EXHIBIT 10.13
[ZIM]
SMS GATEWAY SERVICE AGREEMENT
BETWEEN
SIT Consulting
AND
ZIM CORPORATION
1. AGREEMENT
THIS AGREEMENT is made on the 27th day of October 2004 by and between
(1) SIT Consulting, a company duly incorporated and existing under the laws
of and having its registered office at ("SIT Consulting")
AND
(2) ZIM CORPORATION a company duly incorporated and existing under the laws
of the Province of Ontario, Canada and having its registered office at
00 Xxxxxxxxx, Xxxxx 000 Xxxxxx, Xxxxxxx ("ZIM")
WHEREAS ZIM is providing SMS message delivery solution for the delivery of
one-way and two-way SMS messages on behalf of SIT CONSULTING for a period of
twelve months.
THEREFORE the parties hereto agree as follows:
2. TARGET OF THE AGREEMENT
Under this agreement, ZIM will, on behalf of SIT CONSULTING, receive and provide
the delivery of SMS messages sent to and from SIT CONSULTING Short Code to
cellular telephones, which addresses and content of messages shall be provided
by SIT CONSULTING to ZIM. This message receipt and delivery service shall be
provided by ZIM to SIT CONSULTING under the terms of this agreement and
according to the Price List and Terms of Payment and Delivery as outlined in
Appendix A.
The target launch date for the services detailed in this Agreement is
11/01/2004.
The agreement will be in effect for twelve months after the target launch date
of execution, and automatically renew for 12 month periods, unless either party
indicates otherwise in writing at least 3 months prior to the current expiry
date. The sharing of recurring revenue for existing customers under this
agreement will continue under the scheme as long as the revenue continues and
the supports for these customers will still be provided under the same
conditions outlined in this agreement.
3. ZIM'S OBLIGATIONS
ZIM will provide the following to SIT CONSULTING under this agreement at
the discretion of both SIT CONSULTING and ZIM.
SET UP SERVICES TO INCLUDE:
o Creation of a domain for SIT CONSULTING application on portal hardware
o Creation of SIT CONSULTING/ZIM database to accommodate SIT CONSULTING
outgoing messages
o Define a set of database agents to handle SIT CONSULTING specific
messaging requests
o Create URL to enable SIT CONSULTING to get their requests and call the
database agents
DEVELOPMENT:
o Development of a ZIM program behind the URL for the receipt of SIT
CONSULTING requests and:
o Verify the message recipient address number
o If the address/number exists:
|X| sends the message and
|X| sends a success status message to the application
that sent the request
o If the address/number doesn't exist
|X| sends a failure status message to the application
that sent the request
o Logs the request and the status (success - failure) in a
database
o Create log report
o Quality Assurance testing of all development components
4. SIT CONSULTING'S OBLIGATIONS
SIT CONSULTING acknowledges and understands that all messages delivered
will be at the request of SIT CONSULTING. SIT CONSULTING will use its best
efforts to ensure that messages are delivered only if requested by the end user
through an opt-in method of SIT CONSULTING's choice. SIT CONSULTING will also
ensure that the content provided to ZIM for SMS message delivery will be
suitable and as requested by the end user. SIT CONSULTING will use their best
efforts to not provide requests to ZIM for message delivery which would be
considered SPAM or not requested by the end-user.
SIT CONSULTING will ensure that ZIM receives all necessary access to
SIT CONSULTING systems and information in order to effectively implement the
agreement as defined.
5. GENERAL OBLIGATIONS
Both parties shall comply with all applicable laws and regulations including,
without limitation, those relating to data protection and consumer protection.
Each party hereby indemnifies the other from and against any claims, demands,
losses, damages, liabilities, legal proceedings, judgments and awards, and
reasonable costs and expenses (including reasonable legal fees and related costs
and any tax obligations, and any consequential losses or lost profits) arising
out of any breach of this agreement by that party.
Both parties acknowledge and agree that each party or its group of companies
and/or partners own the names, logos and trademarks and/or service marks related
to ZIM and SIT CONSULTING services. The use of these names, logos and trademarks
and/or service marks may only be used by the other party subject to the
respective party's prior written approval, and such consent shall not be
unreasonable withheld.
Both parties authorize each other to refer to this partnership agreement in
their respective promotional programs as a business reference, without first
obtaining permission from the other party, so long as this does not infringe on
the rights or obligations of either party. All press release inclusions will
require mutual consent of the parties.
6. COMMERCIAL TERMS
Refer to Appendix A- Pricing & Terms of Payment
7. TERRITORY
The territory of this Agreement shall be for Canada only. For the avoidance of
doubt, other countries may be added to the territory following mutual agreement
between the two Parties hereto.
8. CONFIDENTIALITY
The Parties shall treat all material and information, including this Agreement,
which is delivered by the other Party in order to perform its obligations under
this agreement as confidential. The Parties shall not disclose such confidential
information to a third party without a prior written consent of the other Party.
This obligation shall survive the termination of this Agreement.
9. LIABILITY FOR DAMAGES AND LIMITATION OF LIABILITY
THIS SERVICE AND ALL CONTENT ARE PROVIDED AND DISTRIBUTED ON AN "AS IS" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SERVICE
IS AT YOUR SOLE RISK. ZIM SHALL NOT BE LIABLE FOR ANY DELAYS, INACCURACIES,
ERRORS OR OMISSIONS IN ANY CONTENT OR THE TRANSMISSION OR DELIVERY OF ALL OR ANY
PART THEREOF, OR FOR ANY DAMAGES ARISING THEREFROM.
Neither party will be responsible for any direct or indirect, consequential,
special, lost profits, or exemplary damages arising under this agreement.
Neither party shall be liable to the other for any failure or delay resulting
from any governmental action, fire, flood, earthquake, power failure, riot,
explosion, labour or material shortage, and carrier interruption of any kind,
work slowdown or any other condition beyond that party's control affecting its
ability to perform its duties and obligations under this agreement.
10. INTELLECTUAL PROPERTY RIGHTS
Notwithstanding the foregoing, all trade and service marks, inventions, patents,
copyrights, registered designs, design rights, and all other intellectual
property rights as existing prior to this Agreement shall, be and remain in the
ownership of the relevant Party. Except as expressly stated otherwise in this
Agreement, nothing herein shall confer or be deemed to confer on either Party
expressly, implied or otherwise, any rights or licenses in the intellectual
property of the other.
11. LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with laws of the
Province of Ontario. Arbitration shall be held in the English language.
Any dispute arising out of this Agreement shall in the first instance be
resolved by negotiations between the Parties.
12. TERMINATION
Each party shall have the right to terminate this Agreement with an immediate
effect with a 30 day written notice to the other party.
13. COUNTERPARTS, SIGNATURES
THIS AGREEMENT HAS BEEN EXECUTED IN TWO (2) IDENTICAL COUNTERPARTS, ONE (1) FOR
EACH PARTY.
SIT CONSULTING S.L. ZIM CORPORATION
(Client)
/s/ Xxxxxxx Xxxxxxxx
/s/ Enric Sole Roige
----------------------------- ----------------------------
(Signature) (Signature)
ENRIC SOLE ROIGE XXXXXXX XXXXXXXX
-----------------------------
Name (Print)
CEO - DIRECTOR VP, MOBILE SALES
-----------------------------
Title
October 28, 2004 November 2, 2004
----------------------------- ----------------------------
Date Date
APPENDIX A - PRICING AND TERMS OF PAYMENT.
1. SET UP FEE: Waived for SIT Consulting
2. MONTHLY MAINTENANCE: Waived for SIT Consulting
3. COST PER MESSAGE (BULK SMS MESSAGING):
SIT CONSULTING will be charged the following special rates, on a per-message
basis, for all SMS delivery to Spain, UK, Canada and USA:
--------------------------------------------------------------------------------
MESSAGE VOLUME PER MESSAGE COST
--------------------------------------------------------------------------------
0 to 500,000 (euro)0.050
500,000 to 50,000 (euro)0.047
750,000 to 1M+ (euro)0.045
--------------------------------------------------------------------------------
SIT Consulting must prepay all SMS messages for the first three months of
traffic generated with ZIM Corporation. Following that ZIM and SIT will agree to
new credit terms that are satisfactory to both parties on a basis of 90 days
after monthly period. Please make payments to:
HSBC PLC
Account Name: ZIM Corporation
Account Number: 00000000
Sort Code: 40-03-16
ZIM will supply a monthly account statement reflecting all messages sent and
received for each completed calendar month.
All pricing amounts are in Euro currency excluding any applicable taxes.
APPENDIX B - SUPPORT AND CONTACT INFORMATION
CUSTOMER SUPPORT: x00 0000 000 000 X000
XXXXXXX@XXX.XXX
SALES AND MARKETING: x00 0000 000 000 X000
XXXXXXX XXXXXXXX, XXXXXXXXX@XXX.XXX
VP, MOBILE SALES
