Partner Agreement between Vodafone D2 GmbH Am Seestern 1 40547 Düsseldorf (hereinafter referred to as “VF D2”) and Twistbox Games Ltd & Co KG Lohbachstr. 12 58239 Schwerte Germany (hereinafter referred to as “ASP”)
between
Xxxxxxxx
X0 XxxX
Xx
Xxxxxxxx 0
00000
Xxxxxxxxxx
(hereinafter
referred to as “VF
D2”)
and
Twistbox
Games Ltd & Co KG
Xxxxxxxxxx.
00
00000
Xxxxxxxx
Xxxxxxx
(hereinafter
referred to as “ASP”)
I. Subject
of Agreement
Provision
of the Application by the ASP for use on the VF D2 portals such as, but not
limited to the portal “Vodafone-live” in compliance with VF D2’s general terms
and conditions for Partner Agreements as set out in the version of such terms
and conditions dated 27.08.2007 (hereinafter referred to as (“AGB”) as Annex
1.
II. Type
of the Application
For
all
types of product mobile games and applications unless otherwise agreed.
III. End
user device compatibility
ASP
is
responsible for the best possible support of handsets which are stipulated
in
the Annex 2 of this Partner Agreement. Furthermore the ASP is also responsible
for delivering reasonable application updates for supporting new
handsets.
IV. Rights
of use
o Only
German Vodafone Portals o Others:
_______________________________
1
V. Brands
to be offered for use by VF D2
___________________________________________________________________________________________________
o
Co-branding with the ASP’s brand agreed
VI. Normal
price
For
the
avoidance of doubt, VF D2 is free to set its own charges for subscriptions
for
end users in accordance with the AGB.
VII. Subscription
fee revenue share
If
not
otherwise agreed between the parties, the following revenue share shall
apply:
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] ASP
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]VF
D2
Calculation
basis, pre-product deductions, free usages, calculation clauses for packs as
well as all accounting and payment provisions are subject to the
AGB.
VIII. ASP’s
minimum fee in the event of discounts or packs
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
EUR
IX. ASP’s
Bank
Dortmunder
Volksbank eG
Credit
to: Charismatix Ltd. & Co. KG
Account
number: 000 000 0000
Iban#:
XX00 00000000 0000 0000 00
Reference:
BIC XXXXXXXXXXX
Bank
Code: 441600 14
X. Term
Initial
term: [INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2] beginning August 27th, 2007
Option
to
extend the term in favour of VF D2:
o
yes o
no
Optional
term:
Automatic
unlimited extension of the Term if not terminated: o yes
o no
2
Any
time
after the initial term, either party may terminate this Partner Agreement upon
at least [INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER
RULE 24B-2] prior written notice to the other party which such notice shall
be
delivered on or before the 15th
of June
or the 15th
of
December of any year after the expiration of the initial term.
XI. ASP
Contact persons
|
Business
Development:
|
Name:
eMail:
Telephone:
|
|
Technical
(Mo-Fri 8-18):
|
Name:
eMail:
Telephone:
|
|
Editorial:
|
Name:
eMail:
Telephone:
|
|
Customer
Care:
|
Name:
eMail:
Telephone:
Mobile:
|
XII. Preferred
Aggregator;
1.
Preferred Aggregator. ASP shall be the main (preferred) content aggregator
for
the Games and Application Service by VF D2 such that any new third party which
desires to distribute Games and Applications under a local agreement must first
enter into negotiations for a license agreement with ASP on commercially
reasonable terms and conditions in order for such third party’s Games and
Applications to be available via VF D2. [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
2.
VF D2
guarantees to ASP [INFORMATION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION UNDER RULE 24B-2] launch slots per month for erotic games designated
as 18+ in addition to any other agreed launch slots between parties.
[INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
XIII. Special
agreements and miscellaneous
1.
RIGHT
TO AUDIT
VF
D2
will keep accurate and complete records, in accordance with generally accepted
accounting principles, in order to determine the accuracy of VF D2’s reports and
payments and retain such records for at least two (2) years following their
generation. ASP, or its representative, will have the right, subject to ten
(10)
days prior written notice to VF D2, to examine, audit, and review all applicable
records and accounts once each calendar year during VF D2’s normal business
hours for so long as this contract is valid. VF D2 will pay to ASP all amounts
discovered to be due ASP as a result of any audit within thirty (30) days of
invoice. In addition, in the event any such audit by ASP reveals a discrepancy
of five percent (10%) or more in ASP’s favor, VF D2 will pay all reasonable
costs of ASP’s audit, and such costs shall be added to ASP’s invoice for amounts
due.
3
2. NOTICES
Any
written notice given under this Agreement shall be to the addresses set forth
below. The notice shall be deemed duly given, if delivered by hand, on the
same
business day it was delivered, or on the next business day if delivered on
a
non-business day. The notice shall be deemed duly given, if delivered by
facsimile, upon receipt of confirmation from an employee of the receiving party.
The notice shall be deemed duly given, if sent by prepaid overnight, registered
or certified mail, on the day of receipt. The failure to send a notice copy
shall not affect the validity of any notice otherwise properly sent and actually
received by a party.
Notice
to
ASP to be provided as follows:
|
If
by mail
|
Twistbox
Entertainment, Inc.
|
|
|
or
facsimile:
|
00000
Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx
Xxxx, Xxxxxxxxxx 00000 XXX
Attn:
International Sales/Distribution
Attn:
EVP/General Counsel
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxx.xxx
|
|
|
With
a copy to:
|
Twistbox
Games Ltd & Co KG
Xxxxxxxxxx.
00
00000
Xxxxxxxx - Xxxxxxx
Attn:
Eugen Barteska
Email:
xxxxxxxxx@xxxxxxxx.xxx
|
3. ASSIGNMENT
Either
party may assign this Partner Agreement, without the consent of the other party,
in the event of an assignment by either party: (i) to a successor entity
resulting from a merger, combination or consolidation; (ii) to the transferee
of
all or substantially all of the assets of the assigning party or its parent(s);
or (iii) to an entity under common control with, controlled by or in control
of
the assigning party. In the case of ASP, it shall not assign this Partner
Agreement to a competitor of VF D2.
4. INDEMNIFICATION
Each
party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the
other party (including its parents, subsidiaries and affiliated companies),
and
its directors, officers, employees, successors, licensees, assignees, attorneys
and agents
(the “Indemnified Party(ies)”) from and against any and all claims, losses,
deficiencies, damages liabilities, costs, and expenses (including but not
limited to reasonable attorney fees and related costs and expenses) incurred
by
the Indemnified Party(ies) as a result of any claim, judgment, or adjudication
against the Indemnifying Party arising from any breach or alleged breach of
any
of the Indemnifying Party’s covenants, obligations, representations or
warranties under this Partner Agreement; provided that, the Indemnified
Party(ies) promptly notify the Indemnifying Party in writing of any such claim
and gives the Indemnifying Party the opportunity to defend or settle such claim
at the Indemnifying Party’s expense and cooperates with the Indemnifying Party
in defending or settling such a claim.
4
5. LIMITED
LIABILITY
IN
NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL DAMAGES (German
explanation: entfernter Mangelfolgeschaden) ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT OR ANY MATTER RELATED HERETO, INCLUDING WITHOUT
LIMITATION, LOST BUSINESS OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY
OF
SUCH DAMAGES. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT
SHALL TWISTBOX’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED, IN THE
AGGREGATE, THE TOTAL AMOUNT PAID BY VF D2 TO ASP AS OF THE DATE ASP BECOMES
LIABLE FOR ANY SUCH DAMAGES HEREUNDER.
6. SURVIVAL
All
representations, warranties indemnifications and payment obligations contained
in this Partner Agreement shall survive the termination and/or expiration of
this Partner Agreement
7. VF
D2
REPRESENTATIONS AND WARRANTIES
7.1 VF
D2
represents and warrants as follows: (VF legal: remove paragraph)
| (a) |
it
has full authority and ability to enter into and perform its obligations
under this Partner Agreement.
|
| (b) |
it
has not and will not undertake any action which might impair the
exercise
of ASP’s full rights under this
Agreement.
|
| (c) |
VF
D2 will, on a continuing basis, use its best efforts to ensure the
content
is distributed only where receipt and viewing of such content is
lawful
and within the contemporary community
standards.
|
| (d) |
VF
D2 shall not make edits, modifications, changes or otherwise manipulate
or
rearrange the content without ASP’s prior written consent, which may be
withheld in ASP’s sole discretion.
|
5
This
Partner Agreement is subject to VF D2’s general terms and conditions for Partner
Agreements as set out in the version of such terms and conditions dated
15.03.2005 (Annex 1). Any conflicts between the terms of this Partner Agreement
and the terms of VF D2’s general terms and conditions for Partner Agreements,
the terms of this Partner Agreement shall govern the rights and obligations
of
the parties.
|
Xxxxxxxxxx,
00.00.0000
|
Xxxxxxxx,
AUG. 27, 2007
|
||
|
/s/
Xxxxxxxx Xxxxxx
|
/s/
Xxx Xxxxx
|
||
|
for
VF D2
|
for
the ASP
|
||
|
/s/
Xxxxxxxx Xxxxxx
|
|||
|
for
VF D2
|
Annex
1: General
Terms and Conditions for Partner Agreements
Annex
2: Vodafone
D2 Java Games & Applications Local Submission Specifications
*WE
HAVE REQUESTED CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS CONTAINED IN THIS
EXHIBIT. THE COPY FILED AS AN EXHIBIT OMITS THE INFORMATION SUBJECT TO THE
CONFIDENTIALITY REQUEST.*
6
GENERAL
TERMS AND CONDITIONS
FOR
PARTNER-CONTRACTS CONCERNING JAVA- APPLICATIONS
of
Vodafone
D2 GmbH, Am Xxxxxxxx 0, X-00000 Xxxxxxxxxx, Xxxxxxx
(hereinafter
“VF D2”)
| 1 |
Preamble
|
| 1.1 |
VF
D2 is a company belonging to the Vodafone Group, which does business
internationally. VF D2 operates several Vodafone portals among which
are
the portals “Vodafone-live”, “Vodafone WAP” and “Vodafone Web” and
provides data for portals operated by Vodafone Group service providers,
all of which are so-called “multi-access portals” (hereinafter jointly
referred to as the “Portal”), through which third-party users
(hereinafter, “End Users”) are given access to data which is, if
necessary, transmitted to them. This data may be in the form of texts,
pictures, and sounds, singly or also in combined form or integrated
into
software programs (such data integrated into software programs such
as but
not limited to java-applications which represent mobile games hereinafter
referred to as “Application(s)”).
|
| 1.2 |
“Service
Provider” in terms of this General Terms and Conditions for
Partner-Contracts Concerning Java Applications (the “Agreement”) shall
mean providers of telecommunications services distributing on their
own
behalf and for their own account telecommunications services provided
via
the Vodafone telecommunications network to End
Users.
|
| 1.3 |
Access
to data on the Portal and Applications shall be effected regardless
of the
type of the device used in the individual case so long as ASP’s
obligations hereunder ex-tend to such device. Data access is presently
made possible through the WWW and WAP, i.e., by means of mobile devices
(such as mobile telephones) or personal computers. VF D2 intends
to also
employ new ways and forms of data transmission in the
future.
|
| 1.4 |
The
Partner Agreement between the parties (the “Contract”) and this Agreement
shall regulate the provision of ASP’s Applications for use by End Users
through Portals and rights and duties of the parties in connection
thereto. Unless otherwise expressly stipulated in the Contract or
in this
Agreement, the provision and transmission of all Applications and
data
provided to the End Users by ASP shall be effected through VF D2
in its
own name.
|
| 2 |
ASP’s
Services
|
| 2.1 |
ASP
shall provide VF D2 with the Application described in the Contract
for use
on the Portal as stipulated in the Annex “Vodafone D2 Java Games &
Applications Local submissions
specifications”.
|
| 2.2 |
The
consideration rendered by the End Users for use of the Application
shall
entitle the End Users to use or to download the Application for the
frequency or the time (in case of the latter with unlimited frequency)
as
described in the contract for so long as any such End User complies
with
the applicable terms of use and contractual obligations of VF
D2.
|
The
End
User’s revocable right to use or to download ASP’s Application pursuant to this
Agreement and the Contract for a consideration paid in advance for a certain
time period or a certain number of times is referred to hereinafter as a
“Subscription”.
1
| 2.3 |
VF
D2 intends to offer the Application to the End User at the price
named in
the Contract (hereinafter, the “Normal Price”) per Subscription. The
parties agree that VF D2 shall be free to set its own charges for
Subscriptions for End Users.
|
| 2.4 |
ASP
shall carry out and fulfil its duties as set out in the Contract
and this
Agreement with commercially reasonable technical and commercial diligence
according to its best knowledge and ability. The Applications made
available by ASP shall be in compliance with the Contract and this
Agreement including technical specifications and other specifications
provided in advance by VF D2 and approved by ASP based on the Contract
and
this Agreement.
|
| 2.5 |
ASP
shall be entitled to establish a link from its Application to applications
of third persons only with the prior written approval of VF D2 in
each
individual case.
|
| 2.5.1 |
If
the Applications connect to an external server, i.e., one residing
outside
the Vodafone D2 network, that is hosted by the ASP itself or an agent
thereof, the document “Vodafone Service Level Agreement for Content
Partners” becomes part of the
contract.
|
| 3 |
Rights
of Use and Marketing
|
| 3.1 |
Unless
otherwise stated in the Contract, ASP grants VF D2 a non-exclusive
right
to provide third persons in Germany access to the Application via
a Portal
and/or to transmit the Application to third persons pursuant to the
terms
of this Agreement and the Contract. This license is limited in duration
to
the term of the Contract and in scope to third parties necessary
for
delivery and utilisation of the Services, and the license is only
transferable under the stipulations of the Contract and this Agreement.
FOR THE AVOIDANCE OF DOUBT, IT IS UNDERSTOOD THAT DUE TO VF D2’S
INTERNATIONAL ROAMING AGREEMENTS, GAMES AND APPLICATIONS MAY BE ACCESSED
BY A VF D2 CUSTOMER WHEN THE CUSTOMER IS PHYSICALLY OUTSIDE OF VF
D2’S
TERRITORY SIGNAL. SUCH INCIDENTAL ACCESS AND SIGNAL SPILLOVER WILL
NOT
CONSTITUTE A BREACH OF THIS
AGREEMENT.
|
| 3.2 |
In
particular, ASP grants VF D2 the right to copy and distribute the
Application and/or the results generated by it in whole or in part
by
means of on-demand procedure or by means of transfer in order to
make them
accessible for End Users. By the right of making available by means
of
on-demand procedure, the parties mean the utilisation of the Application
or parts thereof and/or its results in that they are stored in digital
form in a data processing system and can be requested by and/or
transmitted to End Users by means of wire-bound or wireless systems
as a
digital signal, with the result that the stored data is transferred
to the
End User’s receiver, where it is decoded either after storage, after
temporary storage, or immediately, and thus can be converted back
to
texts, images, sounds and/or other and made visible or audible. The
Application and/or its results may also be made accessible to the
End User
in such a way that the End User can call up the Application or parts
thereof repeatedly after transmission to End User’s receiver. A feature of
interactive use on demand is that the application stored in digital
form
is made accessible to members of the public who are not present at
the
location of the origin of the accessibility in such a way that they
have
access and can request the transfer individually as to time and location
even if the transfer of the application and/or its results to the
End User
is effected at a later time than requested. The parties understand
the
above-mentioned right to also mean the right of request and the right
of
making available to the public within the meaning of Directive 2001/29/EC
of the European Parliament and the Council of 22 May 2001 (Gazette
No. L
167, 22 June 2001, pp. 0010-0019). Concerning the right of making
available by means of transfer the parties mean that a feature of
such
transmission is that the Application and/or its results stored in
digital
form is made accessible to members of the public who are not present
at
the location of the origin of the accessibility in such a way that
initiation of the
transmission process of the signals carrying the information to the
End
User’s receiver is reserved to VF D2 and cannot be effected by the End
User.
|
2
| 3.3 |
Also
granted to VF D2 is
|
| · |
the
right to print, meaning the right to edit and to publish the content
in
unchanged form - in the last case in particular in the form of summaries
and synopses for the purpose of copying and disseminating the content
as a
printed work, especially for advertising purposes. This also covers
the
right to manufacture, copy and distribute in any kind of book for
all
editions and issues, particularly in the form of illustrated and
non-illustrated books, brochures, customer magazines (e.g. the current
VF
D2 customer magazines “Vodafone World” and “CallYa Zin”), comics,
electronic press kits as well as other analogue and digital text,
image
and data carriers, etc. that are derived from the content by reproducing
or presenting the content even in modified or newly arranged form
- or by
photographic, drawn or painted representations or similar as well
as the
right to provide corresponding editions via video and audio text
or other
distribution systems to interested
persons;
|
| · |
the
right to present as the right to render the content entirely or partially
publicly perceptible;
|
| · |
the
right to perform as the right to put forward the content or parts
of the
content in a form that does not take place on
stage.
|
| 3.4 |
Subject
to other provisions in the Contract and/ or this Agreement, VF D2
shall
exclusively have the right to decide on the time and manner of making
the
Application available and marketing it. VF D2 shall decide, in particular,
whether and for which groups of End Users the Application will be
made
accessible, whether and to what extent registration will be required
for
use, whether and in what amount there will be a charge for use and
which
access method will be used or for which End Users the Application
will be
made available. Furthermore, VF D2 shall exclusively have the right
to
decide on the placement, positioning, and linking of the Application
within the Portal, on the name and title of the Application, and
on the
placement and manner of advertisements and other advertising and
marketing
steps for the Application inside and outside the Portal as long as
no
other express arrangement was made by the parties. The parties agree
that
VF D2 shall decide on its own whether the Application is to be marked
with
the logo of one or both of the parties or with the logo of a third
person,
as far as not otherwise set forth within the
Contract.
|
| 3.5 |
VF
D2 shall be entitled to market ASP’s Application in so-called packages
together with its own applications and/or applications of third persons
at
a package price set by VF D2.
|
| 3.6 |
After
the expiration of the contract, VF D2 shall continuously be entitled
for
an unlimited period to use the application for purposes of internal
archiving and preservation of
evidence.
|
| 4 |
Installation
of an Application
|
| 4.1 |
Release
of the Application
|
| 4.1.1 |
VF
D2 shall inform ASP, at latest, within ten working days after delivery
of
the application, whether the provided application is in conformity
with
the contract, in particular, whether the core functions are without
errors
(hereinafter, “release”). VF D2 shall not undertake to examine the legal
permissibility or harmlessness of the application, the altered
application, or individual parts thereof; ASP shall have a duty to
do
this. In the event the application provided by ASP is not in conformity
with the contract and VF D2 has notified ASP of this, VF D2 shall
be
entitled to postpone the planned launch date and to notify ASP of
a new
planned launch date. ASP shall implement the alterations notified
by VF D2
in each case, without cost to VF D2, within 5 working days
after notification by VF D2. ASP shall again deliver the revised
application to VF D2 and notify VF D2 of this in advance by e-mail
and in
writing.
|
3
| 4.1.2 |
In
the event ASP does not deliver the Application as specified in
the
Contract and in this Agreement by the new planned launch date,
the
procedure set out in clause 4.1.1 shall be repeated if VF D2
gives notice
of a new planned launch date in each case within the specified
time
periods. VF D2’s right to terminate the contract without notice pursuant
to clause 12.2.5 shall remain
unaffected.
|
| 4.2 |
Launch
Date
|
VF
D2
shall be entitled to postpone the planned launch date for technical, editorial,
or marketing reasons. VF D2 shall notify ASP of a postponement of the planned
launch date in advance in writing or by e-mail. In the event of the postponement
of the launch being a burden for ASP, ASP shall have a right to terminate of
the
contract within 7 days of such notification from VF D2.
| 5 |
Marketing
and PR
|
|
5.1
|
VF
D2 shall be entitled, for the term of the Contract, to use the company
and
product names, designations, in particular, trademarks and logos
used by
ASP (hereinafter, “Brands”) within the framework of performance of the
Contract and limited to this purpose. ASP shall xxxxx XX D2, for
the term
of the Contract, free of charge, the nonexclusive right to use its
Brands.
This right of use shall apply, in particular, to the use of the Brands
for
the purpose of advertising in the form customary in this line of
business
in print, on TV, online, and via direct marketing in classic and
electronic form as well as to PR, investor relations, and other
communications steps.
|
| 6 |
Share
of Proceeds
|
| 6.1 |
General
|
| 6.1.1 |
The
parties shall perform their contractual duties for each other
free of
charge unless the parties have expressly agreed otherwise in
writing in
the Contract or in this Agreement or in a separate agreement.
The parties
shall share the proceeds realised through the sale of the Application
itself and through chargeable events caused by the Application
(hereinafter, “Application Proceeds”) pursuant to the calculations set
forth in this Section 6 and the revenue share terms set forth
in the
Contract.
|
| 6.1.2 |
VF
D2 shall xxxx the application proceeds directly to end users
or third
persons. The billing of end users may, in particular, be carried
out by
charging through the telephone xxxx of the end user or direct
debit.
Furthermore, VF D2 shall distribute ASP’s share of the application
proceeds to ASP as set forth in detail in the stipulations under
clause
6.4.
|
| 6.1.3 |
Application
proceeds are the fees paid by the end users for the use of the
application
(hereinafter, gross application proceeds). In the event an application
is
offered to the end users together with other applications, contents,
goods, and/or services as a package at a package price which
is not broken
down in detail, only the portion of the fee attributed to the
relevant
application shall be deemed the gross application proceeds allocated
to
this application within the meaning of this clause (pro rata).
The portion
attributed to one application shall be calculated by multiplying
the
normal price by a fraction whose numerator is the package price
and
denominator is the total of the normal prices of all of the elements
of
the package. (Price portion for single application in package
= normal
price per application * (total price package / total of the normal
prices
for the individual applications/goods/services). Should any of
the
elements not have a normal price, the current or last end user
price
quoted on the portal shall be used. In the event there is no
such price,
€0,99 for b/w applications and €1,49
for colour applications shall be used as a fictitious normal
Net price for
the package element in
question.
|
4
| 6.2 |
Division
of Application Proceeds
|
| 6.2.1 |
The
net application proceeds pursuant to clause 6.3 shall be divided
between
VF D2 and ASP as set out in the
contract.
|
| 6.2.2 |
In
the event VF D2 markets ASP’s application free of charge without the
consent of ASP or for a price below the normal price given in
clause 2.3,
or if, without ASP’s consent, the portion of the price attributed to the
application within the framework of a package offer is below
the normal
price, ASP shall receive at least the percentage of the normal
price as
set out in the contract minus statutory VAT per
use.
|
| 6.3 |
Calculation
of Net Application
Proceeds
|
|
6.3.1
|
Net
Application Proceeds means the Gross Application Proceeds actually
paid by
the End Users and received by VF D2 related to use of Application,
minus:
|
|
6.3.1.1
|
currently
valid value added tax or similar sales taxes charged to the End Users
(“Taxes”);
|
|
6.3.1.2
|
the
Gross Application Proceeds refunded at VF D2’s discretion to the
individual End Users (“Refunds”); VF D2 shall only effect such refunds if
the End User has given a substantiated and comprehensible account
of why
he was unable or only partly or incorrectly able to make use of the
relevant application for reasons for which he is not
responsible.
|
|
6.3.2
|
VF
D2 shall deduct from the gross application proceeds the deductible
costs
as stipulated in clause 6.3.1 on the statement that concern the period
in
which these are claimed from VF D2, at latest, however, three months
after
the respective claiming-date.
|
|
6.4
|
Billing,
Due Dates, Payment
|
|
6.4.1
|
VF
D2 shall transmit a detailed statement of application proceeds received
by
VF D2 and ASP’s share of these proceeds to ASP within two weeks after the
end of each calendar month. The statement shall include the Application
name, the end user device, the event type, the total events, the
price per
download/subscription, any additional Application Proceeds received
and
the calculation of Net Application Proceeds. ASP shall examine the
statement from VF D2 without undue delay after receipt and notify
VF D2 in
writing of possible errors without undue delay. In the event ASP
does not
give such notification, the statement shall be deemed to be approved
14
days after receipt of the statement by ASP. Notwithstanding anything
herein to the contrary, the parties may mutually agree to discuss
exceptions, errors or other peculiarities of the statements at any
time
prior to final payment.
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|
6.4.2
|
ASP
shall be entitled to xxxx VF D2 for ASP’s share of the Application
Proceeds shown in the statement within two weeks after receipt of
the
statement. The invoice may be provided in electronic format and is
due
upon receipt. VF D2 shall make payments solely by wire transfer to
the ASP
account set out in the contract.
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|
6.4.3
|
If
the ASP is registered outside of Germany, VF D2 might be obliged
to deduct
withholding tax from any payment due. In this event, VF D2 will withhold
and pay the tax on behalf of and for the account of ASP to the tax
office
in charge. VF D2 will provide ASP with a respective tax receipt
certificate. In case that a double taxation treaty applies which
provides
for a reduced withholding tax rate, VF D2 will only withhold and
pay the
reduced tax on behalf and for the account of ASP if a respective
exemption
certificate is issued by the competent authority. VF D2 shall assist
in
obtaining this certificate.
Unless such a certificate is granted and presented VF D2 will deduct
the
tax of any respective sum according to the applicable tax
law.
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5
|
6.4.4
|
The
Applications are subject to VAT in Germany. Therefore no VAT is issued
according to Art. 9 (2) (e) of the EEC 6th
Directive (reverse charge). VAT is owed by the recipient of the
service.
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|
6.5
|
ASP
shall only set off costs towards VF D2 if ASP’s claim is undisputed or has
been finally determined by the
courts.
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|
7
|
Data
Recording and Data
Protection
|
ASP
shall
guarantee that it will observe current, applicable data protection rules (in
particular, laws, ordinances, court decisions, and official directives). ASP
shall not be entitled to record any data on End Users (including personal data),
unless conclusively necessary for the use of the Application or for the purposes
of reconciling reporting.
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8
|
Responsibility
for Contents, Third-party Rights, Compensation for Damage,
Indemnification
|
|
8.1
|
ASP
guarantees (“Garantie” as known in German Law) that the Application does
not, to its knowledge, violate German law, in
particular,
|
|
8.1.1
|
that
it is not slanderous or defaming for other natural or legal
persons;
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|
8.1.2
|
that
it does not infringe protected rights such as copyrights and intellectual
property rights, trademarks and other brand rights, patents, business
secrets or confidentiality
agreements;
|
|
8.1.3
|
that
it does not inflict injuries on persons or cause damage to
property;
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|
8.1.4
|
that
it does not violate, the privacy of other
persons;
|
| 8.1.5 |
that
it does not contain pornographic, obscene, or disparaging material;
|
| 8.1.6 |
that
it does not aid and abet acts in violation of the law;
and/or
|
|
8.1.7
|
that
it cannot be prosecuted in criminal or civil proceedings under currently
valid law.
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|
8.1.8
|
that
ASP has obtained all required licenses, releases, and permits from
third
persons or official authorities and government agencies which, according
to currently valid statutory law or rules, are required for the use
of the
Application in the Portal in compliance with the stipulations of
the
Contract and this Agreement.
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|
8.2
|
Should
ASP breach its guarantee as defined in clause 8.1, it shall be obligated
to cease and desist from further breach, to compensate VF D2 for
any
actual sustained loss and loss which is still being sustained including
any claims for damages and compensation for expenses incurred by
third
persons which were directly caused by the breach. All other claims
of VF
D2, in particular, to block the Application and to terminate the
contract
for cause, shall be unaffected.
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|
8.3
|
In
the event third persons assert claims against VF D2 due to ASP’s breach of
the guarantee listed in clause 8.1 or any other violations of law
committed by ASP, ASP shall indemnify VF D2 to the full extent including
any possible court costs and hold it harmless upon VF D2’s first demand.
VF D2 shall notify ASP without undue delay of the claim and, to the
extent
legally possible, give ASP the opportunity to defend itself against
the
asserted claim. Should VF D2, or any affiliate, alter, market, price,
sell, advertise,
bundle or modify the Application in violation of any law, regulation,
intellectual property right or contract or reveal confidential information
of ASP resulting in harm to ASP, VF D2 shall hold ASP harmless against
any
and all losses, claims or expenses associated with, related to, or
caused
by such violation or
revelation.
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6
|
9
|
Warranties
of ASP
|
|
9.1
|
ASP
gives the following warrants (“gewährleistet”
as known in German Law)
|
|
9.2
|
The
Application as provided by ASP shall meet the system specifications
and
characteristics of performance set out in the Contract and this
Agreement.
|
|
9.3
|
ASP
shall, in each case, use technical systems and means corresponding
to
commercially reasonable technology to prevent third persons having
access
to the Application as provided and to protect VF D2’s and the End Users’
computer systems (including any other devices for use of the Application)
from software elements which could disturb or damage these computer
systems (e.g., computer viruses, logic bombs, Trojan horses,
etc.).
|
|
9.4
|
In
the event of a failure to fulfil one of the warranties listed above,
ASP
shall be liable towards VF D2 for compensation for actual loss or
damage
sustained due to this failure to fulfil the warranty in
question.
|
|
10
|
Refusal
and Blocking of the
Application
|
|
10.1
|
VF
D2 shall be entitled to refuse the Application altogether or to block
the
link to it if there is a reasonable assumption on the part of VF
D2 that
ASP is in breach of its du-ties in clause 8.1. Any further claim
of VF D2
against ASP shall be unaffected.
|
|
10.2
|
Should
ASP be of the opinion that there has been no breach of clause 8.1,
ASP
shall provide VF D2 with a legal expert opinion to this effect by
a person
qualified to be a judge.
|
|
10.3
|
The
event of a rightful refusal or blocking of the application by VF
D2 will
neither cause any responsibilities of VF D2 nor cause any rights
and/or
claims for damages in favour of
ASP.
|
|
11
|
Limitations
of Liability
|
|
11.1
|
Area
of application
|
Except
as
specifically stated herein, each party shall be liable for damages on any legal
basis whatsoever only in the amount stipulated in these provisions and only
up
to the fifty thousand euros (€ 50 000) Notwithstanding the above, neither party
shall be liable under contract, tort or any other principle of law, to the
other
party for any indirect loss, consequential loss or loss of anticipated
savings.
|
11.2
|
Intent
and gross negligence
|
Each
party’s liability for damages caused by such party or one of its vicarious
agents or legal representatives with intent or gross negligence shall not be
limited by amount.
|
11.3
|
Personal
injury
|
In
the
event of damages based on injury to the life, body, or health of persons, each
party’s liability shall be unlimited in cases of simple negligence by such party
or one of its legal representatives or vicarious agents.
|
11.4
|
Organisational
negligence and warranty Liability
for damages resulting from gross negligence with regard to organisation
on
the part of a party as well as damages caused by the lack of a warranted
quality shall also be unlimited as to
amount.
|
7
|
11.5
|
Breach
of material contractual duties
|
In
the
event of a breach of material contractual duties, each party’s liability shall
be limited to the typical, foreseeable damages for this type of contract unless
one of Clauses 11.2 - 11.4 is applicable.
|
11.6
|
Exclusion
of liability
|
Any
further liability for damages shall be excluded; in particular, liability
without fault shall be excluded.
|
11.7
|
Contributory
negligence
|
In
the
event damages are caused both by the negligence of VF D2 and ASP, each party
must allow the attribution of contributory negligence.
|
11.8
|
Neither
party shall not be liable towards the other for the commercial success
of
the contract.
|
|
12
|
Contractual
Term, Termination
|
|
12.1
|
The
Contract shall become effective upon execution and shall be concluded
for
a basic term as set out within the
Contract.
|
|
12.2
|
Each
party may terminate the Contract without notice (except as set forth
in
clause 12.3.1) for cause as set forth below. For cause shall be given,
in
particular, if
|
|
12.2.1
|
the
other party has violated a material contractual stipulation and does
not
remedy this violation within fourteen days after a written request
from
the party not in breach;
|
|
12.2.2
|
the
other party ceases its business activities or becomes unable to pay
its
debts or if insolvency proceedings are initiated or a petition to
initiate
insolvency proceedings has been filed and the insolvency court orders
security transactions pursuant to § 21
InsO;
|
|
12.2.3
|
ASP
has failed to make its Application available for the full time period
stipulated in the Contract and/ or this Agreement for two consecutive
months for reasons for which ASP is
responsible;
|
|
12.2.4
|
the
customer care costs allocated to the ASP Application incurred by
VF D2 in
two consecutive months exceed 10 percent of the monthly net subscription
proceeds for the Application;
|
|
12.2.5
|
if
VF D2 does not effect a Release of the application pursuant to clause
4.1.1 twice in succession due to circumstances for which ASP is
responsible;
|
|
12.2.6
|
if
VF D2 has failed to submit the proceeds statement (according to clause
6.4.1.) or to make its share payments in due course (according to
clause
6.4.3.) in two consecutive months for reasons for which VF D2 is
responsible.
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8
| 13 |
Confidentiality
|
| 13.1 |
The
contents of all documents and information of a commercial, financial,
or
technical nature or documents and information marked as confidential
which
the parties receive in the course of the contractual relationship
are to
be treated confidentially by the par-ties and may only be copied
or
forwarded to third persons with the prior written consent of the
other
party. These confidentiality obligations also apply to the conditions
of
the contract and these terms and conditions, the use numbers and
user
statistics established in its performance, and the business models
and
financial conditions proposed by VF D2 or ASP. The parties may copy
and
use such documents and information only within the framework of the
contract.
|
| 13.2 |
The
parties shall undertake to impose a corresponding confidentiality
obligation on the employees of the party, companies in the Vodafone
Group,
technical service provides and any outside firms called in connection
with
the Contract, including their
employees.
|
| 13.3 |
Exceptions
|
The
obligations above do not apply to information which
| 13.3.1 |
is
already or becomes public knowledge at or after disclosure without
fault
of the party receiving the
information;
|
| 13.3.2 |
is
already known to the party receiving the information as shown by
its own
written notes at the time of
receipt;
|
| 13.3.3 |
a
party receives from a third person without this third person having
received this in-formation directly or indirectly from the other
contractual party.
|
| 13.3.4 |
must
be disclosed according to statutory law or upon demand of a tax authority
or by order of a competent authority, government agency, or a competent
court, or accord-ing to the rules of a stock exchange at which the
shares
of a party to the contract or a holding company of one of the parties
to
the contract are noted.
|
| 13.4 |
The
party citing clause 13.3 shall bear the burden of proof that these
conditions are met.
|
| 13.5 |
VF
D2 shall be entitled to pass confidential information on to companies
within the Vodafone Group or, provided that this is fit and convenient
for
the purpose of operating the Portal, to technical service providers
operating a system necessary for the use of the Application or the
operation of the VF D2 platform.
|
| 13.6 |
The
above-described confidentiality duty shall survive the termination
of the
Contract by five years. The parties shall undertake everything which
can
reasonably be expected in good faith to warrant the fulfilment of
this
duty even in the event of employees’ leaving the company or a change of
the third persons called in.
|
| 13.7 |
ASP
shall require VF D2’s prior written consent for press releases or other
forms of public promotional
disclosure.
|
| 14 |
Miscellaneous
|
| 14.1 |
Unless
otherwise stipulated in the Contract or in this Agreement, neither
party
may assign rights, in particular, claims resulting from the contract,
to a
third person without the prior consent of the other contractual
party.
|
| 14.2 |
Amendments
or supplements to the contract, including this provision, must be
in
writing and executed by both
parties.
|
9
| 14.3 |
The
Contract, including its appendices, shall replace all written or
oral
statements in its scope submitted by the contractual parties during
negotiations. It shall replace, in particular, with immediate effect,
all
previous oral or written agreements between the contractual parties
with
respect to the subject matter of the
contract.
|
| 14.4 |
Neither
party shall be deemed to be in default of or to have breached any
provision of this Agreement or the Contract as a result of any material
delay, failure in performance, or interruption of service, resulting,
directly or indirectly, from acts of God, acts of civil or military
authorities, civil disturbances, wars, strikes or other labor disputes,
fires, transportation contingencies, interruptions in telecommunications
or Internet services, and other catastrophes or occurrences which
are
beyond such party’s reasonable control and which such party is unable to
avoid or overcome by the exercise of reasonable
diligence.
|
| 14.5 |
Waiver
of any breach or failure to enforce any term of this Agreement or
the
Contract will not be deemed a waiver of any breach or right to enforce
which may thereafter occur. No waiver will be valid against any party
hereto, unless made in writing and signed by the party against whom
enforcement of such waiver is sought and then only to the extent
expressly
specified therein. If any one or more of the provisions of this Agreement
will for any reason be held to be invalid, illegal or unenforceable,
that
provision will be enforced to the maximum extent permissible, and
the
other provisions of this Agreement will remain in force. The parties
shall
agree on a valid provision to replace the invalid provisions or the
omission which, to the extent legally possible, will reflect as closely
as
possible the economic purpose of the contractual parties or what
they
would have intended if they had considered this
point.
|
| 14.6 |
The
relationship of the parties hereunder is that of independent contractors.
Nothing herein shall be construed to constitute a partnership or
joint
venture between such parties, nor will either party be deemed the
agent of
or have the right to bind the other party in any way without the
prior
written consent of the other party.
|
| 14.7 |
Each
party hereby agrees to use commercially reasonable efforts to perform
its
obligations hereunder in a timely manner and agrees that the other
party
shall have the discretion to extend any delivery dates of its obligations
set forth in this Agreement or the Contract by the same number of
days
that it delays in performing its
obligations.
|
| 14.8 |
This
Agreement and the Contract is entered into solely between, and may
be
enforced only by the parties hereto and their permitted successors
and
assigns. This Agreement shall not create or be construed to create
any
rights in third parties, including Affiliates (other than permitted
successors and assigns), employees, suppliers, franchisees, or customers
of a party.
|
| 14.9 |
The
Contract shall be governed by the law of the Federal Republic of
Germany
under exclusion of the U. N. Convention on Contracts for the International
Sale of Goods. Jurisdiction and venue is Düsseldorf, Germany; VF D2 shall
also be entitled to bring suit against ASP in Los Angeles,
California.
|
10
