Exhibit
99.1
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
MOBILE VIRTUAL NETWORK
ENABLER
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
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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 Baarerstrasse 135, CH-6301 Zug, Switzerland,
legally and duly represented by its Chief Executive Officer Steven
van der Velden and its Chief Operations Officer and Chief
Technology Officer Martin Zuurbier, hereinafter referred to as: "
ELEPHANT TALK "
T-Mobile Netherlands B.V.
, a company incorporated under the
laws of the Netherlands, having its registered office at the
Waldorpstraat 60, 2521 CC Den Haag, the Netherlands, legally and
duly represented by its Managing Director Niek Jan van Damme and
its Marketing Director, Bart Weijermars, hereinafter referred to
as: “ T-Mobile ”
each
individually referred to as "Party" and together as
"Parties".
WHEREAS:
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1.
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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;
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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;
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3.
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*** 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 ***;
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5.
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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;
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6.
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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;
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7.
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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;
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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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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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directly or
indirectly owned or controlled by the Party, for as long as such
ownership or control lasts.
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"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.
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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
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“Appendix" and "Appendices" shall mean the
appendix or appendices attached to this Agreement.
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“Business
Day” shall mean any day other than Saturdays, Sundays and
Dutch generally recognized public holidays.
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"Calendar Day"
shall mean any day including Saturdays, Sundays and Dutch generally
recognized public holidays.
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“CDR” shall mean call detail
record.
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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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"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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“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.
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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
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“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.
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1.11
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“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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"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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"GSM
Association Plenary" shall mean the group of appointed
representatives of the Signatories of the GSM
Association.
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"GSM
Specifications" shall mean ETSI GSM technical specifications, as
defined by the GSM Association .
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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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"Implementation
Plan" shall have the meaning as described to it in Appendix
3.
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“IMSI” means the International
Mobile Subscriber Identity, ***
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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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“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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"Location
Areas" (LAs) shall mean the individual geographic areas into which
the T-Mobile Network is divided at any time.
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“MSISDN” shall mean Mobile Station
Integrated Services Digital Network Number.
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“NAP” shall mean Network Access
Point, as described in Appendix 11.
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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
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"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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“***” means the company formerly
known as ***. formed under the laws of the Netherlands, *** in The
Hague, The Netherlands.
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“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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“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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“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.
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“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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"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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“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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“SLA” means the Service Level
Agreement attached hereto in Appendix 6.
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"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.
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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
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"TAP" shall
mean Transferred Account Procedure as defined and described in GSM
Association Permanent Reference Documents.
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“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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"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.
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2.
PURPOSE AND SCOPE OF THE
AGREEMENT
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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.
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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.
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T-Mobile is
entitled without limitations, to *** related services to any other
party.
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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 ***.
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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.
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2.5
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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.
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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
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:
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in the
situation where T-Mobile for good reason refuses a ELEPHANT TALK
Customer access to the T-Mobile Network such as:
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association
with - proven- bad taste (companies or brands with a direct
reference to subjects such as criminal or illegal behavior,
violence or drugs);
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possible harm
of the good name of T-Mobile;
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breach of an
intellectual property right of T-Mobile; and/or
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conflict with
key strategic issues for T-Mobile and Deutsche Telekom Affiliate
Companies (such as legal issues and court cases).
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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
***.
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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.
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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
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ELEPHANT TALK
shall ensure that the ELEPHANT TALK Infrastructure complies with
the Technical Specifications, as set out in Appendix 11.
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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.
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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.
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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.
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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.
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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:
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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
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Appendix No.
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Appendix Name
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Appendix
1
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Service
Description
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Appendix
2
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Financials
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Appendix
3
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Implementation
plan
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Appendix
4
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Forecasting
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Appendix
5
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Lawful
Intercept
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Appendix
6
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Service Level
Agreement
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Appendix
7
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Accounting and
Billing
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Appendix
8
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Roaming
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Appendix 9
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Bank
guarantee
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Appendix10
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Protocol of
Delivery
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Appendix
11
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Technical
Specification
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Appendix
12
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***
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Appendix
13
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***
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3.
HOSTING
SERVICES
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T-Mobile shall
provide the Hosting Services, as described in Appendix 1, during
the term of this Agreement from the Ready for Service
Date.
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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.
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3.3
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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.
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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.
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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.
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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.
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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.
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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
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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.
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4.
IMPLEMENTATION
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The Parties
shall implement the Hosting Services according to the
Implementation Plan, as described in Appendix 3.
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The Parties
shall provide each other with information on preparations made
and other details relevant to the implementation of the
Hosting Services.
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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.
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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 ***.
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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.
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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.
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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
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
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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. ***.
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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.
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ELEPHANT TALK
accepts that T-Mobile will not be bound to the service level agreed
b
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