Exclusive Territory Agreement
Exhibit
10.1
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Mobile
Network Operator(s):
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Subsidiaries
of Weather Investments S.P.A., and Orascom
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Telecom
Holding S.A.E.
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Value
Added Services Provider:
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Effective
Date:
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May
27, 2008
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This
Exclusive Territory
Agreement (this "Agreement") is entered into as
of the Effective Date stated above by and between WEATHER INVESTMENTS S.P.A.
("Weather"), a
corporation established and existing in accordance with the laws of Italy, ORASCOM TELECOM HOLDING S.A.E
("Orascom"), a
corporation established and existing in accordance with the laws of Egypt, and
MY SCREEN MOBILE, INC.
("Myscreen"), a Delaware
corporation.
Recitals
WHEREAS, Orascom and Weather
are mobile telecommunication operators with their own mobile telecom
infrastructure networks and customer service platforms.
WHEREAS, Myscreen is a value
added service provider that delivers mobile data content and/or services more
fully described in this Agreement.
Agreement
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
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1.
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Definitions
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"Services" means the service
or services Myscreen client applications deliver to Myscreen's subscribers which
include static display ads, video, hot links and phone redirections. Services
may also refer to the Myscreen ad publisher web site portals using the Myscreen
trademarks and technology.
"Service Agreement" means the
Mobile Marketing Cooperation Agreement to be entered into between Myscreen and
Telecom (as defined below) prior to the launch of the Services in each country
within the Territory (as defined below), and which shall, among other things:
(A)govern the provision of the Services within the Territory (as defined below),
(including, but not limited to, the compensation to be paid to the parties
(which has initially been agreed as a 50/50 split of revenue (and the parties
agree that Weather and Orascom together shall not at any time in the future be
required to receive less than 50% of such revenues without their prior written
consent) from the provision of the Services after deducting amounts paid to
Subscribers and Media/Content Agencies between (i) Orascom and Weather and (ii)
Myscreen (and Myscreen hereby agrees to follow any instruction received from
Weather or Orascom from time to time to allocate
and pay such sums between Weather and Orascom or their subsidiaries), and (B)
define responsibilities for contracting with Media/Content Agencies (which it
has initially been agreed between the parties will reside with Myscreen,
although Orascom and Weather may (at their sole discretion) provide assistance
to Myscreen from time to time).
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2.
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Exclusive Territory
Grant
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(a) Subject
to the terms and conditions set forth in this Agreement, Myscreen hereby grants
to Orascom, Weather, and each of their subsidiaries (collectively, "Telecom") the exclusive right
to promote and deliver the Services within the countries set forth on Exhibit A hereto,
which is incorporated into this Agreement by this reference (the "Territory"). Nothing herein
shall prevent or prohibit Myscreen from selling and delivering any Services
outside the Territory.
(b) If
after the Effective Date, Telecom commences providing telecommunications
services in a country that is not listed on Exhibit A (a "New Market"), such New Market
shall be deemed a portion of the Territory hereunder and Telecom shall, at its
option, have the exclusive right to promote and deliver the Services to
subscribers within such New Market; provided, however, that if, as of the date
Telecom enters into such New Market, Myscreen has already entered into a
conflicting agreement with a third party provider (which Myscreen shall have the
absolute right to do, except in respect of the Territories as set out in Section
2 below and Exhibit A), Telecom's rights under this Section 2(b) shall be
subject to such third party agreement.
(c) Notwithstanding
any other provision hereof, Telecom shall be granted unconditional exclusivity
in Algeria, Egypt, Greece, Italy, Pakistan, Bangladesh, Canada, North Korea,
Tunisia and Zimbabwe for the term of this Agreement without limitation in time
and without any penetration targets or other conditions or
qualifications.
(d) If
Telecom does not launch the Service within Bangladesh, Canada, North Korea,
Tunisia or Zimbabwe by the target launch date set out in Exhibit A for each such
Territory or such target launch date as may be agreed between the parties based
on a mutually agreed marketing and launch plan (provided that Myscreen may not
require that such agreed launch dates occur before June 2011 without the consent
of Telecom), Myscreen may, at its option, terminate Telecom's exclusivity with
respect to such country.
(e) Telecom
may waive, in writing, its exclusivity rights in any country within the
Territory.
(f)
Prior to commencing services within any country in
the Territory, the applicable Telecom party and Myscreen shall enter into a
Service Agreement upon mutually agreed terms based on the particular
circumstances related to the applicable country. Except as otherwise agreed
between the parties, such Service Agreements shall reflect the terms agreed in
this agreement, and in particular the terms of the definition of "Service
Agreement" in Section 1 hereof.
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3.
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Marketing of
Services
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Telecom
will reasonably promote the Services through distribution channels prevailing in
each Territory, in conformity with marketing policies and programs to be
mutually agreed between the Parties from time to time. Telecom will use its best
efforts to sell the Services to it's customers in each Territory based on such
mutually agreed policies and programs.
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4.
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Myscreen
Obligations
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(a)
Myscreen
will employ its best efforts to support Telecom's launch and maintenance of the
Services
as described in the Services Agreements, including pursuant to defined service
level agreements, obligations on the part of Myscreen relating to, among other
things, network utilization, data volume and modification to the Services,
sharing of sales and marketing expenses, and other Service delivery parameters
to be agreed between the parties.
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(b) Myscreen
shall maintain and employ in connection with the Services under this Agreement
such working capital as may be required to enable it to properly carry out and
perform all of its duties, obligations and responsibilities under this
Agreement.
(c) If
Myscreen defaults in the performance of any of its obligations under this
agreement or any of the Services Agreements, after receiving notice from Telecom
in that regard, and provided such default is not cured within 30 days of receipt
of such notice, at the option of Telecom in its sole discretion (i) Telecom may
terminate this agreement as provided in Section 8 hereof or (ii) Telecom may
require MyScreen to pay to Telecom a non-performance penalty in an amount to be
determined following an independent third party evaluation of damages incurred
by Telecom as a result of such default.
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5.
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Telecom
Obligations
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(a) Telecom
shall maintain and employ in connection with the Services under this Agreement
such working capital as may be required to enable Telecom properly carry out and
perform all of Telecom's duties, obligations and responsibilities under this
Agreement.
(b) Telecom
shall ensure that the sale, use and provision of the Services in any country
within the Territory comply with all applicable laws and
regulations.
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6.
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Advertising
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Myscreen
will cooperate with Telecom and its subsidiaries in providing for continuous and
effective advertising and promotion of the Services throughout each Territory
and Telecom agrees at Telecom's expense to participate in, actively promote and
faithfully comply with the terms and conditions of such cooperative advertising
and sales programs as Myscreen may establish and offer to Telecom from time to
time. Nothing herein shall prevent Telecom from separately advertising and
marketing the Services within the Territory, provided the form and content of
the advertising or marketing materials are approved by Myscreen in
advance.
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7.
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Term
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This
Agreement will become effective upon the Effective Date and continue to remain
in effect until terminated in accordance with the termination rights set forth
below.
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8.
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Termination
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At any
time during the Term, Telecom shall have the right to terminate this Agreement
in full, or with respect to any country within the Territory, by providing
Myscreen with 180 days advanced written notice. If either party at any time
during the Term shall fail to timely observe or perform any of the other
covenants, agreements, or obligations hereunder, or breach or be found to be in
breach of any of its representations or warranties contained herein, the
non-defaulting party may, at its option, terminate this Agreement if such
default is not cured within thirty (30) days after the aggrieved party shall
have delivered to the other party written notice specifying such default;
provided, however, if such breach is curable, but not the type of breach that
can be reasonably cured within such 30 day period, this Agreement may not be
terminated if the defaulting party has taken substantial steps towards curing
such breach and continues in good faith to diligently continue curing such
breach
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9.
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Confidentiality
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Each
party shall hold and shall cause its employees or agents to hold in confidence
all confidential information made available to it by the other party and shall
not pass such information on, wholly or partly, to third parties without the
written consent of the other party, unless such information (i) becomes
generally available to the public other than as a result of a disclosure by such
party, (ii) becomes available to such party from other sources not known by such
party to be bound by a confidentiality obligation, or (iii) is independently
acquired by such party as a result of work carried out by any employee or agent
of such party to whom no disclosure of such information has been
made.
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10.
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Survival of Certain
Terms
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The
confidentiality provisions set out above will survive the expiration or
termination of this Agreement for any reason. All amounts owing and unpaid for
the Services rendered will survive the expiration or termination of this
Agreement for any reason. All other rights and obligations of the parties will
cease upon expiration or termination of this Agreement.
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11.
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Disputes, Conflicts,
and Applicable Law
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Any
disputes arising from or in connection with this Agreement shall be resolved
first through consultation between the parties. If a dispute cannot be settled
within 10 days through consultations, such dispute shall be submitted for
binding arbitration in accordance with the laws of the Province of Ontario,
Canada. The arbitration decision will be final. The jurisdiction and venue for
all disputes not settled by arbitration hereunder shall be the provincial and
federal courts in the Province of Ontario, Canada. In the event of a conflict
between the terms and conditions of this Agreement and the terms and conditions
of any attachment, the terms and conditions of the attachment shall
govern.
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12.
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Disclaimer and
Limitation and Exclusion of
Liability
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(a) Except
as OTHERWISE provided in this Agreement OR ANY OTHER AGREEMENT BETWEEN THE
PARTIES, Telecom acknowledges and agrees that Myscreen makes no express or
implied warranties regarding the provision or use of the Services. Myscreen
expressly disclaims the implied warranties of merchantability, fitness for a
particular purpose, and non-infringement applicable to the
Services.
(b) Except
as otherwise provided in this Agreement OR ANY OTHER AGREEMENT BETWEEN THE
PARTIES, NEITHER PARTY will have any liability TO THE OTHER PARTY for any
special, indirect or consequential damages, including, but not limited to,
damages for loss of profits, internet interruption, or loss of data, arising in
any way out of this Agreement or the Services, under any cause of action,
whether in tort or contract, and whether or not SUCH PARTY has been notified of
the possibility of such damages. Myscreen has no obligation to review the
content of any advertising media served through the Services.
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MSI
Exclusive Territory
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13.
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Indemnification
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Telecom
shall jointly and severally indemnify and hold harmless Myscreen, its
subsidiaries, and each of their respective shareholders, officers, directors,
employees, agents, representatives, and each of their successors and assigns,
from and against any claims, actions, costs and other related expenses incurred
by Myscreen relating to: (a) Telecom's breach of this Agreement; or (b)
Telecom's use of the Services.
Myscreen
shall indemnify and hold harmless Telecom, its subsidiaries, and each of their
respective shareholders, officers, directors, employees, agents,
representatives, and each of their successors and assigns, from and against any
claims, actions, costs and other related expenses incurred by Telecom relating
to Myscreen's breach of this Agreement.
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14.
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Force
Majeure
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Neither
party shall be deemed to be in default of or to have breached any provision of
this Agreement as a result of any delay, failure in performance or interruption
of service resulting directly or indirectly from acts of God, acts of civil or
military authorities civil disturbances, wars, strikes or other labor disputes,
fires, transportation contingencies, interruptions in telecommunications or
Internet services or network provider services, failure of equipment and/or
software, other catastrophes or any other occurrences which are beyond such
party's reasonable control.
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15.
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Independent
Advice of Counsel
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The
parties each acknowledge that they have been represented by independent legal
counsel in connection with this Agreement and have consulted with such legal
counsel.
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16.
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Modifications and
Waivers
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This
Agreement and any documents referenced herein constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof. This Agreement may be modified only
by a writing signed by both parties. No failure or delay on the part of either
party in exercising any right, power or remedy under this Agreement or an
attachment shall operate as a waiver, nor shall any single or partial exercise
of any such right, power or remedy preclude any other or further exercise of any
other right, power or remedy. Unless otherwise specified, any amendment,
supplement or modification of or to any provision of this Agreement or an
attachment, any waiver of any provision of this Agreement or an attachment and
any consent to any departure by the parties from the terms of this Agreement or
an attachment, shall be effective only if it is made or given in writing and
signed by both parties.
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17.
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Independent Contractor
Status/Sub-Contractors
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Each
party shall be and act hereunder as an independent contractor and not as
partner, joint venture or agent of the other. Each party shall remain fully
liable for the acts or omissions of the subcontractor, consultant,
third-party service provider and/or agent engaged by such party. Myscreen has
the right to use sub-contractors for performance of the Services, provided that
each sub-contractor is bound to terms and conditions that are consistent with
the requirements of this Agreement with respect to the work the sub-contractor
performs. Myscreen is responsible for ensuring that the performance of its
sub-contractors meets the requirements of this Agreement.
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18.
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Assignment
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This
Agreement, all attachments, and all rights granted hereunder and there under are
not transferable or assignable without the prior written consent of the
non-assigning party.
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19.
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Notices
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Any
notice or other communication required or permitted to be given under this
Agreement shall be given in writing, emailed, sent by facsimile or delivered
personally or by courier service, to the individual stated below, to the
address, email or facsimile number specified below, and shall be deemed
effective upon receipt. Either party may from time to time change the individual
to receive notices or its facsimile number, email address, or physical address
by giving the other party notice of the change in accordance with this
section.
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If
to Orascom:
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Orascom
Telecom Holdings S.A.E.
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Address:
_______________________
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_________________________
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Attn:
__________________________
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Fax:
___________________________
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Email:
__________________________
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If
to Weather:
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Weather
Investments S.P.A.
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Xxx
Xxxxxx Xxxxx Xxxxx 00
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00000
Xxxx
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Attn:
__________________________
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Fax:
___________________________
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Email:
_________________________
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If
to Myscreen:
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Myscreen
Mobile, Inc.
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Water
Park Place
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00
Xxx Xxxxxx, 00xx xxxxx Xxxxx 000
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Xxxxxxx,
Xxxxxxx, X0X 0X0
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Attn:
Xxxx Xxxxx
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Fax:
__________________________
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Email:
_________________________
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20.
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Counterparts;
Facsimile Signatures
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The
parties may execute this Agreement in two or more counterparts, which shall, in
the aggregate, be deemed signed by all of the parties. Each counterpart shall be
deemed an original instrument as against any party who signed it. A facsimile
signature by any party shall be acceptable and shall result in this Agreement
being valid and enforceable against such party.
[SIGNATURES
ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the
parties have duly executed and delivered this Agreement as of the Effective
Date.
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"Myscreen"
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"Weather"
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| WEATHER INVESTMENTS S.P.A. | ||
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/s/ X.
Xxxxxxxxx
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/s/ Naguib
Sawaris
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By:
X.
Xxxxxxxxx
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By:
Xxxxxx
Xxxxxxx
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Its:
Director
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Its:
Chairman
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“Orascom"
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ORASCOM
TELECOM HOLDING S.A.E
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/s/ Naguib
Sawaris
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By:
Xxxxxx
Xxxxxxx
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Its:
Chairman
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Exhibit
A
TERRITORY
This is
an exhibit to the Exclusive Territory Agreement entered into between Myscreen,
Inc., Weather Investments and Orascom Telecom Holdings S.A.E. (the "Agreement"). All capitalized
terms used in this Exhibit and not otherwise defined herein shall have the
meanings for such terms set forth in this Agreement.
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Country
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Target Launch
Schedule
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Algeria
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To
be mutually agreed upon within 12 months after the Effective
Date.
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Bangladesh
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To
be mutually agreed upon within 12 months after the Effective
Date.
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Canada
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To
be mutually agreed upon within 12 months after the Effective
Date.
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Egypt
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To
be mutually agreed upon within 12 months after the Effective
Date.
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Greece
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December
31, 0000
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Xxxxx
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December
31, 2009
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North
Korea
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To
be mutually agreed upon within 12 months after the Effective
Date.
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Xxxxxxxx
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Xxxxxxxx
00, 0000
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Xxxxxxx
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To
be mutually agreed upon within 12 months after the Effective
Date.
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Zimbabwe
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To
be mutually agreed upon within 12 months after the Effective
Date.
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| MSI Exclusive Territory |
Exhibit
A
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Initials: _____/
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