MOBILE VIRTUAL NETWORK ENABLER HOSTING AGREEMENT BETWEEN T-MOBILE NETHERLANDS B.V. Elephant Talk Communication Holding AG
Exhibit
99.1
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
MOBILE
VIRTUAL NETWORK ENABLER
BETWEEN
T-MOBILE
NETHERLANDS B.V.
&
Elephant
Talk Communication Holding AG
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
TABLE
OF CONTENT
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1.
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Definitions
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2.
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Purpose
and Scope of the Agreement
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3.
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Hosting
Services
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4.
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Implementation
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5.
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Forecast
& Commitments
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6.
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Service
level
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7.
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Data
Protection & Privacy
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8.
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The
co-operation relationship
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9.
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Prices,
Charging, Billing & Accounting
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10.
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Customer
Care Support
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11.
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Confidentiality
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12.
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Limitation
of Liability
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13.
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Suspension
and termination of Hosting Services
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14.
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Force
Majeure
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15.
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Intellectual
Property Rights
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16.
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SIM
cards and Calling Credit
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17.
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Duration
of the Agreement
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18.
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Termination
of the Agreement
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19.
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Modifications
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20.
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Miscellaneous
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21.
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Governing
Law
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22.
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Dispute
resolution
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23.
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Counterpart
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CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
MOBILE
VIRTUALNETWORK ENABLER HOSTING AGREEMENT
by
and between ELEPHANT TALK and T-Mobile
(T-Mobile
hosting ELEPHANT TALK)
This
Agreement is made between
“Elephant
Talk Communication Holding AG”,
a
company incorporated under the laws of Switzerland, having its registered office
at
Xxxxxxxxxxxxx
000,
XX-0000 Xxx, Xxxxxxxxxxx, legally and duly represented by its Chief Executive
Officer Xxxxxx van der Velden and its Chief Operations Officer and Chief
Technology Officer Xxxxxx Xxxxxxxx, hereinafter referred to as: "ELEPHANT
TALK"
and
T-Mobile
Netherlands B.V.,
a
company incorporated under the laws of the Netherlands, having its registered
office at the Xxxxxxxxxxxxx 00, 0000 XX Xxx Xxxx, the Netherlands, legally
and
duly represented by its Managing Director Niek Xxx xxx Xxxxx and its Marketing
Director, Xxxx Xxxxxxxxxx, hereinafter referred to as: “T-Mobile”
each
individually referred to as "Party" and together as "Parties".
WHEREAS:
| 1. | ELEPHANT TALK wishes to become a full Mobile Virtual Network Enabler (hereinafter: “MVNE”) providing mobile telecommunications services to legal entities partnering with ELEPHANT TALK to offer mobile services in an (Enhanced) Service Provider model using the T-Mobile network and the by T-Mobile provided wholesale mobile network services; |
|
2.
|
T-Mobile
is a licensed Dutch mobile telecommunications and services provider
operating inter
alia
its own GSM and UMTS/HSDPA mobile network in The Netherlands with
related
basic services and offering wholesale and retail mobile network services
and associated services on the Dutch
market;
|
| 3. | *** and ELEPHANT TALK have conducted preliminary discussions and negotiations leading to an initial understanding on the basic business principles of an envisaged co-operation between *** and ELEPHANT TALK, which has been laid down in Heads of Agreement between *** and ELEPHANT TALK ***; |
| 4. | ***; |
| 5. | In answer to the proposal of *** and the additions to this proposal by T-Mobile, ELEPHANT TALK has confirmed by letter dated November 30, 2007 that it agrees to be directly implemented on the T-Mobile network in order to *** the T-Mobile network; |
| 6. | ELEPHANT TALK therefore wishes to obtain from T-Mobile wholesale mobile network services and associated services and T-Mobile is willing to offer ELEPHANT TALK such services; |
| 7. | Following the signing of the aforementioned Heads of Agreement between *** and ELEPHANT TALK, Parties have continued their discussions and negotiations with regard to their envisaged co-operation and have reached agreement on the terms and conditions in that respect, which are laid down in this Agreement; |
NOW,
THEREFORE,
the
Parties have agreed as follows:
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
1. DEFINITIONS
For
the
purpose of this Agreement, the following words and phrases shall have the
meanings set forth in their respective definitions, unless a different meaning
is called for in the context of another provision in this
Agreement:
1.1 "Affiliated
Company" of a Party shall mean any other legal entity:
· directly
or indirectly owning or controlling the Party (Mother company), or
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·
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under
the direct or indirect ownership or control of the same legal entity
(Mother company) directly or indirectly owning or controlling the
Party,
or
|
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·
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directly
or indirectly owned or controlled by the Party, for as long as such
ownership or control lasts.
|
"Ownership"
or "control" shall exist through the direct or indirect ownership of more than
fifty (50) percent of the nominal value of the issued equity share capital
or of
more than fifty (50) percent of the shares entitling the holders to vote for
the
election of directors or persons performing similar functions.
|
1.2
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"Agreement" shall mean the Mobile Virtual Network Enabler(MVNE) hosting agreement together with the Appendices attached to this MVNE hosting agreement. |
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1.3
|
“Appendix"
and "Appendices" shall mean the appendix or appendices attached
to this
Agreement.
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1.4
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“Business
Day” shall mean any day other than Saturdays, Sundays and Dutch generally
recognized public holidays.
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1.5
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"Calendar
Day" shall mean any day including Saturdays, Sundays and Dutch generally
recognized public holidays.
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1.6
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“CDR”
shall mean call detail record.
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1.7
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“Commercial
Launch Date” shall mean the date on which ELEPHANT TALK commercially
launches the Hosting Services and starts providing the ELEPHANT TALK
Services commercially to ELEPHANT TALK Customers in the Dutch market
(not
being the Soft Launch). The Commercial Launch Date shall not be later
than
six (6) weeks after the Ready for Service
Date.
|
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1.8
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"Date
of the Agreement" shall mean the date on which both Parties have
signed
the Agreement by their duly authorized representatives or, if the
Parties
sign this Agreement on different dates, the later date being the
date the
Agreement comes fully into effect.
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1.9
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“ELEPHANT
TALK Customer” shall mean any company or legal entity partnering with
ELEPHANT TALK, which wishes to offer mobile services in a MVNO/ESP/SP
model using the T-Mobile Network and the by T-Mobile provided Hosting
Services under the terms and conditions as mentioned in this Agreement.
ELEPHANT TALK Customers might include the mobile end-users of ELEPHANT
TALK Customers, subject to the interpretation of the specific
provision.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
1.10
|
“ELEPHANT
TALK Infrastructure” shall mean the entire (current and future) servers
and systems of ELEPHANT TALK, including the physical or logical link
to
the NAP, as
described in Appendix 11.
|
|
1.11
|
“ELEPHANT
TALK Wholesale
Services”
shall mean the mobile
telecommunication services provided
by ELEPHANT
TALK to the
ELEPHANT TALK Customers, offering services in a MVNO/ESP/SP model,
based
on the Hosting
Services
via
the T-Mobile
Network
and the networks of the T-Mobile roaming partners.
|
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1.12
|
"GSM
Association Permanent Reference Documents" shall mean the documents
that
are established, recognized and classified as binding by the GSM
Association Plenary.
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1.13
|
"GSM
Association Plenary" shall mean the group of appointed representatives
of
the Signatories of the GSM
Association.
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1.14
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"GSM
Specifications" shall mean ETSI GSM technical specifications, as
defined
by the GSM Association.
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1.15
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"Hosting
Service(s)"
shall mean the network hosting (and related) services -
as listed in Appendix 1 - provided
by T-Mobile to ELEPHANT TALK under the Agreement, enabling ELEPHANT
TALK
to provide
ELEPHANT TALK Wholesale Services to ELEPHANT TALK Customers in
accordance with its terms
and conditions of
the Agreement.
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1.16
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"Implementation
Plan" shall have the meaning as described to it in Appendix
3.
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1.17
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“IMSI”
means the International Mobile Subscriber Identity,
***
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1.18
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“Initial
Term” means the initial duration of the Agreement as agreed upon between
the Parties and defined in article
17.1
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1.19
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“IN
platform” (the intelligent network platform) shall mean the technical
architecture and telecommunications systems of ELEPHANT
TALK
for routing calls and charging real-time the outgoing calls of ELEPHANT
TALK Customers.
|
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1.20
|
"Location
Areas" (LAs) shall mean the individual geographic areas into which
the
T-Mobile Network is divided at any
time.
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1.21
|
“MSISDN”
shall mean Mobile Station
Integrated Services Digital Network
Number.
|
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1.22
|
“NAP”
shall mean Network
Access Point,
as described in Appendix 11.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
1.23
|
"Operational
Manual" shall mean the working document in which Parties agree upon
(dynamic) activities and procedures as described in the Agreement
in more
detail for the duration of the Agreement. The
Operational Manual is
a
dynamic document. The
latest valid and binding version shall be the one agreed in writing
between the Parties in accordance with article
19.3.
|
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1.24
|
“***”
means the company formerly known as ***. formed under the laws of
the
Netherlands, *** in The Hague, The Netherlands.
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1.25
|
“Protocol
of Delivery” (also referred to as “PoD”) shall mean the document, as
attached in Appendix 10,
provided by T-Mobile to ELEPHANT TALK following the Soft
Launch for
the purpose of accepting the Hosting
Services
by ELEPHANT TALK.
|
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1.26
|
“Quarter”
and “Quarterly” shall mean a quarter of a year, being three consecutive
months
starting every January, April, July and/or October of every calendar
year.
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1.27
|
“Ready
for Service Date” shall mean the date, following the
Soft Launch,
upon which the Hosting
Services
agreed between the Parties -
in
accordance with article
3
-
meet the agreed
specification
as
evidenced
by
the signing
of the Protocol for Delivery.
|
|
1.28
|
“Ready
for Test Date” shall mean the date on which the end-to-end test, to be
performed internally by T-Mobile solely, has been completed by T-Mobile
and pursuant to which ELEPHANT TALK can commence the
Soft Launch.
|
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1.29
|
"Regulatory
Provisions" shall mean all applicable laws, directives, consents,
specifications, regulations and/or stipulations set forth by the
relevant
regulatory authority.
|
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1.30
|
“SIM
card” shall mean a subscriber identity module (chip) card for the
identification of -the
mobile end-users of - an
ELEPHANT TALK Customer on the T-Mobile Network and enables access
to the
ELEPHANT TALK Wholesale
Services.
|
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1.31
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“SLA”
means the Service Level Agreement attached hereto in Appendix
6.
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1.32
|
"Soft
Launch" shall mean the test to be performed under article 4 and as
described in Appendix 3 and the period in which ELEPHANT TALK can
gain
experience with the functionalities of the
Hosting
Services prior to the Commercial Launch Date.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
1.33
|
"TAP"
shall mean Transferred Account Procedure as defined and described
in GSM
Association Permanent Reference Documents.
|
|
1.34
|
“Technical
Specification” shall mean the working document in which Parties agree upon
the technical specification of the Hosting
Services
as
attached
in Appendix 11.
|
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1.35
|
"T-Mobile
Network" shall mean the T-Mobile DCS 1800 and
UMTS/HSDPA mobile
telecommunications network, including all network elements, in the
Netherlands, as described in Appendix
1.
|
2. PURPOSE
AND SCOPE OF THE AGREEMENT
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2.1
|
The
purpose of this Agreement is to lay down the general terms and conditions
between the Parties under which T-Mobile shall provide the Hosting
Services
and ELEPHANT TALK shall purchase the Hosting
Services
from T-Mobile, whereby T-Mobile shall
enable
ELEPHANT TALK to market, sell and provide mobile
telecommunication services to the ELEPHANT TALK Customers via
the T-Mobile Network. For
the avoidance of doubt, ELEPHANT TALK is not entitled to provide
(retail)
telecommunication services based on the Hosting Service to others
than
ELEPHANT TALK Customers, such as but not limited to mobile end-users
or
business companies with their own
end-users.
|
In
the
event that *** Parties shall negotiate the terms and conditions under which
T-Mobile shall provide and ELEPHANT TALK shall purchase the services from
T-Mobile. These terms and conditions shall be laid down in a separate document
and shall therefore not be part of this Agreement.
|
2.2
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T-Mobile
is entitled without limitations,
to ***
related
services to any other party.
|
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2.3
|
ELEPHANT
TALK will not enter into any discussions or agreement on the provisioning
of (similar) Hosting Services as defined in Appendix 1 with any ***
in the
Netherlands for the duration of the Initial Term of the Agreement.
In case
ELEPHANT TALK has provided to T-Mobile the twelve month termination
notice
in accordance with article 17.2, ELEPHANT TALK ***.
|
|
2.4
|
The
co-operation between Parties shall regard ***.
The Hosting Services are intended for ***.
ELEPHANT
TALK is allowed to provide SIM cards to ELEPHANT TALK Customers under
the
terms and conditions as mentioned in
this Agreement.
|
| 2.5 | For the scope of this Agreement, ELEPHANT TALK (including its Affiliated Companies) shall not provide the Hosting Services to ***. Excluded from this provision is the situation wherein ELEPHANT TALK provides *** under the terms and conditions as set out in this article. |
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
ELEPHANT
TALK is not allowed, without the explicit written approval of T-Mobile, to
provide the ELEPHANT TALK Wholesale Services:
I.
to
the
below stated categories of companies, including companies that represent a
company in one of these categories, affiliated companies and/or companies that
can offer a brand from a company in one of the following
categories:
|
a)
|
***
|
|
b)
|
***
|
|
c)
|
***.
|
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II.
|
in
the situation where T-Mobile for good reason refuses a ELEPHANT TALK
Customer access to the T-Mobile Network such
as:
|
|
a)
|
association
with - proven- bad taste (companies or brands with a direct reference
to
subjects such as criminal or illegal behavior, violence or
drugs);
|
|
b)
|
possible
harm of the good name of T-Mobile;
|
|
c)
|
breach
of an intellectual property right of T-Mobile;
and/or
|
|
d)
|
conflict
with key strategic issues for T-Mobile and Deutsche Telekom Affiliate
Companies (such as legal issues and court
cases).
|
The
ELEPHANT TALK Customers will not directly or indirectly provide the ELEPHANT
TALK Wholesale Services to others, including an Affiliated Company, with the
objective to resell wholesale telecommunication services based on the by
T-Mobile provided Hosting Services to mobile telecommunication
users.
2.6
Parties
agree to implement an ELEPHANT TALK ***,
and
therefore would not result in additional costs for ELEPHANT TALK.
In
order
to execute this assessment Parties will discuss the detailed business
requirements - provided by ELEPHANT TALK for the implementation of the ELEPHANT
TALK ***
-
and
will do the utmost to agree on this set of business requirements before or
on
***
Provided
that Parties have agreed upon the final set of business requirements before
or
on ***,
Parties
shall subsequently execute an initial evaluation - based on the business
requirements - of the impact of the implementation on the T-Mobile
infrastructure and network. Parties agree to finalize this initial evaluation
on
***.
The
outcome of the initial evaluation shall consist of an agreed high level project
plan for the implementation of at least the implementation of the ***
solution.
Following the initial evaluation Parties will further discuss and negotiate
in
good faith the elements of the project plan, including the alignment of
***
and
available resources in order to implement the ***.
Both
Parties aim to implement the ***
before
***.
However, the actual implementation date of the ***
solution
is subject to the chosen technical and operational solution for the ***
solution.
In any case T-Mobile is obliged to implement the ***
before
or
on ***.
|
2.7
|
ELEPHANT
TALK shall purchase
the
Hosting
Services from T-Mobile
as
an independent contractor. ELEPHANT TALK shall sell and
market the ELEPHANT TALK Wholesale
Services to
ELEPHANT TALK Customers
in
its own name, for its own account and on its own risk (subject
to the terms of this Agreement).
ELEPHANT TALK warrants T-Mobile that ELEPHANT TALK Customers shall
sell
and market their mobile telecommunication services based on the ELEPHANT
TALK Wholesale Services in its own name, for its own account and
on its
own risk. ELEPHANT
TALK and
ELEPHANT TALK Customers shall
not in any respect represent T-Mobile
or
enter into any agreement or other commitment on T-Mobile’s
behalf.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
2.8
|
ELEPHANT
TALK shall ensure that the ELEPHANT TALK Infrastructure complies
with the
Technical Specifications, as set out in Appendix 11.
|
|
2.9
|
Parties
acknowledge that the Dutch telecommunications market is regulated
under
both Dutch and EU law, such as inter alia EU-directives, the Dutch
Telecommunications Act, Dutch Competition Act and the Dutch Data
Protection Act. Parties shall at all times fully comply with all
relevant
regulations, such as but not limited to, the obligation for ELEPHANT
TALK
- as providers of public electronic communications services in the
Netherlands- to notify OPTA according to article 2.1 of the Dutch
Telecommunication Act.
|
Furthermore,
Parties acknowledge that their arrangements are subject to said regulations,
and
that Parties’ arrangements (including pricing arrangements) may, from time to
time, require adjustment(s) due to change of such regulations.
|
2.10
|
The
Hosting
Services
shall be provided in accordance with relevant GSM Specifications
and the
GSM Association Permanent Reference Documents, including all the
commercial aspects, as defined in the Agreement. This
foregoing is however subject to the additional
requirements and exceptions to the GSM specifications and GSM Association
Permanent Reference Documents as may
be agreed
in
writing between
Parties.
|
|
2.11
|
The
Parties recognize that it may be appropriate to modify
this
Agreement, in
circumstances in which they deem it important to do so, in
the light of experience and development in the GSM Association, the
GSM
Specifications, the GSM Association Permanent Reference Documents
and mobile
telecommunications services available at the market not offered by
T-Mobile
under this Agreement
In
such case Parties shall agree upon a workable solution and act
accordingly.
|
|
2.12
|
The
Appendices shall form an integral part of the Agreement and shall
be fully
binding on and enforceable by and against the Parties as applicable
in
accordance with this Agreement. In case that the Agreement contains
contradictory provisions, the documents constituting the Agreement
shall
have the following priority for the purpose of
interpretation:
|
a) the
Agreement;
b) the
Appendices in order of their number;
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
Appendix
No.
|
Appendix
Name
|
|
Appendix
1
|
Service
Description
|
|
Appendix
2
|
Financials
|
|
Appendix
3
|
Implementation
plan
|
|
Appendix
4
|
Forecasting
|
|
Appendix
5
|
Lawful
Intercept
|
|
Appendix
6
|
Service
Level Agreement
|
|
Appendix
7
|
Accounting
and Billing
|
|
Xxxxxxxx
0
|
Xxxxxxx
|
|
Xxxxxxxx 9
|
Bank
guarantee
|
|
Appendix10
|
Protocol
of Delivery
|
|
Appendix
11
|
Technical
Specification
|
|
Appendix
12
|
***
|
|
Appendix
13
|
***
|
3. HOSTING
SERVICES
|
3.1
|
T-Mobile
shall provide the
Hosting
Services, as described in Appendix 1, during the term of this Agreement
from the Ready for Service Date.
|
|
3.2
|
T-Mobile
shall ensure that all ***
from
ELEPHANT TALK Customers and other telecommunication
end users in
the
Netherlands and in the relevant roaming countries, as further specified
in
the Agreement.
|
|
3.3
|
ELEPHANT
TALK is responsible and accountable for the installation, maintenance
and
availability of the leased line between ELEPHANT TALK’s POP and the
T-Mobile
Network, as described in Appendix 1.
|
3.4
T-Mobile
is open and willing to discuss with ELEPHANT TALK the provision to ELEPHANT
TALK
of new services, meaning services out of the scope of this Agreement, in the
Dutch market.
|
3.5
|
Parties
agree that ELEPHANT TALK,
if applicable, makes a
feature available
in
the SIM card to display the
brand name of
ELEPHANT TALK Customers, when
ELEPHANT TALK Customers are connected
-
via the ELEPHANT TALK Infrastructure - to the
T-Mobile
Network. T-Mobile
is aware of the fact that out-dated devices might not support this
feature
available in the SIM cards.
|
|
3.6
|
Parties
agree to implement the rules and procedures pursuant to Dutch legislation
for number portability prior to the Ready for Service Date, according
to
Appendix 1. A
ELEPHANT TALK MSISDN
that is out-ported from ELEPHANT TALK’s customer base will
be
barred from accessing the ELEPHANT TALK Services in the T-Mobile
Network.
|
|
3.7
|
Parties
shall use their best efforts to ensure ***
as
set out in Appendix 1. ELEPHANT TALK is responsible and liable
for ***, as
described in Appendix 11.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
3.8
|
T-Mobile
shall support ELEPHANT TALK in fulfilling its legal obligations under
Dutch law with respect to lawful interception under the terms and
conditions as set forth in detail
in Appendix
5. ELEPHANT TALK agrees to inform in writing, before the Ready for
Service
Date, the relevant
Dutch authority (which
is at the time of closing of this Agreement the public prosecutor)
that
T-Mobile
will carry out the lawful intercept requests regarding ELEPHANT TALK
Customers and that T-Mobile
will and is entitled to collect the financial compensation of the
concerning authority for these legal intercept activities on behalf
of
ELEPHANT TALK. ELEPHANT TALK shall provide T-Mobile
with a
copy
of
the aforementioned letter to the relevant Dutch authority before
the Ready
for Service Date.
|
4. IMPLEMENTATION
|
4.1
|
The
Parties shall implement the Hosting
Services
according to the Implementation Plan, as described
in
Appendix 3.
|
|
4.2
|
The
Parties shall provide each other with
information on preparations made and other details relevant to the
implementation of the Hosting Services.
|
|
4.3
|
If
it becomes known to a Party that either a delay shall occur or is
likely
to occur, such Party shall immediately notify the other Party thereof
in
writing. In such case, the reason for the delay shall be given as
well as
the moment when it is anticipated that the implementation can take
place.
|
4.4
***.
T-Mobile
shall resolve every critical part of the Hosting Service as soon as reasonable
possible and in any event before the date which is ***
after
the agreed ***.
|
Once
the Hosting
Service
and every critical
part,
as ***
the PoD,
thereof has successfully passed the ***
pursuant to the procedures described in the PoD and Appendix 3
the Service shall be accepted by ELEPHANT TALK and ELEPHANT TALK
shall
sign the Protocol of Delivery acknowledging such
acceptance.
|
|
4.5
|
Subject
to article 4.4., ELEPHANT
TALK shall commence the
Soft Launch on or after the ***.
From the ***
ELEPHANT
TALK shall be permitted to (technically) test the Hosting
Services
for the duration of five
(5) calendar
weeks, with a limited number of users (***).
The
traffic generated during the Soft
Launch shall
be free of charge for up to ***
-
based on the tariffs T-Mobile
will charge ELEPHANT TALK according to Appendix
2. For all other users and costs above the ***,-
per user, ELEPHANT TALK has to pay the fees for the Hosting
Services
as defined in Appendix 2. The Soft
Launch is
not part of the forecasts pursuant to Appendix
4.
ELEPHANT TALK will finalize the Soft
Launch by
signing the Protocol of Delivery, according to Appendix 3 and
11.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
4.6
If
it
would become applicable, ELEPHANT TALK shall obtain any regulatory approvals,
consents, or decisions which allow ELEPHANT TALK to utilize the Hosting
Services
from T-Mobile
to
provide the ELEPHANT TALK Services to ELEPHANT TALK Customers as contemplated
by
this Agreement. T-Mobile
agrees -
but is not obliged -
to
reasonably assist ELEPHANT TALK in obtaining such regulatory approvals, consents
or decisions, especially by making available to ELEPHANT TALK necessary
documents, technical specifications and other information required and by
cooperating through
common
communication to any regulatory authorities.
5. FORECASTS
& COMMITMENTS
|
5.1
|
A
trial period, covering the ***
calendar
months from
Commercial Launch Date
shall apply for ELEPHANT TALK in order to gain experiences and knowledge
for ELEPHANT TALK on forecasting and call behavior of its ELEPHANT
TALK
Customers.
***.
|
|
5.2
|
ELEPHANT
TALK shall provide Quarterly
forecasts in writing expressed in volume for the use of the Hosting
Services.
Details as Parties have agreed upon regarding the forecasts are stipulated
in Appendix 4.
|
|
5.3
|
***.
|
|
5.4
|
ELEPHANT
TALK accepts that T-Mobile
will not be bound to the service level agreed between Parties pursuant
to
article 6 of this Agreement in
relation to the relevant Quarter,
if the ***.
|
|
5.5
|
In
case of (promotional) actions and events that will or might temporarily
exceed the forecasted traffic volume, ELEPHANT TALK shall inform
T-Mobile
as
soon as possible, after which T-Mobile
shall make reasonable efforts to take appropriate and business wise
feasible measures to prevent network interruptions.
|
6. SERVICE
LEVEL
6.1
The
Hosting
Services
shall be provided in
accordance with the
level
of service and support as the Parties have agreed upon in Appendix
6.
6.2
At
no
point in time shall one of the Parties carry out service or support on
equipment,
excluding SIM cards ordered according to article 16,
that
belongs to the other Party or is provided or maintained by the other Party,
unless the other Party has agreed in writing to such measures in
advance.
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
6.3
T-Mobile
shall
give prior notice to ELEPHANT TALK about planned outages and planned work as
agreed in Appendix 6.
7.
DATA
PROTECTION & PRIVACY
|
7.1
|
All
rights to the personal
and traffic data
related
to ELEPHANT TALK Customers which
ELEPHANT TALK places at the disposal of T-Mobile,
as well as to the results of the T-Mobile registering
and processing
of this
data, shall rest in ELEPHANT TALK. T-Mobile
shall have at its disposal data covered by the Agreement only to
the
extent and
as long as necessary
for T-Mobile
to
fulfill its obligations pursuant to this
Agreement.
|
|
7.2
|
Both
Parties confirm that they shall comply with the Data Privacy regulations
and laws applicable in the Netherlands and internationally, including
the
Dutch Data Protection Act (“Wet Bescherming Persoonsgegevens”), as amended
or varied from time to time. T-Mobile
undertakes to process personal data only for the purpose of this
Agreement.
|
|
7.3
|
***.
T-Mobile
will refrain from using any ELEPHANT TALK Customer related data for
any
other purpose than providing the Hosting
Services
to ELEPHANT TALK, with the exception
of:
|
|
·
|
legal
tapping requirements in
accordance with a request from the relevant public body;
and
|
|
·
|
necessary
use for the purposes of preventing,
tracing and fighting fraud
or irregularities; and
|
|
·
|
other
activities required
by law.
|
8. THE
CO-OPERATION RELATIONSHIP
|
8.1
|
The
authorized members of each Party shall fully co-operate in the performance
of the Agreement. The account manager of each Party shall act as
the first
point of contact in relation to any issues provided for in the Agreement.
Each Party may change its contact person at any time by
informing
the other Party in
writing.
|
|
8.2
|
The
Parties shall promptly inform each other of a breakdown in their
respective systems or mobile telecommunications Network that has
or might
have an effect on the Hosting
Services
and/or the Agreement.
|
| 8.3 | *** |
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
9. PRICES,
CHARGING, BILLING AND ACCOUNTING
9.1 Development
costs & prices for Hosting
Services
|
9.1.1
|
Subject
to the terms of this Agreement, ELEPHANT
TALK shall pay T-Mobile
the total
amount
of ***
-as
specified in Appendix 2, as a contribution for upfront (network related)
developments costs
of
the Hosting Services, including ***
services, as described
in
Appendix 1.
Payments shall be made in accordance with article
9.2.
|
|
9.1.2
|
The
prices to be paid by ELEPHANT TALK to T-Mobile
for the Hosting
Services
rendered are stated in Appendix 2. Such prices may be amended in
accordance with the terms of this Agreement and Appendix 2 and shall
be
paid by ELEPHANT TALK to T-Mobile
in
accordance with article
9.2.
|
|
9.1.3
|
If
the prices due to subsequent changes in Dutch laws and regulations
become
invalid or unenforceable the prices shall be modified to
the extent required
in
order to be in conformity with such laws and regulations.
In
the event that such change of prices reasonably requires that Parties
revise the applicable price structure of the Hosting
Services
in its entirety, Parties shall enter into good faith negotiations
to agree
upon new prices.
|
9.2
Charging
|
9.2.1
|
T-Mobile
has charged the first installment of ***
to
ELEPHANT TALK with
regard to ELEPHANT TALK’s contribution for upfront (network related)
developments costs, as mentioned in article
9.1.1,
after signing of the Heads of Agreement between the Parties dated
***.
The second installment of ***
shall
be charged to ELEPHANT TALK right after signing of the Agreement
and shall
be paid by ELEPHANT TALK within fifteen (15) Calendar Days of the
invoice
date.
|
|
9.2.2
|
Whenever
an ELEPHANT TALK Customer uses the ELEPHANT TALK Wholesale
Services,
ELEPHANT TALK shall be fully responsible for timely payment of the
appropriate price(s) established under article
9.1.2 for the Hosting
Services
used. ELEPHANT
TALK shall pay to T-Mobile
the charges for the Hosting
Services
as from the Ready for Service Date, including the charges mentioned
under
article
4.5.
|
|
9.2.3
|
In
addition to the invoice mentioned under article
9.2.1., T-Mobile
shall on a monthly arrear basis submit
invoices to ELEPHANT TALK detailing the prices payable
by ELEPHANT TALK under article
9.2.2. T-Mobile
will send the following invoices for:
|
a) network
hosting services***;
a) costs
of
authorized lawful
intercept (to
the
extent provided for under Appendix 5);
b) costs
for
other
services agreed upon.
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
9.2.4
|
ELEPHANT
TALK shall pay all invoices no later than ***
after
the invoice date. ELEPHANT
TALK ***,
in the event that ELEPHANT TALK fails to meet ***
|
|
9.2.5
|
***
|
|
9.2.6
|
Invoices
submitted to ELEPHANT TALK by T-Mobile
shall be itemized in accordance with Dutch acknowledged principles
of
billing and accounting.
|
|
9.2.7
|
All
charges under this Agreement are exclusive of value-added tax (VAT),
duties or levies imposed by any authority, government or governmental
agency and any other applicable taxes
payable in relation to the Hosting
Services
supplied to ELEPHANT TALK. Any
taxes shall be charged in accordance with the relevant regulations
in
force at the time of making the taxable supply to
ELEPHANT TALK and
shall be paid by ELEPHANT TALK.
|
All
amounts and any payment of charges under this Agreement shall be made in EUROS
and in full without any set-off, deductions or withholding
whatsoever.
|
9.2.8
|
Invoices
not paid within the time limit set down in article
9.2.4 shall bear interest (“enkelvoudig”) on a daily basis at the rate
of
the legal commercial interest rate (“wettelijke
handelsrente”) plus
1 % until
full payment is received by T-Mobile
whether before
or after judgment. Interest shall continue to accrue notwithstanding
termination or expiry of this Agreement for any cause
whatsoever.
|
|
9.2.9
|
ELEPHANT
TALK may object to any invoice according to the procedure set
out in article
4 of Appendix 7, Accounting and Billing. In
the event of invoicing irregularities, Parties shall use their best
efforts to establish the reason for and to eliminate such irregularities
as quickly as possible.
|
| 9.2.10 | ELEPHANT TALK will be accountable for and shall pay all generated traffic by ELEPHANT TALK Customers -including traffic generated via stolen or lost SIM cards - to T-Mobile . |
| 9.2.11 | ELEPHANT TALK bears the risk of and shall indemnify T-Mobile against high usage, fraud and bed debts/non-payment of its ELEPHANT TALK Customers. |
9.3 Billing
and Accounting
|
9.3.1
|
Procedures for billing and accounting information are provided in Appendix 7. |
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
9.3.2
|
In
order to exchange invoice information, TAP files will be transferred
by
T-Mobile
to
ELEPHANT TALK, as stated in Appendix
7.
|
|
9.3.3
|
For
verification purposes T-Mobile
will keep the CDRs in accordance with Dutch
legislation.
|
9.4 Financial
security
9.4.1.
***
***:
a. ELEPHANT
TALK has been declared bankrupt or has applied for bankruptcy according to
18.1
sub g, or;
b. ELEPHANT
TALK ***
***.
|
9.4.2.
|
T-Mobile
shall not require financial security as set out in 9.4.1as long as
the
‘***
|
T-Mobile
customers using ***
will
***.
For
***
ELEPHANT
TALK will issue an invoice to T-Mobile. Parties agree that as long as:
|
·
|
***
;
and
|
|
·
|
the
invoice for these ***
delivery
of the Hosting Services by T-Mobile according to this
Agreement,
|
article
9.4.1. shall not apply.
In
the
event that ELEPHANT TALK does not comply with the payment terms as set out
in
article 9.2.4., Parties agree that T-Mobile is entitled ***
ELEPHANT
TALK following the ‘***
with
the
amounts which ELEPHANT TALK ( or any of its Affiliates) is due to T-Mobile
according to this Agreement.
|
9.4.3.
|
As
soon as article 9.4.2. does no longer apply - ***.
|
10. CUSTOMER
CARE SUPPORT
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
10.1
|
ELEPHANT TALK shall for its own account and at its own cost maintain a customer support organization for ELEPHANT TALK Customers. In addition, T-Mobile shall provide second line customer care support to the back office of ELEPHANT TALK’s customer support organization, according to Appendix 1, 2 and 6. |
|
10.2
|
For
the avoidance of doubt, it is stated that Parties agree that
T-Mobile
shall not provide customer support services to ELEPHANT TALK Customers
(meaning
end-users of ELEPHANT TALK Customers) directly.
|
11. CONFIDENTIALITY
11.1 The
Parties agree that all aspects of the content of this Agreement shall be treated
as confidential and that no information in respect of the content and/or
existence of this Agreement shall be disclosed without the prior written consent
of both Parties. Neither Party shall make any public announcements, including
but not limited to press releases, articles, brochures, advertisements and
speeches, concerning this Agreement without the prior written consent of the
other Party. However,
ELEPHANT
TALK is
entitled to
communicate -
as far
as strictly necessary for the proper conclusion of its agreements- to
the
ELEPHANT TALK Customer that
its
services are provided by (the) T-Mobile (network).
ELEPHANT
TALK Customers shall be entitled to communicate that the network coverage is
provided by T-Mobile, only in case they are asked for it. Under no
circumstances, ELEPHANT TALK Customers shall make any public announcements,
including but not limited to press releases, commercial articles (not being
technical or business articles), brochures, advertisements, public speeches
and
other promotional material, that its services to mobile end-users are provided
by the T-Mobile network. Parties are aware of the fact that it might be
impossible for technical reasons to make a reference to the ELEPHANT TALK
(Customer) brand name on the display of devices and that the T-Mobile brand
name
may appear. ELEPHANT TALK shall do the utmost to ensure that the communication
to mobile telecommunication end-users- including the communication of ELEPHANT
TALK Customers - shall be in accordance with this article.
11.2 The
Parties hereby agree to treat all information exchanged between them
(hereinafter referred to as "Confidential Information") whether for the purposes
of this Agreement or not as confidential and agree not to disclose such
Confidential Information in any manner whatsoever in whole or in part
except
as
provided for in the article
11.4. The Parties may disclose Confidential Information only to employees,
attorneys at law and accountants or
other
professional advisers
who need
to know such Confidential Information for the purposes of participation in
the
discussions connected with this Agreement between the Parties and any
transaction resulting there from and who are informed of and bound to the
confidential nature of such Confidential Information.
11.3 Notwithstanding
the above, in the event that the receiving Party or (to
the
receiving Party’s knowledge)
anyone
to whom the Confidential Information
has been supplied to by the receiving Party receives a request to disclose
under
the terms of a subpoena, order, civil investigative demand or similar process
issued by a court of competent jurisdiction or by a governmental body all or
any
part of the Confidential Information, such receiving Party agrees to:
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
i.
|
notify
the disclosing Party promptly in writing of the existence, terms,
and
circumstances surrounding such
request;
|
|
ii.
|
consult
with the disclosing Party on the advisability of taking legally available
steps to resist or narrow such
request;
|
|
iii.
|
give
the disclosing Party the opportunity to defend, limit or protect
against
such disclosure;
|
|
iv.
|
if
disclosure of such information is lawfully required, furnish only
that
portion of the Confidential Information which is legally necessary
or
appropriate in the light of all the circumstances and seek to obtain
confidential treatment for any information required to be disclosed.
|
11.4 For
the
purposes of this Agreement, Confidential Information shall not be considered
to
be confidential if such Confidential Information is:
a) in
or
passed into the public domain other than by breach of this Agreement;
or
b) known
to
the receiving Party prior to the disclosure by the disclosing Party without
any
obligation of confidentiality; or
c) disclosed
to a receiving Party without restriction by a third party having the full right
to disclose; or
d) independently
developed by a receiving Party to whom no disclosure of Confidential Information
relevant to the development of such Confidential Information has been
made.
11.5 This
article
11
shall survive the termination of this Agreement as provided for in articles
17
and
18
for a
period of two (2) years but shall not in any way limit or restrict either
Party's use of its own Confidential Information.
12. LIMITATION
OF LIABILITY
12.1 Without
prejudice to the provisions expressly stated elsewhere in this Agreement, a
Party's liability for damage suffered by the other Party, attributable to the
first mentioned Party or a person for whom it is liable by law, shall be
limited
to
the
following events,
and the
following amounts:
|
a)
|
for
direct damage to physical goods (property damage or “zaakschade”) or
directly resulting from death or personal injury: up to a maximum
of
***
per
event or series of connected events and up to a further maximum of
***
for
all events (connected or not) in any period of 12 calendar
months;
|
| b) | for damage directly resulting from a material breach of this Agreement: up to a maximum *** or *** as set out in Appendix 2), whatever amount is the highest, in any period of 12 calendar months. |
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
12.2
|
In no event shall either Party be liable for indirect or consequential loss or damage, including but not limited to, loss of profit, loss of sales or turnover, loss of or damage to reputation, loss of contract, loss of business, loss of anticipated savings and interest, increased operation costs, increase maintenance costs even if such loss or damage was reasonably foreseeable or if a Party had been advised by the other Party of the possibility of incurring such loss or damage. |
|
12.3
|
In
no event shall any employee of either Party or of an Affiliated Company
be
liable to the other Party for any act of negligence or intent under
or in
connection with this Agreement. Save for the limitations in articles
12.1 and 12.2 nothing in the foregoing shall in any way restrict
the
liability of either Party for the actions of its
employees.
|
|
12.4
|
Limitation
of liability as described in this article
shall not apply:
|
|
a)
in
case
the
damage or loss is caused by a Party's willful misconduct (including
fraud)
or gross negligence,
or
|
|
b)
in case of a breach of a Parties obligation under article 11
(confidentiality) and article 15 (indemnification for breach of
intellectual property rights).
|
| 12.5 | Any claim for damages must be notified to the other Party within six (6) months as from the date on which the damage was caused, failing which such claim is deemed to be waived. |
| 12.6 | ELEPHANT TALK will be fully responsible for the settlement of, and shall indemnify (“vrijwaren”) T-Mobile against any claims made by ELEPHANT TALK Customers or third parties with whom ELEPHANT TALK has a (contractual) relationship and which claims are related to this (contractual) relationship |
13. SUSPENSION
AND TERMINATION OF HOSTING SERVICES
|
13.1
|
Notwithstanding
anything stipulated in the Agreement, T-Mobile
may without liability suspend or terminate whole
or
part of the Hosting
Services
in
relation to one or more ELEPHANT
TALK Customers,
in circumstances where T-Mobile would
suspend or terminate those services to its own customers, in
the following circumstances - or circumstances of similar
severity.
|
a) ***;
b) ***;
or
c) suspected
fraudulent or unauthorized use by the relevant ***;
or
|
d)
|
necessary
maintenance or enhancement of the T-Mobile
Network.
|
In
the
event of planned suspension or termination of all or any of the Hosting
Services,
T-Mobile
shall
inform ELEPHANT TALK accordingly by sending a written notification, as soon
as
reasonably and business wise possible.
|
13.2
|
Furthermore,
T-Mobile
may without liability temporarily suspend all or any of its Hosting
Services
to ELEPHANT TALK if a (partial or temporary) breakdown on
the T-Mobile
Network
should occur. Such temporarily suspension shall - to the extent possible
-
be limited to the Location Areas where the temporarily breakdown
occurs.
Immediately after the T-Mobile
Network has been restored, T-Mobile
shall take all appropriate measures in order to re-establish the
Hosting
Services
with the shortest possible delay, in accordance with the procedures
as
described in Appendix 6.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
13.3
|
T-Mobile
may without liability limit at its own discretion the
availability
of all or any of the Hosting
Services
above the level of the traffic forecasts of Hosting
Services
as defined in article
5
and Appendix 4, provided that the provision of these Hosting Services
-above the level of the traffic forecasts - to ELEPHANT TALK have
a
noticeable negative impact on the quality of the T-Mobile Network
and on
the provision of services to T-Mobile customers.
|
14. FORCE
MAJEURE
|
14.1
|
Non-performance
by either Party of its obligations pursuant to this Agreement or
delay in
performing the same shall not constitute a breach of the Agreement
if and
for as long as it is due to a force majeure event, including, but
not
limited to, government action or requirement of regulatory authority,
lock-outs, strikes, shortage of transportation, war, terrorist attacks,
rebellion or other military action, fire, floods, natural
catastrophes,
that
a
Party is not able to overcome with reasonable and
proportional efforts,
or a
non-performance
of obligations by a sub-contractor to
a Party
-
in circumstances where it is reasonably impossible for that Party
or an
other sub-contractor to perform such obligation instead -,
pursuant to any of the aforementioned
reasons.
|
|
14.2
|
The
Party prevented from fulfilling its obligations shall on becoming
aware of
such event inform the other Party in writing of such force majeure
event
as soon as possible.
|
If
the
affected Party fails to inform the other Party of the occurrence of a force
majeure event as set out in article
14.1 above, then such Party thereafter shall not be entitled to refer such
events to force majeure as a reason for non-fulfillment. This obligation does
not apply if the force majeure event is known by both Parties or the affected
Party is unable to inform the other Party due to the force majeure
event.
|
14.3
|
If
the force majeure event continues for more than two
(2)
consecutive calendar weeks,
then the Parties shall promptly meet and discuss methods to resolve
the
difficulties arising from the event of force majeure. If no agreement
is
reached by the Parties within a period of
fifteen(15)
Calendar Days
and the force majeure event continues to have a substantial effect
on the
performance of the Agreement,
either Party shall have the right to terminate this Agreement in
whole or
in part with immediate effect by written notice without incurring
any
financial liability to the other Party as a consequence of such
termination.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
15. INTELLECTUAL
PROPERTY RIGHTS
|
15.1
|
This
Agreement does not imply any transfer of intellectual property right.
Neither
Party
shall use the other Party's name, trademarks, service marks or other
intellectual property rights without the other Party’s prior written
consent.
ELEPHANT TALK shall guarantee that in any agreement it concludes
with
ELEPHANT TALK Customers the following provision will be included:
‘In
no circumstances, [X] shall use T-Mobile’s name, trademarks, service marks
or other intellectual property rights in public announcements, including
but not limited to press releases, commercial articles (not being
technical or business articles), brochures, advertisements public
speeches
and other promotional
material.’
|
|
15.2
|
ELEPHANT
TALK is allowed to market and sell its services to ELEPHANT TALK
Customers
under a brand name chosen by ELEPHANT TALK. However, ELEPHANT TALK
shall
not use any logos, names or other material that bears, is similar
or
refers to any intellectual property right of T-Mobile
or
T-Mobile
competitors (meaning mobile network operators, mobile virtual network
operators and enhanced service providers in The Netherlands) without
prior
written approval of T-Mobile.
|
|
15.3
|
When
marketing its ELEPHANT TALK Wholesale
Services
in The Netherlands, ELEPHANT TALK shall refrain from using comparative
advertising, in any form of media, in relation to T-Mobile’s,
including its Affiliate’s, products and/or
services.
|
|
15.4
|
ELEPHANT
TALK will defend, indemnify and will hold T-Mobile
harmless from and against any claim and
costs assessed
against T-Mobile
by
a third party alleging that the ELEPHANT TALK Wholesale
Services,
constitute an infringement of any third party's intellectual property
rights in
circumstances where the alleged infringement is attributable to ELEPHANT
TALK and in no way the fault of T-Mobile
or
its Affiliated
Company.
If such a claim is
valid,
ELEPHANT TALK shall make the modifications needed to cease the
infringement at its own
expense as soon as possible. Such modifications will not have any
impact
on the functionality and costs of the provided Hosting
Services.
ELEPHANT TALK shall inform T-Mobile on any of such modifications
as soon
as possible.
|
| 15.5 | T-Mobile shall retain all right, title and interest in and to the Hosting Services, including all intellectual property rights therein and any modifications or enhancements thereof. |
| 15.6 | T-Mobile hereby grants ELEPHANT TALK a fully paid-up, non-exclusive licence to use the Hosting Services for the purpose of ELEPHANT TALK in providing the ELEPHANT TALK Wholesale Services during the term of this Agreement without further consideration. This licence granted shall take effect on the date that the relevant Hosting Services is first used by or on behalf of ELEPHANT TALK to provide the ELEPHANT TALK Wholesale Services under this Agreement. |
16. SIM
CARDS & CALLING CREDIT
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
16.1
|
ELEPHANT
TALK shall order and purchase SIM cards.
|
|
16.2
|
In
principle the ***
will
be of ***
will
remain the property of T-Mobile at all times.
|
|
16.3
|
T-Mobile
shall retain at all times
full ownership of its intellectual property rights vested in the
software
(including T-Moible’s and
its supplier related software and codes, but excluding typical ELEPHANT
TALK’s and/or other
party’s content)
contained in the T-Mobile
IMSI’s.
|
| 16.4 | Parties agree that they will re-discuss the provisioning of a ***, the implementation and associated costs of the *** shall be considered part of the Agreement and therefore shall not result in additional costs for ELEPHANT TALK provided that no *** are involved. ELEPHANT TALK shall retain at all times full ownership of its intellectual property rights vested in the software contained in the ***. . |
|
16.5
|
T-Mobile
has a strict policy with respect to the usage of ***
(also
known as "***
")
and any other devices that ***”).
These ***
are
under no circumstances allowed on the T-Mobile
Network. ELEPHANT TALK is aware of T-Mobile’s
position with respect to these ***
and
will refrain
from using
***
or
from
doing business with any party
(including ELEPHANT TALK’s Customers),
who uses these ***
to
the T-Mobile
Network. Furthermore,
duplicating
the ***
or
functionalities of the ***
without
the explicit prior written approval of T-Mobile
is
forbidden. ELEPHANT
TALK will (contractually) inform the ELEPHANT TALK Customers that
they
will refrain from using ***
or
***.
T-Mobile herewith gives ELEPHANT TALK approval to ***
once,
only for the purpose of supplying ***
as
commonly known in the market at the moment of signing the Agreement,
to
ELEPHANT TALK Customers, only to be used by end users of ELEPHANT
TALK
Customers for normal end user purposes. Parties
shall use their reasonable
endeavors to co-operate in order to prevent and clarify any
misuse of ***
or
use of ***.
In
the event that T-Mobile
discovers such improper use or forbidden acts of ELEPHANT TALK
Customers, Parties
shall
contact each other’s fraud manager immediately, in order to stipulate
details and take appropriate measures. In
addition, ELEPHANT
TALK shall do its best
to stop these actions immediately on first request of T-Mobile.
Should
ELEPHANT TALK wilfully
or negligently fail to comply with an T-Mobile request, ELEPHANT
TALK shall
bear full responsibility and indemnify T-Mobile for all
damages and losses T-Mobile
suffers resulting
from actions as mentioned in this article by ELEPHANT TALK’s
Customers.
|
17. DURATION
OF THE AGREEMENT
|
17.1
|
This
Agreement shall come into force on the Date of the Agreement, and
shall,
subject to article
18,
remain in full force and effect for an initial period of ***
from
the
Commercial Launch Date.
|
|
17.2
|
The
Agreement may be terminated by both Parties with a notification period
of
***
before the end of the Initial Term of the Agreement. If no termination
notice is provided, the Agreement will be automatically extended
for
consecutive ***
periods until such time as ***
termination notice is provided. At the end of ***
Parties will negotiate in good faith regarding a possible extension
of the
Initial Term.
|
|
Parties
can mutually agree in writing to deviate from an automatic extension
of
***
by extending this Agreement for a longer period than ***.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
18. TERMINATION
OF AGREEMENT
|
18.1
|
In
addition to the conditions of Article 17,
this Agreement may be terminated as
follows:
|
|
a.
|
by
mutual agreement of the Parties; or
|
|
b.
|
by
either Party,
with immediate effect, if the
other Party
is
in material breach of any provision of this Agreement and does not
or is
not capable of remedying such breach within a reasonable time and
in
any
event within sixty
(60)
Business Days of receipt of a written notice to such effect.
A
material breach will, for the purpose of this Agreement, not include
the
event that ELEPHANT TALK fails to comply with its payments obligations
under article 9.2.;
or
|
|
c.
|
by
T-Mobile,
if ELEPHANT TALK fails to comply with its obligations under article
16.5
upon written notification thereof by T-Mobile,
within a reasonable period of time following the respective notification
date (but in no event later than forty-five (45) Business Days of
receipt
of a written notice to such effect);
or,
|
|
d.
|
by
T-Mobile,
subject
to ***
.
In
the present situation ***;
or
|
|
e.
|
by
T-Mobile
or
its successors,
***.;
or,
|
|
f.
|
by
ELEPHANT TALK, subject
to ***
and
this entity is at the time of signing of ***;
or
|
|
g..
|
by
either Party, with immediate effect, if the other Party becomes bankrupt
or insolvent (or
bankruptcy or insolvency is appropriately
requested
for) or is liquidated or dissolved other than for the purpose of
a bona
fide reconstruction or amalgamation, or if that other Party enters
into
any composition or arrangements with its creditors;
or,
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
| 18.2 | In case the number of frequencies or the use of the frequencies allocated to the T-Mobile Network is reduced pursuant to Regulatory Provisions the Parties shall renegotiate in good faith the commercial conditions of this Agreement in order to comply with Regulatory Provisions. |
|
18.3
|
In
the event that T-Mobile is in material breach and ELEPHANT TALK terminates
the Agreement according to article 18.1.b, ***.
|
|
18.4
|
This
Agreement will terminate immediately in the event that a final order
made
by the relevant governmental authority not granting, revoking or
denying
renewal of T-Mobile
DCS 1800 or
UMTS/HSDPA license
or permission to operate the T-Mobile
Network or any other license to operate the
Hosting
Services, takes effect, if such order will be beyond the reasonable
control of T-Mobile.
|
19. MODIFICATIONS
|
19.1
|
Any
modifications and/or additions to this Agreement and/or the Appendices
shall be valid only if made in writing and signed by duly authorized
representatives of both Parties.
|
|
19.2
|
If
a Party requests a modification of this Agreement because (a) a material
change occurs in the laws and regulations governing telecommunications
in
the Netherlands, or (b) a material change (including enforcement
action by
any regulatory authority) occurs which affects or reasonably could
affect
the commercial and technical basis of this Agreement, Parties shall
enter
into good faith negotiations in
order to determine
if a modification of the Agreement is necessary and if so agree
upon the way to implement the required changes in or modifications
to this
Agreement.
|
|
19.3
|
Parties
agree that the Operational Manual can only be
modified by T-Mobile’s
account manager upon consultation with ELEPHANT TALK’s authorized
account
manager and
with the subsequent written agreement of ELEPHANT TALK
and T-Mobile.
|
20. MISCELLANEOUS
20.1 Successors,
Assigns
This
Agreement and the rights and obligations specified herein shall be binding
upon
the Parties and their respective legal successors and neither Party shall sell,
transfer or assign this Agreement or any part, interest, right or obligation
hereunder except that a Party shall have the right to transfer or assign this
Agreement in whole (but not in part) to an Affiliated Company provided
that:
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
|
a)
|
such
Affiliated Company expressly assumes, by written instrument, all
of the
obligations of the Party under this Agreement and thereby becomes
a Party
to this Agreement, and
|
|
b)
|
such
Affiliated Company has adequate financial strength, resources and
experience in the reasonable opinion of the other Party (such opinion
to
be obtained in writing in advance of any assignment), to comply with
its
obligations under this Agreement. Such assignment shall not release
the
assigning Party of its obligations under article
11 of this Agreement.
|
No
person
other than a Party to this Agreement shall acquire any rights hereunder as
a
third-Party beneficiary or otherwise by virtue of this Agreement.
Both
Parties will remain independent and competing companies, will develop their
own
market strategy, and will address the market and the subscribers directly and
independently.
20.2 No
Waiver
Failure
by any Party at any time to require performance of any provisions of this
Agreement shall in no manner affect its rights to enforce the same, and the
waiver by any Party of any breach of any provision of this Agreement shall
not
be construed to be a waiver by such Party of any succeeding breach of such
provision or waiver by such Party of any breach of any other provision
hereof.
20.3 Severability
If
any
part of this Agreement or any Appendices hereto is held to be invalid or
unenforceable according to Regulatory Provisions, this shall not invalidate
any
other provisions of this Agreement or the Appendices hereto. The Parties shall
attempt through negotiations in good faith to replace any such provision of
this
Agreement or the Appendices so held to be invalid or unenforceable with a valid
provision which comes as close to the original economic understanding and
intention of the Parties as legally feasible.
The
same
applies insofar as this Agreement and/or its Appendices prove to have a gap.
In
this case, the Parties shall endeavor to close the gap through negotiations
conducted in good faith.
20.4 Entire
Agreement
|
20.4.1
|
This
Agreement and the documents referred to in it contain the whole Agreement
between the Parties relating to the subject matter of this Agreement
and
supersede all previous agreements and understandings whether written
or
oral between the Parties.
|
|
20.4.2
|
Each
Party acknowledges that in entering into this Agreement it shall
not rely
on any representation, warranty or other assurance except as set
out in
this Agreement.
|
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
20.5 Non-solicitation
Without
the prior written consent of
the
other Party,
a
Party
shall
not
at any time while this Agreement is in force and for a one-year period after
termination of this Agreement either for itself or on behalf of any other
company solicit, induce or cause any employee of the
other
Party or
any
Affiliated Company of this
other Party who
has
been a representative of or employed by the
other
Party in
connection with this Agreement to leave such employment. In case of violation
of
this article,
the
Party
shall
pay
to the
other
Party an
equivalent of eighteen (18) months gross salary of the respective
employee.
20.6 Survival
Any
provision of this Agreement which by its nature or implication (including in
respect of any accrued rights and liabilities) is required to survive
termination or expiry of this Agreement shall survive termination or expiry
as
aforesaid.
20.7 Notices
|
Any
notice or other formal communication to be given or made under or
in
connection with this Agreement, if not stated otherwise explicitly
in this
Agreement and its Appendices, shall be in writing, signed by or on
behalf
of the Party giving it and sent by registered mail. All notice or
other
formal communication to be delivered under this Agreement shall be
addressed to:
|
|
for
ELEPHANT TALK: the CTO;
|
|
for
T-Mobile: the Director Wholesale &
Interconnect.
|
20.8 Expenses
|
Each
Party shall bear its own costs and expenses including the fees of
its
professional advisors in relation to the preparation, execution and
carrying into effect of this Agreement and all other documents related
to
it.
|
20.9 Representation
Neither
Party may in any respect represent the other Party or enter into any agreement
or other commitment on behalf of the other Party except
as
provided for in this Agreement or agreed by the Parties in writing.
The
Agreement and conditions contained herein are only related to the Dutch market
and can not be referred to in discussions or deals with other T-Mobile companies
and/or Deutsche Telecom and their respective Affiliated Companies. Due to
amongst others market and country difference, T-Mobile expressly states and
ELEPHANT TALK agrees that this Agreement cannot and will not create any
precedent for any existing or future discussions between ELEPHANT TALK and
T-Mobile/Deutsche Telecom and their Affiliated Companies outside the
Netherlands;
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
21. GOVERNING
LAW
This
Agreement shall be governed by and construed in all respects exclusively in
accordance with the laws of the Netherlands.
22. DISPUTE
RESOLUTION
Any
dispute,
excluding invoice disputes as described in Appendix 7,
controversy or claim arising out of or in connection with any aspect of this
Agreement, or the breach, termination or invalidity thereof, shall:
|
a.
|
in
first instance be referred to the authorized account manager of either
Party. The account managers shall try to solve the dispute within
ten (10)
Business Days. If the dispute is not resolved within the latter period
the
appropriate managers of both account managers will seek for a resolution
within ten (10) Business Days;
and
|
|
b.
|
Thereafter,
if the matter is not resolved, it shall be referred to the Chief
Executive
Officers of the Managing Boards of the Parties for a further period
of ten
(10) Business Days for resolution;
and
|
Thereafter,
if the matter remains unresolved, it shall exclusively be referred and finally
settled by the competent court in The Hague within the jurisdiction of the
Netherlands.
CONFIDENTIAL
TREATMENT REQUESTED
WITH
RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED
WITH “***”
Hosting
Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008
23. COUNTERPART
The
Agreement is written in the English language in two (2) copies, each
Party
receiving one (1) duly signed copy. Both copies are authentic.
Signed
in
September 17, 2008
|
For
T-Mobile Netherlands B.V.
/s/
Niek Xxx xxx Xxxxx
Name:
Xx.
Xxxx
Xxx xxx Xxxxx
Title:
Managing
Director
|
For Elephant
Talk Communication
Holding AG
/s/
Xxxxxx van der Velden
Name:
Mr. Xxxxxx van der Velden
Title:
CEO
|
|
For
T-Mobile Netherlands B.V.
/s/
Xxxx
xxx Xxxxxxx
Name:
Xxxx
xxx Xxxxxxx
Title:
Financieel
Directeur
|
For
Elephant
Talk Communication
Holding AG
/s/
Xxxxxx Xxxxxxxx
Name:
Xx.
Xxxxxx
Xxxxxxxx
Title:
CTO/COO
|
____________________________
