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Master Services Agreement

Consulting Services Agreement

Master Services Agreement | Document Parties: MPLC, INC. | Mobile Messenger Inc | New Motion Inc You are currently viewing:
This Consulting Services Agreement involves

MPLC, INC. | Mobile Messenger Inc | New Motion Inc

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Title: Master Services Agreement
Governing Law: California     Date: 2/13/2007
Industry: Printing and Publishing    

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Master Services Agreement

 

Between

 

Mobile Messenger Inc

 

and

 

New Motion Inc

 


 

 

This Master SMS Services Agreement is made the 19th day of April 2005, between :

 

(1)

Mobile Messenger Pty Ltd. , a company incorporated in Sydney, whose principal place of business is Level 1 / 225 Miller Street North Sydney NSW ("Mobile Messenger"), and

 

(2)

New Motion Inc, a company Incorporated in California, whose is principal place of business is 10 Corporate Park #315, Irvine, ca. 92602 ("Customer").

 

BACKGROUND:

 

 

A.

Mobile Messenger is a provider of mobile messaging services.

 

 

B.

Customer wishes to obtain, and Mobile Messenger is willing to provide, such services on the basis of and subject to the Terms and Conditions of this Master Services Agreement and of Addenda entered into under it.

 

NOW IT IS HEREBY AGREED AS FOLLOWS:

 

1

Definitions and Interpretation

 

1.1

The following Definitions shall apply to these Terms and Conditions:

 

 

 

1.1.1

"Addendum" means an Addendum which invokes, and is properly executed by the parties under these Terms and Conditions;

 

1.1.2

"Allocated Number" means any specific telephone or text number or code (such as a short code) to be entered by End-users, allocated to the Customer for the Services, either dedicated to the Customer or to be shared with one or more other customers;

 

1.1.3

"Commencement Date" means the earlier of the date when (a) complete provisioning details are provided by Mobile Messenger to Customer in respect of the Services, and (b) the relevant Services commence to be provided;

 

1.1.4

"Customer Rights" means all Intellectual Property Rights owned by Customer in relation to Customer Content;

 

1.1.5

"Customer Content" means any information provided by or on behalf of the Customer for transmission by Mobile Messenger as part of the Services;

 

1.1.6

"Customer Data" means any personal data (a) comprised in or relating to any message, (b) which is provided by the Customer or any of its direct or indirect customers, or (c) in respect of MO, from any End-user;

 

1.1.7

"End-user" means any user of the relevant Network Operator's mobile network;

 

 

 

1.1.8

"Intellectual Property Rights" means all copyright (Including but not limited to rights in computer software), patents, trademarks, trade names, trade secrets, registered and unregistered design rights, database rights and topography rights, all rights to bring an action for passing off, any other similar form of intellectual property or proprietary rights, statutory or otherwise, whether registrable or not and shall Include applications for any of them, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;

 

1.1.9

"Mobile Messenger Data" means data, excluding Customer Data, which is provided or generated in the course of Mobile Messenger's provision of the Services;

 

1.1.10

"Mobile Messenger Rights" means all Intellectual Property Rights owned by Mobile Messenger, Including but not limited to those Intellectual Property Rights involved in any aspect of the Services, the Platform or any device, software or data used in connection therewith, Including without limitation the Mobile Messenger Data, but excluding Customer Data;

 


 

 

1.1.11

"MO" (or "Mobile Originated") means a message received by Mobile Messenger from a Network Operator (such as, without limitation, a mobile-originated SMS);

 

1.1.12

"MT" (or "Mobile Terminated") means a message sent by Mobile Messenger from the Platform to a Network Operator's mobile network;

 

1.1.13

"Network Operator" means a mobile network operator which is directly or indirectly engaged in the performance of any of the Services;

 

1.1.14

"personal data" bears the meaning attributed to that phrase in the European Union Data Protection Directive 95/46/EC ("Directive") and consistent with the privacy standards of the Safe Harbor Privacy Principles framework of the United States Department of Commerce ("Principles") or any successor or supplement to the Principles or equivalent national implementation thereof;

 

1.1.15

"Platform" means the mobile application services platform, and associated systems and network connections, owned and operated by Mobile Messenger or by suppliers or partners of Mobile Messenger, which is used to provide the Services;

 

1.1.16

"Protocol Specification" means the protocols to be used by the Customer in order to access the Services, as notified by Mobile Messenger to the Customer from time to time;

 

1.1.17

"Premium Rate Message" means MO Premium Rate Message and MT Premium Rate Message, as defined in the PSMS Terms and Conditions, and either of them;

 

1.1.18

"PSMS Terms and Conditions" means the Premium SMS Terms and Conditions specified in Schedule 2;

 

 

 

1.1.19

"Regulator" means any relevant regulatory agency or other authority which has lawful authority to the regulate the Services or any part thereof, Including, without limitation, (a) in relation to Premium Rate Messages in the United Kingdom, the Independent Committee for the Supervision of Standards of Telephone Information Services and/or ICSTIS Limited in the United Kingdom, (b) the relevant Data Protection Authorities in the country where the Customer markets or provides its Services, (c) any Regulator identified in an Addendum, and (d) any other body or person having regulatory jurisdiction over the Services or any party thereof;

 

1.1.20

"Revenue Share Payment" (or "Outpayment") means a payment from Mobile Messenger to Customer in the amount specified in an Addendum;

 

1.1.21

"Rights" means the Customer Rights and the Mobile Messenger Rights, respectively;

 

 

 

1.1.22

"Service" and "Services" mean managed mobile infrastructure services and/or other services of Mobile Messenger defined in the relevant Service Specifications;

 

1.1.23

"Service Addendum" means an Addendum specifying Services and other matters pertaining to those Services;

 

1.1.24

"Service Interface" means the method to be used by the Customer to connect to the Platform;

 

 

 

1.1.25

"Service Level Agreement" (or "SLA") means the document of that name attached to these Terms and Conditions as Schedule 1;

 

1.1.26

"Service Specifications" means Mobile Messenger's documentation detailing the features of Mobile Messenger's services, as such Service Specifications may be specified in an Addendum, and as they may be updated by Mobile Messenger from time to time;

 

1.1.27

"Subcontractor" means any client or other third party with which the Customer contracts to provide any or all of the Services;

 

1,1.28

"Tax" means any tax relating to the sale or supply of the Services Including, without limitation, value added tax, sales taxes, gross receipts taxes, and any regulatory surcharges;

 

1.1.1

"Term" means the duration of this Master Services Agreement, as specified in Clause 13, save as earlier terminated in accordance with the provisions of these Terms and Conditions; and

 

1.1.30

"Terms and Conditions" means the provisions of this Master Services Agreement, together with each of its Schedules and each Addendum entered into under it.

 


 

 

1.2

References in these Terms and Conditions to "Mobile Messenger" and "Customer" shall Include their respective employees, agents, sub-contractors, consultants and permitted assigns.

 

1.3

Headings are Included in these Terms and Conditions for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.

 

1.4

Unless the context otherwise requires, the singular Includes a reference to the plural and vice versa.

 

 

 

1.5

Words and phrases defined in any part of these Terms and Conditions, being these operative provisions, its Schedules and the relevant Service Addendum, shall bear that meaning throughout the other parts of this Agreement, save to the extent otherwise expressly provided therein.

 

1.6

References to Clauses and Paragraphs are, unless otherwise provided, references to the clauses and paragraphs of, these Terms and Conditions and paragraphs of the Schedules.

 

1.7

Unless the context otherwise requires, any reference in these Terms and Conditions to any specific statute shall Include a reference to any modification or re-enactment thereof.

 

2

The Services and the Addenda

 

2.1

In consideration of the Customer satisfying its obligations under these Terms and Conditions, Mobile Messenger shall provide the Services in accordance with these Terms and Conditions from the Commencement Date until:

 

 

 

(a)  

the end of the term for those Services specified in the relevant Addendum; or

 

 

 

(b)  

these Terms and Conditions as they relate to those Services are terminated in accordance with these Terms and Conditions;

 

 

 

(c)  

the Term expires; or

 

 

 

(d)  

these Terms and Conditions are terminated in their entirety, whichever occurs first.

 

2.2

The Customer may request additional or amended services by completing a Service Addendum.

 

 

 

2.3

Each Addendum which is accepted, agreed and executed by the Customer and Mobile Messenger will form part of these Terms and Conditions.

 

2.4

Where an Addendum specifies Premium SMS Services are being taken by the Customer, then the PSMS Terms and Conditions shall apply thereto.

 

2.5

The Customer acknowledges and agrees that;

 

 

 

(a)  

the Services, and the terms and conditions which govern any of them (Including, without limitation, the PSMS Terms and Conditions), shall be subject to changes resulting from changes made by the relevant Network Operator to the corresponding services provided by the Network Operator to Mobile Messenger or the terms and conditions which govern such corresponding services; and

 

 

 

(b)  

in the event that any such change is made which has any effect upon the rights and obligations of the parties under these Terms and Conditions, then:

 

(i)  

such change shall be deemed automatically to bind the Customer; and

 

 

 

(ii)  

Mobile Messenger will use its reasonable endeavours to notify Customer of the relevant changes as soon as is reasonably practicable,

 

 

provided that the Customer shall be entitled by no less than thirty days' notice in writing to Mobile Messenger to terminate any Addendum directly affected by the relevant change in the event that such change has a materially adverse commercial effect upon the Customer's business.

 

2.6

Mobile Messenger acknowledges that the Customer shall be entitled to provide the Services to its Subcontractors, subject to Customer's compliance with all of its obligations under these Terms and Conditions, and that Customer shall require its Subcontractors to agree to and comply with the terms and conditions of these Terms and Conditions. Such terms and conditions may be Incorporated into a separate subcontractor agreement, provided however that the form of such subcontractor agreement shall be subject to prior review and approval of Mobile Messenger.

 

2.7

To the extent of any conflict or Inconsistency between a Service Addendum and the operative provisions of these Terms and Conditions, the Addendum shall take precedence in respect of the Services and other matters which are the subject of that Addendum. Each individual Addendum shall be separate and discrete and shall relate only to the Services which are the subject of it, and accordingly the contents of any individual Addendum shall not affect the content of any other Addendum or the Services which are the subject of any other Addendum, save only as may be expressly provided in one or more of the Addenda.

 


 

 

3

Customer Commitments

 

 

 

3.1

The Customer warrants and undertakes to Mobile Messenger as follows:

 

 

 

 

(a)  

at all times to conform to the protocol specification for the relevant Service Interface as provided to the Customer by Mobile Messenger from time to time;

 

(b)  

to attempt to connect only to the Service Interface specified for Customer's Services and using only the names and passwords notified to them by Mobile Messenger from time to time;

 

 

 

(c)  

to designate at least 2 weeks prior to the Commencement Date such employees of the Customer as may be required to act as technical coordinators and Mobile Messenger's contact points in order to coordinate delivery of the Services;

 

 

 

(d)  

to ensure that the technical co-ordinators and other staff of the Customer follow the service administration and fault reporting procedures provided to Customer by Mobile Messenger from time to time;

 

(b)   to accept responsibility for, and pay in accordance with these Terms and Conditions, Mobile Messenger's charges, as specified in accordance with Clause 1.2, arising from the submission by the Customer to Mobile Messenger of messages for delivery to any mobile phone number (Including, without limitation, any invalid mobile phone number);

 

 

(f)  

to supply complete and accurate instructions, Customer Content and Customer Data to Mobile Messenger sufficient for the performance of the relevant Services, in accordance with such timescales as Mobile Messenger may reasonably require;

 

 

 

(g)  

where the Services Include any Premium SMS services, to ensure that the PSMS Terms and Conditions are complied with in respect of all such services and messages;

 

 

 

(h)  

that neither the Customer Content nor the Customer Data or its supply to or use by Mobile Messenger or any End-user shall infringe the rights of any third parties or any laws or regulations, Including, without limitation, any and all applicable laws and rules governing messaging services and customer information privacy, Including customer proprietary network information, in any country where any message is originated, delivered or in respect of which any of the Services are performed and, where the Services are used for the provision of services to End-users within the European Economic Area, the European Union (EU) Data Protection Directive (95/46/EC), the EU Directive on Privacy and Electronic Communications (2002/58/EC), the EU Electronic Commerce Directive (00/31/EC) and the EU Distance Selling Directive (97/7/EC), and any national implementations thereof;

 

(i)  

to ensure that the Services are used for proper and lawful purposes only and in accordance with such instructions as Mobile Messenger may from time to time notify to the Customer; and

 

(j)  

at its own expense, to comply with all requirements and conditions at any time imposed by law or regulation which are applicable to or affect the Services or the conduct of the Customer's business.

 

1.2

Without limiting Clause 3.1 above, the Customer undertakes not to use the Services or permit the Services to be used:

 

 

 

(a)  

for sending any communication which is defamatory, offensive or abusive or of an obscene or menacing nature;

 

 

 

(b)  

for the persistent sending of messages without a reasonable cause or for the purpose of causing annoyance, Inconvenience or distress to any person;

 

(c)  

in any way that contravenes applicable law or regulation in any country where the Services are marketed or provided;

 

 

 

(d)  

in any way that may have a detrimental effect to the goodwill and good standing of any of the relevant Network Operators; or

 

 

 

(e)  

for the sending of unsolicited messages.

 

3.3

Mobile Messenger may request:

 

 

 

(a)  

evidence from the Customer of compliance with Clauses 3.1 and 1.2 above, and

 

 

 

(b)  

the provision by the Customer of reasonable volume forecasts, customer support information and information concerning new services to be provided by means of the Services,

 

 

 

and the Customer agrees to comply with any such request as soon as reasonably practicable, and with such degree of detail as Mobile Messenger may require on the condition that any forecasts given will not be contractually binding and/or oblige the Customer to purchase and/or order the Services, save as may be provided in the relevant Addendum.

 


 

 

3.4

The Customer acknowledges that the Network Operators have a base of End-users across all age groups. Customer shall be responsible for the Services delivered to End-users and shall take all appropriate measures to ensure that the content of each of the Services is not inappropriate for the End-user.

 

3.5

The Customer also acknowledges that:

 

 

 

(a)  

an Allocated Number may be similar to another number or code; and

 

 

 

(b)  

Mobile Messenger shall under no circumstances have any responsibility or liability in the event that any End-users mistakenly send messages to an Allocated Number instead of another number or code.

 

4

Compliance and Regulators

 

 

 

4.1

The Customer agrees:

 

 

 

 

(a)  

to comply, and to ensure that all of the Customer Content and all use of the Services complies, in all respects, with all regulations, directions, codes of practice and other rules and guidelines, mandatory or otherwise, promulgated from time to time by Regulators (collectively, "Codes") Including, without limitation, those of the Mobile Marketing Association (available at www.mmaglobal.com);

 

(b)  

to ensure that all advertising of the Services complies with applicable advertising laws, standards, regulations and codes;

 

 

 

(c)  

to provide Mobile Messenger with, and notify Mobile Messenger of any subsequent changes to, the name, address and contact telephone number of any Subcontractor, together with any Allocated Numbers allocated to such Subcontractors;

 

 

 

(d)  

that where Mobile Messenger is advised in writing by a Regulator that the Customer is or has been in breach of any Code, Customer shall immediately comply with any request from Mobile Messenger to cease the breaching activity and shall comply with any directive or order of the Regulator;

 

 

 

(e)  

to provide all reasonable assistance to Mobile Messenger in connection with Mobile Messenger's compliance with any requirements or conditions which are at any time imposed by law or any Regulator which are applicable to or affect the Services.

 

 

 

(f)  

to provide the Regulator with such information or material relating to the Services or a future service as the Regulator may reasonably request in order to carry out any investigation in connection with (i) the Services or (ii) Customer's relationship with Mobile Messenger or with a Subcontractor.

 

4.2

In the event that any Network Operator or Regulator:

 

 

 

(a)  

advises Mobile Messenger that the Customer is or has been in breach of any of the Codes, Mobile Messenger shall be entitled to act on any request, recommendation, order or directive by such Network Operator or Regulator to withhold any sums payable to the Customer until the Customer pays to the Network Operator or Regulator (as the case may be) all sums due for payment of fines, penalties, administrative charges or other sums payable to the Network Operator or Regulator or to one or more End-users by reason of an order of a Regulator, and Mobile Messenger shall be entitled to pay the same out of the monies withheld; or

 

(b)  

makes a charge, fine, penalty or debit against Mobile Messenger, or any deduction from of sums otherwise payable to Mobile Messenger for one or more actual or alleged events the liability for which (if proven) would have arisen out of a breach of Clause 3.1 or 1.2 above or constituted a breach of any of the Codes,

 

 

then Mobile Messenger shall be entitled to recover from the Customer the amount thereof, plus any costs or expenses Incurred by Mobile Messenger in connection with the Incurring of such liability or the relevant charge, fine, penalty, debit or deduction.

 

5

Price, Payment and Currency

 

1.3

The charges for the Services shall be as set out in the relevant Addendum, as adjusted from time to time pursuant to this Clause 5. In the event that an Addendum does not refer to any specific pricing, the Services shall be performed at Mobile Messenger's then current standard charges, which Mobile Messenger will provide to the Customer upon request.

 

5.2

Mobile Messenger shall be entitled to change the pricing which applies to Services by:

 

 

 

 

    (a)

30 days' notice in writing to the Customer, or

 

 

 

 

 

 

   (b)

such other period of notice as may be specified in the relevant Addendum,

 


 

 

(a "Price Change Notice").

 

In the event that a Price Change Notice is given to the Customer, the Customer shall have the rights of termination specified in Clause 1.3(i) below. Any messages sent on or after the date when such a Price Change Notice takes effect shall be charged at the pricing specified in that Price Change Notice.

 

5.3

Where an Addendum specifies that the Customer is to pre-pay charges to Mobile Messenger for Services, then:

 

 

 

(a)  

the Customer shall make such payments by the time specified therefor in such Addendum;

 

 

 

(b)  

Mobile Messenger will set-off such pre-paid charges against the charges otherwise payable by the Customer for the Services in question, and any other amounts payable by the Customer under these Terms and Conditions, and report monthly to the Customer, showing a reconciliation of the pre-paid charges against such fees and amounts;

 

(c)  

pre-paid charges will not be refundable, notwithstanding that Services have not been provided to the Customer, over any period to which the pre-paid charges are stated to apply, except where the Services were not provided to Customer solely due to the material breach by Mobile Messenger of the terms of these Terms and Conditions.

 

 

 

(d)  

in the event that Mobile Messenger's charges attributable to the Services which are the subject of such pre-paid charges are equivalent to or exceed the amount for which pre-payment has been received from the Customer, then Mobile Messenger shall be entitled to suspend provision of the relevant Services until further payment has been received from the Customer in an amount specified by Mobile Messenger.

 

 

 

5.4

All amounts payable under these Terms and Conditions are exclusive of any Tax that may be applicable to the Services. The Customer will be responsible for payment of all such Taxes.

 

5.5

All charges or Outpayments for the Services shall be calculated by reference to data recorded by (a) Network Operators, in respect of Premium Rate Messages, and (b) Mobile Messenger, in relation to other messages.

 

1.4

Upon thirty (30) days' written notice, the Customer may, by appointment during normal business hours, inspect the records held by Mobile Messenger reasonably related to the calculation of charges and Outpayments, for the purpose of verifying charges and Outpayments under these Terms and Conditions. If a discrepancy is found then such discrepancy shall be corrected within 30 days of the inspection. Unless a discrepancy to the Customer's disadvantage of at least $500 is found in an inspection, then the Customer shall not be entitled to conduct another inspection under this Clause 5.6 until at least six months has elapsed from the end of the inspection in question.

 

5.7

In relation to messages where the relevant Addendum specifies charges for messages, such charges shall be Incurred:

 

 

 

(a)  

for MT messages, following the submission by the Customer of a message to the Platform through the Service Interface; provided that a charge will not be Incurred where a submission properly made according to the Protocol Specification is not correctly transmitted by Mobile Messenger to the relevant Network Operator for delivery;

 

(b)  

for MO messages, where the message is properly made available for receipt by the Customer through the Service Interface.

 

5.8

Where an invoice is issued for sums payable to Mobile Messenger by the Customer:

 

 

 

(a)  

such sums shall be paid by the Customer within 15 days of the date of Mobile Messenger's invoice; and

 

(b)  

unless otherwise specified in the relevant Addendum, Mobile Messenger will issue such invoices to the Customer on a monthly basis.

 

5.9

Unless otherwise expressly agreed in writing between the parties;

 

 

 

(a)  

all payments of charges by the Customer to Mobile Messenger and other transfers of funds between the parties required shall be made by bank transfer, and

 

 

 

(b)  

all charges and fees relating to such transfers (Including, without limitation, those levied by the paying and payee bank or other financial institution) will be borne by the Customer; Mobile Messenger will Include the amount of such charges and fees in invoices and statements issued to the Customer under these Terms and Conditions.

 


 

 

5.10

Where Outpayments are specified in an Addendum and are due to Customer, Customer shall be paid as follows:-

 

 

 

 

(a)

Mobile Messenger will notify Customer monthly in writing of the Outpayments due to the Customer, as calculated in accordance with the relevant Addendum, based on reports from Network Operators;

 

 

 

 

 

 

(h)

Customer shall invoice Mobile Messenger for the amounts of the Outpayments which are thus notified by Mobile Messenger; and

 

 

 

 

 

(a)

Mobile Messenger will make payment to the Customer of the relevant Outpayment amounts, subject to Clauses 1.5 and 5.12 below, 24 Hours after receiving payment from the relevant Network Operators for the Premium Rate Messages in respect of which the Outpayments are payable. Mobile Messenger will use its reasonable endeavors to obtain timely payment of such sums by such Network Operators. All payments shall be sent via wire transfer to the account specified by Customer.

 

1.5

Where Mobile Messenger owes to the Customer any sums, or holds any sums on its behalf (Including, without limitation, pre-paid charges referred to in Clause 5.3 above), then Mobile Messenger shall be entitled to set off against any such sums any amounts owed to Mobile Messenger by, or which Mobile Messenger is entitled to recover from or credit against, the Customer under or in connection with any Addendum or these Terms and Conditions.

 

5.12

Where Mobile Messenger is due to make any payment to the Customer under these Terms and Conditions, Mobile Messenger shall be entitled, but not obliged, to retain such amounts and pay them to the Customer only once they exceed $1,500.00 US (one thousand five hundred dollars).

 

5.13

If an End-user contacts Mobile Messenger in relation to the Services Mobile Messenger shall redirect or transfer such End-user to the support facilities of Customer, or, if such a transfer is not, in Mobile Messenger's opinion, reasonably practicable, for any reason (Including, without limitation, by reason of any unwillingness by the End-user to be redirected to the Customer), then Mobile Messenger may itself provide an initial response to the query or complaint. Where Mobile Messenger receives more than 20 such contacts from End-users in any 7 day period, Mobile Messenger shall have the right to charge the Customer the sum of $10.00 in respect of each individual telephone or other contact made by an End-user with Mobile Messenger or any agent of Mobile Messenger, save where (a) the proximate cause of the End-user making such contact is a breach of these Terms and Conditions, or a failure of the Services to perform in accordance with the Service Specifications, for which Mobile Messenger is responsible, or (b) the End-user's requirement to make contact with Mobile Messenger results either from (i) a failure on the part of Mobile Messenger to submit to the relevant Network Operator a Customer Care Form previously provided by the Customer containing the Customer's relevant contact information, or (ii) a failure of the relevant Network Operator to provide that contact information. Mobile Messenger does not warrant that any response it gives to End-users as provided in this Clause will be appropriate to the Services, or would be similar to the response which the Customer would give.

 

5.14

If any Network Operator makes a charge to or deduction from payments due to Mobile Messenger for calls made to such Network Operator by any End-Users, then Mobile Messenger shall be entitled to recover the amount of any such charges or deductions.

 

5.15

In the event that any payment due under these Terms and Conditions is not paid on the due date for payment then the creditor party shall be entitled to charge interest thereon at the rate of three percent per annum over the then-current base rate of the Chase Manhattan Bank, New York from time to time from the date payment becomes due until payment in full. Such interest shall accrue daily.

 

5.16

All pricing in this agreement or addendum are assumed US Dollars unless otherwise clearly stated. If the pricing for Services in an Addendum is expressed in a currency other than United State dollars, then, in respect of that Addendum only, sums expressed in these Terms and Conditions in United States dollars shall be converted into that currency using the applicable exchange rate for sale of U.S. dollars listed by the foreign exchange desk of the Chase Manhattan Bank, New York for the business day immediately preceding the day upon which each payment is due to be paid. If no such rate is stated, then the rate shall be the exchange rate published by the Wall Street Journal for the business day immediately preceding the day upon which each payment is due to be paid.

 

1.6

Obligations under this Clause 5, other than under Clause 5.12, shall survive any termination of these Terms and Conditions.

 


 

 

6

Confidentiality

 

 

 

6.1

For the purpose of these Terms and Conditions, "Confidential Information" shall mean all Intellectual Property Rights, drawings, software, data, specifications, processes, testing procedures, customer information, financial information, product and services information and all other technical, business and other information and material relating or belonging to a party or its customers and any other information designated as Confidential Information by a party which is obtained by either party in relation to the other, either directly or indirectly.

 

6.2

Confidential Information shall not Include:

 

 

 

(a)  

information which was in the public domain at the time of disclosure;

 

 

 

(b)  

information which, though originally Confidential Information, subsequently falls into the public domain other than as a result of any breach of this Clause or any other duty of confidentiality;

 

 

 

(c)  

information received by a party from a third party, or already known by such party, without any breach of this Clause or any obligation of confidentiality;

 

(d)  

information that is trivial or obvious; and

 

 

 

(e)  

information that is required to be disclosed by a government body or court of competent jurisdiction or by operation of law or in order to comply with the rules of a recognized stock exchange., but only to the extent so required.

 

6.3

Each party hereby agrees, other than as permitted by these Terms and Conditions, to keep the Confidential Information of the other in complete confidence and not to disclose the same to any third parties (except as set out above), nor use it for any purposes other than for the performance of its duties under these Terms and Conditions (the "Specific Purposes"). Either party may disclose the Confidential Information of the other to its employees but only to the extent reasonably necessary for the Specific Purposes and subject to the recipient being subject to obligations of confidentiality relating to that Confidential Information no less stringent than the requirements of this Clause. Each party hereby agrees to use reasonable endeavours to ensure that all such employees do not disclose Confidential Information of the other party to third parties or use the same otherwise than as reasonably required for the Specific Purposes. The provisions of this Clause shall continue in full force and effect notwithstanding the termination of these Terms and Conditions for any reason whatsoever.

 

7

Warranties / Liability

 

7.1

Mobile Messenger warrants that the Services will be performed with reasonable care and skill with the objective of meeting the requirements of these Terms and Conditions, Including (without limitation) the Service Specifications and the Service Level Agreement.

 

7.2

Mobile Messenger shall have no obligation, duty or liability whatsoever in contract, tort (Including negligence, breach of statutory duty and any other tort) or otherwise, except as otherwise expressly provided in these Terms and Conditions.

 

7.3

Nothing  in these Terms and Conditions shall exclude or restrict Mobile Messenger's or the Customer's liability for death or personal injury resulting from their respective negligence.

 

7.4

LIMITATION OF LIABILITY. NEITHER MOBILE MESSENGER NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING, INSTALLING, SUPPORTING, SUSPENDING OR TERMINATING THE USE OF ANY SERVICE OR SOFTWARE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR USE OF MOBILE MESSENGER SERVICE, OR INABILITY TO USE MOBILE MESSENGER SERVICE, OR ARISING OUT OF BREACH OF ANY WARRANTY OR SERVICE LEVEL ASSURANCE; INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, OR LOSS OF TECHNOLOGY RIGHTS, EVEN IF SUCH PERSON OR ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOBILE MESSENGER SHALL IN ADDITION HAVE NO RESPONSIBILITY OF ANY KIND FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER'S INFORMATION CARRIED OVER WIRELINE OR WIRELESS TELECOMMUNICATIONS PROVIDERS' FACILI'T'IES AND NETWORKS. MOBILE MESSENGER SHALL IN ADDITION HAVE NO RESPONSIBILITY FOR THE SELECTION, RETENTION, OR. ACTS AND OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE, INCLUDING THOSE WITH WHOM MOBILE MESSENGER MAY CONTRACT TO OPERATE THE MOBILE MESSENGER SERVICE, REGARDLESS OF THE CAUSE OR THE FORM OF ACTION, MOBILE MESSENGER' AGGREGATE MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE TOTAL AMOUNTS PAYABLE BY CUSTOMER THEREUNDER, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN.

 


 

 

7.5

Disclaimer. THE MOBILE MESSENGER NETWORK AND SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. MOBILE MESSENGER DISCLAIMS ALL WARRANTEES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS.

 

7.6

Mobile Messenger shall have no liability to the Customer or any other person for or in respect of any Customer Content, Customer Data or instructions supplied by the Customer which are Incomplete, Incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other act or omission of the Customer.

 

7.7

Mobile Messenger will use reasonable endeavours to meet any dates agreed between the parties in writing for the commencement of the Services.

 

1.7

If Mobile Messenger shall fail to meet any service level or other requirement specified in the Service Level Agreement, then Mobile Messenger's entire liability, and the Customer's entire remedy, shall be (a) for Mobile Messenger to use reasonable endeavours to correct such failure in future deliveries of the affected Services; and (b) termination of the relevant Service Addendum and the Services provided thereunder, subject to and in accordance with the Service Level Agreement and Clause 12.3(b) below.

 

 

 

1.8

The provisions of this Clause 7 shall survive the termination or expiration of these Terms and Conditions. 

 

Intellectual Property Rights

 

8.1

Ownership of all Mobile Messenger Rights shall vest in and remain with Mobile Messenger. Mobile Messenger does not by these Terms and Conditions grant Customer any right, title, license or interest in or to any Mobile Messenger software or documentation, or in any related patents, copyrights, trade secrets or other proprietary intellectual property. Customer shall acquire no rights of' any kind in or to any Mobile Messenger trademark, service mark, trade name, logo or product or service designation under which Mobile Messenger' products or services were or are marketed (whether or not registered) and shall not use same for any reason except as expressly authorized in writing by Mobile Messenger prior to such use, but in no event for a period longer than the term of these Terms and Conditions.

 

8.2

Notwithstanding the foregoing, Mobile Messenger shall provide to the Customer a perpetual license to access the "content delivery software" so that Customer shall have unlimited access to the software which shall provide the billing, content delivery, access and support to Customers user base. Mobile Messenger shall have no rights to access the Customer user base for any reason without the express written permission of Customer. It is understood and agreed by both parties that by the signing of this agreement Customer shall have full use of the software so long as there are active users in the Customer user base and Mobile Messenger will have no rights to these customers at any time now or in the future. There shall be no additional charges paid by Customer for this license other than the payments agreed to in this agreement.

 

8.3

The Customer shall license to Mobile Messenger the Customer Rights in order that Mobile Messenger is enabled to provide the Services in accordance with these Terms and Conditions.

 

1.9

Any license granted under this Clause 8 shall be non-transferable, non-sublicensable, non-exclusive and royalty-free and shall be limited to the Term in respect of the Services to which the license relates and shall be granted only for the purpose of fulfilling the respective party's rights and obligations under these Terms and Conditions.

 

1.10

Each party warrants to the oth


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