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
:
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(1)
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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
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(2)
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New
Motion Inc, a
company Incorporated in California, whose is principal place of
business is 10 Corporate Park #315, Irvine, ca.
92602 ("Customer").
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BACKGROUND:
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A.
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Mobile
Messenger is a provider of mobile messaging services.
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B.
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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.
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NOW IT
IS HEREBY AGREED AS FOLLOWS:
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1
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Definitions and
Interpretation
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1.1
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The following
Definitions shall apply to these Terms and Conditions:
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1.1.1
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"Addendum"
means an Addendum which invokes, and is properly executed by the
parties under these Terms and Conditions;
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1.1.2
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"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;
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1.1.3
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"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;
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1.1.4
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"Customer
Rights" means all Intellectual Property Rights owned by Customer in
relation to Customer Content;
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1.1.5
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"Customer
Content" means any information provided by or on behalf of the
Customer for transmission by Mobile Messenger as part of the
Services;
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1.1.6
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"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;
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1.1.7
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"End-user"
means any user of the relevant Network Operator's mobile
network;
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1.1.8
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"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;
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1.1.9
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"Mobile
Messenger Data" means data, excluding Customer Data, which is
provided or generated in the course of Mobile Messenger's
provision of the Services;
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1.1.10
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"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;
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"MO" (or
"Mobile Originated") means a message received by Mobile Messenger
from a Network Operator (such
as, without limitation, a
mobile-originated SMS);
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1.1.12
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"MT" (or
"Mobile Terminated") means a message sent by Mobile Messenger from
the Platform to a Network Operator's mobile network;
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1.1.13
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"Network
Operator" means a mobile network operator which is directly or
indirectly engaged in the performance of any of the
Services;
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1.1.14
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"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;
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1.1.15
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"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;
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1.1.16
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"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;
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1.1.17
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"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;
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1.1.18
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"PSMS Terms and
Conditions" means the Premium SMS Terms and Conditions specified in
Schedule 2;
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1.1.19
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"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;
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1.1.20
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"Revenue Share
Payment" (or "Outpayment") means a payment from Mobile Messenger to
Customer in the amount specified in an Addendum;
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1.1.21
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"Rights" means
the Customer Rights and the Mobile Messenger Rights,
respectively;
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1.1.22
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"Service" and
"Services" mean managed mobile infrastructure services and/or other
services of Mobile Messenger defined in the relevant Service
Specifications;
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1.1.23
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"Service
Addendum" means an Addendum specifying Services and other matters
pertaining to those Services;
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1.1.24
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"Service
Interface" means the method to be used by the Customer to connect
to the Platform;
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1.1.25
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"Service Level
Agreement" (or "SLA") means the document of that name attached to
these Terms and Conditions as Schedule 1;
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1.1.26
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"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;
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1.1.27
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"Subcontractor"
means any client or other third party with which the Customer
contracts to provide any or all of the Services;
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1,1.28
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"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;
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1.1.1
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"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
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1.1.30
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"Terms and
Conditions" means the provisions of this Master Services Agreement,
together with each of its Schedules and each Addendum entered into under
it.
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References in
these Terms and Conditions to "Mobile Messenger" and
"Customer" shall Include their respective employees, agents,
sub-contractors, consultants and permitted assigns.
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1.3
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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.
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1.4
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Unless the
context otherwise requires, the singular Includes a reference to
the plural and vice versa.
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1.5
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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.
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1.6
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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.
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1.7
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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.
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2
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The
Services and the Addenda
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2.1
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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:
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(a)
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the end of the
term for those Services specified in the relevant Addendum;
or
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(b)
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these Terms and
Conditions as they relate to those Services are terminated in
accordance with these Terms and Conditions;
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(d)
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these Terms and
Conditions are terminated in their entirety, whichever occurs
first.
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2.2
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The Customer
may request additional or amended services by completing a Service
Addendum.
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2.3
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Each Addendum
which is accepted, agreed and executed by the Customer and Mobile
Messenger will form part of these Terms and
Conditions.
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2.4
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Where an
Addendum specifies Premium SMS Services are being taken by the
Customer, then the PSMS Terms and Conditions shall apply
thereto.
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2.5
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The Customer
acknowledges and agrees that;
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(a)
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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
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(b)
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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:
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(i)
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such change
shall be deemed automatically to bind the Customer; and
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(ii)
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Mobile
Messenger will
use its reasonable endeavours to
notify Customer of the relevant changes as soon as is reasonably
practicable,
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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.
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2.6
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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.
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2.7
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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.
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3.1
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The Customer
warrants and undertakes to Mobile Messenger as follows:
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(a)
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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;
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(b)
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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;
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(c)
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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;
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(d)
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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;
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(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);
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(f)
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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;
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(g)
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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;
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(h)
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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;
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(i)
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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
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(j)
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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.
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1.2
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Without
limiting Clause 3.1 above, the Customer undertakes not to use the
Services or permit the Services to be used:
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(a)
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for sending any
communication which is defamatory, offensive or abusive or of an
obscene or menacing nature;
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(b)
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for the
persistent sending of messages without a reasonable cause or for
the purpose of causing annoyance, Inconvenience or distress to any
person;
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(c)
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in any way that
contravenes applicable law or regulation in any country where the
Services are marketed or provided;
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(d)
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in any way that
may have a detrimental effect to the goodwill and good standing of
any of the relevant Network Operators; or
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(e)
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for the sending
of unsolicited messages.
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3.3
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Mobile
Messenger may request:
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(a)
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evidence from
the Customer of compliance with Clauses 3.1 and 1.2 above,
and
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(b)
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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,
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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.
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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.
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3.5
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The Customer
also acknowledges that:
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(a)
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an Allocated
Number may be similar to another number or code; and
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(b)
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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.
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4
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Compliance and
Regulators
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(a)
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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);
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(b)
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to ensure that
all advertising of the Services complies with applicable
advertising laws, standards, regulations and codes;
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(c)
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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;
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(d)
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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;
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(e)
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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.
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(f)
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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.
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4.2
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In the event
that any Network Operator or Regulator:
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(a)
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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
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(b)
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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,
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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.
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5
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Price, Payment
and Currency
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1.3
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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.
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5.2
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Mobile
Messenger shall be entitled to change the pricing which applies to
Services by:
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(a)
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30 days' notice
in writing to the Customer, or
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(b)
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such other
period of notice as may be specified in the relevant
Addendum,
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(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.
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5.3
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Where an
Addendum specifies that the Customer is to pre-pay charges to
Mobile Messenger for Services, then:
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(a)
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the Customer
shall make such payments by the time specified therefor in such
Addendum;
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(b)
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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;
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(c)
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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.
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(d)
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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.
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5.4
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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.
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5.5
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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.
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1.4
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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.
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5.7
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In relation to
messages where the relevant Addendum specifies charges for
messages, such charges shall be Incurred:
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(a)
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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;
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(b)
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for MO
messages, where the message is properly made available for receipt
by the Customer through the Service Interface.
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5.8
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Where an
invoice is issued for sums payable to Mobile Messenger by the
Customer:
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(a)
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such sums shall
be paid by the Customer within 15 days of the date of Mobile
Messenger's invoice; and
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(b)
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unless
otherwise specified in the relevant Addendum, Mobile Messenger will
issue such invoices to the Customer on a monthly basis.
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5.9
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Unless
otherwise expressly agreed in writing between the
parties;
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(a)
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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
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(b)
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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.
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Where
Outpayments are specified in an Addendum and are due to Customer,
Customer shall be paid as follows:-
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(a)
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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;
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(h)
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Customer shall
invoice Mobile Messenger for the amounts of the Outpayments which
are thus notified by Mobile Messenger; and
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(a)
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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.
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1.5
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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.
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5.12
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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).
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5.13
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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.
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5.14
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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.
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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.
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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.
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1.6
|
Obligations
under this Clause 5, other than under Clause 5.12, shall survive
any termination of these Terms and Conditions.
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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.
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6.2
|
Confidential
Information shall not Include:
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(a)
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information
which was in the public domain at the time of
disclosure;
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(b)
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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;
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(c)
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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;
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(d)
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information
that is trivial or obvious; and
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(e)
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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7.7
|
Mobile
Messenger will use reasonable endeavours to meet any dates agreed
between the parties in writing for the commencement of the
Services.
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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.
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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.
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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.
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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.
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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.
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1.10
|
Each party
warrants to the oth
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