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US PREMIUM MASTER SERVICE AGREEMENT

Consulting Services Agreement

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MPLC, INC.

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Title: US PREMIUM MASTER SERVICE AGREEMENT
Governing Law: California     Date: 2/13/2007
Industry: Printing and Publishing    

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US PREMIUM MASTER SERVICE AGREEMENT

 

Dated: 17th January 2006.

 

CUSTOMER DETAILS

 

 

 

 

Title 

Given Name:

 

 

Surname:

 

 

 

 

 

Business Name:

New Motion, Inc.

 

 

 

Tax ID:

202582952

Business Address:

42 Corporate Park, Suite 250

 

 

 

State of Registration:

Delaware

Irvine 

 

CA

92606

 

Business Phone:

949-777-3700

                                        

State: 

Post Code:

 

Business Fax:

949-777-3707

Postal Address:

 

 

 

Mobile Number:

 

 

 

 

 

 

 

 

 

E-Mail:

allan@newmotioninc.com

                                         

  State: 

Post Code:

 

Web Address:

Mobile Messenger Account Manager:

 

 

 

 

 

TECHNICAL CONTACT DETAILS

 

Name:

EMAIL

NOTIFY OF OUTAGE

Brian Singleton

brian@newmotioninc.com

x YES o NO

Kalpesh Trivedi

kalpesh@newmotioninc.com

x YES o NO

 

YOUR PAYMENT DETAILS

 

Preferred Payment Method:

 

 o Check     x EFT

 

Contact Name for Remittance Advice:

Allan Legator

Bank               BSB                Account Number

Wells Fargo                          

 

AGREEMENT

 

I/We have read, understood and agree to the Terms and Conditions as per the attached and to all relevant industry and legal legislation and regulation, and agree to pay the fees and charges as per this master agreement.

 

SIGNATURE:

/s/ Allan Legator

 

DATE:   1 | 18 | 06

 

RETURN OR FAX FORM WITH PAYMENT TO:

MOBILE MESSENGER AMERICAS PTY LTD ABN 73 113 948 959

Level 1 225 Miller St North Sydney NSW 2060

PH: 61 2 9900 3600 FX: 61 2 990 3602

E.     accounts@mobilemessenger.com.au        W.     www.mobilemessenger.com.au

 


 

 

TERMS AND CONDITIONS

 

BACKGROUND:

 

 

A.

Mobile Messenger is a wireless media, marketing and infrastructure company focused on building and implementing effective properties that engage customers on wireless devices. Mobile Messenger creates contextual marketing opportunities in the mobile environment and provides complete solutions for the development, deployment, targeting and tracking of promotional campaigns on emerging mobile platforms

 

 

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

“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;

 

1.1.2

“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;

 

1.1.3

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

 

1.1.4

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

 

1.1.5

“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;

 

1.1.6

“End-user” means any user of the relevant Network Operator’s mobile network;

 

1.1.7

 “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;

 

1.1.8

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

 

1.1.9

 “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;

 

1.1.10

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

 

1.1.11

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

 


 

 

1.1.12

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

 

1.1.13

“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;

 

1.1.14

“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;

 

1.1.15

“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;

 

1.1.16

“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;

 

1.1.17

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

 

1.1.18

“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;

 

1.1.19

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

 

1.1.20

“Rights” means the Customer Rights and the Mobile Messenger Rights, respectively;

 

1.1.21

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

 

1.1.22

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

 

1.1.23

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

 

1.1.24

“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;

 

1.1.25

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

 

1.1.26

“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;

 

1.1.27

“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

 

1.1.28

“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;

 

 

(e)

to accept responsibility for, and pay in accordance with these Terms and Conditions, Mobile Messenger’s charges, as specified in accordance with Clause 5.1, 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.

 

3.2

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 3.2 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 3.2 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

 

5.1

The charges for the Services shall be as set out in the relevant Addendum, as adjusted from time to time pursuant to this Clause 10. 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 12.3(b)(ii) 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 reconcilia


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