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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”)
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: 633 030 1700
Iban#:
DE78 44160014 6330 3017 00
Reference:
BIC GENODEMIDOR
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
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Business
Development:
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Name:
eMail:
Telephone:
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Technical
(Mo-Fri 8-18):
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Name:
eMail:
Telephone:
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Editorial:
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Name:
eMail:
Telephone:
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Customer
Care:
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Name:
eMail:
Telephone:
Mobile:
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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:
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If
by mail
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Twistbox
Entertainment, Inc.
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or
facsimile:
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14242
Ventura Boulevard, Third Floor
Sherman
Oaks, California 91423 USA
Attn:
International Sales/Distribution
Attn:
EVP/General Counsel
Fax:
(818) 301-6239
Email:
legal@twistbox.com
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With
a copy to:
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Twistbox
Games Ltd & Co KG
Lohbachstr.
12
58239
Schwerte - Germany
Attn:
Eugen Barteska
Email:
ebarteska@twistbox.com
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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.
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| (b) |
it
has not and will not undertake any action which might impair the
exercise
of ASP’s full rights under this
Agreement.
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| (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.
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| (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.
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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.
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Düsseldorf,
27.08.2007
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Schwerte,
AUG. 27, 2007
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||
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/s/
Johannes Becher
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/s/
Ian Aaron
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||
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for
VF D2
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for
the ASP
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||
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/s/
Johannes Becher
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|||
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for
VF D2
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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 Seestern 1, D-40547 Düsseldorf, Germany
(hereinafter
“VF D2”)
| 1 |
Preamble
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| 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)”).
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| 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.
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| 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.
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| 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.
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| 2 |
ASP’s
Services
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| 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”.
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| 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.
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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.
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| 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.
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| 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.
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| 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.
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| 3 |
Rights
of Use and Marketing
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| 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.
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| 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 tran
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