Exhibit 10.12
Direct Xxxx Services Agreement
This Agreement ("Agreement") is made as of the last date and year
specified on the signature page hereof, by and between Cingular Wireless
LLC, a Delaware Limited Liability Company ("Cingular"), and Dwango North
America, Inc. a Texas corporation, ("Customer").
Whereas, Cingular provides a service which will allows Customer to sell to
Cingular subscribers Information Services, including graphics, games, ring
tones and other content which can be used, played or displayed on certain
wireless enabled devices ("Information Services");
Whereas, as a part of such service, Cingular will include on certain of its
subscribers' bills for wireless services, the charges imposed by Customer
for Information Services ("DirectBill Service")
Whereas, Customer wishes to subscribe to Cingular's DirectBill Service."
Now, therefore, for and in consideration of the premises and other good and
valuable consideration, the parties agree as follows:
1. DEFINITIONS
1.1 "Affiliate" shall mean any entity which, directly or indirectly,
is controlled by Cingular, or any partnership, joint venture,
consortium or other such entity in which Cingular or its
Affiliates have any material form of ownership or any managerial
interest. For purposes of this definition, "material form of
ownership" shall be deemed to include partnerships, joint
ventures, consortiums or other entities in which Cingular or its
Affiliates have at least a thirty percent (30%) ownership
interest.
1.2 "Cingular Marks" means the trademarks, service marks, logos and
other distinctive brand marks of Cingular or its Affiliates that
are used in or relate to Cingular's business.
1.3 "Customer" means the entity named above and identified as
Customer. Customer represents that it does business under the
following names: Dwango Wireless. Customer represents that its
address is: 0000 Xxx Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxx
00000-0000. Customer represent that the following is a toll-free
number at which DirectBill Subscribers may contact Customer to
discuss problems with Customer's Information Services.
1.4 "DirectBill Subscribers" means Cingular wireless Subscribers who
have registered to have Information Services billed on their
wireless phone account.
1.5 "Unsuitable Information Services" means Information Services
that Cingular may at its sole discretion determine to be
inappropriate for billing by Cingular, including images or
content that is in any way unlawful, harmful, threatening,
defamatory, obscene, harassing, or racially, ethically or
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otherwise objectionable; Information Services that facilitate
illegal activity, depict sexually explicit images, promote
violence, promote discrimination, promote illegal activities, or
incorporate any materials that infringe or assist others to
infringe on any copyright, trademark, or other intellectual
property rights.
2. SCOPE OF SERVICES
2.1 Cingular shall allow its Subscribers to register for DirectBill
service through a website maintained by Cingular. Upon
registration and selection of a pin code DirectBill Subscribers
may purchase Information Services.
2.2 Cingular through its vendor, Qpass Inc. will authenticate
DirectBill Subscribers and deliver the Information Services to
the DirectBill Subscriber initiating the purchase. A description
of the authorization and process of delivery of the Information
Services is shown in the DirectBill QuickStart Guide which will
be provided to Customer upon execution of this agreement, and
can be found at xxxxxxxx.xxxxxxxxxxxxxxxxxxx.xxx. This guide is
subject to revision at any time with reasonable notification to
Customer.
2.3 The Information Services approved by Cingular, and which can be
offered and delivered by the Customer to DirectBill Subscribers
are shown in Exhibit 1 ("Approved Information Services") of this
agreement.
2.4 It is expressly understood and agreed that this Agreement does
not grant to either party any exclusive privileges or rights and
that either party may participate in similar business
arrangements and for similar content as described herein and
contract with other organizations in association therewith.
3. CINGULAR UNDERTAKING AND REPRESENTATIONS
3.1 Cingular shall include on its monthly bills charges incurred by
DirectBill Subscribers for the purchase of Information Services.
3.2 Cingular shall collect from DirectBill Subscribers the charges
for Information Services.
3.3 Cingular will provide its traditional billing related Tier I
Customer Service for its subscribers, and shall credit
DirectBill Subscribers with the amount of any charge for
Information Services, which is disputed by the DirectBill
Subscriber.
3.4 Cingular through its billing vendor shall remit to Customer the
amount collected from DirectBill Subscribers after subtracting
customer credits, bad debt, applicable taxes as directed by
Customer, and Cingular's Billing Fees.
3.5 Cingular will from time to time, in its sole and absolute
discretion, assess the reliability and trustworthiness of
Customer, and the utility, appropriateness, and desirability, of
Customer's Information Services. Based on Cingular's
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assessment of Customer and Customer's Information Services,
Cingular shall determine whether to continue this Agreement. If
Cingular determines in it sole and absolute discretion based on
Cingular's assessment of Customer and Customer's Information
Services that this Agreement should be terminated, Cingular
shall give Customer thirty (30) days prior notice of the
effective date of such termination. Notwithstanding the
foregoing, if Cingular at any time determines that that
Customer's Information Services or any part of them are
Unsuitable Information Services, Cingular may suspend the
performance of this Agreement immediately and without notice
until and unless the Unsuitable Information Services are
removed.
4. CUSTOMER UNDERTAKING AND REPRESENTATIONS
4.1 Customer must develop its Information Services and host them in
such a way that Cingular and Qpass can retrieve and deliver them
to DirectBill Subscribers initiating a purchase request. A
description of the programming necessary to integrate Customer's
Information Services with Cingular's billing vendor is in the
DirectBill QuickStart Guide which will be provided to Customer
upon execution of this agreement, and can be found at
xxxxxxxxx.xxxxxxxx.xxx. This guide is subject to revision at any
time with reasonable notification to Customer.
4.2 Customer is solely responsible for the development, operation
and maintenance of the Information Service and its sites.
Customer also is responsible for ensuring that the Information
Services (i) do not disparage, defame, or discredit Cingular or
a Cingular Affiliate or their respective names and are not
derogatory or detrimental to the good name or business
reputation of Cingular or a Cingular Affiliate, and (ii) do not
constitute Unsuitable Information Services. Cingular may
immediately remove links to any Customer Content that violates
the foregoing.
4.3 Customer will be responsible for Tier II Customer Service as
shown in Exhibit 2 ("Customer Service") of this agreement.
4.4 Customer represents and warrants that the Information Service to
be provided by Customer hereunder is in no way unlawful,
harmful, threatening, defamatory, obscene, harassing, or
racially, ethically or otherwise objectionable; that it does not
facilitate illegal activity, depict sexually explicit images,
promote violence, promote discrimination, promote illegal
activities, or incorporate any materials that infringe or assist
others to infringe on any copyright, trademark, or other
intellectual property rights.
4.5 Customer shall advise Cingular's billing vendor, Qpass Inc. of
the amount of any sales, use, or other taxes that should be
imposed on the charges for Customer's Information Services and
shall cause Qpass to xxxx any such taxes and then either to
remit such taxes to the appropriate authority or to deliver the
amount of such taxes to Customer to pay to the appropriate
authority. Customer agrees that Cingular is merely acting as a
billing conduit for the amount of the charges imposed by
Customer for its services and has not and will not provide
Customer with any advice regarding the proper
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amount of any taxes that Customer should collect, or the
jurisdictions to which such taxes should be remitted.
4.6 Reporting: Customer shall report to Cingular on a quarterly
basis its content roadmap outlining any upcoming Information
Services to be launched. Additionally, Customer will report to
Cingular on the tenth business day of each month the following
transactional information-
- Number of SMS (Short Message Service) messages sent to
the Cingular network
- Number of Information Services sold through the
Cingular network using the Cingular Direct Xxxx (CDB)
- Number of Information Services sold through the
Cingular network using other payment means
- Number of good sent for free through the Cingular
network.
5. FEES/PAYMENT SCHEDULE. Cingular shall receive from
COMPANY as a fee for its Billing and Collection Services, the
amounts shown on Exhibit 3 ("Revenue Share"). Additionally, the
payment schedule by which fees will be received by the Customer
is also shown in Exhibit 3.
6. CINGULAR DIRECTBILL MARKETING REPRESENTATION. Customer
must represent Cingular DirectBill in accordance with Cingular
marketing standards, available via xxx.xxxxxxxxxxx.xxx. Customer
is permitted to utilize the Cingular logo as described therein,
but must, at a minimum, include the text "Cingular DirectBill"
as an option for payment via whatever payment authorization
mechanism is utilized for the DirectBill-enabled applications
listed in Exhibit 2.
7. TERM/TERMINATION. The Initial Term of this Agreement
shall be for one year from signature by both parties. The
Agreement will automatically be extended, without any further
action by either party, for additional consecutive periods of
one (1) year each (each a "Renewal Period") unless notice of
termination, as referenced in Section 3.5, is sent by Cingular.
8. WARRANTY DISCLAIMER. THE WARRANTIES SET FORTH IN THIS
AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE WITH RESPECT TO
THE PERFORMANCE OF SERVICES PROVIDED UNDER THIS AGREEMENT. BOTH
PARTIES SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, WRITTEN OR
ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF CONTENT PROVIDERABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM A COURSE OF
DEALING, TRADE USAGE OR TRADE PRACTICE. IN ADDITION, NEITHER
PARTY MAKES ANY WARRANTIES WHATSOEVER TO ANY PERSON OR ENTITY
(INCLUDING BUT NOT LIMITED TO END USERS) OTHER THAN TO THE OTHER
PARTY HEREUNDER.
9. LIMITATION OF LIABILITY
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9.1 General Limitations. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR BUSINESS, OR
COSTS OF REPLACEMENT SERVICES AND/OR DELAY, HOWEVER CAUSED AND
ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, NEGLIGENCE
OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT. THESE
LIMITATIONS SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.2 Limitations on Direct Damages. IN THE EVENT OF ANY DAMAGES TO
EITHER PARTY ARISING OUT OF THIS AGREEMENT, ANY RECOVERY OF
DAMAGES BY THE OTHER PARTY SHALL NOT EXCEED THE AMOUNT PAID
AND/OR OWED BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE
EVENT GIVING RISE TO DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE
THAT THE FOREGOING AMOUNT IS NOT A PENALTY BUT REPRESENTS A GOOD
FAITH ESTIMATE BY THE PARTIES OF THE AMOUNT OF DAMAGES INCURRED
UPON BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND
AGREE THAT THE AMOUNTS PAYABLE HEREUNDER SHALL APPLY, EVEN IF
THE PAYING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF HIGHER
AMOUNTS OF DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. THE LIMITATION SET FORTH IN THIS
SUBSECTION SHALL NOT APPLY TO ANY AMOUNTS PAYABLE UNDER SECTION
10 (INDEMNIFICATION) OF THIS AGREEMENT.
10. INFRINGEMENT AND INDEMNIFICATION.
10.1 Customer represents and warrants that it has the right to
license and deliver the Information Services to Cingular's
subscribers within the United States, Canada and Mexico. To the
knowledge of Customer, the Information Services are and will be
free of any third party claims for misappropriation of trade
secrets, or the infringement of any patent, copyright,
trademark, service xxxx, or other proprietary right.
10.2 Customer shall defend, indemnify and hold harmless Cingular,
its affiliates and their respective present, former and future
officers, directors, employees and agents, and their respective
heirs, legal representatives, successors and assigns, and
Cingular's vendor for billing services provided hereunder
(collectively the "Cingular Indemnitees"), from and against any
and all claims, actions, losses, costs, liabilities or expenses
(including, without limitation, reasonable attorneys' fees)
which any of the Cingular Indemnitees may suffer, incur or
sustain resulting from, or arising out of (a) any breach of the
representations and warranties in this Agreement; (b) any claim
or action that Customer has misappropriated the trade secrets of
a third person, or that any of the Information Services infringe
any patent, copyright, trademark, service xxxx or other right of
any third person; (c) any claim or action arising out of
Customer' failure to obtain any consent, approval or license for
the
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Information Services, or its failure to pay any fees in
connection therewith; (d) violation by Customer of any
applicable law, rule, or regulation without regard to source;
(e) breach by Customer of any contract with a third party,
including but not limited to agreements with End Users; (f) any
material provided by Customer which is unlawful, libelous or
defamatory; (g) any claim based on the merchantability, fitness
for a particular purpose, or completeness, of the Information
Services; or (h) any claim that Customers collection or use of
End User personal information violates the privacy interests of
any such End User.
10.3 Customer shall, through counsel of its choice, reasonably
acceptable to Cingular, assume the defense of any claim or
action brought against any Cingular Indemnitee giving rise to
the obligations and liabilities of Customer under this section,
provided, however, that there is no conflict with such counsel's
representation of both Cingular and Customer in connection
therewith. Customer acknowledges and agrees that Cingular's
vendor for billing services provided hereunder is a third party
beneficiary of this provision.
11. NONDISCLOSURE.
11.1 During the term of this Agreement it may be necessary for
Cingular to provide Customer with certain written, electronic or
oral information ("Information") considered to be private or
proprietary. The Customer shall protect such Information
received by it from whatever source from distribution,
disclosure or dissemination or use to or by anyone except
employees of Customer with a need to know such Information in
conjunction with the provision of services hereunder, except as
authorized herein or as otherwise authorized in writing.
11.2 Customer will not have an obligation to protect any portion
of Cingular's Information which:
11.2.1 is made publicly available by Cingular or lawfully by a
nonparty to this Agreement; or
11.2.2 is lawfully obtained by Customer from any source other than
Cingular; or
11.2.3 is previously known to Customer without an obligation to
keep it confidential; or
11.2.4 is released by Cingular in writing.
11.3 Customer will only make copies of the Information received
from Cingular as are necessary for its use under the terms
hereof, and each such copy will be marked with the same
proprietary notices as appear on the originals. Customer agrees
to use the Information solely in connection with this Agreement
and for no other purpose. Customer agrees to return all
Information and any copies thereof to Cingular upon termination
of this Agreement. Customer agrees not to identify Cingular or
any other owner of
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Information disclosed hereunder in any advertising or publicity
without the prior written permission of Cingular.
11.4 Customer's obligations as to the Information shall continue
for a period of two (2) years after the termination of this
Agreement, provided, however, that such obligation shall
continue indefinitely as to Information constituting a Trade
Secret under applicable law for so long as such Information
remains a Trade Secret.
12. ARBITRATION.
12.1 Cingular and Customer shall use their best efforts to settle
any dispute or claim arising from or relating to this Agreement.
To accomplish this, they shall negotiate with each other in good
faith. If Cingular and Customer do not reach agreement within 30
days, instead of suing in court, Cingular and Customer agree to
arbitrate any and all disputes and claims (including but not
limited to claims based on or arising from an alleged tort)
arising out of or relating to this agreement, or to any prior
agreement between Customer and Cingular or any of Customer's or
Cingular's affiliates or predecessors in interest.
12.2 The arbitration of any dispute or claim shall be conducted
in accordance with the Wireless Industry Arbitration Rules ("WIA
Rules") as modified by this Agreement and as administered by the
American Arbitration Association ("AAA").
12.3 Cingular and Customer acknowledge that this Agreement
evidences a transaction in interstate commerce and that the
United States Arbitration Act and Federal Arbitration law shall
govern the interpretation and enforcement of, and proceedings
pursuant to, this or a prior Agreement.
12.4 Unless Cingular and Customer agree otherwise, the location
of any arbitration shall be in Atlanta, Georgia.
12.5 Cingular and Customer agree that no arbitrator has the
authority to: (1) award relief in excess of what this or a prior
agreement provides; (2) award punitive damages or any other
damages not measured by the prevailing party's actual damages;
or (3) order consolidation or class arbitration.
12.6 Except as otherwise provided herein, all fees and expenses
of the arbitration shall equally borne by Customer and Cingular.
12.7 The arbitrator(s) must give effect to the limitations on
Cingular's liability as set forth in this or a prior Agreement,
any applicable tariff, law, or regulation.
12.8 In any arbitration utilizing the rules applicable to
Large/Complex cases, as defined under the WIA rules, the
arbitrators must also apply the Federal Rules of Evidence, and
the losing party may have the award reviewed in accordance with
the review procedures set forth in the WIA rules.
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12.9 Customer agrees that Cingular and Customer each is waiving
its respective right to a trial by jury, Customer acknowledges
that arbitration is final and binding and subject to only very
limited review by a court. If for some reason this arbitration
clause is at some point deemed inapplicable or invalid, Customer
and Cingular agree to waive, to the fullest extent allowed by
law, any trial by jury, in such case, a judge shall decide the
subject dispute or claim.
12.10 Cingular, Customer and Arbitrator(s) shall not disclose the
existence, content, or results of any arbitration. Judgement on
the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
13. Miscellaneous.
13.1 The parties acknowledge that the relationship of the parties
is that of independent contractors, and that nothing contained
in this Agreement shall be construed to place the parties in the
relationship of principal and agent, master and servant,
partners or joint venturers. Neither party shall have, expressly
or by implication, or represent itself as having, any authority
to make contracts or enter into any agreements in the name of
the other party, or to obligate or bind the other party in any
manner whatsoever.
13.2 The validity and effect of this Agreement shall be governed
by and construed and enforced in accordance with the laws of the
State of Georgia, without regard to its rules regarding
conflicts of law.
13.3 The headings as to contents of particular sections are
inserted only for convenience and are in no way to be construed
as part of this Agreement.
13.4 Customer shall not issue or release for publication any
articles or advertising or publicity matter relating to the work
performed hereunder or mentioning or implying the name of
Cingular or any Affiliate, or any of their personnel, unless
prior written consent is granted by Cingular.
13.5 Except as otherwise expressly provided in this Agreement,
all notices and demands required or contemplated hereunder by
one party to the other shall be in writing and shall be deemed
to have been duly made and given upon date of delivery if
delivered in person or by an overnight delivery or postal
service, upon receipt if delivered by facsimile the receipt of
which is confirmed by the recipient, or upon the expiration of
five days after the date of posting if mailed by certified mail,
postage prepaid, to the addresses or facsimile numbers set forth
below their signatures. Either party may change its address or
facsimile number for the purpose of this Agreement by notice in
writing to the other party as provided herein.
13.6 No failure or delay on the part of any party hereto to
exercise any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right
or remedy by any party preclude any other or further exercise
thereof or the exercise of any other right or remedy. No express
waiver or assent by any party hereto to any breach of or default
in
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any term or condition of this Agreement shall constitute a
waiver of or an assent to any succeeding breach of or default in
the same or any other term or condition hereof.
13.7 The parties acknowledge that this Agreement has been entered
into due to, among other things, the special skills and
technical expertise of Customer, and agree that this Agreement
may not be voluntarily or involuntarily assigned or transferred
by Customer, in whole or in part, and none of the obligations of
Customer under this Agreement may be delegated by Customer, in
whole or in part, without the prior written consent of Cingular.
13.8 This Agreement and the exhibits hereto constitute the entire
agreement between the parties with respect to the subject matter
hereof, and may not be amended except in writing signed by both
parties.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized representatives, on the last date and
year noted below.
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CINGULAR WIRELESS LLC 'CUSTOMER'
Signature: /s/ Xxx Xxxxx Signature: /s/ Xxxx Xxxxxxxxx
---------------------------- ----------------------------
Name: Xxx Xxxxx Name: Xxxx Xxxxxxxxx
--------------------------------- ---------------------------------
Title: Exec. Dir. - Data Product Mgt. Title: President
-------------------------------- --------------------------------
Date: 1-9-2004 Date: 12-22-03
-------------------------------------- --------------------------------------
Glenridge Highlands Two
5565 Glenridge Connector Address: 0000 Xxx Xxxxxx Xx., Xxxxx
Xxxxxxx, XX 00000 2825
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx Xxxxx Director - Attn: Xxxxxx X. Xxxxxxx
3/rd/ Party Revenue Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: With a copy to:
Glenridge Highlands Two Xxxxxx X. Xxxxxxx
5565 Glenridge Connector Xxxx. Xxxxxxx & Xxxxxxx, L.L.P.
Xxxxxxx, XX 00000 0000 Xxxxx Xxxx Xxxx, Xxxxx 0000
Xxxx: General Counsel Xxxxxxx, XX 00000
Facsimile:_________________ Facsimile: (000) 000-0000
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Exhibit 1
Approved Information Services
-----------------------------
Content-
Customer will be allowed to sell Information Services to the Cingular User base.
This content will be limited to Java Games/Application, WAP Games, and
Ringtones, to any and all devices capable of receiving them. Cingular must be
notified, in advance of starting sales, of any other content categories outside
of these. Cingular will have thirty (30) days to respond to these requests and
disapprove the selling of these new content categories; else Customer can begin
sales efforts. Notification should be sent to the same address c/o the contract
xxxxxx for Cingular.
The initial content provided by the Customer will include the following:
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Content Type Titles
--------------------------------------------------------------------------------
- Java (J2ME) - Star Exceed
- Star Diversion
- Dwango Racing
- Aqua X
- Jumpeon
- Blackjack
- Roulette
- Slots
- Etc.
- WAP Games - Traders Odyssey
-
-
- Ringtones -
-
-
- -
-
-
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Exhibit 2
---------
Customer Service
Customer shall provide the following customer support to Cingular. Cingular
shall be responsible for billing related customer service contact with Users
(Tier I). Any technical problem found during the use of Information Services may
be identified and with best efforts classified and shared with the Customer by
Cingular.
(1) Customer shall create and provide to Cingular one set of support training
materials, in the English language, for use by Cingular as a reference when
reviewing customer issues and potential inquiries regarding Information
Services.
(2) Suspected Technical Problem With Content:
(a) If Cingular suspects a technical problem with any Information Service
(a "Suspected Technical Problem") for which Customer may be
responsible hereunder, Cingular shall direct such Suspected Technical
Problem in English to Customer via identified appropriate contact
identified in Section 1.3. (the "Suspected Technical Problem Notice").
(b) The Suspected Technical Problem Notice shall be directed as
appropriate (likely via toll-free customer service phone number or
email) and shall attempt to include the following information:
(i) Contact information of the reporter/reporting department
(including name, department, call back number, fax number and
email address);
(ii) The Information Service affected (Cingular shall identify the
Information Service in accordance with the file name utilized by
Customer to deliver same to Cingular);
(iii) Description of Suspected Technical Problem including, without
limitation, the nature of the malfunction or design defect;
(iv) An issue severity level; and
(v) Any other pertinent information to assist Customer in its
analysis and proposed resolution of the Suspected Technical
Problem.
(c) Response to a Suspected Technical Problem Notice.
(i) Customer shall use commercially reasonable efforts to resolve
the Suspected Technical Problem as quickly as possible.
(ii) Customer will communicate efforts, solution results, or listing
of continued issues to Cingular as a part of this response.
(4) Technical Questions.
(a) If Cingular has a technical question regarding Information Services in
the event there is no Suspected Technical Problem (a "Technical
Question"), Cingular may direct such Technical Questions, in English,
to appropriate contact point as identified in Section 1.3 ("Technical
Question Notice").
(b) The Technical Question Notice shall contain the following information:
(i) Contact information of the reporter/reporting department
(including name, department, call back number, fax number and
email address);
(ii) The Information Service affected (Cingular shall identify the
Information Service in accordance with the file name utilized by
Customer to deliver same to Cingular);
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(iii) Description of the Technical Question, including, without
limitation, questions concerning functionality of the
Information Service and/or Java content or questions concerning
documentation provided to Cingular;
(iv) Any other pertinent information to assist Customer in its
analysis and proposed resolution of the Suspected Technical
Problem.
(c) Response to a Technical Question Notice.
(i) Customer shall use commercially reasonable efforts to respond to
a Technical Question Notice within five (5) Business Days after
its receipt.
(ii) Customer's response to a Technical Question Notice shall include
any applicable answers or solutions to the Technical Question.
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Exhibit 3
Revenue Share
Revenue Share-
Customer will receive [*] of all revenues associated with sale of
Information Services to the Cingular customers. Cingular will retain the
remaining [*] of such revenue when the Customer used Cingular Direct
Xxxx (CDB) for payment of Information Services. Customer will be required to
offer CDB as the primary billing solution for the sale of Information Services.
Cost
Customer will pay $400 to Cingular for Direct Xxxx vendor setup costs. This
amount is payable within 10 business days following the receipt of the executed
copy of this agreement. Checks should be made payable to Cingular Wireless and
sent to the address as noted in this agreement.
Retail Pricing-
Customer will have sole discretion to determine the retail pricing however, all
transactions will be priced at a minimum of $1.00 USD when using CDB as a
payment option.
Payment Schedule-
Cingular, through its billing vendor, shall pay Customer on thirty day (monthly)
cycle within 45 days after Cingular receipt and confirmation of invoice from
Cingular's billing services vendor (QPass) (e.g. April billing cycle potentially
received by Cingular on May 5/th/, confirmed on May 10/th/, payment sent by
Cingular by approximately June 15/th/.)
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* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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