This Consulting Services Agreement involves
Title: SMS CONNECTIVITY AGREEMENT
Governing Law: New York Date: 2/13/2007
Industry: Printing and Publishing
SMS CONNECTIVITY AGREEMENT
STANDARD TERMS AND CONDITIONS
Cingular Wireless LLC
This Agreement ("Agreement"), is entered into by and between Cingular Wireless LLC, a Delaware limited liability corporation ("Cingular"), with and Mobliss, Inc, ("Customer") to be effective as of 1/8 , 2004 (the "Effective Date").
Exhibit A Premium SMS Revenue Share and Fees for Service
Exhibit B Template for Shortcodes Applications
Exhibit C Template for Premium SMS Billing and Shortcode Applications
Exhibit D Service Level Agreement
WHEREAS, Cingular is a provider of wireless messaging service ("Cingular Services"); and
WHEREAS, Customer provides content and applications that may be sent via wireless messaging services;
WHEREAS, Customer desires to interconnect with Cingular, either directly or through a designated party, so as to more efficiently deliver its Content to Cingular subscribers ("Connectivity");
WHEREAS, from time to time Customer may request that Cingular provide it with billing services to enable Subscribers to more easily purchase premium SMS services from Customer; and
WHEREAS, from time to time Customer may request that Cingular provide it with Shortcodes to make it more convenient for Subscribers to send SMS messages to Customer.
NOW, THEREFORE, and in consideration of the mutual promises, representations and warranties contained in this Agreement, the parties agree as follows:
The following definitions apply throughout this Agreement, including any Exhibits:
1.1 "Customer Marks" means the Marks of Customer or its Affiliates that are used in or relate to Customer's and its Affiliate's businesses.
1.2 "Customer Content" means all data, information, and other content made available by or on behalf of Customer through the Customer Information Service or otherwise provided by Customer to Cingular for Cingular's use as described in this Agreement. The types of Customer Content that Customer may transmit under the Agreement are described in Section 2.1.1.
1.3 "Customer Information Service" means Customer's service that distributes SMS content for use in connection with wireless devices of Subscribers.
1.4 "Marks" means trademarks, service marks, logos, insignias, trade dress and other proprietary trade designations protected by law.
1.5 "Premium SMS" means the charging of Cingular subscribers for a specific use of text messaging with the use of Shortcodes for a per event charge in addition to their already prescribed monthly service plan.
1.6 "Shortcodes" means a combination of fewer than ten digits to which Subscribers can direct text messages from their Wireless Equipment and which Cingular will translate into a valid SMTP address for deliver to Customer.
1.7 "SMS" mean short message service.
1.8 "SMS Connectivity" means the ability to access with permission the Cingular text messaging network architecture for the purpose of transmitting SMS messages to or from Cingular subscribers.
1.9 "Subscribers" means users of Cingular Services.
1.10 "Unsuitable Content" means Customer Content that Cingular may in its sole discretion determine to be inappropriate, including content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethically or otherwise objectionable; services that facilitate illegal activity, promote violence, promote discrimination, promote illegal activities, or incorporate any materials that infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights.
1.11 "User Data" means personally identifiable data generated in connection with a Cingular User's use of the Customer Information Service, including without limitation, information that may be provided at the time of registration for the Customer Information Service, but expressly not including personally identifiable data provided to Customer or any of its Affiliates in any manner other than in connection with the Customer Information Service.
1.12 "Wireless Equipment" means digital electronic equipment meeting the requirements of and authorized by Cingular for the use of the Cingular Service, including the Cingular Services that enable Cingular Users to receive the Customer Information Service.
2.1 Services Available under this Agreement. This Agreement includes several services some of which are available on an ala carte basis for the delivery of Customer Content to Subscribers as follows:
2.1.1 Customer will be allowed to use the SMS Connectivity for the following uses Voting, Polling, Mobile Marketing, Alerts, Content Delivery, and Application Support. Cingular must be notified in advance of using the granted connectivity for any additional uses not identified in this section. Cingular will have thirty (30) days to respond to these requests and can disapprove the efforts. Notification should be sent to the same address c/o the contract signor for Cingular.
2.1.2 Customer will be granted SMS Connectivity, either through a direct connection to the Cingular messaging architecture, or through a Cingular designated intermediary. Cingular at its sole discretion will determine that appropriate point of integration. Customer will initially be provided connectivity directly via Cingular. Cingular at its sole discretion may also request that Customer change the point of connectivity. Cingular will provide the appropriate specification and contact information for connectivity at such time as this agreement is executed.
2.1.3 Cingular may in its sole discretion reserve Shortcodes for Customer to direct Subscribers to send SMS messages to for ultimate delivery to Customer or Customer designee. Short Code reservations (without billing service requirements) shall be documented by a signed writing from both parties as in the form of Exhibit B. The first Short Code reservations, if any, shall be attached hereto as Exhibit B 1, and each subsequent Short Code reservations, if any, will be attached and labeled using the following convention: Exhibit B-2, Exhibit B-3 and so on. To be effective, any changes to a Short Code reservation must be in writing and signed by authorized representatives of both parties. Nothing herein is intended to obligate the Parties to enter into a Short Code reservation.
2.1.4 Cingular in its sole discretion may provide billing services that will enable Customer to charge a premium for delivery of Customer Content to Subscribers or for Subscribers who direct SMS messages to Customer via a Short Code. The details describing any Premium SMS Campaign shall be set forth is a signed writing in the form shown as Exhibit C. The first Premium SMS Campaign, if any, shall be attached hereto as Exhibit C 1, and each subsequent Premium SMS Campaign, if any, will be attached and labeled using the following convention: Exhibit C-2, Exhibit C-3, and so on. To be effective, any changes to a Premium SMS Campaign must be in writing and signed by authorized representatives of both parties. Nothing herein is intended to obligate the Parties to enter into a Premium SMS Campaign.
2.1.5 Customer shall provide appropriate technical and operational supervision in support of the Agreement. The support requirements are set forth in Exhibit D, Service Level Agreement.
2.2 Nonexclusive Market Rights. It is expressly understood and agreed that neither this Agreement nor any Amendment grants to either party any exclusive privileges or rights and that either party may participate in similar business arrangements and for similar content as described herein and contract with other organizations in association with the Customer Information Service provided under this Agreement or the Agreement.
2.3 Service Prohibitions.
2.3.1 Content. Customer is solely responsible for the development, operation and maintenance of the Customer Content. Customer also is responsible for ensuring that the Customer Content (i) does not disparage, defame, or discredit Cingular or a Cingular Affiliate or their respective names and is not derogatory or detrimental to the good name or business reputation of Cingular or a Cingular Affiliate, and (ii) does not constitute Unsuitable Content. Cingular or its designated agent may review all Customer Content prior to its delivery to Subscribers. Cingular may reject any Customer Content in its sole discretion. Cingular's failure to reject Customer Content shall not constitute an approval or other endorsement of the suitability of such content.
2.3.2 Eligible Subscribers. Customer shall only send Customer Content to Subscribers who have affirmatively expressed a desire to receive Customer Content ("Opt-in Consent"). Customer may not send any unsolicited Customer Content. Customer may secure Opt-in Consent via Web registration or via SMS request.
2.5 Advertising Limitation. Customer shall not deliver unsolicited advertising or coupons to Subscribers, including delivery of ads/coupons via SMS or via e-mail, unless Subscribers have agreed to receive such types of Customer Content.
2.6 No Switchover Marketing. During the term of the Agreement, Customer shall not market to Cingular Subscribers (as a targeted group) to attempt to persuade them to use any other wireless carriers.
2.7 Ownership. Subject to the licenses granted in this Agreement, Customer is and will remain the owner of all right, title and interest in and to the Customer Marks, and Customer Content, including all intellectual property rights therein. Cingular hereby acknowledges and agrees that, except as expressly set forth herein, nothing in this Agreement grants to it a right or license in any patents, copyrights, trade secrets, trademarks, logos or other property or rights of Customer or its Affiliates. Customer hereby acknowledges and agrees that nothing in this Agreement grants to it a right or license in any patents, copyrights, trade secrets, trademarks, logos or other property or rights of Cingular or its Affiliates.
3. FEES AND REVENUE SHARING Customer will pay the fees set out on Exhibit A. Cingular will collect and remit the revenue share associated with billing services as set out in Exhibit A. All payments made under this Agreement shall be made in U.S. Dollars,
4. MARKETING AND PROMOTION
4.1 Marketing and Placements. From time to time, Customer and Cingular may agree to implement certain marketing programs in support of the relationship contemplated by this Agreement, or any aspect thereof.
4.2 Trademark License.
4.2.1 License. Subject to the terms and conditions of this Agreement, each party (the "Licensee") hereby grants the other party (the "Licensor"), during the term of this Agreement, a non-exclusive, royalty-free, non-transferable, worldwide license to use and reproduce the Marks provided by Licensor hereunder solely in connection with the performance of Licensee's obligations under this Agreement.
4.2.2 License Restrictions. Licensee will use the Marks provided to Licensee by Licensor in conformance with Licensor's trademark usage policies as communicated to Licensee from time to time. Licensee will not use Licensor's Marks in a manner that Licensor reasonably believes dilutes, tarnishes or blurs the value of Licensor's Marks. Licensee acknowledges that Licensee's use of Licensor's Marks will not create in Licensee, nor will Licensee represent it has, any right, title or interest in or to Licensor's Marks other than the license granted by Licensor above. Licensee will not attempt to register any of Licensor's Marks, nor will it adopt any derivative or confusingly similar names, brands or marks or create any combination marks with Licensor's Marks. Licensee acknowledges Licensor's and its Affiliates' ownership and exclusive right to use Licensor's Marks and agrees that all goodwill arising as a result of Licensee's use of Licensor's Marks will inure solely to the benefit of Licensor and its Affiliates.
4.3 Style Guides. Customer acknowledges that it will follow the Style Guides as provided by Cingular.
5.1 Forecasts: Customer shall provide to CINGULAR upon execution of this agreement, an estimate ("Forecast") of its network usage. This Forecast will be for at least three (3) months, and thereafter a three (3) month Forecast shall be provided at the start of each Quarter (January lst, April 1 st , July 1', October These Forecasts shall include estimated number of total SMS messages with a summary of expected mobile originated and mobile terminated messages.
6. TERM AND TERMINATION
6.1 Term. The Initial Term of this Agreement shall be for one (1) year from signature by both parties. The Agreement will automatically be extended, without any further action by either party, for additional consecutive periods of one (1) year each (each a "Renewal Period").
6.2 Termination. Either party may terminate this Agreement as to any particular Content or in its entirety upon sixty (60) days prior notice to the other party of the effective date of such termination.
6.3 Price Changes. CINGULAR reserves the right to change prices for services provided by CINGULAR hereunder as necessary to account for considerations of CINGULAR
expenses, competition, and market conditions. Such changes as necessary will be announced to Customer at least ninety (90) days prior to the effective date of the price change.
6.4 Non-Payment. Notwithstanding any other provisions of this Agreement, CINGULAR shall have the right to terminate Customer's service and this Agreement without further notice if an invoice for services provided hereunder by CINGULAR is not paid in full within forty-five (45) days after the due date of such invoice, and such invoice remains unpaid for ten (10) days after Customer's receipt of written notice of such non-payment from CINGULAR.
6.5 Unsuitable Information Services: Customer may not deliver Unsuitable Information Services via the connectivity described herein. Cingular may at its sole discretion determine that Content distributed by Customer under this agreement is Unsuitable Content. If Cingular determines that Content has been delivered by Customer after Cingular has notified Customer that such Content is an Unsuitable Content, the agreement may be terminated immediately by Cingular.
6.6 Breach. If either party breaches or defaults on any of the provisions of this Agreement, and such breach is not cured within thirty (30) days after the breaching party receives written notice, then in addition to all other rights and remedies of law or equity or otherwise, the injured party shall have the right to terminate this Agreement without any obligation or liability. Failure to terminate this Agreement following a breach which continues longer than such thirty (30) day period shall not constitute a waiver, at any time thereafter, of the non-breaching party's rights under this Section, provided such breach has not been cured.
6.7 Effect of Termination. Upon expiration or termination of this Agreement, (i) Cingular will immediately return to Customer all copies of the Confidential Information of Customer in the custody of Cingular, and any Customer data, equipment, materials or other property that Cingular has been provided during the term of this Agreement, (ii) Customer will immediately return to Cingular all copies of the Confidential Information of Cingular in the custody of Customer, and any Cingular data, equipment, materials or other property that Customer has been provided during the term of this Agreement, and (iii) all licenses from one party to the other party will immediately terminate. In addition, the provisions of this Agreement which by their nature survive termination shall so survive.
7.1 During the term of this Agreement it may be necessary for one party to provide other party with certain written, electronic or oral information that is marked or described as, identified in writing as, or provided under circumstances indicating it is, confidential or proprietary ("Information"). The receiving party shall protect such Information received by it from whatever source from distribution, disclosure or dissemination or use to or by anyone except employees of receiving party with a need to know such Information in conjunction with the provision of services hereunder, except as authorized herein or as otherwise authorized in writing.
7.2 Receiving party will not have an obligation to protect any portion of disclosing party's Information which:
7.2.1 is made publicly available by disclosing party or lawfully by a nonparty to this Agreement; or
7.2.2 is lawfully obtained by receiving party from any source other than disclosing party; or
7.2.3 is previously known to receiving party without an obligation to keep it confidential; or
7.2.4 is released by disclosing party in writing.
7.3 Receiving party will only make copies of the Information received from disclosing party as are necessary for its use under the terms hereof, and each such copy will be marked with the same proprietary notices as appear on the originals. Receiving party agrees to use the Information solely in connection with this Agreement and for no other purpose. Receiving party agrees to return promptly all Confidential Information and any copies thereof to disclosing party upon termination or expiration of this Agreement or at any time upon the disclosing party's written request.
7.4 Receiving party's obligations as to the Confidential Information shall continue for a period of two (2) years after the termination or expiration of this Agreement.
7.5 If a demand under legal or regulatory authority of competent jurisdiction or a requirement of law for the discovery or disclosure of Confidential Information is made known to either party, the receiving party shall give notice of the demand or requirement prior to disclosing the Confidential Information and shall, upon the request and at the expense of the other party, obtain or cooperate in any efforts by the receiving party to seek reasonable arrangements to protect the confidential and proprietary nature of such Confidential Information.
7.6 Both parties agree that a breach of any of the obligations set forth in this Section 7 would irreparably damage and create undue hardships for the other party. Therefore, the non-breaching party shall be entitled to immediate court ordered injunctive relief to stop any apparent breach of this Section 7, such remedy being in addition to any other remedies available to such non-breaching party.
8. WARRANTY DISCLAIMER. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE WITH RESPECT TO THE PERFORMANCE OF SERVICES PROVIDED UNDER THIS AGREEMENT. BOTH PARTIES SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM A COURSE OF DEALING, TRADE USAGE OR TRADE PRACTICE. IN ADDITION, NEITHER PARTY MAKES ANY WARRANTIES WHATSOEVER TO ANY PERSON OR ENTITY (INCLUDING BUT NOT LIMITED TO CINGULAR USERS) OTHER THAN TO THE OTHER PARTY HEREUNDER. NO REPRESENTATION OR STATEMENT MADE BY EITHER PARTY OR BY AGENTS OR EMPLOYEES OF EITHER PARTY, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY SPECIFICATIONS, DESCRIPTIONS OR STATEMENTS PROVIDED OR MADE TO EACH PARTY BY THE OTHER PARTY SHALL BE BINDING UPON EITHER PARTY AS A WARRANTY OR OTHERWISE.
9. INFRINGEMENT AND INDEMNIFICATION
9.1 Customer represents and warrants that: it owns all right, title, and interest in and to, or has sufficient authority to use and distribute or make available in the manner contemplated by this Agreement, the Customer Content; none of the Customer Content, nor the Customer Marks does or will infringe any U.S. patent, trademark, service mark, copyright, or other intellectual property right of a third party, or constitute a libel or defamation or false, deceptive or unfair advertising or disparagement under applicable law, or fail to comply with any applicable law, or constitute an invasion of the right of privacy or publicity of any person.
9.2 Cingular represents and warrants to Customer as follows: that it owns all right, title, and interest in and to, or has sufficient authority to use and distribute in the manner contemplated by this Agreement, the services provided by Cingular generally; and that none of the Cingular services, Cingular trademark and any materials provided by Cingular to Customer for Customer's use as described in this Agreement does or will infringe any U.S. patent, trademark, service mark, copyright, or other intellectual property right of a third party, or constitute a libel or defamation or false, deceptive or unfair advertising or disparagement under applicable law, or fail to comply with any applicable law, or constitute an invasion of the right of privacy or publicity of any person.
9.3 Each party represents and warrants that it will (a) not make any false or misleading representations with regard to the other party or its products and services, (b) not represent that it has any authority to bind the other party to any agreement, (c) obey all laws and regulations governing it and its business with respect to performance hereunder, and (d) not make any representations with respect to the specifications, features or capabilities of the other party's products or services that are inconsistent with or beyond the scope of the end user information distributed by the other party.
Each party shall defend, indemnify and hold harmless the other party, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns, (collectively the "Indemnitees"), from and against any and all claims, actions, losses, costs, liabilities or expenses (including, without limitation, reasonable attorneys' fees) which any of the Indemnitees may suffer, incur or sustain resulting from, or arising out of (a) any breach of the representations and warranties in this Agreement; (b) in the case of Customer that that any of the Information Services infringe any patent, copyright, trademark, service mark or other right of any third person; (c) any claim or action arising out of either party's failure to obtain any consent, approval or license for its activities as contemplated by this Agreement, or its failure to pay any fees due to third parties in connection therewith; (d) violation by the other party of any applicable law, rule, or regulation without regard to source; (e) breach by the other party of any contract with a third party, including but not limited to agreements with subscribers; (f) any material provided by Customer which is unlawful, libelous or defamatory; (g) any claim based on the merchantability, fitness for a particular purpose, or completeness, of the Information Services; or (h) any claim that either party's collection or use of end use