Master Services Agreement
Between
Mobile
Messenger Inc
and
New
Motion Inc
This
Master SMS Services Agreement is made the 19th day of April 2005,
between
:
| (1) |
Mobile
Messenger Pty
Ltd. , a company incorporated in Sydney, whose principal place of
business
is Xxxxx
0 / 000 Xxxxxx Xxxxxx Xxxxx Xxxxxx XXX ("Mobile Messenger"),
and
|
| (2) |
New
Motion Inc, a
company Incorporated
in California, whose is principal place of business is 00
Xxxxxxxxx
Xxxx #000, Xxxxxx, xx. 92602 ("Customer").
|
BACKGROUND:
| A. |
Mobile
Messenger is a provider of mobile messaging
services.
|
| B. |
Customer
wishes to obtain, and Mobile Messenger is willing to provide, such
services on the basis of and subject
to the Terms and Conditions of this Master Services Agreement and
of
Addenda entered into under
it.
|
NOW
IT IS HEREBY AGREED AS FOLLOWS:
| 1 |
Definitions
and Interpretation
|
| 1.1 |
The
following Definitions shall apply to these Terms and
Conditions:
|
| 1.1.1 |
"Addendum"
means an Addendum which invokes, and is properly executed by the
parties
under these Terms
and Conditions;
|
| 1.1.2 |
"Allocated
Number" means any specific telephone or text number or code (such
as a
short code) to be entered
by End-users, allocated to the Customer for the Services, either
dedicated
to the Customer or to be shared
with one or more other customers;
|
| 1.1.3 |
"Commencement
Date" means the earlier of the date when (a) complete provisioning
details
are provided by
Mobile Messenger to Customer in respect of the Services, and (b)
the
relevant Services commence to be
provided;
|
| 1.1.4 |
"Customer
Rights" means all Intellectual Property Rights owned by Customer
in
relation to Customer Content;
|
| 1.1.5 |
"Customer
Content" means any information provided by or on behalf of the Customer
for transmission by Mobile
Messenger as part of the Services;
|
| 1.1.6 |
"Customer
Data" means any personal data (a) comprised in or relating to any
message,
(b) which is provided
by the Customer or any of its direct or indirect customers, or (c)
in
respect of MO, from any End-user;
|
| 1.1.7 |
"End-user"
means any user of the relevant Network Operator's mobile
network;
|
| 1.1.8 |
"Intellectual
Property Rights" means all copyright (Including but not limited to
rights
in computer software),
patents, trademarks, trade names, trade secrets, registered and
unregistered design rights, database
rights and topography rights, all rights to bring an action for passing
off, any other similar form of
intellectual property or proprietary rights, statutory or otherwise,
whether registrable or not and shall Include applications for any
of them,
all rights to apply for protection in
respect of
any of the above rights and all other forms of protection of a similar
nature or having equivalent or similar effect to any of these which
may
subsist anywhere in the world;
|
| 1.1.9 |
"Mobile
Messenger Data" means data, excluding Customer Data, which is provided
or
generated in the course
of Mobile Messenger's provision of the
Services;
|
| 1.1.10 |
"Mobile
Messenger Rights" means all Intellectual Property Rights owned by
Mobile
Messenger, Including
but not limited to those Intellectual Property Rights involved in
any
aspect of the Services, the Platform or any device, software or data
used
in connection therewith, Including without limitation the Mobile
Messenger
Data, but excluding Customer Data;
|
|
1.1.11
|
"MO"
(or "Mobile Originated") means a message received by Mobile Messenger
from
a Network Operator
(such
as,
without limitation, a mobile-originated
SMS);
|
| 1.1.12 |
"MT"
(or "Mobile Terminated") means a message sent by Mobile Messenger
from the
Platform to a Network
Operator's mobile network;
|
| 1.1.13 |
"Network
Operator" means a mobile network operator which is directly or indirectly
engaged in the performance
of any of the Services;
|
| 1.1.14 |
"personal
data" bears the meaning attributed to that phrase in the European
Union
Data Protection Directive
95/46/EC ("Directive") and consistent with the privacy standards
of the
Safe Harbor Privacy Principles framework of the United States Department
of Commerce ("Principles") or any successor or supplement to the
Principles or equivalent national implementation
thereof;
|
| 1.1.15 |
"Platform"
means the mobile application services platform, and associated systems
and
network connections,
owned and operated by Mobile Messenger or by suppliers or partners
of
Mobile Messenger, which is used to provide the
Services;
|
| 1.1.16 |
"Protocol
Specification" means the protocols to be used by the Customer in
order to
access the Services, as
notified by Mobile Messenger to the Customer from time to
time;
|
| 1.1.17 |
"Premium
Rate Message" means MO Premium Rate Message and MT Premium Rate Message,
as defined in
the PSMS Terms and Conditions, and either of
them;
|
| 1.1.18 |
"PSMS
Terms and Conditions" means the Premium SMS Terms and Conditions
specified
in Schedule 2;
|
| 1.1.19 |
"Regulator"
means any relevant regulatory agency or other authority which has
lawful
authority to the regulate
the Services or any part thereof, Including, without limitation,
(a) in
relation to Premium Rate Messages
in the United Kingdom, the Independent Committee for the Supervision
of
Standards of Telephone
Information Services and/or ICSTIS Limited in the United Kingdom,
(b) the
relevant Data Protection
Authorities in the country where the Customer markets or provides
its
Services, (c) any Regulator
identified in an Addendum, and (d) any other body or person having
regulatory jurisdiction over the Services or any party
thereof;
|
| 1.1.20 |
"Revenue
Share Payment" (or "Outpayment") means a payment from Mobile Messenger
to
Customer in the
amount specified in an Addendum;
|
| 1.1.21 |
"Rights"
means the Customer Rights and the Mobile Messenger Rights,
respectively;
|
| 1.1.22 |
"Service"
and "Services" mean managed mobile infrastructure services and/or
other
services of Mobile Messenger defined in the relevant Service
Specifications;
|
| 1.1.23 |
"Service
Addendum" means an Addendum specifying Services and other matters
pertaining to those Services;
|
| 1.1.24 |
"Service
Interface" means the method to be used by the Customer to connect
to the
Platform;
|
| 1.1.25 |
"Service
Level Agreement" (or "SLA") means the document of that name attached
to
these Terms and Conditions
as Schedule 1;
|
| 1.1.26 |
"Service
Specifications" means Mobile Messenger's documentation detailing
the
features of Mobile Messenger's
services, as such Service Specifications may be specified in an Addendum,
and as
they
may be
updated by Mobile Messenger from time to
time;
|
| 1.1.27 |
"Subcontractor"
means any client or other third party with which the Customer contracts
to
provide any or all
of the Services;
|
| 1,1.28 |
"Tax"
means any tax relating to the sale or supply of the Services Including,
without limitation, value added
tax, sales taxes, gross receipts taxes, and any regulatory
surcharges;
|
| 1.1.1 |
"Term"
means the duration of this Master Services Agreement, as specified
in
Clause 13, save as earlier terminated
in accordance with the provisions of these Terms and Conditions;
and
|
| 1.1.30 |
"Terms
and Conditions" means the provisions of this Master Services Agreement,
together with each of its
Schedules
and each Addendum entered into under
it.
|
|
1.2
|
References
in these Terms and Conditions to "Mobile Messenger" and "Customer"
shall Include their respective employees, agents, sub-contractors,
consultants and permitted assigns.
|
| 1.3 |
Headings
are Included in these Terms and Conditions for ease of reference
only and
shall not affect the interpretation or construction of these Terms
and
Conditions.
|
| 1.4 |
Unless
the context otherwise requires, the singular Includes a reference
to the
plural and vice versa.
|
| 1.5 |
Words
and phrases defined in any part of these Terms and Conditions, being
these
operative provisions, its
Schedules and the relevant Service Addendum, shall bear that meaning
throughout the other parts of this
Agreement, save to the extent otherwise expressly provided
therein.
|
| 1.6 |
References
to Clauses and Paragraphs are, unless otherwise provided, references
to
the clauses and paragraphs
of, these Terms and Conditions and paragraphs of the
Schedules.
|
| 1.7 |
Unless
the context otherwise requires, any reference in these Terms and
Conditions to any specific statute shall Include a reference to any
modification or re-enactment
thereof.
|
| 2 |
The
Services and
the Addenda
|
| 2.1 |
In
consideration of the Customer satisfying its obligations under these
Terms
and Conditions, Mobile Messenger
shall provide the Services in accordance with these Terms and Conditions
from the Commencement
Date until:
|
| (a) |
the
end of the term for those Services specified in the relevant Addendum;
or
|
| (b) |
these
Terms and Conditions as they relate to those Services are terminated
in
accordance with these Terms
and Conditions;
|
| (c) |
the
Term expires; or
|
| (d) |
these
Terms and Conditions are terminated in their entirety, whichever
occurs first.
|
| 2.2 |
The
Customer may request additional or amended services by completing
a
Service Addendum.
|
| 2.3 |
Each
Addendum which is accepted, agreed and executed by the Customer and
Mobile
Messenger will form
part of these Terms and Conditions.
|
| 2.4 |
Where
an Addendum specifies Premium SMS Services are being taken by the
Customer, then the PSMS Terms
and Conditions shall apply thereto.
|
| 2.5 |
The
Customer acknowledges and agrees that;
|
| (a) |
the
Services, and the terms and conditions which govern any of them
(Including, without limitation, the
PSMS Terms and Conditions), shall be subject to changes resulting
from
changes made by the relevant
Network Operator to the corresponding services provided by the Network
Operator to Mobile Messenger
or the terms and conditions which govern such corresponding services;
and
|
| (b) |
in
the event that any such change is made which has any effect upon
the
rights and obligations of the parties
under these Terms and Conditions,
then:
|
| (i) |
such
change shall be deemed automatically to bind the Customer;
and
|
| (ii) |
Mobile
Messenger will
use
its reasonable endeavours to notify Customer of the relevant changes
as
soon as is reasonably practicable,
|
provided
that the Customer shall be entitled by no less than thirty days' notice in
writing to Mobile Messenger to terminate any Addendum directly affected by
the
relevant change in the event that such change has a materially adverse
commercial effect upon the Customer's business.
| 2.6 |
Mobile
Messenger acknowledges that the Customer shall be entitled to provide
the
Services to its Subcontractors,
subject to Customer's compliance with all of its obligations under
these
Terms and Conditions,
and that Customer shall require its Subcontractors to agree to and
comply
with the terms and conditions of these Terms and Conditions. Such
terms
and conditions may be Incorporated into a separate subcontractor
agreement, provided however that the form of such subcontractor agreement
shall be subject to
prior review and approval of Mobile
Messenger.
|
| 2.7 |
To
the extent of any conflict or Inconsistency between a Service Addendum
and
the operative provisions of
these Terms and Conditions, the Addendum shall take precedence in
respect
of the Services and other matters which are the subject of that Addendum.
Each individual Addendum shall be separate and discrete and shall
relate
only to the Services which are the subject of it, and accordingly
the
contents of any individual Addendum shall not affect the content
of any
other Addendum or the Services which are the subject of any other
Addendum, save
only as may be
expressly provided in one or more of the
Addenda.
|
| 3 |
Customer
Commitments
|
| 3.1 |
The
Customer warrants and undertakes to Mobile Messenger as
follows:
|
| (a) |
at
all times to conform to the protocol specification for the relevant
Service Interface as provided to the Customer
by Mobile Messenger from time to
time;
|
| (b) |
to
attempt to connect only to the Service Interface specified for Customer's
Services and using only the
names and passwords notified to them by Mobile Messenger from time
to
time;
|
| (c) |
to
designate at least 2 weeks prior to the Commencement Date such employees
of the Customer as may
be required to act as technical coordinators and Mobile Messenger's
contact points in order to coordinate delivery of the
Services;
|
| (d) |
to
ensure that the technical co-ordinators and other staff of the Customer
follow the service administration
and fault reporting procedures provided to Customer by Mobile Messenger
from time to time;
|
(b)
to accept responsibility for, and pay in accordance with these Terms and
Conditions, Mobile Messenger's
charges, as specified in accordance with Clause 1.2, arising from the submission
by the Customer
to Mobile Messenger of messages for delivery to any mobile phone number
(Including, without
limitation,
any
invalid mobile phone number);
| (f) |
to
supply complete and accurate instructions, Customer Content and Customer
Data
to
Mobile
Messenger
sufficient for the performance of the relevant Services, in accordance
with such timescales as
Mobile Messenger may reasonably
require;
|
| (g) |
where
the Services Include any Premium SMS services, to ensure that the
PSMS
Terms and Conditions
are complied with in respect of all such services and
messages;
|
| (h) |
that
neither the Customer Content nor the Customer Data or its supply
to or use
by Mobile Messenger or
any End-user shall infringe the rights of any third parties or any
laws or
regulations, Including, without
limitation, any and all applicable laws and rules governing messaging
services and customer information privacy, Including customer proprietary
network information, in any country where any message
is originated, delivered or in respect of which any of the Services
are
performed and, where the
Services are used for the provision of services to End-users within
the
European Economic Area, the
European Union (EU) Data Protection Directive (95/46/EC), the EU
Directive
on Privacy and Electronic
Communications (2002/58/EC), the EU Electronic Commerce Directive
(00/31/EC) and the EU
Distance
Selling
Directive (97/7/EC), and any national implementations
thereof;
|
| (i) |
to
ensure that the Services are used for proper and lawful purposes
only and
in accordance with such instructions as Mobile Messenger may from
time to
time notify to the Customer; and
|
| (j) |
at
its own expense, to comply with all requirements and conditions at
any
time imposed by law or regulation which are applicable to or affect
the
Services or the conduct of the Customer's
business.
|
| 1.2 |
Without
limiting Clause 3.1 above, the Customer undertakes not to use the
Services
or permit the Services to
be used:
|
| (a) |
for
sending any communication which is defamatory, offensive or abusive
or of
an obscene or menacing
nature;
|
| (b) |
for
the persistent sending of messages without a reasonable cause or
for the
purpose of causing annoyance,
Inconvenience or distress to any
person;
|
| (c) |
in
any way that contravenes applicable law or regulation in any country
where
the Services are marketed
or provided;
|
| (d) |
in
any way that
may have a detrimental effect to the goodwill and good standing of
any of
the relevant Network
Operators; or
|
| (e) |
for
the sending of unsolicited
messages.
|
| 3.3 |
Mobile
Messenger may request:
|
| (a) |
evidence
from the Customer of compliance with Clauses 3.1 and 1.2 above,
and
|
| (b) |
the
provision by the Customer of reasonable volume forecasts, customer
support
information and information concerning new services to be provided
by
means of the Services,
|
and
the
Customer agrees to comply with any such request as soon as reasonably
practicable, and with such degree of detail as Mobile Messenger may require
on
the condition that any forecasts given will not be contractually binding and/or
oblige the Customer to purchase and/or order the Services, save as may be
provided in the relevant Addendum.
|
3.4
|
The
Customer acknowledges that the Network Operators have a base of End-users
across all age groups. Customer
shall be responsible for the Services delivered to End-users and
shall
take all appropriate measures
to ensure that the content of each of the Services is not inappropriate
for the End-user.
|
| 3.5 |
The
Customer also acknowledges that:
|
| (a) |
an
Allocated Number may be similar to another number or code;
and
|
| (b) |
Mobile
Messenger shall under no circumstances have any responsibility or
liability in the event that any
End-users mistakenly send messages to an Allocated Number instead
of
another number or code.
|
| 4 |
Compliance
and Regulators
|
| 4.1 |
The
Customer agrees:
|
| (a) |
to
comply, and to ensure that all of the Customer Content and all use
of the
Services complies, in all respects, with all regulations, directions,
codes of practice and other rules and guidelines, mandatory or otherwise,
promulgated from time to time by Regulators (collectively, "Codes")
Including, without limitation, those of the Mobile Marketing Association
(available at xxx.xxxxxxxxx.xxx);
|
| (b) |
to
ensure that all advertising of the Services complies with applicable
advertising laws, standards, regulations
and codes;
|
| (c) |
to
provide Mobile Messenger with, and notify Mobile Messenger of any
subsequent changes to, the name,
address and contact telephone number of any Subcontractor, together
with
any Allocated Numbers
allocated to such Subcontractors;
|
| (d) |
that
where Mobile Messenger is advised in writing by a Regulator that
the
Customer is or has been in breach of any Code, Customer shall immediately
comply with any request from Mobile Messenger to cease the breaching
activity and shall comply with any directive or order of the
Regulator;
|
| (e) |
to
provide all reasonable assistance to Mobile Messenger in connection
with
Mobile Messenger's compliance
with any requirements or conditions which are at any time imposed
by law
or any Regulator
which are applicable to or affect the
Services.
|
| (f) |
to
provide the Regulator with such information or material relating
to the
Services or a future service as
the Regulator may reasonably request in order to carry out any
investigation in connection with (i) the
Services or (ii) Customer's relationship with Mobile Messenger or
with a
Subcontractor.
|
| 4.2 |
In
the event that any Network Operator or
Regulator:
|
| (a) |
advises
Mobile Messenger that the Customer is or has been in breach of any
of the
Codes, Mobile Messenger shall be entitled to act on any request,
recommendation, order or directive by such Network Operator or Regulator
to withhold any sums payable to the Customer until the Customer pays
to
the Network Operator or Regulator (as the case may be) all sums due
for
payment of fines, penalties, administrative charges or other sums
payable
to the Network Operator or Regulator or to one or more End-users
by reason of an order of a Regulator, and Mobile Messenger shall
be
entitled to pay the same
out of the monies withheld; or
|
| (b) |
makes
a charge, fine, penalty or debit against Mobile Messenger, or any
deduction from of sums otherwise
payable to Mobile Messenger for one or more actual or alleged events
the
liability for which (if proven) would have arisen out of a breach
of
Clause 3.1 or 1.2 above or constituted a breach of any of
the Codes,
|
then
Mobile Messenger shall be entitled to recover from the Customer the amount
thereof, plus any costs
or
expenses Incurred by Mobile Messenger in connection with the Incurring of such
liability or the
relevant charge, fine, penalty, debit or deduction.
| 5 |
Price,
Payment and Currency
|
| 1.3 |
The
charges for the Services shall be as set out in the relevant Addendum,
as
adjusted from time to time pursuant to this Clause 5. In the event
that an
Addendum does not refer to any specific pricing, the Services
shall be performed at Mobile Messenger's then current standard charges,
which Mobile Messenger
will provide to the Customer upon
request.
|
| 5.2 |
Mobile
Messenger shall be entitled to change the pricing which applies to
Services by:
|
| (a) |
30
days' notice in writing to the Customer,
or
|
| (b) |
such
other period of notice as may be specified in the relevant
Addendum,
|
(a
"Price
Change Notice").
In
the
event that a Price Change Notice is given to the Customer, the Customer shall
have the rights of termination
specified in Clause 1.3(i) below. Any messages sent on or after the date when
such a Price Change
Notice takes effect shall be charged at the pricing specified in that Price
Change Notice.
| 5.3 |
Where
an
Addendum specifies that the Customer is to pre-pay charges to Mobile
Messenger for Services, then:
|
| (a) |
the
Customer shall make such payments by the time specified therefor
in such
Addendum;
|
| (b) |
Mobile
Messenger will
set-off
such pre-paid charges against the charges otherwise payable by the
Customer
for the Services in question, and any other amounts payable by the
Customer under these Terms
and Conditions, and report monthly to the Customer, showing a
reconciliation of the pre-paid charges against such fees and
amounts;
|
| (c) |
pre-paid
charges will not be refundable, notwithstanding that Services have
not
been provided to the Customer, over any period to which the pre-paid
charges are stated to apply, except where the Services were not provided
to Customer solely due to the material breach by Mobile Messenger
of the
terms of these Terms and
Conditions.
|
| (d) |
in
the event that Mobile Messenger's charges attributable to the Services
which are the subject of such pre-paid
charges are equivalent to or exceed the amount for which pre-payment
has
been received from
the Customer, then Mobile Messenger shall be entitled to suspend
provision
of the relevant Services
until further payment has been received from the Customer in an amount
specified by Mobile Messenger.
|
| 5.4 |
All
amounts
payable under these Terms and Conditions are exclusive of any Tax
that may
be applicable to the
Services. The Customer will be responsible for payment of all such
Taxes.
|
| 5.5 |
All
charges or Outpayments for the Services shall be calculated by
reference
to data recorded by (a) Network
Operators, in respect of Premium Rate Messages, and (b) Mobile
Messenger,
in relation to other
messages.
|
| 1.4 |
Upon
thirty (30) days' written notice, the Customer may, by appointment
during
normal business hours, inspect
the records held by Mobile Messenger reasonably related to the
calculation
of charges and Outpayments,
for the purpose of verifying charges and Outpayments under these
Terms and
Conditions. If a discrepancy
is found then such discrepancy shall be corrected within 30 days
of the
inspection. Unless a discrepancy to the Customer's disadvantage
of at
least $500 is found in an inspection, then the Customer shall
not be entitled to conduct another inspection under this Clause
5.6 until
at least six months has elapsed
from the end of the inspection in
question.
|
| 5.7 |
In
relation to messages where the relevant Addendum specifies charges
for
messages, such charges shall be
Incurred:
|
| (a) |
for
MT messages, following the submission by the Customer of a message
to the
Platform through the Service
Interface; provided that a charge will not be Incurred where a submission
properly made according
to the Protocol Specification is not correctly transmitted by Mobile
Messenger to the relevant
Network Operator for delivery;
|
| (b) |
for
MO messages, where the message is properly made available for receipt
by
the Customer through the
Service Interface.
|
| 5.8 |
Where
an
invoice is issued for sums payable to Mobile Messenger by the
Customer:
|
| (a) |
such
sums shall be paid by the Customer within 15 days of the date of
Mobile
Messenger's invoice; and
|
| (b) |
unless
otherwise specified in the relevant Addendum, Mobile Messenger will
issue
such invoices to the
Customer on a monthly basis.
|
| 5.9 |
Unless
otherwise
expressly agreed in writing between the
parties;
|
| (a) |
all
payments of charges by the Customer to Mobile Messenger and other
transfers of funds between the
parties required shall be made by bank transfer,
and
|
| (b) |
all
charges and fees relating to such transfers (Including, without
limitation, those levied by the paying and payee bank or other financial
institution) will be borne by the Customer; Mobile Messenger will
Include
the amount of such charges and fees in invoices and statements issued
to
the Customer under these Terms and
Conditions.
|
|
5.10
|
Where
Outpayments are specified in an Addendum and are due to Customer,
Customer
shall be paid as follows:-
|
| (a) |
Mobile
Messenger will notify Customer monthly in writing of the Outpayments
due
to the Customer, as
calculated in accordance with the relevant Addendum, based on reports
from
Network Operators;
|
| (h) |
Customer
shall invoice Mobile Messenger for the amounts of the Outpayments
which
are thus notified by
Mobile
Messenger; and
|
| (a) |
Mobile
Messenger will make payment to the Customer of the relevant Outpayment
amounts, subject to Clauses
1.5 and 5.12 below, 24 Hours after receiving payment from the relevant
Network Operators for
the Premium Rate Messages in respect of which the Outpayments are
payable.
Mobile Messenger will
use
its reasonable endeavors to obtain timely payment of such sums by
such
Network Operators. All
payments shall be sent via wire transfer to the account specified
by
Customer.
|
| 1.5 |
Where
Mobile Messenger owes to the Customer any sums, or holds any sums
on its
behalf (Including, without
limitation, pre-paid charges referred to in Clause 5.3 above), then
Mobile
Messenger shall be entitled
to set off against any such sums any amounts owed to Mobile Messenger
by,
or which Mobile Messenger is entitled to recover from or credit against,
the Customer under or in
connection
with any Addendum or these Terms and
Conditions.
|
| 5.12 |
Where
Mobile Messenger is due to make any payment to the Customer under
these
Terms and Conditions, Mobile
Messenger shall be entitled, but not obliged, to retain such amounts
and
pay them to the Customer only once they exceed $1,500.00 US (one
thousand
five hundred dollars).
|
| 5.13 |
If
an End-user contacts Mobile Messenger in relation to the Services
Mobile
Messenger shall redirect or transfer
such End-user to the support facilities of Customer, or, if such
a
transfer is not, in Mobile Messenger's
opinion, reasonably practicable, for any reason (Including, without
limitation, by reason of any
unwillingness by the End-user to be redirected to the Customer),
then
Mobile Messenger may itself provide
an initial response to the query or complaint. Where Mobile Messenger
receives more than 20 such
contacts from End-users in any 7 day period, Mobile Messenger shall
have
the right to charge the Customer the sum of $10.00 in respect of
each
individual telephone or other contact made by an End-user with
Mobile Messenger or any agent of Mobile Messenger, save where (a)
the
proximate cause of the End-user
making such contact is a breach of these Terms and Conditions, or
a
failure of the Services to perform
in accordance with the Service Specifications, for which Mobile Messenger
is responsible, or (b) the
End-user's requirement to make contact with Mobile Messenger results
either from (i) a failure on the part of Mobile Messenger to submit
to the
relevant Network Operator a Customer Care Form previously provided
by the
Customer containing the Customer's relevant contact information,
or (ii) a
failure of the relevant
Network Operator to provide that contact information. Mobile Messenger
does not warrant that any
response it gives to End-users as provided in this Clause will be
appropriate to the Services, or would be
similar to the response which the Customer would
give.
|
| 5.14 |
If
any Network Operator makes a charge to or deduction from payments
due to
Mobile Messenger for calls
made to such Network Operator by any End-Users, then Mobile Messenger
shall be entitled to recover
the amount of any such charges or
deductions.
|
| 5.15 |
In
the event that any payment due under these Terms and Conditions is
not
paid on the due date for payment
then the creditor party shall be entitled to charge interest thereon
at
the rate of three percent per annum
over the then-current base rate of the Chase Manhattan Bank, New
York from
time to time from the
date payment becomes due until payment in full. Such interest shall
accrue
daily.
|
| 5.16 |
All
pricing in this agreement or addendum are assumed US Dollars unless
otherwise clearly stated. If the pricing
for Services in an Addendum is expressed in a currency other than
United
State dollars, then, in respect
of that Addendum only, sums expressed in these Terms and Conditions
in
United States dollars shall be converted into that currency using
the
applicable exchange rate for sale of U.S. dollars listed by the
foreign exchange desk of the Chase Manhattan Bank, New York for the
business day immediately preceding
the day upon which each payment is due to be paid. If no such rate
is
stated, then the rate shall be
the exchange rate published by the Wall Street Journal for the business
day immediately preceding the day
upon which each payment is due to be
paid.
|
| 1.6 |
Obligations
under this Clause 5, other than under Clause 5.12, shall survive
any
termination of these Terms and
Conditions.
|
| 6 |
Confidentiality
|
| 6.1 |
For
the purpose of these Terms and Conditions, "Confidential Information"
shall mean all Intellectual Property
Rights, drawings, software, data, specifications, processes, testing
procedures, customer information,
financial information, product and services information and all other
technical, business and other information and material relating or
belonging to a party or its customers and any other information designated
as Confidential Information by a party which is obtained by either
party
in relation to the other, either directly or
indirectly.
|
| 6.2 |
Confidential
Information shall not Include:
|
| (a) |
information
which was in the public domain at the time of
disclosure;
|
| (b) |
information
which, though originally Confidential Information, subsequently falls
into
the public domain
other than as a result of any breach of this Clause or any other
duty of
confidentiality;
|
| (c) |
information
received by a party from a third party, or already known by such
party,
without any breach of this Clause or any obligation of
confidentiality;
|
| (d) |
information
that is trivial or obvious; and
|
| (e) |
information
that is required to be disclosed by a government body or court of
competent jurisdiction or by
operation of law or in order to comply with the rules of a recognized
stock exchange., but only to the
extent so required.
|
| 6.3 |
Each
party hereby agrees, other than as permitted by these Terms and
Conditions, to keep the Confidential Information
of the other in complete confidence and not to disclose the same
to any
third parties (except as
set out above), nor use it for any purposes other than for the performance
of its duties under these Terms
and Conditions (the "Specific Purposes"). Either party may disclose
the
Confidential Information of
the other to its employees but only to the extent reasonably necessary
for
the Specific Purposes and subject
to the recipient being subject to obligations of confidentiality
relating
to that Confidential Information
no less stringent than the requirements of
this
Clause. Each party hereby agrees to use reasonable
endeavours to ensure that all such employees do not disclose Confidential
Information of the other
party to third parties or use the same otherwise than as reasonably
required for the Specific Purposes.
The provisions of this Clause shall continue in full force and effect
notwithstanding the termination
of these Terms and Conditions for any reason
whatsoever.
|
| 7 |
Warranties
/ Liability
|
| 7.1 |
Mobile
Messenger warrants that the Services will be performed with reasonable
care and skill with the objective
of meeting the requirements of these Terms and Conditions, Including
(without limitation) the Service Specifications and the Service Level
Agreement.
|
| 7.2 |
Mobile
Messenger shall have no obligation, duty or liability whatsoever
in
contract,
tort (Including negligence,
breach of statutory duty and any other tort) or otherwise, except
as
otherwise expressly provided
in these Terms and Conditions.
|
| 7.3 |
Nothing in
these
Terms and Conditions shall exclude or restrict Mobile Messenger's
or the
Customer's liability
for death or personal injury resulting from their respective
negligence.
|
| 7.4 |
LIMITATION
OF LIABILITY. NEITHER
MOBILE MESSENGER NOR ANYONE ELSE INVOLVED IN CREATING,
PRODUCING, DELIVERING, INSTALLING, SUPPORTING, SUSPENDING OR TERMINATING
THE
USE OF ANY SERVICE OR SOFTWARE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT
OF
OR
RELATING TO THESE TERMS AND CONDITIONS OR USE OF MOBILE MESSENGER
SERVICE,
OR INABILITY
TO USE MOBILE MESSENGER SERVICE, OR ARISING OUT OF BREACH OF ANY
WARRANTY
OR SERVICE LEVEL ASSURANCE; INCLUDING BUT NOT LIMITED TO, LOST PROFITS
OR
REVENUE,
BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, OR LOSS OF
TECHNOLOGY
RIGHTS, EVEN IF SUCH PERSON OR ENTITY HAS BEEN ADVISED OF THE POSSIBILITY
OF
SUCH DAMAGES. MOBILE MESSENGER SHALL IN ADDITION HAVE NO RESPONSIBILITY
OF
ANY KIND
FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER'S
INFORMATION CARRIED OVER WIRELINE OR WIRELESS TELECOMMUNICATIONS
PROVIDERS' FACILI'T'IES
AND NETWORKS. MOBILE MESSENGER SHALL IN ADDITION HAVE NO RESPONSIBILITY
FOR
THE SELECTION, RETENTION, OR. ACTS AND OMISSIONS OF, THIRD PARTIES
IN
CONNECTION WITH
THE SERVICE, INCLUDING THOSE WITH WHOM MOBILE MESSENGER MAY CONTRACT
TO
OPERATE THE MOBILE MESSENGER SERVICE, REGARDLESS OF THE CAUSE OR
THE FORM
OF ACTION, MOBILE MESSENGER' AGGREGATE MAXIMUM LIABILITY ARISING
OUT OF OR
RELATED
TO
THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE TOTAL AMOUNTS PAYABLE
BY
CUSTOMER
THEREUNDER, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN.
|
|
7.5
|
Disclaimer.
THE MOBILE MESSENGER NETWORK AND SERVICES ARE PROVIDED "AS IS" AND
WITHOUT
ANY WARRANTY OF ANY KIND WHATSOEVER. MOBILE MESSENGER DISCLAIMS ALL
WARRANTEES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT
OF THIRD PARTY RIGHTS.
|
| 7.6 |
Mobile
Messenger shall have no liability to the Customer or any other person
for
or in respect of any Customer
Content, Customer Data or instructions supplied by the Customer which
are
Incomplete, Incorrect,
inaccurate, illegible, out of sequence or in the wrong form, or arising
from their late arrival or non-arrival, or any other act or omission
of
the Customer.
|
| 7.7 |
Mobile
Messenger will use
reasonable
endeavours to meet any dates agreed between the parties in writing
for
the commencement of the Services.
|
| 1.7 |
If
Mobile Messenger shall fail to meet any service level or other requirement
specified in the Service Level
Agreement, then Mobile Messenger's entire liability, and the Customer's
entire remedy, shall be (a) for
Mobile Messenger to use reasonable endeavours to correct such failure
in
future deliveries of the affected
Services; and (b) termination of the relevant Service Addendum and
the
Services provided thereunder,
subject to and in accordance with the Service Level Agreement and
Clause
12.3(b) below.
|
| 1.8 |
The
provisions of this Clause 7 shall survive the termination or expiration
of
these Terms and Conditions.
|
Intellectual
Property Rights
| 8.1 |
Ownership
of all Mobile Messenger Rights shall vest in and remain with Mobile
Messenger. Mobile Messenger
does not by these Terms and Conditions grant Customer any right,
title,
license or interest in or to any Mobile Messenger software or
documentation, or in any related patents, copyrights, trade secrets
or
other proprietary intellectual property. Customer shall acquire no
rights
of' any kind in or to any Mobile Messenger
trademark, service xxxx, trade name, logo or product or service
designation under which Mobile
Messenger' products or services were or are marketed (whether or
not
registered) and shall not use same
for any reason except as expressly authorized in writing by Mobile
Messenger prior to such use, but in
no event for a period longer than the term of these Terms and
Conditions.
|
| 8.2 |
Notwithstanding
the foregoing, Mobile Messenger shall provide to the Customer a perpetual
license to access
the "content delivery software" so that Customer shall have unlimited
access to the software which shall
provide the billing, content delivery, access and support to Customers
user base. Mobile Messenger shall
have no rights to access the Customer user base for any reason without
the
express written permission
of Customer. It is understood and agreed by both parties that by
the
signing of this agreement Customer
shall have full use of the software so long as there are active users
in
the Customer user base and
Mobile Messenger will have no rights to these customers at any time
now or
in the future. There shall be
no additional charges paid by Customer for this license other than
the
payments agreed to in this agreement.
|
| 8.3 |
The
Customer shall license to Mobile Messenger the Customer Rights in
order
that Mobile Messenger is enabled
to provide the Services in accordance with these Terms and
Conditions.
|
| 1.9 |
Any
license granted under this Clause 8 shall be non-transferable,
non-sublicensable, non-exclusive and royalty-free
and shall be limited to the Term in respect of the Services to which
the
license relates and shall
be granted only for the purpose of fulfilling the respective party's
rights and obligations under these Terms and
Conditions.
|
| 1.10 |
Each
party warrants to the other that it is the owner of its respective
Rights
or is entitled to license the respective Rights as provided under
Clauses
8.2 or 8.3, as applicable.
|
| 8.6 |
Neither
party shall reverse engineer, decompile or disassemble any software
comprised in the other
party's Rights.
|
| 9 |
Non-solicitation
of Employees
|
Both
parties agree, during the Term and for a period of six (6) months thereafter,
not directly or indirectly (other than by general advertising) to solicit employ
or engage, or endeavour to do so, any employees of, or any contractors used
by
the other party in the performance of its obligations under these Terms and
Conditions without the prior written consent of the other
party.
|
10
|
Non-assignability
and Third
Party Rights
|
| 10.1 |
This
Agreement and the Customer's rights and obligations under this Agreement
shall not be assigned by Customer
or by operation of law or otherwise, without the prior written consent
of
Mobile Messenger. Without
limitation, Mobile Messenger may withhold such consent if Customer
seeks
to assign this Agreement
or any of them to an assignee who is not creditworthy, or who is
a direct
competitor of Mobile Messenger, or who is an infringer of Mobile
Messenger' intellectual property or an opponent of Mobile Messenger
in
litigation, arbitration, administrative proceedings, or other contested
proceedings, or if the assignment would have a material adverse effect
on
Mobile Messenger, in Mobile Messenger' reasonable judgment. This
Agreement
shall be binding upon and inure to the benefit of the parties hereto
and
their respective
successors and permitted assigns. Customer may not in any way sell,
lease,
rent, license, sublicense
or otherwise distribute the Mobile Messenger Services to any entity
other
than Customer, except
with the prior, express written consent of Mobile Messenger, in Mobile
Messenger' sole discretion. Notwithstanding any subcontracting by
the
Customer of any of its obligations under this Agreement, the Customer
shall remain liable for performing those
obligations.
|
| 10.2 |
The
Customer acknowledges that Mobile Messenger shall be entitled,
by notice
in writing to the Customer,
to
assign any or all of its rights and obligations under this Agreement
to
any third party.
|
| 10.3 |
The
parties to this Agreement do not intend that any terms of this Agreement
should be enforceable by any
person or entity who
or which
is not a party to this Agreement.
|
| 11 |
Indemnity
|
Both
parties agree to indemnify each other and its officers, employees, agents or
contracting carriers (collectively,
the "Indemnified Parties") and keep the Indemnified Parties fully and
effectively indemnified
against all costs, claims, demands, damages, liabilities, actions and
proceedings, Including reasonable
attorneys' fees, made by any person or entity (Including, without limitation,
any Regulator) arising
out of or in connection with (a) any breach of this Agreement by either party,
or (b) the provision or
use of
the Services by any person or (c) the conduct of either party's business. In
addition, Customer agrees
to
indemnify and hold the Indemnified Parties harmless from and against any and
all
claims, demands,
damages, liabilities, actions and proceedings, Including reasonable attorneys'
fees, arising out of any
claim
or proceeding brought against an Indemnified Party alleging that information
supplied or transmitted
by Customer or its employees or agents through the Mobile Messenger Services
(a)
infringes, misappropriates
or interferes with the intellectual property rights of any third party, or
(b)
contains or consists
of
privileged,
private, defamatory, libelous, slanderous, pornographic, or obscene materials
or
information.
Supply or transmission of such information also shall be grounds for Mobile
Messenger, in its
sole
discretion, to terminate immediately this Agreement without a notice or
opportunity for cure.
| 12 |
Suspension
and Termination
|
| 12.1 |
Mobile
Messenger may not suspend provision of the Services at any time
unless:
|
| (a) |
Mobile
Messenger is obliged or advised to comply with an order, instruction,
directive or request of the
government, Regulator, court or other competent
authority;
|
| (b) |
Mobile
Messenger has reason to believe that the Customer is in breach of
any of
its obligations under these Terms and
Conditions
|
| (c) |
the
services of one or more of the Network Operators upon which the provision
of Services hereunder is
dependent suspends its provision of those services to Mobile Messenger
under the terms of its or their
relevant agreement(s) with Mobile Messenger;
or
|
| (d) |
any
payment due to Mobile Messenger hereunder is outstanding after the
due
date for payment.
|
| 12.2 |
Where
Mobile Messenger determines in its discretion it is practicable to
do so,
then Mobile Messenger shall
effect any such suspension only in respect of those Services which
are
affected by the matters referred
to in the above sub-Clauses. Mobile Messenger will use reasonable
endeavors to notify Customer in
advance of any suspension of the Services effected under these Terms
and
Conditions.
|
|
12.3
|
These
'Terms and Conditions may be terminated prior to expiration of the
Term by
notice in writing as follows:
|
| (a) |
by
either party in the event the other has failed to perform any material
obligation required to be performed
under these Terms and Conditions and such failure is not corrected
within
thirty (30) days from receipt of written notice advising of such
failure
from the other party, which notice shall make reference to this
Clause;
|
| (b) |
by
the Customer in respect of any specific Service Addendum and the
Services
which are the subject thereof (but not any other Service Addendum
or
Services):
|
(i)
where
an
applicable Service Level Agreement expressly permits termination in respect
of
the relevant
Service Addendum and Services; or
(i)
in
the event that a Price Change Notice is served under Clause 5.2, provided that
the Customer gives written notice of termination to Mobile Messenger no later
than the later of (i) the date when
the
price change which is the subject of the Price Change Notice is scheduled to
take effect, as
specified in the relevant Price Change Notice, and (ii) fourteen days from
the
date of the Price
Change
Notice;
| (c) |
by
Mobile Messenger by immediate notice in the event that one or more
of the
Network Operators upon
which the provision of Services hereunder is dependent terminates
its
provision of those services to
Mobile Messenger under the terms of its or their relevant agreement(s)
with Mobile Messenger; or
|
| (d) |
by
Mobile Messenger, in
respect
of any specific Service Addendum and the Services which are the subject
of
it (but, for the avoidance of doubt, not any other Service Addendum
or
Services), in the event
that any modification to Mobile Messenger's existing Network Operator
contracts or any change in
any law, regulation or code of conduct makes the
provision
of such Services illegal or contrary to such
law, regulation or code of conduct, prohibitively difficult, or
prohibitively expensive for Mobile Messenger, in Mobile Messenger'
sole
discretion;
|
| (b) |
by
Mobile Messenger by immediate notice in the
event that
the Customer is in material breach of its obligations under Clause
3.1 or
1.2;
|
(1)
by
either party in the event that the other party institutes or has instituted
against it any proceedings seeking
relief, reorganization or arrangement under any laws relating to insolvency
or
bankruptcy, which proceedings are not dismissed within sixty (60) days, or
upon
any assignment for benefit of creditors,
appointment of a receiver, liquidator or trustee, of either party's property
or
assets, or upon the liquidation, dissolution or winding up of either party's
business, or shall suffer anything analogous to
these
matters to occur to him or it; or
| (c) |
by
either party in the event that the other party is prevented from
performing its obligations under these
Terms and Conditions pursuant to Clause 1.12 for a period of 30 days
or
more; or
|
(h)
by either party in the event that any payment due hereunder is not paid by
the other party within 30 days
following the date when it is required to be paid in accordance with these
Terms
and Conditions.
| 1.11 |
Upon
termination or expiration of these Terms and Conditions Mobile Messenger
shall provide to Customer
all of the data held by Mobile Messenger including but not limited
to:
User name, User address, cell
phone number, carrier, billing history, and any other information
that
Mobile Messenger has of any user
in the Customer proprietary data base. At no time shall Mobile Messenger
contact any user of Customer
for any reason. Mobile Messenger within fourteen (14) days shall
also
provide Customer a statement
that all proprietary data owned by Customer shall be returned to
Customer
or destroyed. Customer
shall deliver to Mobile Messenger all material containing any of
the
Confidential Information of Mobile Messenger within fourteen (14)
days of
such termination or expiration or, at the option of Mobile Messenger,
a statement confirming that such copies have been destroyed, and
Mobile
Messenger shall return
to the Customer all material provided in documentary form by the
Customer
to Mobile Messenger containing information in the nature of Confidential
Information of the Customer which it holds. Mobile Messenger shall
only be
entitled to retain and use any Confidential Information of the Customer
Including but
not limited to MSISDN numbers provided by the Customer to Mobile
Messenger
as part of the Customer
Data or Customer Content notwithstanding termination of these Terms
and
Conditions for so long
and to the extent required by Mobile Messenger in connection with
the
performance by Mobile Messenger
of obligations owed to Network Operators or Regulators or in order
to
satisfy legal or regulatory
requirements.
|
| 13 |
Term
|
| 1.11 |
These
Terms and Conditions shall continue in force until the expiration
or
termination of all of the Addenda.
|
| 1.12 |
Unless
earlier terminated in accordance with these Terms and Conditions,
each
Addendum shall continue until:
|
| (a) |
such
date, or the expiry of such period, as is specified in the Addendum;
or,
in the absence thereof
|
| (b) |
the
service by either party of at least ninety (90) days' written notice
to
the other party, such notice to expire no earlier than the first
anniversary of that Addendum's Commencement
Date.
|
| 14 |
Announcement
|
Any
public announcement regarding these Terms and Conditions and/or the subject
matter of these Terms and Conditions shall be agreed in writing in advance
by
the Parties.
| 15 |
Data
Protection
|
| 1.11 |
The
Customer warrants and undertakes that it shall comply with all applicable
laws and regulations in relation
to the provision of its Services, and in particular but without limitation
Customer shall comply with
the all applicable data protection and privacy
laws.
|
| 1.12 |
Mobile
Messenger warrants and undertakes that without prejudice to any duties
it
may owe to other customers,
or rights it may otherwise have acquired, it will not use Customer
Data
(or Customer Content) other than for the purposes expressed in, and
in
accordance with, these Terms and
Conditions.
|
| 16 |
Force
Majeure
|
| 1.12 |
Either
party's performance of any part of these Terms and Conditions, other
than
payment obligations, shall
be excused to the extent that it is hindered, delayed or otherwise
made
impractical by: (b) the acts or omissions of the other party or any
Network Operator;
|
| (c) |
flood,
fire, earthquake, strike, stoppage of work, or riot, failure or
diminishment of power or of telecommunications
or data networks or services not under the control of a party,
governmental or military
acts or orders or restrictions, terrorist attack;
or
|
| (d) |
any
other cause (whether similar or dissimilar to those listed) beyond
the
reasonable control of that party
and not caused by the negligence of the non-performing party (collectively
referred to as
"force
majeure conditions" below).
|
| 1.13 |
If
any such force majeure condition(s) occur(s), the non-performing
party
shall make reasonable efforts to notify
the other party of the nature of any such condition and the extent
of the
delay, and shall make reasonable,
good faith efforts to resume performance as soon as
possible.
|
| 17 |
General
|
| 1.13 |
These
Terms and Conditions, Including their Schedules and each Addendum
constitutes the entire understanding
and agreement of the parties hereto with respect to the subject matter
hereof. These Terms and Conditions supercede all prior and contemporaneous
agreements, representations and understandings between
the parties regarding the subject matter hereof. Thes Terms and Conditions
and any provision hereof
may be amended only by a writing signed by both parties. If Customer
orders the Mobile Messenger
Services through its purchase order, that purchase order shall be
deemed
to Incorporate these Terms
and Conditions by reference, and any pre-printed clauses on Customer's
purchase order form shall be deemed deleted and of no force and effect.
If
any provision of these Terms and Conditions is found to be
invalid or unenforceable, such provision shall be severed from these
Terms
and Conditions and the remainder
of these Terms and Conditions shall be interpreted so as best to
reasonably effect the intent of the
parties hereto.
|
| 1.12 |
Subject
to Clause 2.5, any amendment to these Terms and Conditions must be
in
writing signed by or on behalf
of
both
parties.
|
| 1.15 |
No
waiver of any provision of these Terms and Conditions by either party
shall be effective unless made in
writing. Any waiver made by such party of any term or condition of
these
Terms and
Conditions
shall
not be deemed or construed to be a waiver of such term or condition
for
the future, or any subsequent breach
thereof.
|
|
1.16
|
Any
notice under this Agreement shall be in writing and
sent:
|
| (a) |
where
the notice is served pursuant to (i) Clause 1.1.16, 2.5, 3.1, 1.2,
1.3 or
5.2 or (ii) the PSMS Terms and
Conditions, by email, addressed to the recipient's email address
specified
in the Addendum (provided
a copy of such email is retained by the sending party, and made available
to the recipient if it is reasonably requested), or to such other
email
address as is notified by the recipient from time to time
by email sent in accordance with this Clause 1.12(a), with a confirming
copy by regular mail; or
|
| (b) |
where
the email address above is determined to be non-working at the time
of
transmission of notice, and
where the notice is served pursuant to any other provision of these
Terms
and Conditions, including,
without /imitation, Clause 2.5(b), 10.2, 12.3, 1.12 or 1.13, by certified
or registered mail, postage
prepaid, return receipt requested, to such party at the address for
such
party set out at the beginning
of these Terms and Conditions or to such other address as such party
has
for the time being notified to the other in accordance with this
Paragraph
1.12(b).
|
| 1.16 |
If
any portion of these Terms and Conditions is determined to be or
becomes
unenforceable or illegal, such
portion shall be deemed eliminated and the remainder of these Terms
and
Conditions shall remain in effect in accordance with its terms as
modified
by such deletion.
|
| 1.17 |
Except
as otherwise expressly provided, any remedy provided for in these
Terms
and Conditions is deemed
cumulative with, and not exclusive of, any other remedy provided
for in
these Terms and Conditions
or otherwise available at law or in equity, and the exercise of any
remedy
shall not preclude the
exercise of any other remedy. Should suit be brought to enforce or
interpret any part of these Terms and
Conditions, the prevailing party shall be entitled to recover, as
an
element of the costs of suit and not as
damages, reasonable attorneys' fees and costs of suit Incurred therein
and
in any appeal.
|
| 1.18 |
The
relationship of the Parties established by these Terms and Conditions
and
the performance hereof is that
of independent contractors, and these Terms and Conditions does not
create
an agency, partnership or joint venture relationship between the
Parties.
|
| 1.19 |
These
Terms and Conditions are governed by and shall be construed in accordance
with the laws of the State
of California, United States of America, irrespective of its choice
of law
or conflict of law principles.
Any dispute of any kind arising out of or relating to these Terms
and
Conditions shall be brought
exclusively in the California State courts or the United States District
Court for the Northern District
of California. The United Nations Convention on Contracts for the
International Sale of Goods shall
not apply to these Terms and
Conditions.
|
| 1.20 |
These
Terms and Conditions may be executed in two or more counterparts,
each of
which will be deemed an
original, but all of which together will constitute one and the same
instrument.
|
| 1.21 |
If
any provision of these Terms and Conditions is held to be invalid
by a
court of competent jurisdiction, then
the remaining provisions shall nevertheless remain in full
force
and effect. The Parties further agree to
negotiate in good faith a substitute, valid and enforceable provision
that
most nearly effects the Parties' intent
and to be bound by mutually agreed substitute
provision.
|
[This
section can be deleted if all Addenda are explicitly signed]
By executing these Terms and Conditions,
Mobile Messenger and
the Customer hereby agree to, enter into and
execute these Terms and Conditions and the
following Addendum/Addenda:
1
Addendum
Number: US PSMS MT V001 relating to PSMS MT billing and Trivia
Application
[insert
more Addenda as required - all Addenda not explicitly signed by Mobile
Messenger and Customer must
be listed
here]
|
Mobile
Messenger
|
Customer
|
|
By:
 |
By:
 |
||
|
|
|
||
| Print Name: ________________________ | Print Name: Xxxxx Xxxxxx | ||
| Title: _____________________ | Title: _____________________ | ||
| Date: 29/4/05 |
Date:
4/28/05
|
SCHEDULE
1
SERVICE
LEVEL AGREEMENT
Definitions
| 1.21 |
"Available"
means capable of being accessed substantially in accordance with
the
Service Specification.
|
| 1.22 |
"Delivery
Latency" means the maximum Message Delivery Latency, measured over
any
calendar month, after
excluding the 5% of messages with the highest Message Delivery
Latency.
|
| 1.23 |
"Message
Delivery Latency" means the time it takes for the first delivery
attempt
of a message, measured from
entry into the Platform to first delivery attempt to an End-user's
mobile
phone handset.
|
| 1.13 |
"Excluded
Time" has the meaning attributed to it in Paragraph 1.33
below.
|
| 1.25 |
"Failure"
means any failure of the Services to operate in accordance with the
Service Specification, save arising
during or as a result of any Excluded
Time.
|
| 1.26 |
"Latency"
means the maximum Message Latency, measured over any calendar month,
after
excluding the 5%
of messages with the highest Message
Latency.
|
| 1.27 |
"Message
Latency" means the time it takes for a message to pass through the
Platform measured from entry
into the Platform to first submission into a Network Operator's network
for delivery.
|
| 1.28 |
"Long
Number" means the MSISDN Allocated Number(s) provided by Mobile Messenger
to Customer for
receipt of text messages by the
Platform.
|
| 1.29 |
"Network
Operator Mobile Network" means the network of a Network Operator
in a
Subscribed Country.
|
| 1.30 |
"Notionally
Available Time" means the total amount of time in a given period,
minus
all Excluded Time.
|
| 1.31 |
"Planned
Maintenance" means maintenance of which Mobile Messenger provides
to the
Customer at least 48
hours advance notice.
|
| 1.32 |
"Platform
Availability" means the proportion, expressed as a percentage, of
the
Notionally Available Time
during which the Platform is
Available.
|
| 1.33 |
"Short
Code" means the Network Operator short code provided for the receipt
of
text messages by the Platform.
|
| 1.34 |
"Subscribed
Country" means a country for which the Customer has expressly ordered
Services under an Addendum.
|
| 1.35 |
"Throughput"
means the average number of messages per second the Platform is able
to
receive from Customer
(for MT messages) or pass to Customer (for MO
messages).
|
| 2 |
General
|
| 1.31 |
Mobile
Messenger will make the Platform available to the Customer and will
pass
messages to and accept messages
from the Customer, provided they are submitted and received in accordance
with the Protocol Specification.
|
| 1.32 |
Mobile
Messenger will use reasonable endeavours to ensure that, during each
month:
|
| (c) |
the
Platform has Platform Availability of 99.9%;
and
|
| (d) |
Throughput
averages 75% or more of the targeted levels specified in the relevant
Addendum, in the calculation
of
which
Excluded Time shall not be counted;
and
|
| (e) |
Latency
averages 150% or less of the targeted levels specified in the relevant
Addendum, in the calculation
of which Excluded Time shall not be
counted.
|
For
the
purposes of (a), the Platform will be deemed not Available during time other
than Excluded Time when the Platform has either a lower average Throughput
than
the level specified in (b) above or a higher average Latency than the level
specified in (c) above.
|
1.33
|
In
this Service Level Agreement, Excluded Time means any time during
which:
|
(c)
the Platform is not Available, or access thereto is inhibited,
as
a
result
of
any:
| (i) |
Planned
Maintenance;
|
| (ii) |
failure
of, or congestion experienced in, any part of a Network Operator
Mobile
Network or the Internet, other than network failures experienced
only on
the site where the Platform is hosted;
|
| (i) |
force
majeure conditions (as force majeure conditions are defined in Clause
1.12
of the Terms and Conditions);
|
(iv)
failure of, or other problem encountered in relation to, a Customer
application;
| (ii) |
suspension
of Services under Clause 12 of the Terms and
Conditions;
|
or
(d)
a substantially equivalent failover platform is made available by Mobile
Messenger to the Customer.
| 1.34 |
Mobile
Messenger will use reasonable endeavours to ensure that Network Operators'
network changes do not
affect the performance of the
Service.
|
| 3 |
Failure
Classifications
|
| 1.14 |
All
Failures shall be reported by the Customer to Mobile Messenger in
accordance with Paragraph 4 below,
stating the nature of the Failure and information required for its
resolution. For the purposes of this SLA,
a Failure will be deemed to have been reported at the earlier of
(a) when
Mobile Messenger's Service
Desk receives a report of it in accordance with Paragraph 1.14 of
this
SLA, either through e-mail or
by telephone, or (b) when Mobile Messenger opens a
ticket
in the Mobile Messenger system to track the
Failure.
|
| 1.33 |
Once
a Failure has been reported and Mobile Messenger has performed initial
investigations, Mobile Messenger
will respond to the Customer by email with the following
information:
|
(c) Time
Failure Reported;
(d) Severity
— classified as I — IV; and
(e) Estimated
time to resolve Failure for Severity 1 and II
| 1.34 |
Mobile
Messenger will classify Failures as follows:-
|
(a)
Severity I. Services are totally unavailable across all of the Network
Operator Mobile Networks covered
by the Services (the 'Aggregated Mobile Networks') as follows:
| (i) |
MO
messages not received by Platform from the Aggregated Mobile Networks;
or
|
| (ii) | Platform unable to send messages to the Aggregated Mobile Networks; or |
| (iii) |
Customer
is completely unable to connect to Platform by reason of a breach
of the
Terms and Conditions on the part of Mobile Messenger; or
|
| (iv) |
Platform
corrupts all messages such that Services are unusable through all
of the
Network Operator
Mobile Networks covered by the Services;
or
|
| (v) |
Other
critical faults affecting all messages sent by the Customer using
the
Services.
|
(b)
Severity
H
applies
only in relation to Premium SMS Services; there are no Severity II Failures
of
any other Services. Services are totally unavailable on at least one Network
Operator Mobile Network, as specified
in Severity I above, save that references to Aggregated Mobile Networks there
shall be interpreted
as references to such Mobile Network(s) for this purpose.
(c)
Severity
III. Services
are usable, but either:
| (iii) |
MT
or MO messages are not delivered in accordance with the Service
Specification; or
|
| (iv) |
Services
are unusable by a substantial proportion of end-users on a Network
Operator Mobile Network, as specified in Severity I
above, save that
references to Aggregated Mobile Networks there
shall be interpreted as references to that substantial proportion
of
end-users of such Network Operator Mobile Network for this
purpose.
|
(d)
Severity
IV.
All
Failures,
other than those referred to in Severity I-III
above,
which result from any act
or
omission on the part of Mobile Messenger,
| 1.35 |
Economy
Products.
All Severity
I, II or III
Failures
on Economy Products will be treated as
Severity
IV
under
this SLA. The relevant Addendum will
specify
whether Services are Economy
Products.
|
| 136 |
Failures
will be closed when Mobile Messenger reasonably determines that closure
of
the Failure has occurred.
|
|
4
|
Failure
Reporting
|
| 1.14 |
Customer
shall report Failures to
Mobile Messenger using the following
methods:
|
(a)
by
email to service@Mobile Xxxxxxxxx.xxx
(b)
by
telephone to UK customer support at x00 00 0000 0000
(c)
by
telephone to US customer support at x0 000 000 0000 xl
| 1.15 |
Mobile
Messenger will use all reasonable endeavours to respond to the Target
Response Time and Target Maximum
Fix Time set out in Paragraph 5
below:
|
(d)
for a
Customer which is a Premier Service Customer by reference to the
hours:
| (ii) |
from
Midnight to Midnight, on each day of the week for Severity I and
II
Failures;
|
| (iii) |
from
06.00 to 22.00 Monday to Friday (excluding UK public holidays) UK
time for
Severity III and
N
Failures
reported by the Customer to UK customer support;
and
|
| (iv) |
from
06.00 to 22.00 Monday to Friday (excluding US public holidays) California
time for Severity
III and IV Failures reported by the Customer to US customer support;
and
|
(e)
for a
Customer which is not a Premier Service Customer, by reference to the
hours:
| (i) |
09.00
to 18.00 UK time, Monday to Friday, excluding public holidays, where
the
Failure is reported
to UK customer support; and
|
| (ii) |
06.00
to 18.00 California time, Monday to Friday, excluding public holidays,
where the Failure is reported to US customer
support.
|
| 5 |
Target
Response & Fix Times
|
|
Failure
Severity
|
Target
Response
Time
(where
reported
by
email)
|
Target
Maximum
Fix
Time
|
Progress
Reports
|
|||
|
I
|
30
minutes
|
4
hours
|
Every
60 minutes until resolution
|
|||
|
II
|
30
minutes
|
4
hours
|
Every
4 hours until resolution
|
|||
|
III
|
4
hours
|
1
day
|
At
resolution or as
agreed
for specific
Failure
|
|||
|
IV
|
1
day
|
5
days
|
At
resolution
|
Target
Maximum Fix Time applies only to Failures within the direct control of Mobile
Messenger; no Target
Maximum Fix Time shall be deemed to apply to any other types of
Failure.
| 6 |
Escalation
Matrix
|
|
Service
Desk
|
Severity
I
Immediate
|
|
Severity
II
Immediate
|
|
Severity
HI
Immediate
|
Severity
IV
Immediate
|
||
|
Level
I
|
Immediate
|
8
hours
|
24
hours
|
5
days
|
||||
|
Level
II
|
4
hours
|
24
hours
|
2
days
|
2
weeks
|
||||
|
Level
III
|
8
hours
|
2
days
|
3
days
|
nla
|
| 7 |
Contact
Details and Escalation
Paths
|
|
Technical
|
|
Commercial
|
||
|
Level
I
|
|
Client
Services Manager
|
|
Account
Manager
|
|
Level
II
|
|
VP
Operations
|
|
VP
Account Management
|
|
Level
III
|
|
CTO
|
|
VP
Sales &
Marketing
|
The
above
matrix is followed internally by Mobile Messenger. If the Customer wishes to
escalate, the Customer
must inform the Service Desk or Account Manager who will escalate to the
relevant person.
| 8 |
Conditions
for Throughput and Latency
|
Throughput
and Latency targets (whether specified in this SLA or any
Addendum):
| 1.1 |
are
conditional upon the Customer sending and receiving messages at the
relevant rate;
|
| I2 |
for
MO Premium and MO non-Premium services, are conditional upon the
relevant
Network Operator(s) sending
messages to Mobile Messenger at the relevant
rate;
|
| 1.3 |
for
non-Premium MT SMS services to non-GSM networks and MT Premium Rate
Messages to any network,
Throughput is conditional upon the relevant Network Operator(s) being
able
to receive messages from Mobile Messenger at this
rate;
|
| 1.4 |
refer
to the aggregate Throughput for all Services which are the subject
of a specific Addendum;
|
| 1.5 |
are
subject to such conditions as are applied under this SLA;
and
|
| 1.6 |
apply
discretely to the Services which are the subject of any given Addendum,
and are independent of Throughput
and Latency targets for the Services which are the subject of any
other
Addendum.
|
| 9 |
Non-PSMS
MO messages
|
| 1.2 |
Mobile
Messenger will work with Network Operators with the object of arranging
for sufficient capacity in
the Network Operator Mobile Networks to meet any agreed MO traffic
and
message throughput forecasts.
|
| 1.3 |
If
so requested by Mobile Messenger in respect of MO applications expected
by
either the Customer or Mobile
Messenger to exceed 10 messages per second, such forecast will be
derived
from a capacity model provided by Customer and agreed in writing
by Mobile
Messenger. At the Customer's request, Mobile Messenger
will assist in development of such capacity model. If changes to
an
existing capacity model and/or forecast are agreed between Mobile
Messenger and the Customer, then Mobile Messenger will work
with Network Operators to implement the changes which are required
as a
result as
soon
as
is
reasonably
practicable.
|
| 1.4 |
Mobile
Messenger will use reasonable endeavours to work with Network Operators
with the objective of fixing
any problems encountered in the receipt of messages by the
Platform.
|
| 1.5 |
Mobile
Messenger will use reasonable endeavours to ensure that there is
sufficient network capacity for the
Platform to receive messages at a Throughput defined in the relevant
Service Addendum.
|
| 1.6 |
Mobile
Messenger will use reasonable endeavours to ensure that the Platform
makes
the Allocated Number(s)
available for receipt of messages from the Network
Operators.
|
| 10 |
Maintenance
|
| 1.3 |
Mobile
Messenger may require short periods
of
unavailability of Services for maintenance reasons and in order
to implement changes and upgrades.
|
| 1.4 |
Mobile
Messenger will use reasonable endeavours to perform maintenance which
requires the unavailability
of the Services, or which is reasonably likely to have an adverse
effect
upon the Services between
the hours of:
|
(a)
02:00
to
04:00 UK Time on Wednesdays for Services which are provided from the UK;
and
(b)
01.00
to
03.00
California Time on Wednesdays for Services which are provided from the
USA.
| 1.5 |
In
the case of un-planned maintenance Mobile Messenger shall provide
24 hours
notice whenever reasonably
practicable, and in the case of emergency maintenance Mobile Messenger
shall provide as much
advance notice to Customer as is reasonably
practicable.
|
| 1.6 |
Mobile Messenger
will use reasonable endeavours to give the
Customer:
|
(a)
at least 2 weeks advanced notice of any changes to the Services which will
require the Customer to make
modifications in how it connects to the Platform; and
(b)
advance notice of planned maintenance on Network Operator Mobile Networks,
the
Customer acknowledging
that the provision of
such
notice is conditional upon Mobile Messenger itself being provided
with notice from the relevant Network Operator(s).
| 1.7 |
Mobile
Messenger shall use its reasonable endeavours to conduct maintenance
under
this paragraph so as to
minimize adverse impact on
customers.
|
| 11 |
Service
Reviews
|
For
Premier Service Customers, Mobile Messenger account manager and Customer will
have monthly service
reviews at dates mutually agreed between the parties. Services reviews will
cover:
| 1.5 |
review
of open tickets and tickets opened or closed since last
meeting;
|
| 1.6 |
review
of reports;
|
| 1.7 |
review
of new implementations in the pipeline;
and
|
| 1.8 |
any
other items which need to be
discussed
|
| 12 |
Termination
conditions
|
The
following shall constitute events giving rise to a right of the Customer to
terminate a specific Service Addendum and the Services provided thereunder
under
Clause 12.3(b) of the Terms and Conditions by 30 days'
notice in writing to Mobile Messenger given during the 30 day period following
the end of a calendar
month during which:
| 1.3 |
more
than 3 Severity 1 Failures are properly reported by the Customer;
and
|
| 1.4 |
more
than 5 Severity II Failures are properly reported which adversely
affect
at least 25% of the Customer's
messages sent under the relevant
Services.
|
SCHEDULE
2
PREMIUM
SMS TERMS AND CONDITIONS
| 1 |
Definitions
|
| 12.1 |
"Customer
Care Form" means a document in the form notified to
the Customer by Mobile Messenger from time
to time that details information that the Network Operators' customer
care
departments need to respond
adequately to End-users who call in with complaints or queries
about the
Services.
|
| 12.2 |
"MO
Premium Rate Message" means an SMS
text
message sent by an End-user to an Allocated
Number.
|
| 123 |
"MT
Premium Rate Message" means a mobile-terminating premium rate SMS
message
sent by Customer through
the Platform to an End-user in response to a Service
Request.
|
| 12.4 |
"Multiple
Request" means a request from an End-user (capable of Validation
as
originating from such End-user)
to Customer or to Mobile Messenger to prompt a certain (or indefmite)
number of MT Premium Rate
Messages to be sent to
such End-user's
mobile phone at predetermined
intervals, or upon the occurrence
of predetermined events.
|
| 12.5 |
"Permitted
Premium Rate Services" means the provision of such Premium Rate Messages
as are:
|
| (a) |
specified
on an Mobile Messenger Customer Care Form which has been submitted
to, and
approved by, Mobile Messenger, for the relevant Addendum;
or
|
(b)
notified
in writing by Customer to Mobile Messenger and approved in writing by Mobile
Messenger, in each case, such approval not to be unreasonably
withheld.
| 12.6 |
"Service
Request" means a Single Request or a Multiple
Request.
|
| 12.7 |
"Single
Request" means a request from an End-user (capable of Validation
as
originating from such End-user)
to Customer or to Mobile Messenger to prompt a single MT Premium
Rate
Message to be sent to such
End-user's mobile phone.
|
| 1.16 |
"Validation"
means a process (acceptable to Mobile Messenger in accordance with
Paragraph 12.10 below) by
which Customer can prove that a Service Request originated from the
End-user to whom the relevant MT
Premium Rate Message was sent.
|
Customer
Commitments
Customer
accepts full responsibility for obtaining permission from End-users to send
MT
Premium Rate Messages
to them and charge them money for receiving such messages using the Service
Including responsibility
for any Network Operator or Regulator-imposed fines that may result from
non-compliance with this or other conditions.
| 3 |
Matters
relating to the sending
of MT Premium Rate Messages
|
| 12.7 |
Customer
shall be entitled to provide Permitted Premium Rate Services to End-users
provided that:
|
| (a) |
an
appropriate Service Request shall first have been received from such
End-user;
|
| (b) |
an
End-user shall be sent not more than one MT Premium Rate Message
in
response to a Single Request;
|
| (c) |
no
more MT Premium Rate
Messages shall be sent to
an End-user in response to a Multiple Request than
such End-user shall have requested via such Multiple Request;
and
|
| (d) |
regardless
of the number of Service Requests made, the total number of MT Premium
Rate Messages sent
to a single End-user
in any one day in respect of
a particular Service or via a particular Allocated Number
shall be no more than the number that would cost such End-user the
relevant amount specified in
the
Addendum, provided that if no amount is specified in the Addendum,
then
the relevant amount shall be deemed to be
$25.
|
| 12.8 |
Customer
shall not provide any Premium Rate Message services to End-users
which are
not Permitted Premium
Rate Services.
|
| 12.9 |
Customer:
|
| (c) |
shall
be responsible for retaining (for a minimum of 3 months after the
last MT
Premium Rate Message was
sent to
any
given End-user)
evidence that
each
MT Premium Rate Message sent to that End-user was
sent in response to a Service Request that had been subject to proper
Validation; and
|
| (d) |
hereby
agrees that, upon written request giving 5 days notice, Mobile Messenger
shall have the right to inspect
the evidence referred to at (a)
above.
|
| 12.10 |
Methods
of Validation which are acceptable to Mobile Messenger shall be stipulated
in writing to Customer
from time to time. In the event that Customer wishes to use any other
method, it shall first obtain the
prior written approval of Mobile Messenger (which approval Mobile
Messenger shall not unreasonably withhold), absent which such method
shall
be deemed invalid for the purposes of this Paragraph. Current methods
of
Validation must Include either:
|
(d)
a requirement on the End-user to communicate his
Service
Request to Mobile Messenger or to Customer
using his mobile phone in such a way that his MSIDN (End-User mobile phone
number) is capable of being captured and stored by Mobile Messenger or by
Customer; or
| (e) |
the
delivery (free of charge to the End-user) to the End-user's mobile
phone
of a unique identifying code
relating to the Service allowing such End-user to make his Service
Request
other than via his mobile
phone.
|
| 12.11 |
Customer
shall ensure:
|
| (a) |
that
before they make a Service Request or send a MO Premium Rate Message,
End-users have been made
aware of the identity of Customer as the supplier of the Services
(details
to Include a contact address
in the country in which the MO Premium Rate Message is
sent);
|
| (b) |
that
before they make a Service Request or send a MO Premium Rate Message,
End-users have an adequate
description of the Services;
|
(a)
that before they make a Service Request or send a MO Premium Rate Message,
End-users have been made
aware of (i) the cost of the Service Request or MO Premium Rate Message, (ii)
the cost of the relevant
MT Premium Rate Messages, (iii) the frequency and number (unless this is
indefinite - in which
case this fact shall be made clear) of MT Premium Rate Messages that will be
received in response
to a Multiple Request and (iv) their rights to cancel described in Paragraph
12.10(e);
| (d) |
that
before they make a Service Request or send a MO Premium Rate Message,
End-users
have been made aware of the arrangements for payment (Le. that charges
will be made via the End-user's mobile phone xxxx, or deducted from
the
End-user's mobile phone credit (as
appropriate));
|
| (e) |
that
after they make a Multiple Request, End-users have the right and
the
capability at any time to cancel
such Multiple Request with immediate effect following which cancellation
any communication (Including but not limited to SMS) sent by Customer
to
the End-user shall be free of charge to the End-user, and that such
cancellation capability is available to the End-user in the same
format
(i.e. either via the internet or SMS) as he originally made the Multiple
Request;
|
(t)
that before they make a Service Request or send a MO Premium Rate
Message, End-users are aware of contact
details for customer care run by Customer, and that if they have a complaint
relating to the Services
they should contact Customer and not Mobile Messenger.
| 1.17 |
Breach
of any part of this Paragraph 3 by Customer will entitle Mobile Messenger
to suspend immediately all
Services run by Customer under these Terms and Conditions until such
time
as it is satisfied, acting reasonably, that such breach will not
be
repeated in the future.
|
| 4 |
Revenue
Share Payments
|
| 12.10 |
In
the event a Network Operator is unable to collect
funds
from
an End-user, no payment will be due to the Customer
for that End-user.
|
| 12.11 |
Calculation
of Revenue Share Payments shall be made with reference to Network
Operator
billing information
and accordingly in the event of any dispute, Network Operator billing
information shall be conclusive.
|
| 12.12 |
For
shared Allocated Number services, Revenue Share Payments from Network
Operators will be prorated
across all users of the Allocated Number based on message volumes,
in
order to calculate the sum due
to the Customer.
|
| 12.13 |
Any
SMS delivery costs or other charges made to Mobile Messenger by
the
Network Operator in the event of
non-collection of funds from an End-user will be deducted from
payments
due to the Customer.
|
|
5
|
End-user
support
|
| 12.10 |
Customer's
right to launch a new Premium Rate Service is conditional upon Customer
first completing and returning
electronically to Mobile Messenger (to such email or other address
as
Mobile
Messenger may specify
for this purpose) a Customer Care Form which satisfies the relevant
mobile
Network Operators that the
Services will be run in accordance with the terms of the Terms and
Conditions. At its discretion, Mobile
Messenger may require tests to be run on a new Premium Rate Service
before
deciding whether or not
it can go live. Customer shall continue to be obliged to keep Mobile
Messenger informed (promptly) of any
changes to the details on the Customer Care Form throughout the term
of
the Terms and Conditions.
|
| 12.11 |
Customer
shall be responsible for ensuring that adequate support (for instance,
the
provision of a telephone support help line relevant to the Services
to be
operational during business hours) is provided for all End-users
in relation to the Services and shall be required to inform End-users
of
any related routes of contact in
relation to the Services.
|
| 1.18 |
Customer
accepts all responsibility and liability for any payments made to
End-users in compensation for Premium
Rate Message that are not solicited (that is, not properly sent in
accordance with the Terms and Conditions)
or sent after an End-user has exercised the right to cancel described
in
Paragraph 12.10(e). This
liability extends to any ex-gratia payment
made
by the Network
Operator where
a failure by Customer to
respect cancellation by an End-user has occurred. In connection
herewith:
|
| (e) |
Mobile
Messenger shall be entitled to pass on to Customer and Customer hereby
agrees to pay any such ex-gratia payments made by Network Operators
to
End-users ;
|
| (a) |
in
relation to any individual ex-gratia payment to an End-User in excess
of
$25.00US (Including applicable
taxes) in respect of each Allocated Number each day, Mobile Messenger
shall (i) inform the Customer
thereof, and (ii) allow the Customer an opportunity to make
representations to Mobile Messenger
as to the amount of such payments. Mobile Messenger will take note
of such
representations,
notwithstanding which (and provided that) the Customer hereby acknowledges
that Mobile
Messenger will be entitled to make such payment as is required by
the
relevant Network Operator,
and to recover the amount of such payment from the Customer pursuant
to
paragraph ( ) above;
|
| (b) |
where
aggregate ex-gratia payments to End-Users in any month exceed $3,500.00
US
(Including applicable
taxes) in relation to any individual Service or Allocated Number,
then
Mobile Messenger shall
(i) inform the Customer thereof, and (ii) allow the Customer an
opportunity to make representations
to Mobile Messenger as to the amount of such payments. Mobile Messenger
will take note
of such representations, notwithstanding which (and provided that)
the
Customer hereby acknowledges
that Mobile Messenger will be entitled to make such payment as is
required
by the relevant
Network Operator, and
to
recover the amount of such payment from the Customer pursuant to
paragraph
(e)
above;
|
(h)
Mobile Messenger shall Include an invoice for any such payments as part of
the
billing information provided
to Customer.
| 12.13 |
Customer
agrees promptly to reimburse Mobile Messenger for any charges levied
by
Network Operators for
actions undertaken in relation to the Customer or any End-Users (such
as,
without limitation, charges for
calls made to call-centres by End-Users). Mobile Messenger shall
Include
an invoice for any such payments
as part of the billing information provided to
Customer.
|
| 12.14 |
Where
an End-user is entitled to any refund in respect of Premium Rate
Services
or MT Premium Rate Messages,
Customer shall be obliged to refund such End-user the amount that
such
End-user paid for such Services or MT Premium Rate Messages, and
not just
the relevant Revenue Share Payment received by Customer. This provision
shall be enforceable by Mobile Messenger on behalf of
End-users.
|
| 6 |
Association
of Set-Vices
with
Mobile Messenger
|
| 12.13 |
Customer
must ensure that the Services are of a quality and kind likely that
is not
likely to bring Mobile Messenger
or the Network Operators into disrepute. Whether or not the Services
comply with this Paragraph
shall be a matter to be determined by Mobile Messenger in its sole
discretion.
|
| 12.14 |
Customer
must not state or imply any approval by Mobile Messenger or the Network
Operator of the Services
or refer to Mobile Messenger without the express and prior approval
in
writing of Mobile Messenger.
Notwithstanding the foregoing, Customer is entitled to refer to Mobile
Messenger or the relevant
Network Operator and its services to the extent necessary in order
to
inform End-users or potential End-users about the Services and their
use
and in order to fulfill its obligations under these Terms and Conditions,
applicable laws andlor
regulations.
|
|
7
|
Network
issues
|
| 12.13 |
The
Customer shall consult with Mobile Messenger (at Mobile Messenger's
request) with a view to ensuring
that the number of attempted Service Requests (via SMS) and Premium
Rate
Messages at any time
does not significantly exceed Mobile Messenger's capacity or the
relevant
Network Operator's SMS capacity.
|
| 12.14 |
In
the event that (a) such capacity is exceeded, or (b) Mobile Messenger
believes, acting reasonably, that such
capacity is likely to be exceeded, then upon receipt of any notice
thereof
given by Mobile Messenger to
the Customer, the Customer shall promptly take all reasonable steps
to
prevent such excess.
|
| 1.19 |
The
Customer acknowledges that if Mobile Messenger is unable to contact
Customer for the purposes stated
in Paragraph 12.14 or the Customer fails promptly to prevent such
excess,
Mobile Messenger shall be
entitled to take whatever action it deems appropriate to prevent
such
excess, Including temporarily suspending
the availability of the Services to End-users, as provided in Paragraph
1.20.
|
| 12.16 |
The
Customer shall give to Mobile Messenger at least 14 days' written
notice
before advertising any of the Services
on television, whether by terrestrial, cable, satellite or
otherwise.
|
| 1.20 |
Without
prejudice to Mobile Messenger's other rights under these Terms and
Conditions, any breach of Paragraph
12.14 by the Customer, and in any event any exceeding of Mobile
Messenger's or the relevant Network
Operator's SMS capacity, will entitle Mobile Messenger to suspend
all
Services under these Terms
and Conditions immediately, and to keep them suspended until such
time as
it is satisfied, acting reasonably, that such breach or excess will
not be
repeated in the future.
|
US
MT
BILLED
PREMIUM SMS
SERVICE ADDENDUM
Addendum
Number: 28 April 2005
To
a
Master Services Agreement dated 19th
April
2005 between Mobile
Messenger and
New
Motion Inc
| 1 |
Service
type: US MT Billed Premium SMS and Trivia
Application
|
| 2 |
Term
for Service: Minimum
period of 12 months from the Commencement Date (Initial Term), continuing
for a twelve
[12] month period with automatic renewals of twelve [12] months (Renewal
Period). Either party may with
ninety [90] days written notice terminate the contract at the end
of the
Initial Term or then current Renewal
Period.
|
| 3 |
Service
Specifications:
|
(a)
Type:
Unique
Short code(s). 31000
(b)
End-user Prices & Short code(s):
[Insert
Unique Short Code and applicable tariff]
|
Short
Code
|
Tariff
|
|||
| 31000 |
$
|
0.99
|
||
(c)
Network
Operators available: AT&T,
Cingular, T-Mobile and Verizon, Sprint, and Nextel. (d)Adult
content:
No. See Exhibit 1, Content Standards.
(e)
Service Interface: Select
below:
|
Interface
Type
|
|
|
Java
API
|
|
|
SMPP
|
|
|
Redhot
XML
|
|
|
HTTP
|
|
|
MM Supplied
Application
|
X
|
(f)
Throughput:
2
messageslsecond (g)
Latency: 30 seconds
| 4 |
Pricing:
|
(a)
Account setup fee: $1,000
(b)Account
support fee: $500
(c)Non
premium MT messages:
$0.035 per message
(d)
Trivia
Application No Charge ( The Txt Trivia Engine is provided at no additional
charge)
(e)
Development work for Txt Trivia Customisation.
| (i) |
Hourly
Rate : $80 per hour
|
| (ii) |
All
Development work will be conducted with approval and sign off. Work
to be
estimated prior to approval.
|
|
5
|
Short
code pricing:
|
| 5.1 |
Set
Up Cost: $2000 (The code is already
provisioned)
|
| 5.2 |
Monthly
Fee: $1000
|
| 6 |
Initial
Payment:
|
Account
setup
fee(s),
Carrier short code setup fee(s) and first month's Account support fee are
due
upon signature of
this
Addendum.
| 7 |
Premium
SMS
Out
Payments
|
| 7.1 |
Out
payments from Mobile Messenger to
Customer:
|
Tariff
$0.99
Mobile
Messenger agrees to pay-out to New Motion Inc the exact amount paid per carrier
per shortcode as from Mobile Messenger's direct supplier less the following
service amounts as per the table below:
|
Messages
Per Month
|
|
Fee
Per message
|
|
Plus
|
|
1
-
500,000
|
|
3
cents
|
|
$0
|
|
501,000
— 1,000,000
|
|
2
cents
|
|
$15,000
(includes 500,000 messages)
|
|
1,000,001
— 2,000,000
|
|
1.5
cents
|
|
$25,000
(includes 1,000,000 messages)
|
|
2,000,001
and above
|
|
1
cent
|
|
$40,000
(includes 2,000,000 messages)
|
| 7.2 |
T-Mobile
Ringtone includes non ringtone binaries.
|
| 7.3 |
Volumes
specified in each of the tables at Paragraph 7.1 above are references
to
numbers of messages sent on that specific
Network Operator's US mobile network under this Service Addendum
in any
given month.
|
| 7.4 |
All
MO messages sent to Short codes will be charged to End-users at their
standard rate. There is no out payment for
these messages.
|
| 7.5 |
Out
payments to the Client shall be paid as follows:-
|
(a)
Mobile Messenger will notify Client monthly in writing of the out payments
due to the Client, as calculated in accordance with Paragraph 7.1 above, based
on reports from Network Operators;
(b)
Client shall
invoice Mobile Messenger for the amounts of the out payments which are thus
notified by Mobile Messenger; and
(c)
Mobile Messenger will make payment to the Client of the relevant out
payment amounts, subject to the Terms and
Conditions, 14 days after receiving payment from the relevant Network Operators
for the Premium Rate Messages in respect of which the out payments are
payable.
| 8 |
Additional
Terms and Conditions
|
| 8.1 |
"Permitted
Premium Rate Services" includes the provision of those Premium Rate
Messages described on an Mobile
Messenger Client Care Form submitted by Client and approved by Mobile
Messenger, such approval not to
be unreasonably withheld.
|
| 8.2 |
Client
agrees to abide by all applicable terms and conditions of Network
Operators as notified in writing by Mobile
Messenger from time to time.
|
| 8.3 |
End-users
of Verizon are be charged $0.02 per received MT message (whether
premium
or non-premium), and Client
will notify End-users of this in accordance with Paragraph 3.5(c)
of
Schedule 2, Premium SMS Terms and Conditions, of the Master Service
Agreement.
|
| 8.4 |
Monthly
recurring Account Service charge is invoiced on the first of each
month
beginning the first month from the
date of first carrier activation.
|
| 8.5 |
Mobile
Messenger may add service through additional carriers in its sole
discretion from time to time. Client will be notified of message
rates for
such additional carriers by rate card. However, in its sole discretion,
Mobile Messenger
may require Client to pay the actual set-up fees attributable to
Client's
services which Mobile Messenger
is charged by such additional
carrier(s).
|
| 8.6 |
Each
service order form entered in connection with this Addendum is part
of
this Addendum and is incorporated herein
by reference. In the event of a conflict between this Addendum and
a
service order form, the terms of this Addendum shall
control.
|
| 9 |
Test
code 28444 ($0.30
tariff) Terms and Conditions
|
| 9.1 |
Upon
Client request, Mobile Messenger will provide Client with a shared
test
code with an associated Keyword.
|
| 9.2 |
Mobile
Messenger will provide Client with one Keyword. Keyword will be chosen
by
Mobile Messenger.
|
| 9.3 |
The
test code will be available to Client until live short code is setup
on at
least one carrier.
|
| 9.4 |
The
tariff on test code 28444 is $0.30. No out payments are made by Mobile
Messenger to Client for traffic generated
on test short code.
|
| 9.5 |
Non-premium
MT messages will be charged in accordance with Paragraph
4.
|
Mobile
Messenger'ty-Ltd" New Motion Inc
|
By:
|
By:
|
||
|
|
/s/
Xxxxx Xxxxxx
|
||
| Signature and Date _______________ | Signature and Date _______________ | ||
|
Xxxxx
Xxxxxx CEO
|
|||
|
Printed
Name and Title
|
Printed
Name and Title
|
Exhibit
1 Content Standards
Operators
reserve the right to prohibit any content they deem to be offensive or in
violation of their standards. Adult text content of any sort is not allowed
by
US Operators. This includes use of sexually explicit or implicit terms about
activities, profanities, slang for body parts, states of arousal, or sexual
desires and intent.
Images
prohibition includes anything sexual in nature. "Swimsuit" type images may
be
approved, any nudity, sexual posing
or
implications will be rejected.
Operator
Specific Prohibition Requirements:
Verizon
Wireless -:
Alcoholic
beverage-related (i.e., beer, wine, liquor, etc.) Tobacco-related (cigarettes,
cigars, pipes, chewing tobacco, etc.)
Gunslweapons-related
(firearms, bullets, etc.) Illegal
drugs-related (marijuana, cocaine, etc.) Pornographic-related (i.e., adult
themes, sexual content, etc.)
Crime-related
(i.e., organized crime, notorious characters, etc.)
Violence-related
(i.e. certain games, etc.) Death-related (i.e., funeral homes, mortuaries,
etc.)
Gambling-related (i.e., casinos, lotteries, etc.) Hate-related (i.e., racist
organizations, etc.)
Involves
unauthorized or unapproved use of Verizon Wireless' intellectual
property
Involves
a copy or parody of current or past Verizon Wireless products or
services
Competitor-related
(i.e., providers of telecommunications services other than Verizon Wireless
or
its Affiliates, providers of comparison shopping for telecommunications
services, etc.)
related
(i.e., racist organizations, etc.)
Involves
a copy or parody of current or past Verizon Wireless products or
services
Involves
an implied affiliation, association or endorsement by, or favored status with,
Verizon Wireless.
AT&T
- Harassing, defamatory, libellous, abusive, threatening, obscene, coercive
or
objectionable are not allowed.
Cingular
- Customer is responsible to ensure messages do not constitute Unsuitable
Content. Cingular or its affiliated agent may
review all Customer Content prior to its delivery to its delivery to
Subscribers. Cingular may reject any Customer Content
in its sole discretion.
T-Mobile
-
1. Company
and Third Party Providers will not send any Messages via the T-Mobile Network
that include characters other than those included in the then-current T-Mobile
SMPP character set.
2. Company
and Third Party Providers are responsible for all Content and materials included
in the Services and any and all Messages distributed in connection therewith,
and Company and Third Party Providers will ensure that all such Content and
materials do not and will not contain any material that:
(a) is
unlawful, obscene, or defamatory or violates any Intellectual Property Rights
or
any other rights of any third party;
(b) facilitates
any illegal activity;
(c) contains
any sexually explicit content or images;
(d) is
false,
misleading, or likely to mislead or deceive (including, without limitation,
information relating to the source or the author of the message);
or
(e) promotes
violence, discrimination, or illegal activities.
