EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF AGREEMENT
THIS AGREEMENT is made this 23rd day of June 2004
BETWEEN
(1) ZIM CORPORATION a company incorporated in Canada whose registered
office is at 00 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxxxx, X0X 0X0,
Xxxxxx ("ZIM"); and
(2) ** CONFIDENTIAL TREATMENT REQUESTED ("the Client")
Recitals
(A) ZIM is a Mobile Service Provider utilising connections to GSM Mobile
networks based in the United Kingdom for the provision of revenue
generating SMS services to end user mobile subscribers.
(B) The Client wishes to provide IMS Services to End Users which ZIM has
agreed to provide subject to and upon the terms and conditions set out
in this Agreement
IT IS AGREED as follows:
Definitions
1.1 Unless the context requires otherwise, the following phrases shall have
the following meanings in this Agreement:
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"Connection Fee" means the payable on the date
of this Agreement in accordance
with Clause 3.1.
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"Monthly Fee" means the fee payable to ZIM
by the Client for the provision of
the Service in accordance with
Schedules 2 and 3.
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"Commencement Date" means the date of this Agreement
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"Confidential Information" means any information whether
oral, written held on whatever
media which is disclosed to or
otherwise obtained by one party
from the other party pursuant to
or in connection with this
Agreement, and whether or not
such information is expressly
stated to be confidential or
marked as such, and including but
not limited to know how
methodology and other proprietary
information and of business
and/or marketing plans and
business practices and other
commercially sensitive
information including End User
information and data.
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"Content Aggregation" means the collation of
information content by the Client
from third party sources.
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"End User" means any individual, corporation
or otherlegal entity that uses
the Network from mobile
telephones provided by or
utilising mobile telephones
operated by UK Operators. The
term "End User" does not include
an Unbillable End User
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"End User Information" means any demographic or personal
information identifying
information, data or records
relating to End Users and/or
their use of the Information
Services, including, without
limitation, their respective
names, addresses, telephone
numbers, account information,
passwords, usage statistics,
communications exchanged or
transactions conducted using the
Information Services.
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"End User Validation Data" means data
to be provided by ZIM to the
Client that shall enable the
Client to establish whether the
relevant End User is a Billable
End User or an Unbillable End
User.
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"Force Majeure" means any event or condition, not
existing as of the date of this
Agreement, not reasonably
foreseeable as of such date and
not reasonably within the control
of either party, which prevents in
whole or in material part the
performance by a party of its
obligations hereunder (other than
the obligation to make any payment
of money due and owing) or which
renders the performance of such
obligations so difficult or costly
as to make such performance
commercially unreasonable. Without
limiting the foregoing, the
following will constitute events
or conditions of Force Majeure:
acts of state or governmental
action (including but not limited
to the failure of the appropriate
government authorities to grant
proper authorization to the Client
to provide the Client Services to
End Users), riots, disturbance,
war, strikes, lockouts, slowdowns,
prolonged shortage of energy
supplies, epidemics, fire, flood,
hurricane, typhoon, earthquake,
lightning and explosion.
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"IMS" Means information based mobile
telephone communication services
effected by the transmission of an
Information Services to and
receipt of SMS text messages from
a mobile telephone via a Network
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"ICSTIS" means the Independent Committee
for the Supervision of Standards
of Telephone Information Services
(or any similar body that may be
appointed in addition to or in
substitution for it).
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"Information Message" means a premium rate SMS
message (which is not a Zero-Rated
Information Message Bulk SMS) sent
by the Client to an End User in
accordance with Schedule 3 as part
of its provision of Information
Services pursuant to this
Agreement.
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"Information Request" means a SMS Request or a
Subscription Request.
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"Information Services" means the provision of a
SMS mobile telephone text message
(via Information Messages and/or
Zero-Rated Information Messages
Bulk SMS) to End Users by the
Client pursuant to this Agreement.
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"Initial Term" means the period of 12 months from
the Commencement Date
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"Networks" aggregated wireless gateways
available for the transmission of
SMS text messages transmitted to
or from mobile telephones within
the United Kingdom
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"UK Operators" Means Vodafone, O2, Orange,
T-Mobile
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"Revenue Share Payment" means a payment from ZIM to the
Client in accordance with in
Schedule 1.
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"Services" means he services to be provided
by ZIM to the Client in accordance
with Clause 2
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"Short Codes" means a numeric string from
four (4) up to eleven (11) numbers
entered into a mobile telephone by
an End User which will identify
the sender of a SMS text message
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"SMS Request" means a SMS message sent
via a mobile telephone or the
Internet by an End User to the
Client to prompt an Information
Message to be sent by the Client
to that individual End User's
mobile phone.
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"SMS Tariff(s)" means the tariff(s)
(which shall be subject to change
from time to time with immediate
effect by written notice from ZIM
to the Client) set out in Schedule
1, Part 2 payable by End Users for
Information Messages.
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"Subscription Request" means either:
1. a standard rate SMS message
sent by an End User to the
Client; or
2. an application that has been
completed by an End User on
an internet site owned by
and/or operated by the Client
or its agents,
3. an application that has been
completed by an End User on
an IVR owned and operated by
the Client or its agents,
in each case to prompt a certain
(or indefinite) number of
Information Messages to be sent to
such End User's mobile phone at
predetermined intervals.
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"Territory" means the United Kingdom.
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"Unbillable End User" means a mobile telephone user
where:- an SMS text message sent
from such persons mobile telephone
is incapable of transmitting
sufficient data to enable ZIM to
identify the specific mobile
telephone which sent the SMS text
message ,or
insufficient information is
transmitted in conjunction with an
SMS text message to enable ZIM to
submit to such person an SMS
Tariff, or
the mobile telephone used by such
person is incapable of originating
a valid Subscription Request, or
the mobile telephone used by such
person is incapable of
transmitting SMS text messages
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"Bulk SMS" means Information Messages
sent by the Client to End Users in
accordance with that certain
Standard Messaging Agreement
entered into as of May 11, 2004
between ZIM Corporation and Short
Message Activities Corporation
("Bulk SMS Agreement")
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1.2 References herein to "Clauses", "sub-clauses" and "the Schedule" are to
clauses and sub-clauses of and any schedule to this Agreement unless
otherwise specified.
1.3 Unless otherwise required words denoting the singular include the
plural and vice versa, the masculine includes the feminine and the
neuter and vice versa
1.4 References in this Agreement to statutory provisions include all
modifications and re-enactments of them and all subordinate legislation
made under them.
1.5 Clause headings are included in this Agreement for convenience only and
do not affect its construction.
2 Provision of the Services by ZIM
2.1 During the continuation of this Agreement and subject to the payment by
the Client to ZIM of the sums payable under Schedule 1 ZIM shall
provide to the client:
(a) Networks for the purposes of the provision of Information
Services to End Users
(b) Networks for the purposes of the receipt of Subscription
Requests and SMS Requests from End Users
(c) Billing and collection services on behalf of Client from End
Users for Information Services according to Clause 5 and the
applicable Schedules attached hereto and incorporated herein
by reference.
and shall make all reasonably appropriate arrangements with all UK
Operators to ensure such Networks are available for use (save only
where prevented by Force Majeur) by End Users of each of the mobile
telephone companies comprised in the term "UK Operators"
2.2 During the continuation of this Agreement (but for the avoidance of
doubt not following termination howsoever arising) ZIM grants insofar
as the same is reasonably required for either the provision of the
Services and/or the performance of the Clients obligations in this
Agreement a non-exclusive, non assignable, royalty-free licence for the
Client to use all computer software and programs designed and/or owned
by ZIM
2.3 ZIM shall provide Client real-time handset delivery receipts for each
Information Message transmitted for delivery to End Users, including
but not limited to any acknowledgements and other relevant transaction
reports generated by the ZIM network. Each delivery receipt shall
clearly state if the Information Message was delivered to the End User,
if the End User was successfully billed, and in the event of
non-delivery, the reason for such failure.
2.4 ZIM shall provide to the Client as soon as practicable End User
Validation data for the purpose (inter alia) of identification of
Unbillable End Users. Such information shall be updated at monthly
intervals during the continuation of this Agreement
2.5 Subject to the observance of the obligations on the part of the Client
contained in this Agreement, ZIM shall be responsible for all the
collection of all charges from End Users levied in connection with the
provision of Information Services, provided always that ZIM shall not
be responsible for the collection of any charges applicable to the
transmission of Information Messages to an Unbillable End User.
2.6 Observe the obligations on the part of ZIM as set out in Clause 4 and
Clause 5 (Usage Information).
3. The Client's obligations
3.1 Notice to ZIM
The Client shall give ZIM the following periods of notice:
3.1.1 If Client believes that the following will result in a significant
change in traffic levels, then Client will provide at least 7 day's
written notice of its intention to launch new Information Services
and/or of its intention to make substantial alterations to the
Information Services (accompanied by a forecast of the effect of such
changes, that is, the increase/decrease in volumes)
3.1.2 If Client believes that the following will result in a significant
change in traffic levels, then Client will provide at least 3 days
written notice of its intention to advertise new or substantially
altered Information Services.
3.2 Delivery of Information Services to End Users
3.2.1 The Information Services shall only be delivered to End Users as
Information Messages and in no other data communication format.
3.2.2 No Information Messages shall be sent to or otherwise communicated by
the Client to Unbillable End Users
3.2.3 In respect of all Information Messages transmitted by the Client:
(a) no more than one Information Message shall be sent to an End
User in response to a Single Request; unless agreed in advance
with the end user pursuant to a Subscription Request and
(b) no more Information Messages shall be sent to an End User in
response to a Subscription Request than such End User shall
have requested via such Subscription Request; and
(c) (regardless of the number of Information Requests made) the
total number of Information Messages sent to a single End User
in any one day shall be no more than the number that would
cost such End User (pound)30 inc Vat (or some other amount as
may be agreed between the parties hereto in writing in
advance) on his mobile phone xxxx unless agreed in advance
with the end user
3.2.4 The Client shall use its reasonable endeavours to procure, prior to
transmission of a Subscription Request:
(a) End Users have been made aware of the identity (including
principal place of business) of the Client as the supplier of
the Information Services
(b) End Users have an adequate and accurate description of the
Information Services, including the intended purpose of and
nature of the Information Services provided by the Client;
(c) End Users have been made aware of (i) the cost of all
Subscription Requests and Information Messages and (ii) the
frequency and number (unless this is indefinite - in which
case this fact shall be made clear) of Information Messages
that will be received in response to a Subscription Request
and (iii) their rights to cancel described in Clause 3.2.4(e)
(d) End Users have been made aware of arrangements which will be
implemented in respect of the levying of charges to End Users
(i.e. charges will made via the End User's mobile phone xxxx
in the case of contract customers or deducted from airtime
credit in the case of pre-pay customers); and
(e) End Users will be made aware of their ability to terminate a
Subscription Request and the manner in which this is effected,
which shall irrespective of the method of communication of a
request to terminate entitle the End User to terminate a
Subscription Request with immediate effect
The Client shall submit to ZIM for approval details of the manner in
which the Client intends to communicate material upgrades or
substantially altered Information Services to End Users, ZIM approval
not to be unreasonably withheld or delayed.
3.2.5 No Information Services shall be provided (either to End Users or
otherwise):
(i) unless sent in response to a SMS Request or a Subscription
Request, nor
(ii) to an End User following the exercise of their right to
terminate receipt of Information Services
3.2.6 The Client shall take all reasonable steps available to ensure that the
number of attempted Information Requests and Information Messages
transmitted at any particular time does not exceed the transmission
capacity of the Networks observing such reasonable restrictions and/or
requirements (which may include temporary suspension of the Services)
as may be imposed by ZIM in written advance notice to ensure the
continued stability of Networks.
For clarification the client will not submit more than 20 messages
per second per network without prior agreement with ZIM.
3.4 Content of Information Services
3.4.1 Client shall clearly prohibit End Users subscribing to Information
Services within its Terms and Conditions from including the following
within their contents messages:
(a) contain any statement of a defamatory nature
(b) contain any statement likely or which may bring the name of
ZIM into disrepute or otherwise have adverse effect on ZIM,
its name, or brand
(c) state or imply any approval by ZIM of the Information Service
nor to refer (directly or indirectly) to ZIM without the
express and prior approval in writing of ZIM.
(d) violate the rights of any third party including, but not
limited to, privacy, publicity, copyright or patent
(e) contain such data what will impair the operation of the
Networks or any part of it
(f) contain any information or material which would, or the
sending of which over Networks would, be a criminal offence,
breach the provision of any statutory provisions (whether
existing at the date of this Agreement or not) or would
otherwise be unlawful in the jurisdiction where the
Information Messages are capable of being sent and/or
received.
(g) contain any statement that is immoral, offensive, indecent,
abusive or menacing,
3.4.2 Subject to the specific provisions of this Agreement the content of
Information Services shall be determined by the Client who shall be
solely responsible for the content and operation of Information
Services.
3.4.4 The terms and conditions governing Bulk SMS are set forth in the Bulk
SMS Agreement.
3.5 Client Compliance
3.5.1 The Client shall procure prior to the transmission of any Information
Service that all rights, licenses and consents including all
intellectual property rights, have been obtained and all requirements
of law complied with as may be necessary to enable the Information
Service to be made available to End Users. The Client shall provide
evidence of compliance with this paragraph, upon request
3.5.2 The Client shall comply with all reasonable requirements and conditions
from time to time imposed in connection with the provision of
Information Services and/or provision of the Services by ZIM or by UK
Operators
3.5.3 The Client shall provide ZIM, UK Operators and/or ICSTIS such
information or material relating to Information Services or any
proposed future service as may from time to time be reasonably
requested
3.5.4 Without limitation to the foregoing provisions of this Agreement the
Client shall ensure that all Information Services together with all
other advertising, data and other information provided in conjunction
with Information Services shall comply with the ICSTIS Code of
Practice, Data Protection Xxx 0000 and the Consumer Protection
(Distance Selling) Regulations 2000 together with all other statutory
provisions applicable during the continuation of this Agreement
3.6 Meetings with UK Operators ZIM and Client shall schedule meetings no
less frequently than once a quarter to meet with each of the major UK
Operators, namely Vodafone (UK), O2 (UK), T-Mobile (UK), and Orange
(UK). The purpose of these meetings shall be to promote coordination
between the UK Operators, ZIM and Client with respect to the
transmission of Information Messages contemplated hereunder, to address
any concerns related to End User queries or complaints and to inform UK
Operators about new Information Services which will be offered or to
advise of existing Information Services which will be substantially
altered.
3.7 Short Codes
3.7.1 ZIM shall provide the Client with one or more Short Codes to be used by
End Users to transmit Information Requests and for Client to transmit
Information Services. Initially, ZIM shall provide Client a shared
Short Code, which will be reserved for Client's sole use. Any key words
associated with Client's shared Short Code shall be for the exclusive
use of Client. In the event Client's volume of Information Services is
not substantial, ZIM may assign others to share the Short Code reserved
for Client, but only upon providing Client thirty (30) days prior
written notice. In such event and upon Client's request, ZIM shall
reserve a dedicated and dynamic Short Code for Client. Short Codes may
comprise an entire UK Operator mobile telephone number. The purpose of
the Short Code if for Zim to provide billing and collection services on
Client's behalf as stated in Clause 2.
3.7.2 In so far as the Client may require use of an alphanumeric identifier
(comprising a brand name or specific name as identification of the
transmitter of an Information Service upon an End Users mobile
telephone) the Client shall on request from ZIM provide evidence as to
the right of the Client to use such name. Use of any alphanumeric
identifier shall be subject to availability via each of the UK
Operators
3.7.3 ZIM shall retain ownership to all Short Codes supplied and may withdraw
such Short Codes at any time upon thirty (30) days prior written
notice. In such circumstance, Zim would provide an adequate replacement
or terminate this Agreement pursuant to Clause 13.2.1 (e).
3.7.4 ZIM shall be entitled to levy an additional charge in respect of the
provision of dedicated Short Codes.
3.7.5 The Short Code provided by ZIM under Clause 3.7.1 shall enable dynamic
suffixes to be added by Client for purposes of tracking and routing
multiple thread application traffic.
3.8 End User support
3.8.1 The Client shall provide and maintain during the continuation of this
Agreement adequate support to End Users in relation to the Information
Services and shall inform End Users of any related routes of contact in
relation to enquiries, complaints and/or queries relating to
Information Services.
3.8.2 If:
(a) An End User contacts ZIM or a UK Operator in relation to the
Information Services ZIM may (at its absolute discretion)
either (i) redirect or transfer such End Users to the support
facilities of the Client or (ii) (where capable) deal with the
query or complaint. In the event End Users make multiple
queries or complaints that exceed industry standards, Client
and ZIM shall cooperate and determine the best manner to
manage the disposition of such queries or complaints. As a
result, ZIM and Client may agree upon local customer care
representatives to manage End User queries and complaints that
exceed industry standards. ZIM and/or UK Operators reserves
the right to impose a charge for such
(b) ZIM or UK Operators receive complaints regarding the Client
and/or Information Services which it considers to be of such
seriousness or number as to be materially prejudicial to ZIM
or UK Operators brand or reputation, it may, by notice in
writing to the Client, either (i) temporarily suspend the
Information Services for such period of time as it may, in its
absolute discretion, deem fit or (ii) terminate this
Agreement. Whenever possible, ZIM and Client shall cooperate
to address any End User complaints in an attempt to avoid
suspension or termination of this Agreement.
(c) In connection with the right to terminate this Agreement under
sub-Clause (b) ZIM shall give to the Client not less than 30
days notice of the intention to terminate (within which period
of time the Services shall be suspended). Within such 30-day
period the Client may submit to ZIM written reasons as to why
this Agreement shall not be terminated. On receipt of such
written reasons ZIM shall use reasonable endeavours to obtain
the agreement of UK Operators to the retention of the
Services, progressing the reasons received from the Client.
The parties (observing the provisions of this sub-Clause)
shall be bound by the decision of the UK Operators. Where the
UK Operators shall impose any condition on the retention of
the Services ZIM shall not be obliged to continue the Services
and may progress with the termination of this Agreement in so
far as the Client shall not agree to observe and perform such
conditions and shall enter into such further documentation as
ZIM shall reasonably require in connection with the
documentation of the Clients' agreement to observe such
conditions as imposed by the UK Operators.
4. Provision of Usage Information
4.1 ** CONFIDENTIAL TREATMENT REQUESTED
4.2 The report produced in accordance with sub-Clause 4.1 shall be
available electronically via a secure Internet account. Access details
to view electronic reports and statements shall be as specified in
schedule 3 of this agreement.
4.3 The Client:
(a) shall be responsible for retaining evidence that Information
Messages sent to End Users were properly solicited (that is,
via a Single Request or a Subscription Request); and
(b) hereby agrees that, subject to Clause 11.6, upon written
request giving 5 days notice, ZIM shall have the right to
inspect the evidence referred to above.
4.4 In the event that ZIM in its reasonable opinion, considers the
information presented to it pursuant to sub-Clause 4.3 unsatisfactory
or incomplete ZIM shall request Client to provide additional
information.
4.5 Audit Rights
Client may, up to two (2) times in a calendar year upon no less than
five (5) days prior written notice to and at a time reasonably
acceptable to ZIM, cause a certified accountant subject to a duty of
confidentiality, to review the books and records of ZIM, solely to the
extent reasonably required to ensure compliance with this Agreement. If
the audit reveals a difference of more than 5%, ZIM will reimburse
Client for the difference plus the reasonable cost of the audit. The
rights under this clause shall survive the expiration of this Agreement
for one year. The audit should be conducted during normal business
hours and not disrupt ZIM's business. The audit should be conducted by
an independent accountant appointed by the client.
5. Payment
5.1 Revenue Share
5.1.1 Tariff from UK Operators
The Client shall be entitled to receive a payment ("a Revenue Share") in respect
of each Information Message transmitted during the continuation of this
Agreement as specified in the Schedules attached. The sums specified in the
Schedules attached shall be subject to variation from time to time by written
notice to the Client.
5.1.2 Revenue Deductions
The total revenue generated from the Tariffs for each relevant month shall be
shared in the following manner: first all applicable taxes, levies, bad debt,
and End User refunds (collectively "deductions") will be deducted from the gross
revenues for the transmission of Information Services collected by ZIM
("Information Services Revenues"), then the remaining revenue shall be divided
on an percentage basis between the UK Operator(s), ZIM and Client, according to
this Clause 5 and attached Schedules 1 and 2.
5.1.3 Exclusion of Entitlement
The Client shall not be entitled to any Revenue Share in respect of the
transmission of any Information Services to any Unbillable End User, nor
entitled to any Revenue Share in respect of any attempted transmission of an
Information Request attempted to be transmitted to the Client by an Unbillable
End User
5.1.4 Collection of Revenue Share
ZIM shall undertake best efforts to collect the entitlement to Revenue Share
pursuant to Clause 2 from the UK Operators. There shall be no liability for ZIM
to make any payment to the Client where any UK Operator has not made payment of
Revenue Share but only if such failure to pay does not result from a breach of
this Agreement by ZIM.
5.1.5 Maintenance of Records
ZIM shall maintain complete records as to the entitlement to Revenue Share in
respect of each of the UK Operators that shall be available for inspection by
the Client on the giving of reasonable written notice. The statement produced
shall include a complete breakdown of the method of calculation of Revenue
Share, including details of all rebates received and/or penalties charge by UK
Operators
5.1.6 **CONFIDENTIAL TREATMENT REQUESTED
5.1.7 Determination of dispute
(a) In so far as any dispute may arise between the parties with regard to
the calculation of Revenue Share the parties will make available to the
other all information, records and data held by them in respect of the
Information Services which would have been given rise to the
entitlement to Revenue Share and shall use all reasonable endeavours to
agree the sum or sums due pursuant to the terms of this Agreement.
(b) Where such dispute shall arise from action taken or not taken by a UK
Operator ZIM shall attempt to agree with the UK Operator the dispute
that has arisen, making all reasonable representations that may have
been communicated to ZIM by the Client
(c) ZIM shall use best efforts and shall act in good faith to ensure
payment is made to Client in a timely and reliable manner. However,
with that being said and subject to the remaining terms of this
provision, there shall be no obligation on the part of ZIM to make any
payment pursuant to sub-Clause 5.1.6 until such time as any dispute
regarding the calculation of Revenue Share shall have been resolved to
the reasonable satisfaction of the parties. Where such dispute shall
relate to one or more of the UK Operators but not all of the companies
comprised in the definition of UK Operators, ZIM's right to withhold
payment under this sub-Clause shall only be in respect of that
proportion of the Revenue Share as shall be due and is in dispute from
the UK Operator(s) (or specifically from a portion thereof as
applicable) who shall have refused to make payment to ZIM. All Revenue
Share amounts due to Client by ZIM that are not in dispute shall be
paid according to the normal payment schedule. ZIM will act in good
faith in connection with the provisions of this sub-Clause and shall
not progress or otherwise delay resolution of any dispute purely for
the purposes of delay of payment. Further, this sub-Clause is
applicable only to disputes that relate to traffic volume reporting for
Bulk Messaging and/or Information Services Revenue. And in no event
shall a delay in payment be due to actions or omissions of the same
caused by ZIM.
(d) Where despite the using of reasonable endeavours to resolve any dispute
the parties shall not be able to agree on the Revenue Share, then the
UK Operator(s) records shall serve as final.
5.2 Value Added Tax
All sums payable under this Agreement are quoted as being exclusive of Value
Added Tax. The party making payment shall in addition to the amount payable as
specifically stated in this Agreement also, pay in addition all Value Added Tax
at the rate prevailing from time to time
6 TECHNICAL
6.1 General
6.1.1 Client shall establish a direct data communication connection to ZIM
situated at ZIM London Data Center, in connection with the provision of
the Services. Such connection shall be to a specification reasonably
required by ZIM but without limitation shall comply with the
communication protocols specified in Schedule 4.
6.1.2 The Client shall supply and maintain all of its equipment and
communication connections necessary pursuant to sub-Clause 6.1.1 up to
such communication point where data will pass to equipment and Networks
provided by ZIM under the terms of this Agreement.
6.1.3 ZIM shall be entitled to disconnect or suspend any direct connection
provided by the Client with as much prior notice as is possible, should
a fault or other form of transmission error occur considered in the
reasonable opinion of ZIM to affect or be likely to affect the
performance of the Networks.
6.1.4 The Client shall provide such assistance as ZIM may reasonably require
in connection with the carrying out of installation tests to ensure the
connections provided by the Client in accordance with sub-Clause
6.1.1shall perform in accordance with the provisions set out in
Schedule 4; provided such adheres to Client's security policies.
6.2 The Client's Undertakings
6.2.1 The Client agrees with ZIM:
(a) To be responsible for the supply and maintenance of the
connection provided under sub-Clause 6.1.1 and for all
costs and expenses arising in connection with such
connection.
(b) To provide ZIM with a nominated point of Contact (in
relation to general enquiries) and a Technical Point of
Contact (in connection with technical and data enquiries)
with whom ZIM shall be able to communicate in connection
with any problems/difficulties arising in connection with
the connection provided by the Client under sub-Clause
6.1.1 or otherwise in connection with any communication
problems which may arise in relation to the provision of
Information Services and/or provision by ZIM of the
Services under the terms of this Agreement. Where this is
the same person a second, back-up, point of contact should
also be provided.
(c) In so far as the provisions of this Agreement require the
parties to maintain run or otherwise operate computer
software, the parties will inform each other (prior to
implementation) of any intention to modify up-grade or
otherwise alter the performance of any software to enable
the other party to consider potential compatibility issues.
The Client shall undertake no such software up-grade,
modification or other alteration until the Client shall
have undertaken such performance functionality tests, as
ZIM shall reasonably require
7 MARKETING AND PUBLICITY
7.1 The Client shall be solely responsible for marketing and promoting the
Information Services.
7.2 Each Party shall obtain the express written consent of the other to the
issue, content and timing of any news/press releases, articles,
brochures, advertisements, prepared speeches or other information
releases issued in connection with this Agreement or the provision of
the Information Services, such consent not to be unreasonably withheld
or delayed.
8 INTELLECTUAL PROPERTY RIGHTS & OWNERSHIP
8.1 Except where specifically provided under the provisions of sub-Clause
2.2, this Agreement does not operate as an assignment by or to either
party of any copyright, registered design, trademark or any other
intellectual property rights of whatever nature.
8.2 Nothing in this Agreement shall entitle either party to use the other
party's name, logo or trademark or any intellectual property in
connection with Information Service without the prior written consent
of the other.
8.3 Client network. Client shall retain all right, title, and interest in
and to the Client network, including but not limited to, ownership of
all hardware, software, technology, applications, data (including text,
images, etc.) and all intellectual property rights associated
therewith.
8.4 ZIM network. ZIM will retain all right, title, and interest in and to
the ZIM network including but not limited to, ownership of all
hardware, software, technology, applications, data and all intellectual
property rights associated therewith.
8.5 End User Information. Client shall have sole ownership and control of
the information and data collected from End Users of Client, including
but in no way limited to all SMS data transmitted by ZIM, such as SMS
content, end user's mobile phone number, and other End User data. Such
End User Information shall be considered Confidential Information.
8.6 Rights Reserved. All rights not specifically granted herein to
hardware, software, content, marks, technology, or other materials (and
intellectual property rights in any of the foregoing) are reserved to
the owner thereof.
9 INDEMNITY AND LIMITATION OF LIABILITY
9.1 The Client will fully indemnify ZIM against all liability, reasonable
costs, reasonable expenses, actions and proceedings (including, but not
limited to, any claim that the content of the Information Services
infringes the intellectual property rights of any third party) arising
directly or indirectly out of or in connection with the provision of
the Services or use of Information Services or the conduct of the
business of the Client.
9.2 ZIM shall promptly pass on to the client all third party claims in
respect of the context of the information services.
9.3 ZIM will fully indemnify the Client against all liabilities, reasonable
cost, reasonable expenses and actions proceedings claims and demands
arising out of or in connection with any error in, alteration of, or
omission from Information Services caused by any fault in the Network
(except by Force Majeur) and which claims are validly and lawfully made
by any third party.
9.4 The provisions of sub-Clauses 9.1 and 9.3 are subject to the following
conditions:
(a) ZIM indemnity does not extend to any liability for a breach of
any contract between the Client and any third party or to any
action, proceeding, claim or demand in respect of or in
consequence of such a breach of contract;
(b) nothing in this Agreement renders the Client liable to
indemnify ZIM against any liability, action, proceeding claim
or demand in respect of any errors in or omission from the
Information Service caused solely by a fault in the Networks;
(c) the party seeking to enforce an indemnity must promptly give
the other party written notice of any action proceeding claim
or demand and if the party receiving the notice accepts full
liability to indemnify the other in the event of the Court or
other competent authority giving judgment or a decision for
the plaintiff:
(i) the party seeking the indemnity must not admit
liability or make any compromise or payment except
with the consent of the other party or under an Order
of a Court;
(ii) the party seeking the indemnity must permit the other
party (or such person, firm or company as that party
may from time to time nominate) in the name of the
party seeking the indemnity to conduct and settle any
such action proceeding or claim as the other party
may see fit; and
(iii) the party conducting the proceedings must reasonably
consult the other party in connection with the
proceedings and keep the other party informed as to
their progress.
9.4 ZIM duty in performing its obligations under this Agreement is to
exercise the reasonable skill and care of a competent mobile Internet
service provider. The Client acknowledges and accepts that provision of
Information Services is available only within the communication range
of the UK Operators, The Client accepts that the quality and
availability of Information Services may be affected by factors outside
ZIM or UK Operators control such as local physical obstructions,
atmospheric conditions and other causes of radio and/or communication
interference or faults in other telecommunications networks to which
the UK Operators are connected.
9.5 The provisions of this Agreement set out the entire understanding
between the Client and ZIM in respect of which ZIM shall be under no
other obligation duty or liability except as specifically set out
herein.
9.6 Nothing in this Agreement shall restrict the liability of either party
in respect of death or personal injury.
9.7 Notwithstandng anything in this agreement to the contrary, neither
party shall be liable to the other in any manner whatsoever in respect
of any purported loss of profit, business or anticipated savings or for
any indirect or consequential loss whatever and howsoever arising.
9.8 Without limitation to the foregoing, in any event either party's
liability in contract, tort (including negligence) or otherwise arising
**CONFIDENTIAL TREATMENT REQUESTED.
9.9 Each provision of this clause 9 operates separately. If any part is
held unreasonable or inapplicable in any circumstances the other parts
shall continue to apply.
10 THIRD parties
The provisions of this Agreement are solely for the benefit of the parties
hereto and are not intended to confer upon any person except the parties any
rights or remedies hereunder. No person who is not a party to this Agreement
shall have any right to enforce any of its terms pursuant to the Contracts
(Rights of Third Parties) Xxx 0000.
11 CONFIDENTIALITY
11.1 Each party acknowledges to the other that mutual disclosure of
Confidential Information will be essential to the due performance of
the parties' respective obligations under this Agreement and that
unauthorised use or disclosure of any such Confidential Information
could harm the business operations of its owner.
11.2 It is agreed that each party will limit the disclosure of Confidential
Information to those of its employees, contractors or agents who
require that information for purposes connected with the performance of
this Agreement and will procure that any record of such Confidential
Information is kept secure in accordance with normal business
practices.
11.3 Neither party will use any such Confidential Information of the other
otherwise than for the purposes of this Agreement without the express
consent of its owner.
11.4 The undertakings contained in this clause 11 shall not apply to the
receiving party in respect of any information which:
11.4.1 is already in the receiving party's possession as at the date
of this agreement (except only where disclosed by the other
party as a consequence of or during the negotiations leading
to the signing of this Agreement); or
11.4.2 is independently developed or generated by the receiving
party; or
11.4.3 is provided to the receiving party by any third party who was
free of any restriction as to its use or disclosure at the
time of such provision; or
11.4.4 is or falls into the public domain (otherwise than in
consequence of a breach of this Agreement); or
11.4.5 the receiving party is obliged to disclose by reason of any
legal requirement.
11.5 On termination of this Agreement each party will cease use of
Confidential Information of the other and will return any records of it
to the owner. The rights and obligations of the parties under this
Clause 11 will survive termination of the Agreement. The obligations
and restrictions in this clause shall be valid for a period of five
years from the termination of this Agreement.
11.6 End User Information as set forth in Clause 8.5 of this Agreement is
Confidential Information of Client. ZIM understands that it is not to
directly contact these End-Users and that doing so would cause
irreparable damages to Client.
12 DATA PROTECTION
Both ZIM and the Client shall comply with the Data Protection Xxx 0000 and any
privacy guidelines issued from time to time by ZIM in connection with the
respective activities carried out by the parties under this Agreement.
13. TERM AND TERMINATION
13.1 Term
This agreement shall come into force on the Commencement Date and shall continue
in force for the Initial Term and thereafter unless or until terminated by
either party giving to the other at least **CONFIDENTIAL TREATMENT REQUESTED
13.2 Termination
13.2.1 Methods of Termination
Notwithstanding the provisions of Clause 13.1, this Agreement may be terminated
in accordance with the following provisions:
(a) either party may terminate this Agreement by giving notice in writing
to the other party in the event the other party is in material breach
of this Agreement and (if capable of remedy) has failed to remedy
such breach within thirty (30) days of receipt of written notice
thereof from the other party;
(b) either party may terminate this Agreement immediately by notice in
writing if either party is unable to pay its debts (within the
meaning of Section 123 of the Insolvency Act 1986), makes or offers
to make any arrangement or composition with any one or more of its
creditors or commits any act of bankruptcy or if any petition or
receiving order in bankruptcy is presented or made against either
party or if any resolution or petition to wind up either party (being
a limited company) is issued or passed or presented or if a receiver
is appointed.
(c) either party may terminate this Agreement by giving notice in writing
to the other party should an event of Force Majeure continue for more
than Ninety (90) consecutive calendar days as provided in Clause 14
below; or
(d) the parties may terminate this Agreement by mutual written consent
(e) Either party may terminate this Agreement at any time for any reason
or no reason at all by giving the other party not less than 120 days
notice in writing
(f) Either party may terminate this Agreement in accordance with any
clause of this Agreement that expressly confers a right of
termination on that party.
13.2.2 Rights and Obligations on Termination
In the event of termination of this Agreement for any reason, the parties will
have the following rights and obligations:
(a) Upon termination of this Agreement, all rights of either party which
may have been granted in connection with the provision of the Services
and/or Information Services in respect of the use of trademarks, logos
or other marks (if any) shall terminate
(b) Termination of this Agreement will not release either party from the
obligation to make payment of all amounts that shall have accrued up to
the date of termination; and
(c) The obligations hereunder which by their terms or clear intent extend
beyond termination of this Agreement will survive termination
14 FORCE MAJEURE
14.1 Notice
Upon being affected by an event of Force Majored the party so affected shall
give notice to the other, together with details of the event which has occurred
so suggested to amount to Force Majored. On receipt of such notice the parties
shall discuss with the other (using all reasonable endeavors and acting in good
faith) how to best progress the provisions of this Agreement (if at all) bearing
in mind the event, which shall have occurred. Upon the giving of such notice the
affected party will be released without any liability on its part from the
performance of its obligations under this Agreement (except for an obligation to
make any payment of money due and owing), but only to the extent and only for
the period that its performance of such obligations is prevented by the event of
Force Majored.
14.2 Suspension of Performance
During the period that the performance by a party of its obligations under this
Agreement has been suspended by reason of an event of Force Majored, the other
party may likewise suspend the performance of all or part of its obligations
(except for an obligation to make any payment of money due and owing) hereunder
relating to the circumstances constituting the claimed event of Force Majored
(to the extent that such suspension is commercially reasonable).
15. MISCELLANEOUS
15.1 Governing Law
If Client sues ZIM, then the choice of law which shall be applicable to
the construction and interpretation of the agreement shall be that of
**CONFIDENTIAL TREATMENT REQUESTED
15.2 Relationship; Nonexclusive Arrangement
Nothing contained in this Agreement shall be construed to give either party the
power to direct or control the day-to-day activities of the other party, nor to
assume or create any obligation or responsibility, express or implied, on behalf
of or in the name of the other party. In fulfilling its obligations under this
Agreement, each party will be acting as an independent contractor. No exclusive
arrangement is created or is intended to be created between the parties herein.
Either party may engage other third parties to provide similar or identical
services further, Client shall not be obligated to send any minimum number of
transmissions to ZIM. In addition, Client in its sole discretion may select only
specific UK Operators for which it desires to utilize the services of ZIM, and
such specification may change from time to time for any reason or no reason at
all.
15.3 Entire Agreement
This Agreement and the Schedules hereto contain the entire agreement between the
parties with respect to the subject matter hereof and supersede all previous
agreements, negotiations, discussions, writings, understandings, commitments and
conversations with respect to such subject matter, and there are no agreements
or understandings between the parties other than those set forth or referred to
herein.
15.4 Amendments
This Agreement may only be amended in writing signed by an authorised signatory
of the respective parties hereto
15.5 Assignment
Neither party may assign or otherwise transfer its rights or obligations under
this Agreement, in whole or in part, without the prior written consent of the
other party, which consent shall not be unreasonably withheld or delayed.
15.6 Waivers of Default
Waiver by any party of any default by the other party of any provision of this
Agreement shall not be deemed a waiver by such party of any subsequent or other
default,
15.7 Severability
If any of the provisions of this Agreement is or becomes invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall not in any way be affected or impaired. The parties shall
nevertheless negotiate in good faith in order to agree the terms of a mutually
satisfactory provision, achieving so nearly as possible the same commercial
effect, to be substituted for the provision so found to be void or
unenforceable.
15.8 Notices
All notices and requests in connection with this Agreement shall be given in
writing and sent by express delivery mail or by fax to the addresses contained
in the recitals of this agreement or to such other address, as the party to
receive the notice or request shall designate by notice to the other party.
15.9 Counterparts
This Agreement may be executed in any number of counterparts, and by the parties
to it on separate counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been signed by the duly authorised
representatives of the parties the day and year first above written.
For and on Behalf of ZIM Limited:
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Position: VP, Mobile Sales
-------------------------------
Signature:/s/ Xxxxxxx Xxxxxxxx
-------------------------------
For and on Behalf of ** ("the Client"):
Name: **
-----------------------------------
Position: **
-------------------------------
Signature: **
-------------------------------
**= CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE 1 - SHARED SHORT CODES
Service Charges, Revenue Share and Tariffs
"The Client" will be charged the following fees, for the applicable services as
shown below and set out in Clauses 2 and 3.7.
Part 1 - SERVICE CHARGES
The monthly charges cover the provision of SHARED short codes for each of the
four UK operators (Vodafone, O2, Orange and T-Mobile). Each short code has a
prefix of (8) consists of 5 digits and is consistent (unified) across all mobile
network operators.
---------------------------------------------- --------------
Description Costs
---------------------------------------------- --------------
** **
---------------------------------------------- --------------
** **
---------------------------------------------- --------------
** **
---------------------------------------------- --------------
** **
---------------------------------------------- --------------
Part 2 - REVENUE SHARE PAYMENTS
a) The following revenue share table shows the revenue paid to Client based on
successfully billed messages to subscribers of the service using a Vodafone UK,
Orange UK, T-Mobile UK or X0 XX mobile handset. All short code messages can be
charged against a Pre-pay (pay-as-you-go) or post pay (contract) mobile phone
xxxx. The out payment rates in this revenue share table will apply only to
monthly messaging volumes **CONFIDENTIAL TREATMENT REQUESTED.
-------------- --------------------------------------------------------------
TARIFF REVENUE SHARE
-------------- --------------------------------------------------------------
** ** ** **
-------------- ------------ -------------- ---------------------- -----------
** ** ** ** **
-------------- ------------ -------------- ---------------------- -----------
** ** ** ** **
-------------- ------------ -------------- ---------------------- -----------
** ** ** ** **
-------------- ------------ -------------- ---------------------- -----------
** ** ** ** **
-------------- ------------ -------------- ---------------------- -----------
b) The following revenue share table shows the revenue paid to Client based on
successfully billed messages to subscribers of the service using a Vodafone UK,
Orange UK, T-Mobile UK or X0 XX mobile handset. All short code messages can be
charged against a Pre-pay (pay-as-you-go) or post pay (contract) mobile phone
xxxx. The out payment rates in this revenue share table will apply only to
monthly messaging volumes **.
-------------- --------------------------------------------------------------
TARIFF REVENUE SHARE
-------------- --------------------------------------------------------------
** ** ** **
-------------- ------------ -------------- ---------------------- -----------
** ** ** ** **
-------------- ------------ -------------- ---------------------- -----------
** ** ** ** **
-------------- ------------ -------------- ---------------------- -----------
** ** ** ** **
-------------- ------------ -------------- ---------------------- -----------
** ** ** ** **
-------------- ------------ -------------- ---------------------- -----------
Revenue share payments shown above exclude VAT.
Part 3 - SHORT CODE INFORMATION
The table below shows the available shared short codes and the associated
tariffs which are charged including VAT to the end user.
**= CONFIDENTIAL TREATMENT REQUESTED
------------------------- -----------------------------------------------
SHORT CODE TARIFF
------------------------- -----------------------------------------------
Inc VAT Excl VAT
------------------------- ----------------------- -----------------------
** ** **
------------------------- ----------------------- -----------------------
** ** **
------------------------- ----------------------- -----------------------
** ** **
------------------------- ----------------------- -----------------------
** ** **
------------------------- ----------------------- -----------------------
** = CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE 2 - DEDICATED SHORT CODES
Service Charges, Revenue Share and Tariffs
"The Client" will be charged the following fees, for the applicable services as
shown below and set out in Clauses 2 and 3.7.
Part 1 - SERVICE CHARGES
In the event Client, in its sole discretion, determines to use a dedicated short
code, then the fees set forth below shall apply. The monthly charges cover the
provision of short codes for each of the four UK operators (Vodafone, O2, Orange
and T-Mobile). **
----------------------------------------------------------- --------------
Description Costs
----------------------------------------------------------- --------------
** **
----------------------------------------------------------- --------------
** **
----------------------------------------------------------- --------------
Please note: all prices exclude vat and are subject to a minimum activation
period of 3 (Three) month. Price covers all four UK operators.
**
Part 2 - REVENUE SHARE PAYMENT CALCULATION FOR INFORMATION MESSAGES
1. The revenue tariffs that apply to the four main UK Operator networks
are in-line with the terms and conditions of this agreement.
2. The revenue share payments will be paid by ZIM to "the Client" only
after ZIM has received payment from the UK Operators as detailed in
Clause 3 of this agreement.
Details on the Revenue Share Out Payments for Dedicated Short Codes on VODAFONE
(UK), O2 (UK), T-Mobile (UK) and Orange (UK), can be found at xxx.xxxxxx.xxx.
** = CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE 3
LEFT BLANK
SCHEDULE 4 - VIRTUAL MOBILE
** will have access to ZIM's Virtual Mobile Service if they wish to use it. The
mentioned fees will only apply if ** activates a Virtual Mobile account.
Services will be charged inline with the Setup Fees, Monthly Service Fee and
charges for applicable services as shown in the table below.
SERVICE CHARGES
The following service charges are for the monthly operation of the Virtual
Mobile solution by ZIM.
------------------------------------------------------- ---------------------
Description Costs
------------------------------------------------------- ---------------------
Number Allocation Fee (pound)100.00
------------------------------------------------------- ---------------------
Monthly Rental: Gold Virtual Mobile Number (pound)140.00
------------------------------------------------------- ---------------------
All prices shown above are subject to VAT.
Please note: All ALLocation and monthly rental fees required are to come out of
revenue share.
------------------------------------------------------- ---------------------
Description Costs
------------------------------------------------------- ---------------------
Number Allocation Fee (pound)80.00
------------------------------------------------------- ---------------------
Monthly Rental: Silver Virtual Mobile Number (pound)60.00
------------------------------------------------------- ---------------------
All prices shown above are subject to VAT.
Please note: All ALLocation and monthly rental fees required are to come out of
revenue share.
------------------------------------------------------ ---------------------
Description Costs
------------------------------------------------------ ---------------------
Number Allocation Fee (pound)60.00
------------------------------------------------------ ---------------------
Monthly Rental: Bronze Virtual Mobile Number (pound)40.00
------------------------------------------------------ ---------------------
All prices shown above are subject to VAT.
Please note: All ALLocation and monthly rental fees required are to come out of
revenue share.
MINIMUM TERM
All Virtual Mobile numbers have a minimum rental period of one month. Virtual
Mobile numbers can be released after the first month's rental. Released numbers
will be returned to the ZIM number bank and maybe allocated to other customer.
Released numbers can be re-purchased however the allocation fee will apply.
** = CONFIDENTIAL TREATMENT REQUESTED
Schedule 5- Information Messages (Protocol)
All information with regards to gateway specifications, support documentation
and user guides can be found online at the following Internet address:
xxxx://xxx.xxxxxx.xxx
Schedule 6- ** UK Customer Care tlephone line
** Customer Care tlephone line
ZIM will provision a ** UK Customer Care Telephone line for **. ** The
instructions for the telephone line are as follows:
1. Call the line **
2. Wait until it goes to voicemail
3. Press 88 once the auto attendant picks up
4. Then you will be prompted to insert the mailbox number and your password
followed by the # key. **
5. Once this is done, you are in the system. You can change the recording, the
password, listen to messages, forward calls etc
--------------------------------------------------------------- --------------
Description Costs
--------------------------------------------------------------- --------------
Connection Fee **
--------------------------------------------------------------- --------------
Monthly Phone Line Rental **
--------------------------------------------------------------- --------------
Please note: all prices exclude vat and are subject to a minimum activation
period of 3 (Three) month. Price
**
** = CONFIDENTIAL TREATMENT REQUESTED
