.7                        Force

Majeure




 




Neither party shall be liable for any failure of

performance hereunder due to causes beyond its reasonable control, including,

but not limited to, acts of God,




 




18





























 




fire, explosion, vandalism, cable cuts, storms or

other similar catastrophes; any law, order, regulation, direction, action or

request of the United States government, or of any other government, including

state and local governments having jurisdiction over either of the parties, or

of any department, agency, commission, court, bureau, corporation or other

instrumentality of any one or more of said governments, or of any civil or

military authority; national emergencies; acts of terrorism, insurrections,

riots, wars, or strikes, lockouts, work stoppages or other labor disputes or

difficulties.  Notwithstanding anything

to the contrary set forth herein, Client agrees that payment obligations for

Services provided hereunder shall not be subject to delay due to any event of

force majeure.




 




13.8                        Cooperation




 




Each party shall cooperate with the other party by

making available, as requested, information that is reasonably deemed necessary

to accomplish its obligations and responsibilities of a party hereunder.




 




13.9                        No

Third Party Beneficiaries




 




This Agreement inures to the benefit of e-centives and

Client only and no third party shall have any rights hereunder.  None of the provisions of this Agreement

shall apply or extend directly to the Client’s customers.




 




13.10                 Attorneys’

Fees




 




The prevailing party, as determined by a court or

arbitrator of competent jurisdiction, shall be entitled to recover its

reasonable attorneys’, witness, and other fees in any action to enforce or

interpret any part of this Agreement (including fees on any appeal).  All such fees referenced herein shall only

become payable after any action contemplated hereby becomes non-appealable.




 




13.11                 Entire

Agreement




 




This Agreement, including all Schedules, Attachments,

and Addenda, constitutes the entire agreement between the parties with respect

to the subject matter hereof and supersedes all prior or contemporaneous

agreements, written or oral.




 




13.12                 Governing

Law




 




This Agreement will be interpreted and construed in

accordance with the laws of the State of New York, without regard to the

conflict of law provisions thereof.




 




19





























 




In Witness Whereof,

the parties have caused this Agreement to be executed by a duly authorized

representative as of the Effective Date first set forth above.




 




	

  [*]


  	

   


  	

   


  	

  E-CENTIVES,

  INC.


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  By:


  	

   


  	

   


  	

  By:


  	

   


  
	

  Name:


  	

   


  	

   


  	

  Name:


  	

   


  
	

  Title:


  	

   


  	

   


  	

  Title:


  	

   


  
	

  Date:


  	

   


  	

   


  	

  Date:


  	

   


  
											





 




Schedule

A:          Statement of Work 




Schedule

B:          Pricing 




Schedule

C:          Service Level Agreement 




Schedule

D:          Client Authorized Personnel 




Schedule

E:           Media Buying 




 




 




 






















[*]

Certain confidential information contained in this document, marked by

brackets, has been omitted and filed separately with the Securities and

Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of

1934, as amended.




 




 




20