Master Global Content Agency Agreement between Vodafone Group Services Limited and The WAAT Media Corporation
between
Vodafone
Group Services Limited
and
The
WAAT Media Corporation
VODAFONE
MASTER GLOBAL CONTENT AGENCY TERMS AND CONDITIONS (the “Master
Agreement”)
| 1. |
BACKGROUND
|
| 2. |
AND
STRUCTURE
|
| 1.1. |
The
Content Provider owns or otherwise has the right to exploit certain
Content suitable for provision to Vodafone Group Companies for
distribution and sale by those companies to their Customers as the
non-exclusive agents of the Content
Provider.
|
| 1.2. |
All
Content offered by the Content Provider from time to time under this
Master Agreement shall be set out in Content Schedules signed by
VGSL and
the Content Provider. The Parties intend that each Vodafone Group
Company
wishing to distribute and/or offer for sale some or all of such Content
enters into a separate Contract with the Content Provider in accordance
with the process set out in Clause
2.
|
| 1.3 |
The
Parties acknowledge and agree that:
|
| 1.3.1 |
VGSL
shall not be liable to the Content Provider in respect of any obligations
owed to the Content Provider by any other Vodafone Group Company
pursuant
to a Contract; and
|
| 1.3.2 |
the
Content Provider shall not be liable to VGSL in respect of any obligations
owed to another Vodafone Group Company by the Content Provider pursuant
to
a Contract.
|
| 2. |
FORMATION
OF CONTRACTS
|
| 2.1 |
This
Master Agreement is a standing offer by the Content Provider to all
Vodafone Group Companies to be appointed as the non-exclusive agents
of
the Content Provider in the relevant Territories to (subject to Clause
2.5) promote, advertise, distribute and offer for sale to Customers
the
Content on and in the Directory and to provide billing and payment
collection services to the Content Provider on the terms of this
Master
Agreement. The Content Provider further gives authority to Vodafone
to
offer for sale by the Content Provider the Content to Customers and
to
▇▇▇▇ and collect payment in respect of sales made by the Content
Provider
of the Content in accordance with the terms of this Master
Agreement.
|
| 2.2 |
Any
Vodafone Group Company may, but is not obliged to, accept the Standing
Offer by completing and signing the attached Contract Acceptance
Notice.
|
| 2.3 |
A
Contract is formed between the Content Provider and a Vodafone Group
Company when the Content Provider receives the Contract Acceptance
Notice
signed on behalf of that Vodafone Group Company. Where a Vodafone
Group
Company is already party to a Contract with the Content Provider
and the
Content Provider enters into a new Content Schedule with VGSL, such
new
Content Schedule shall be deemed to be added to such Contract on
the date
that the Vodafone Group Company first acquires, promotes, advertises,
distributes or resells the Content featured in such new Content Schedule.
Under each Contract Vodafone appoints VGSL as its agent to agree
with the
Content Provider any amendments to any Content Schedule (and therefore
Contract) but only to the extent that such amendments do not impose
additional obligations on Vodafone.
|
| 2.4 |
The
Standing Offer shall lapse upon termination or expiry of this Master
Agreement for any reason and is not otherwise revocable by the Content
Provider.
|
| 2.5 |
Two
Vodafone Group Companies may be party to the same Contract where
one of
such Vodafone Group Companies provides the billing and payment collecting
services, and the other provides the promotion, advertising, distribution
and offering for sale services, in relation to the Content. In such
circumstances the term “Vodafone” when used in this Master Agreement and
such Contract shall refer to both such Vodafone Group Companies or
to the
relevant one, as appropriate. All notices for the purposes of this
Master
Agreement or the Contract shall only be valid if sent to or by (as
appropriate) both such Vodafone Group Companies. Where two Vodafone
Group
Companies wish to be party to the same Contract in accordance with
this
Clause 2.5 they shall both execute the same Contract Acceptance
Notice.
|
| 3. |
APPOINTMENT
AND DELIVERY
|
| 3.1 |
The
Content Provider appoints Vodafone as its non-exclusive agent in
the
Territory to promote, advertise, distribute and offer for sale to
Customers the Content (or licences thereof) on and in the Directory
and to
provide billing and payment collection services to the Content
Provider.
|
| 3.2 |
The
Content Provider shall at all times provide to Vodafone Content
compliant
and compatible with the Format, the Integration Guidelines, the
Mobile
Devices and in the Languages.
|
| 3.3 |
The
Content Provider shall provide the Content to Vodafone in accordance
with
any applicable Delivery Timetable.
|
| 3.4 |
Where
a Content Schedule provides that the Content is to be compliant with
the
Application Submission Criteria for QA, such Content shall be delivered
to
Vodafone only after it has been certified by a QA Company as complying
with the Application Submission Criteria for
QA.
|
| 3.5 |
The
Content shall not be featured on the Directory until it has successfully
completed any testing procedures required by Vodafone. The Content
Provider shall bear all the costs and expenses incurred in connection
with
any testing of the Content required by Vodafone (including, but not
limited to, any quality assurance testing undertaken by the QA
Company).
|
| 4. |
THE
CONTENT
|
| 4.1 |
Unless
otherwise agreed in writing with Vodafone, the Content
shall:
|
| 4.1.1 |
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
|
| 4.1.2 |
not
require a Customer to provide any personal information or data to
the
Content Provider as a condition to
access.
|
| 4.2 |
Subject
to Clauses 4.3, 4.4 and 4.5, the Content Provider has full editorial
control over the Content.
|
1
|
4.3
|
The
Content Provider shall not change or vary the Content or the Format
in a
material way without VGSL’s prior written consent. The Content shall
comply with the Guidelines as updated by VGSL from time to time upon
reasonable notice to the Content
Provider.
|
|
4.4
|
Where:
|
|
4.4.1
|
the
Content (or any part thereof) breaches any of the
Guidelines;
|
|
4.4.2
|
Vodafone
receives complaints regarding any of the Content or the Content Provider
which it considers to be of such seriousness or number as to be
prejudicial to the brand or reputation of Vodafone or other Vodafone
Group
Companies; or
|
|
4.4.3
|
errors
are identified in the Content or the Content (or any part thereof)
breaches any other provision of this Master Agreement or a
Contract,
|
then,
without prejudice to its other rights and remedies, Vodafone may require the
Content Provider to use its reasonable endeavours to amend or to replace the
Content with content which is acceptable to Vodafone, acting
reasonably.
|
4.5
|
Vodafone
is entitled to alter the format, layout or form of display of the
Content:
|
|
4.5.1
|
to
the extent necessary or desirable to allow the Content to be presented
to
Customers on the Directory or in downloaded form in an attractive
or
easy-to-use/view fashion; and
|
|
4.5.2
|
to
comply with any Vodafone security, safety or other integrity process
or
requirement.
|
|
4.6
|
Vodafone
is entitled (without the consent of the Content Provider) to offer
Preview
Options to Customers in respect of the Content. Preview Options shall
not
be treated as Chargeable Events.
|
|
4.7
|
The
Content Provider shall ensure that the Content shall not contain
any form
of advertising for any goods or services and the Content Provider
agrees
that it shall have no right to include any form of advertising in
the
Content other than branding agreed to be incorporated in the Content
pursuant to the Content Provider Branding
Guidelines.
|
|
4.8
|
Vodafone
may, with the written agreement of the Content Provider, offer to
Customers promotions in respect of the Content and such offers shall
not
be treated as Chargeable Events (unless otherwise expressly agreed
in
writing with the Content Provider).
|
|
4.9
|
The
Content Provider agrees that Vodafone does not have an obligation
to place
the Content on the Directory or, once placed, retain the Content
on the
Directory or to make the whole or any part of the Content available
to
Customers or to make the Content available in all or any of the
Territories. Furthermore, Vodafone shall be entitled but not obliged,
to
market and promote the Content to
Customers.
|
|
4.10
|
The
Content Provider acknowledges that a Customer of a Directory in
a
Territory may as a result of international roaming or cross-border
signal
leakage be able to access that Directory, and access the Content,
outside
of the Territory. Such access, distribution or provision of-the
Content shall be permitted under this Master Agreement and the
provisions
relating to the Territory shall be interpreted
accordingly.
|
|
4.11
|
The
Content Provider shall ensure that:
|
|
4.11.1
|
its
terms and conditions of sale are easily accessible to the Customers
at all
times at which the Customers access the
Content;
|
|
4.11.2
|
such
terms and conditions make it clear that Vodafone will ▇▇▇▇ and collect
all
payments for the downloading and provision of the Content as the
Content
Provider’s marketing and billing agent;
and
|
|
4.11.3
|
the
Customer is required to accept such terms and conditions as a precondition
of the Content being made available to the
Customer.
|
|
4.12
|
As
between VGSL, Vodafone and the Content Provider, the Content Provider
accepts responsibility for all matters relating to the provision
or
non-provision of the Content to Customers. For the avoidance of doubt,
neither VGSL nor Vodafone shall be under any obligation to review
any of
the Content to ascertain if it complies with the terms of this Agreement
and any legal, regulatory or other applicable
requirements.
|
|
4.13
|
The
Content Provider will use its best efforts to rectify bugs associated
with
any Content made available to Customers on the Directory at its own
expense and in accordance with the response and fix times set out
in the
Content Schedule. Where a particular error cannot be fixed the Content
Provider will provide an amended version free of
charge.
|
|
5.
|
THE
DIRECTORY
|
|
5.1
|
The
Content Provider acknowledges and agrees that the Directory and the
distribution of Content may depend upon factors beyond Vodafone’s control
including, but not limited to, factors affecting the operation of
the
Vodafone Network. Vodafone shall use reasonable endeavours to maintain
the
availability of the Directory twenty-four (24) hours a day, every
day of
the year but Vodafone shall not be liable for any failure to maintain
the
Directory in such manner whether this arises from a technical or
other
failure in the Directory, the Vodafone Network or otherwise. Vodafone
does
not warrant that the Directory or the Vodafone Network will be free
of
errors, faults or interruptions.
|
|
5.2
|
Vodafone
reserves the right from time to time to improve or otherwise alter
the
Directory as it deems appropriate (including changes to the category
structure or channels). Vodafone reserves the right to suspend the
operation of the Directory for the purposes of remedial or preventative
maintenance or improvement of the
Directory.
|
|
5.3
|
Vodafone
may at any time during the term of a Contract, without incurring
any
liability to the Content Provider, temporarily or permanently suspend,
disconnect, remove or bar access to (a) the Directory; or (b) the
Content
(or any part thereof) on the Directory. Vodafone shall give the Content
Provider notice of any such action.
|
|
5.4
|
Without
prejudice to its other rights under a Contract, Vodafone shall be
entitled
to move the Content to, or place the Content in, any section of the
Directory as it considers
appropriate.
|
2
|
6.
|
INTELLECTUAL
PROPERTY RIGHTS AND
BRANDING
|
| 6.1 |
The
Content Provider grants to VGSL and Vodafone a non-exclusive,
non-transferable (except to an assignee in accordance with the terms
of a
Contract) royalty-free (except for the payments specified in Clause
10)
licence in the Territory (subject to Clause 4.10)
to:
|
| 6.1.1 |
use,
store, reproduce, display, distribute, transmit, broadcast and/or
otherwise communicate and/or make available to the public the Content
through various technologies (including without limitation WAP, SMS,
MMS
and IM);
|
| 6.1.2 |
use
the Content Provider Marks to display, promote and advertise the
Content
in accordance with the Content Provider Branding Guidelines;
and
|
| 6.1.3 |
use
the Marketing Materials to promote and advertise the Content in accordance
with Clause 6.2.
|
| 6.2 |
The
Content Provider shall provide to VGSL as soon as practicable the
Marketing Materials. VGSL and each Vodafone Group Company shall
be
entitled to use the Marketing Materials as
follows:
|
| 6.2.1 |
for
internal purposes within the Vodafone Group (including, without
limitation, featuring on ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and, where Content
is
Java-based, on VGSL’s Java repository) and as a record of marketing
relating to the Directory, without the prior consent of the Content
Provider;
|
| 6.2.2 |
in
respect of advertising and marketing for and of the Content on television
and radio, in the press, on billboards and other outdoor media and
in
advertising in cinemas, with the prior consent of the Content Provider
(such consent not to be unreasonably withheld or delayed - in the
absence
of reasonable refusal within seven days of request, consent shall
be
deemed to have been given); and
|
| 6.2.3 |
in
respect of all advertising or marketing for and of the Content not
specified in Clause 6.2.2 (including, without limitation, featuring
in the
Vodafone section of ▇▇▇.▇▇▇▇.▇▇▇ where the Content is Java based),
without
the prior consent of the Content
Provider.
|
| 6.3 |
All
use of the Content Provider Marks shall be for the benefit of Content
Provider and, save insofar as use of the Marketing Materials is permitted
under Clause 6.2, in accordance with the reasonable terms of use
generally
applied by the Content Provider to its own activities and applying
to
licensees of the Content Provider Marks as notified to Vodafone and
VGSL
in the Content Provider Branding
Guidelines.
|
| 6.4 |
For
the avoidance of doubt, neither VGSL nor any Vodafone Group Company
is
obliged to conduct any advertising, marketing or promotion for or
in
relation to the Content.
|
| 6.5 |
Except
as specifically authorised in a Contract or by this Clause 6, neither
Party shall use the other Party’s name or trade marks (including in the
case of the Content Provider, the “Vodafone” name and any trade ▇▇▇▇ of
any Vodafone Group Company) without the other’s prior written
consent.
|
| 6.6 |
Each
Vodafone Group Company shall be entitled to sub-license its rights
under
this Clause 6 to:
|
| 6.6.1 |
any
other Vodafone Group Company;
|
| 6.6.2 |
any
Customer to the extent necessary to enable that Customer to exercise
those
rights in connection with the Content as are associated with a
Chargeable
Event; and
|
| 6.6.3 |
any
service provider if that Vodafone Group Company outsources all or
part of
the provision or management of the Directory. Such outsourcing contractor
shall be allowed to use the rights granted under this Clause 6 subject
to
that Vodafone Group Company remaining responsible for the acts or
omissions of the outsourcing
contractor.
|
| 6.7 |
Title
to and ownership of all Intellectual Property Rights embodied by
or
otherwise incorporated into the Content shall remain with the Content
Provider or its licensor(s) and the Content Provider shall be responsible
for obtaining all licenses, clearances, permissions, waivers, approvals
or
consents required in order to grant the licenses required under Clause
6.1, including, without limitation, obtaining any necessary clearances
and
consents from, and making royalty or other payments to, the owners
of the
applicable Intellectual Property Rights (including payment of any
Collecting Society Royalties).
|
| 7. |
TECHNICAL
AND CUSTOMER SUPPORT
|
| 7.1 |
Vodafone
shall provide First Line Customer Support in respect of the Content
and
the Content Provider shall provide Second Line Customer Support in
respect
of the Content. The Content Provider authorises Vodafone to refer
any
Second Line Customer support inquiries to the Content Provider’s nominated
Relevant Contacts.
|
| 7.2 |
The
Content Provider shall not be required to provide support directly
to any
Customers.
|
| 7.3 |
The
following ratings shall be used by the Parties to determine the priority
of incidents and the Content Provider’s corresponding obligation to
respond and resolve such incidents involving the Content and other
services delivered or under the responsibility of the Content
Provider:
|
| 7.3.1 |
Priority
1 (Critical):
Complete failure of the hosting service under Clause 9, the Content
or a
significant part of the Content or the problem creates a definite
business
or financial exposure or affects a large number of Customers. Response
within ten (10) minutes and resolution within two (2)
hours;
|
| 7.3.2 |
Priority
2 (High):
Content not totally down, but the affected components form a significant
part of the functionality of the Content and the problem creates
a
possible business or financial exposure. Response within thirty
(30)
minutes and resolution within eight (8) hours;
and
|
| 7.3.3 |
Priority
3 (Medium):
The Content is largely available and the problem has little or no
effect
on the services provided by the Content and the problem creates no
business or financial exposure. Response time within three (3) hours
and
resolution time within two (2) business
days.
|
| 8. |
CONTENT
PROTECTION
|
| 8.1 |
These
Clauses 8.1 to 8.8 (inclusive) shall only apply in the circumstances
where
a Content Schedule provides that Vodafone is responsible for providing
the
agreed level of protection for the
Content.
|
| 8.2 |
Vodafone
shall put in place the agreed DRM specified in the DRM
Guidelines.
|
| 8.3 |
Nothing
in this Master Agreement or any Content Schedule or Contract shall
affect
any rights of action that the Content Provider or any Vodafone
Group
Company may have under any applicable law in the Territory
against:
|
| 8.3.1 |
the
circumvention of the DRM put in place by Vodafone pursuant to Clause
8.2
or other technological measures put in place by the Content Provider
pursuant to Clause 9.6;
|
3
| 8.3.2 |
any
device, product or component or the provision of services for
circumvention of such DRM or other technological
measures;
|
| 8.3.3 |
removal
or alteration of any Rights associated with Protected Content;
or
|
| 8.3.4 |
distribution,
importation, broadcasting, communication or making available to the
public
of Protected Content from which Rights have been removed or altered
without authority
|
(collectively,
the
“Anti-Circumvention
Rights”).
| 8.4 |
For
the avoidance of doubt, neither VGSL nor any Vodafone Group Company
is
obliged to exercise its Anti-Circumvention Rights in relation to
the
Protected Content.
|
| 8.5 |
The
Content Provider acknowledges that in order to carry out its obligations
under this Clause 8, Vodafone may need
to:
|
| 8.5.1 |
substantially
adapt any Protected Content distributed via the Vodafone Network
to make
it or a part of it deliverable to the recipient’s Mobile Device;
or
|
| 8.5.2 |
override
any copy protection or similar measures incorporated into the Content
delivered to VGSL or Vodafone (including without limitation copy
protection measures supported by SMAF formats) to make such Content
deliverable to Customers as Protected
Content.
|
| 8.6 |
The
Content Provider provides its irrevocable consent to any such adaptation
or overriding undertaken as Vodafone may reasonably determine is
necessary
for the purpose of transmission or delivery of the Content and to
any
transient copying undertaken in the process of transmission or delivery.
The Content Provider agrees that the existence and validity of this
Master
Agreement shall be conditional upon such consent. For the purposes
of this
Clause 8.6 and Clause 8.5.1, the term “adaptation” includes, without
limitation, the conversion of a video message into a series of still
images, the removal of all or part of the Content and the insertion
of a
link to a URL.
|
| 8.7 |
Neither
VGSL nor Vodafone warrants that the DRM put in place pursuant to
Clause
8.2 will prevent Protected Content being unlawfully accessed, copied,
distributed or used. In particular, the Content Provider acknowledges
that
the security of such DRM depends upon the robust implementation of
industry standards by third parties, in particular, the Mobile Device
manufacturers. Neither VGSL nor Vodafone can guarantee that such
standards
have been implemented correctly or to a sufficiently high standard
by such
third parties.
|
| 8.8 |
Vodafone
shall use its reasonable endeavours to identify the make and model
of
Mobile Devices to which the Protected Content is distributed with
the
intention of only distributing such Protected Content to the Mobile
Devices specified in the Content Schedule (Specified Mobile Devices)
purporting to support the DRM specified in the DRM Guidelines. Vodafone
does not warrant the authenticity of any Mobile Device identification
information and the Content Provider acknowledges and accepts the
risk
that third parties may seek to defraud Vodafone and the Content Provider
by misrepresenting such
information.
|
| 9. |
HOSTING
|
| 9.1 |
These
Clauses 9.1 to 9.7 (inclusive) shall only apply in the circumstances
where
a Content Schedule provides that the Content Provider is responsible
for
hosting the Content.
|
| 9.2 |
The
Content Provider shall host the Content on the Platform (which
shall
include provision of application monitoring, application support
and fault
and change management).
|
| 9.3 |
The
Content Provider shall provide sufficient redundancy in services
and
infrastructure in order to maintain the Content. The Content Provider
shall collect and process appropriately all data relating to Chargeable
Events and provide this data to VGSL on request. The Content Provider
shall perform daily backups of all data regarding Chargeable Events
and be
able to recover to the last backup. Backups shall be treated in accordance
with industry standard security.
|
| 9.4 |
Notwithstanding
obligations under Data Protection Legislation, all facilities associated
with the hosting of the Content, the Content data and the transmission
of
that data shall ensure security commensurate with the sensitivity
of the
data being processed and the service being provided. The Content
Provider
is responsible for obtaining and maintaining the Content and the
Platform.
|
| 9.5 |
The
Content Provider shall:
|
| 9.5.1 |
ensure
that viruses are not introduced to the
Platform;
|
| 9.5.2 |
respond
to all virus attacks and destroy any virus detected on the Platform,
document each incident and report the details immediately to Vodafone;
and
|
| 9.5.3 |
scan
all incoming computer media for viruses before they are read by any
hardware associated with the
Content.
|
| 9.6 |
The
Content Provider shall take all reasonable measures to prevent unlawful
or
unauthorised access to the Content Provider computer systems associated
with the Content and the Content data and Content backups (including
in
the circumstances where a Content Schedule provides that the Content
Provider is responsible for protecting the Content, technological
measures
designed to prevent unlawful or unauthorised use, copying or
redistribution of the Content by Customers or any other person).
Where
appropriate this shall include use of locking devices, firewalls,
shared
secrets, digital certificates, password protection, and content filtering,
encryption and intrusion detection.
|
| 9.7 |
Where
the Content Provider materially or persistently fails to meet any
of the
KPI levels set out in the Content Schedule or any Guidelines relating
to
its service under this Clause 9, without prejudice to its other rights
and
remedies and for the avoidance of doubt Vodafone shall be entitled
to
temporarily suspend or disconnect the Content Provider or remove
or bar
access to the Content (or any part thereof) on the Directory to its
Customers until such time as the Content Provider can show to Vodafone’s
reasonable satisfaction that it has taken reasonable steps to resolve
the
problem.
|
| 10. |
PRICING,
REVENUE AND PAYMENTS
|
| 10.1 |
The
Content Provider may in its reasonable discretion determine the price
at
which the Content is sold, licensed or otherwise distributed to Customers
in the Territory (including in the case of Protected Content the
price
attributed
to each of the Purchase Options). However, nothing shall prevent
Vodafone
from rebating or otherwise crediting part or all of the Content Charge
to
Customers so as to effectively reduce the price which Customers pay
for
the Content. Vodafone may include the Content in a bundle or package
of
other content as a single or combined offering to the Customer, in
which
event the Gross Revenue applicable to the Content shall be an appropriate
proportion of the relevant charge for such bundle or package, as
reasonably determined by
Vodafone.
|
4
|
10.2
|
Vodafone
shall pay to the Content Provider the Content Provider Revenue less
Deductions in accordance with the procedure set out in this Clause
10.
Save as otherwise notified to the Content Provider, VGSL shall act
as each
relevant Vodafone Group Company’s agent for the purposes of paying such
sums.
|
|
10.3
|
Vodafone
shall not be obliged to make any payment in respect of any Chargeable
Event unless and/or until the Customer has paid for the Content in
full.
|
|
10.4
|
If
Vodafone maintains a repository within a particular Territory containing
details of Content purchased by a Customer in such Territory, Vodafone
shall be entitled to provide such Content free of charge to any Customer
in that Territory where such Customer has already been charged for
such
Content.
|
|
10.5
|
Save
as otherwise notified to the Content Provider, VGSL shall, on behalf
of
Vodafone, no later than thirty (30) days after the end of the month
in
which the relevant Chargeable Events were incurred (it being acknowledged
that, where the Content Provider hosts the Content, the Content Provider
will need to provide the relevant information to VGSL in a timely
manner
to allow VGSL to meet its obligations under this Clause
10.5):
|
|
10.5.1
|
generate
and send to the Content Provider’s Relevant Contact for financial matters
monthly reports showing the calculation of the Content Provider Revenue
for the relevant month; and
|
|
10.5.2
|
(where
relevant) issue and send to the Content Provider’s Relevant Contact for
finance matters monthly purchase invoices in respect of Vodafone
Commission for the relevant month.
|
|
10.6
|
The
Content Provider shall, upon receipt from VGSL of the report specified
in
Clause 10.5.1 on behalf of Vodafone, issue an invoice in respect
of the
applicable Content Provider Revenue in the name of each applicable
Vodafone Group Company and send such invoices to VSGL (or directly
to the
relevant Vodafone Group Company, if so directed by
VGSL).
|
|
10.7
|
Unless
an amount is in bona fide dispute, the Parties shall pay all sums
owed to
each other under a Contract within sixty (60) days of receipt of
a valid
invoice for the relevant sum.
|
|
10.8
|
Where
Vodafone receives any complaint from a Customer in relation to the
Content, it may in its sole discretion decide to make a refund or
issue a
credit to such Customer in respect of the Chargeable Event. Where
such a
refund is issued or credited, or where a bad debt is incurred, after
the
relevant Content Provider Revenue has been paid to the Content Provider,
Vodafone shall be entitled to deduct from the calculation of Net
Revenue
for the following month the amount of such refund, credit or bad
debt less
any sums (other than Deductions) already received and retained by
Vodafone
in respect of such Chargeable
Event.
|
|
10.9
|
Payment
by VGSL on behalf of Vodafone to the Content Provider shall be made
by
electronic transfer to the Content Provider’s bank account specified in
the relevant Content Schedule.
|
|
10.10
|
The
currency of this Master Agreement and each Contract shall be Euros.
All
financial reports, statements, invoices, charges and payments made
by one
Party to the other shall be in Euros. In respect of revenues generated
in
a Territory that does not have the Euro as its primary currency (a
“Non-Euro
Amount”),
Vodafone shall convert such Non-Euro Amount to Euros using the UK
Financial Times average middle market exchange rate calculated for
the
applicable month.
|
|
10.11
|
Where
a Party (the “Debtor”)
fails to pay another Party (the “Creditor”)
any amount due and payable under a Contract by the time prescribed
by the
Contract (the “Due
Date”),
the Creditor shall be entitled to give the Debtor written notice
of its
intention to charge interest. If payment of the amount due has still
not
been received by the Creditor within 14 days of receipt of such notice
by
the Debtor, the Debtor shall on demand by the Creditor pay the Creditor
interest on the unpaid amount at a rate of 1% per annum above the
Euribor
rate of interest (as prescribed by the European Banking Federation)
which
is in force on the Due Date, calculated from the Due Date until payment
of
the unpaid amount is made in full. The Parties acknowledge and agree
that
the interest payment mechanism set out in this Clause 10 is a substantial
remedy.
|
|
11.
|
TAX
|
|
11.1
|
Vodafone
shall be entitled to make any deduction or withholding required by
law
from any payment payable under a Contract or any agreement between
Vodafone Group Companies entered into for the purposes of a Contract.
In
the event that a withholding tax or deduction is payable by Vodafone
in
respect of the Content Provider Revenue, Vodafone will pay the Content
Provider Revenue net of the required withholding or deduction to
the
Content Provider. Vodafone will supply to the Content Provider evidence
to
the reasonable satisfaction of the Content Provider that Vodafone
has
accounted to the relevant authority for the sum withheld or deducted
and
will provide all such assistance as may be reasonably requested by
the
Content Provider in recovering the amount of the withholding. In
the event
that a double taxation treaty applies which provides for a reduced
withholding tax rate, Vodafone shall only withhold and pay the reduced
tax
on behalf and for the account of the Content Provider if an appropriate
exemption certificate is issued by the competent tax authority and
provided to Vodafone.
|
|
11.2
|
lf
Vodafone, in good faith, pays the Content Provider Revenue without
set-off, counterclaim, or required withholding or deduction and a
subsequent audit identifies that a withholding or deduction should
have
been made from the Content Provider Revenue, the Content Provider
shall be
liable to pay this withholding or deduction to the relevant authority
or
(if Vodafone makes the payment to the relevant authority) to Vodafone,
together with any interest and penalties due thereon and shall indemnify
Vodafone in respect of any such residual
liability.
|
5
| 11.3 |
If
a Vodafone Group Company, in order to reduce the VAT Taxes due on
the
Content Charge, enters into a Contract with the Content Provider
and
sells, licenses or otherwise distributes the Content in a Territory
from
outside of that Territory, the following shall be deemed to be an
additional Deduction for the purposes of the Contract: the difference
between the valued added tax, turnover tax or other taxes included
in the
Content Charge, and, if higher, the prevailing rate of equivalent
taxes
that would otherwise be payable with respect to the Content in the
country
where the Customer purchased the
Content.
|
| 11.4 |
The
Content Provider warrants and undertakes to Vodafone that it is tax
resident in the place indicated in every Content Schedule and shall
be
deemed to remain tax resident in that territory unless it notifies
Vodafone of a change of tax residency on thirty (30) days prior written
notice. The Content Provider shall on demand provide any documentation
required by Vodafone evidencing its tax residency in such
territory.
|
| 11.5 |
In
the event that Vodafone is not reasonably informed of a change in
tax
residence by the Content Provider, the Content Provider will indemnify
Vodafone against any costs (including but not limited to withholding
tax
and any accrued interest and penalties) incurred by Vodafone due
to such
failure to inform.
|
| 11.6 |
Content
Provider Revenue shall be exclusive of any applicable VAT
Tax.
|
| 11.7 |
If
any VAT Tax is chargeable by the Content Provider in respect of any
amount
payable by Vodafone under this Master Agreement or any Contract,
the
Content Provider shall provide Vodafone with an invoice that specifically
states such VAT Tax and (if a relief procedure is available) meets
all
further conditions required by applicable law which are necessary
to allow
Vodafone to obtain relief from such VAT Tax. Vodafone shall, upon
receipt
of such invoice, pay to the Content Provider such VAT Tax at the
rate then
properly chargeable in respect of the relevant
payment.
|
| 11.8 |
If
the Content Provider provides Content or services under a Contract
from
outside of the European Union to Vodafone, the Content Provider shall
provide to Vodafone a reasonable explanation of the nature of any
applicable VAT Tax charged by the Content Provider under the Contract,
the
rate of such VAT Tax and the processes by which Vodafone can obtain
relief
for such VAT Tax.
|
| 11.9 |
If
the Content Provider has incorrectly charged VAT Tax to Vodafone
under a
Contract then the relevant invoice shall be corrected as soon as
practicable and: (a) where Vodafone has overpaid the VAT Tax, the
Content
Provider will repay to Vodafone the overpayment of VAT Tax; and (b)
where
Vodafone has underpaid the VAT Tax, Vodafone shall pay the outstanding
amount upon receipt of a valid invoice. Payments under (a) and (b)
shall
be made in accordance with Clauses 10.7 and
10.11.
|
| 11.10 |
In
the circumstances set out in section (b) of Clause 11.9 the Content
Provider shall reimburse Vodafone for any and all costs, charges.
VAT
Taxes and related interest and penalties relating to such underpayment,
save to the extent that Vodafone is (acting reasonably) able to recover
such amounts from the applicable
authorities.
|
| 12 |
REPORTING
AND AUDIT
|
| 12.1 |
Each
Party shall, during the term of a Contract, deliver to the other
upon its
reasonable written request access to and copies of such information
that
the other may reasonably require to perform its obligations (or to
verify
that the other Party is performing its obligations) under a
Contract.
|
| 12.2 |
Vodafone
and the Content Provider shall, at their own expense and upon 30
days’
prior written notice, have the right to appoint an independent auditor
solely for the purposes of verifying the accuracy of any financial
report
or statement issued by the other Party under a Contract. If such
audit
subsequently reveals any financial discrepancy, the audited Party
shall
rectify such discrepancy within thirty (30) working days after
notification of the discrepancy. Each Party shall only be entitled
to
utilize this provision once in any twelve (12) month period of a
Contract.
|
| 13. |
WARRANTIES
|
| 13.1 |
The
Content Provider warrants and undertakes to VGSL and Vodafone
that:
|
| 13.1.1 |
it
has full right and authority to enter into this Master Agreement
and any
Contract and that its entry into this Master Agreement and any Contract
does not breach any third party’s rights or any other agreement to which
it is a party;
|
| 13.1.2 |
it
shall implement and comply with any Guidelines provided from time
to time
by VGSL or any other Vodafone Group Company to the Content Provider
which
relate to:
|
| 13.1.2.1 |
content
standards (including anti-social, adult, fraudulent, unlawful or
otherwise
inappropriate content) and, in particular, shall clearly classify
the
Content in accordance with the adult content classification framework
criteria agreed between the Content Provider and
VGSL;
|
| 13.1.2.2 |
access
or use of the Directory by Customers (including anti-social, fraudulent,
underage, unlawful or improper use);
or
|
| 13.1.2.3 |
the
Vodafone Network and/or any mobile
device;
|
| 13.1.3 |
it
shall not act in a way which shall impair or put in jeopardy the
operation
of the Directory, the Vodafone Network, any mobile device or any
part of
them;
|
| 13.1.4 |
it
has the necessary licences, consents, permissions or approvals to
operate
and to grant Vodafone the rights to use the Content, the Marketing
Materials and the Content Provider Marks in accordance with the terms
of a
Contract;
|
| 13.1.5 |
it
shall use reasonable skill and care in carrying out its obligations
and
exercising its rights under a Contract and/or this Master Agreement;
and
|
| 13.1.6 |
it
shall comply with all applicable laws and regulations when performing
its
obligations under this Master Agreement and/or a
Contract.
|
| 13.2 |
The
Content Provider warrants and undertakes to VGSL and Vodafone that
the
Content shall:
|
| 13.2.1 |
be
of satisfactory quality and be kept fresh, updated and current (with
reference to the nature of the Content’s subject matter) and shall not be
factually inaccurate;
|
6
| 13.2.2 |
not
infringe any third party’s rights (including Intellectual Property
Rights);
|
| 13.2.3 |
not
offend taste or decency, nor be defamatory, obscene, racist, materially
inaccurate, be so violent, or abusive in nature as to be reasonably
likely
to cause serious offence in Vodafone’s opinion, or otherwise be in breach
of any applicable law, regulation or code of conduct or result in
Vodafone
or any Vodafone Group Company being in breach of any
law;
|
| 13.2.4 |
not
result in Vodafone or any other Vodafone Group Company being held
to carry
out any regulated activity in the applicable Territory including
but not
limited to any gambling service, betting service or lottery (where
“regulated activity” means any activity requiring specific governmental
authorisation or license, other than the provision of telecommunications
or electronic communications
services);
|
| 13.2.5 |
not
contain any content that promotes a Competitor or criticises Vodafone
or
any other company within the Vodafone Group, or otherwise bring Vodafone
Group Companies into disrepute or damages the reputation or goodwill
of
Vodafone, or any other Vodafone Group Company or any trade ▇▇▇▇ of
any
Vodafone Group Company in any of the Territories;
and
|
| 13.2.6 |
not
contain any computer viruses, logic bombs, trojan horses and/or any
other
items of software which would disrupt the proper operation of the
Directory, the Vodafone Network or any mobile
device.
|
| 13.3 |
VGSL
warrants and undertakes that it has full right and authority to enter
into
this Master Agreement. Each Vodafone Group Company which executes
the
Contract Acceptance Notice warrants and undertakes that it has full
right
and authority to execute that Contract Acceptance
Notice.
|
| 13.4 |
The
Parties acknowledge that their respective obligations and liabilities
are
exhaustively defined in each Contract and this Master Agreement (as
the
context requires) and that to the extent permitted by law, the express
obligations and warranties provided in each such Contract and this
Master
Agreement are in lieu of and to the exclusion of any warranty, condition,
term, undertaking or representation of any kind, express or implied,
statutory or otherwise relating to anything supplied or
provided.
or
services performed under or in connection with each such Contract
and/or
this Master Agreement including (without limitation) as to the condition,
quality, performance, satisfactory quality or fitness for the
purpose.
|
| 13.5 |
Save
as otherwise notified to the Content Provider, VGSL shall act as
the
single point of contact between the Content Provider and each Vodafone
Group Company entering into a Contract including, without limitation,
in
respect of any claims made by the Content Provider or such a Vodafone
Group Company under this Master Agreement or any
Contract.
|
| 14. |
INTELLECTUAL
PROPERTY INDEMNITY
|
| 14.1 |
The
Content Provider shall indemnify Vodafone, VGSL and all other Vodafone
Group Companies from and against all losses, damages, costs, expenses,
claims, proceedings and liabilities (including legal costs calculated
on a
solicitor-client basis) sustained or incurred by Vodafone or any
Vodafone
Group Company arising out of or in connection with any claim or allegation
that the provision, use, receipt or possession of the Content, the
Marketing Materials and/or the Content Provider
Marks:
|
| 14.1.1 |
infringes
the Intellectual Property Rights, other proprietary rights or rights
of
publicity or privacy of a third party;
or
|
| 14.1.2 |
is
defamatory, obscene, racist, materially inaccurate, violent, or abusive
in
nature, or otherwise in breach of any applicable law, regulation
or code
of conduct.
|
| 14.2 |
If
any third party makes a claim or demand or brings an action against,
or
notifies an intention to make or bring a claim, demand or action
against
VGSL or any Vodafone Group Company which may give rise to a liability
under this Clause 14 (in this clause, a “relevant claim”), Vodafone
shall:
|
| 14.2.1 |
without
limiting the generality of this Clause 14, as soon as reasonably
practicable give written notice of the relevant claim to the Content
Provider;
|
| 14.2.2 |
not
make any admission of liability, agreement or compromise in relation
to
the relevant claim (save where required by law, legislation, court
order
or governmental regulations) which may be prejudicial to the defence
or
settlement of any claim, demand or action by VGSL, a Vodafone Group
Company or the Content Provider without the prior written consent
of the
Content Provider (such consent not to be unreasonably withheld or
delayed); and
|
| 14.2.3 |
at
the request of the Content Provider and at the Content Provider’s cost,
afford all reasonable assistance for the purpose of contesting
the
relevant claim.
|
| 15. |
LIABILITY
|
| 15.1 |
Except
for liability arising under Clauses 14.1 and 15.4, in each Contract
Year
the aggregate liability of each Party for all claims made under or
in
connection with a Contract, whether based on contract, tort, negligence
or
otherwise shall be limited to the greater of: (a) [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
or (b) [INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION
UNDER RULE 24B-2] arising under the Contract in question in the Contract
Year in which the applicable liability is
sustained.
|
| 15.2 |
Except
for liability arising under Clauses 14.1 and 15.4, the total aggregate
liability of (a) the Content Provider to VGSL and Vodafone (together);
and
(b) VGSL and Vodafone (together) to the Content Provider, under this
Master Agreement and all Contracts for all claims made under or in
connection with this Master Agreement and all Contracts, whether
based on
contract, tort, negligence or otherwise shall (in each of the cases
(a)
and (b)) be limited to [INFORMATION OMITTED AND FILED SEPARATELY
WITH THE
COMMISSION UNDER RULE 24B-2].
|
| 15.3 |
Except
for liability arising under Clauses 14.1 and 15.4, in no circumstances
shall a Party be liable for any indirect, special or consequential
damages
arising from breach of contract, negligence or other liability even
if the
other Party had been advised or knew (or should have known) of the
possibility of such damages.
|
| 15.4 |
Nothing
in this Master Agreement or a Contract excludes a Party’s liability with
respect to death or personal injury resulting from negligence, or
excludes
a Party’s liability for fraudulent misrepresentation or any other
liability to the extent that such liability may not be excluded or
restricted by law.
|
| 16. |
INSURANCE
|
| 16.1 |
Both
Parties agree that they carry and will maintain throughout the term
adequate insurance to cover such of their liabilities under this
Master
Agreement and each Contract. In particular the Content Provider agrees
to
keep and maintain products/liability insurance to the value
of [INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION
UNDER RULE 24B-2] per claim and third party intellectual property
rights
insurance to the value of [INFORMATION OMITTED AND FILED SEPARATELY
WITH THE COMMISSION UNDER RULE 24B-2] per
claim.
|
7
| 16.2 |
The
Content Provider shall ensure that the appropriate noting of VGSL’s and
Vodafone’s interests have been recorded on the Insurance Policies or a
generic interest clause has been included, together with a waiver
of
subrogation and any right of contribution in favour of VGSL and Vodafone,
and shall on the written request of Vodafone from time to time provide
a
certificate signed by the Content Provider’s insurer or such insurer’s
appointed agents confirming that the Content Provider is insured
in
accordance with this Clause 16. On the renewal of any Insurance Policies,
the Content Provider shall promptly send a copy of the premium receipt
to
VGSL, if so requested.
|
| 16.3 |
The
Content Provider shall during the term of this Agreement and for
a period
of [INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION
UNDER RULE 24B-2] thereafter.
|
| 16.3.1 |
administer
the Insurance Policies and the Content Provider’s relationship with its
insurers in such a manner as to preserve any benefits to Vodafone
from the
operation of this Clause 16;
|
| 16.3.2 |
do
nothing to invalidate any Insurance Policies or to prejudice the
Content
Provider’s entitlement under the insurance Policies;
and
|
| 16.3.3 |
not
subsequently alter the terms of the Insurance Policies in such a
way as to
diminish any benefits to VGSL or Vodafone from the Insurance
Policies.
|
| 16.4 |
The
Content Provider shall ensure that its contractors, subcontractors
and
agents are insured in the same manner as set out in this Clause
16.
|
| 17. |
TERM
AND TERMINATION
|
| 17.1 |
This
Master Agreement shall commence on the date when it has been executed
by
both parties to the Master Agreement and shall continue unless and
until
terminated in accordance with the provisions of this Master Agreement.
Each Contract shall commence on its Commencement Date and will continue
unless otherwise terminated in accordance with its terms or, if earlier,
on the termination of this Master
Agreement.
|
| 17.2 |
Either
Party to this Master Agreement may terminate this Master Agreement,
or a
Party to a Contract may terminate that Contract, immediately on written
notice to the other Party (such notice not to be effective if sent
by
email) if:
|
| 17.2.1 |
the
other Party is in material breach of its terms and such breach is
incapable of remedy or, if capable of remedy, fails to remedy that
breach
within fourteen (14) days’ notice from the non-breaching Party requiring
remedy; or
|
| 17.2.2 |
the
other Party ceases to carry on its business or has a liquidator,
receiver
or administrative receiver appointed to it or over any part of its
undertaking or assets or passes a resolution for its winding up (otherwise
than for the purpose of a bona fide scheme of solvent amalgamation
or
reconstruction where the resulting entity will assume all of the
liabilities of it) or a court of competent jurisdiction makes an
administration order or liquidation order or similar order over the
other,
or the other enters into any voluntary arrangement with its creditors,
or
is unable to pay its debts as they fall due or suffers any similar
or
equivalent act in another relevant
jurisdiction.
|
| 17.3 |
VGSL
shall be entitled to terminate this Master Agreement or any Contract
without cause at any time, either in full or in relation to particular
Territories or items of Content (or both), by giving thirty [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
written
notice to the Content Provider, without prejudice to its other rights
and
remedies. Any partial termination of a Contract shall not affect
the
validity or enforceability of either (a) this Master Agreement; (b)
other
Contracts; or (c) the remainder of the Contract in
question.
|
| 17.4 |
Vodafone
shall be entitled to terminate a Contract to which it is party without
cause at any time, either in full or in relation to particular items
of
Content, by giving thirty [INFORMATION OMITTED AND FILED SEPARATELY
WITH
THE COMMISSION UNDER RULE 24B-2] written notice to the Content Provider,
without prejudice to its other rights and remedies. Any partial
termination of a Contract shall not affect the validity or enforceability
of the remainder of the Contract in
question.
|
| 17.5 |
The
Content Provider shall be entitled to terminate this Master Agreement
or
any Contract without cause at any time after the date [INFORMATION
OMITTED
AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] from the
date
of this Master Agreement (in the case of termination of this Master
Agreement) or [INFORMATION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION UNDER RULE 24B-2] from the Commencement Date of the relevant
Contract (in the case of termination relating to a Contract), either
in
full or in relation to particular Territories or items of Content
(or
both), by giving [INFORMATION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION UNDER RULE 24B-2] written notice to VGSL (in the case
of
termination of this Master Agreement) or to Vodafone with a copy
to VGSL
(in the case of termination relating to a Contract), without prejudice
to
its other rights and remedies. Any partial termination of a Contract
shall
not affect either the validity or enforceability of either (a) this
Master
Agreement; (b) other Contracts; or (c) the remainder of Contract
in
question.
|
| 17.6 |
This
Master Agreement shall terminate automatically six [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
after
the expiration or termination of the last remaining
Contract.
|
| 17.7 |
Termination
of this Master Agreement or a Contract does not affect the accrued
rights,
obligations or liabilities of the Parties prior to
termination.
|
| 17.8 |
Upon
termination of a Contract or this Master Agreement for whatever
reason:
|
| 17.8.1 |
Vodafone
shall remove the relevant Content from the Directory and cease providing
access to such Content to its
Customers;
|
| 17.8.2 |
each
Party to that termination shall, upon request, return to the other
or
destroy any relevant confidential information or materials provided
to it
by the other;
|
| 17.8.3 |
each
Party to that termination shall remove all references to the other’s trade
marks from any marketing and promotional materials save in respect
of any
ongoing relationship between the Parties and subject to VGSL retaining
a
copy of all Content and related marketing and promotional materials
for
archive and internal analysis
purposes;
|
| 17.8.4 |
the
Parties shall settle all outstanding sums either may owe the other
within
one hundred and twenty (120) days of the date of termination;
and
|
| 17.8.5 |
subject
to Clause 20.8, all rights granted under the Contract in question
or this
Master Agreement (as appropriate) shall immediately
cease.
|
8
|
17.9
|
VGSL
has the right to extend the operation of a Contract for a period
of not
more than three (3) months after what would otherwise be the effective
date of termination or expiration to give Vodafone an opportunity
to
replace the relevant Content and make appropriate amendments to its
marketing materials.
|
| 18. |
CONFIDENTIALITY
AND PUBLICITY
|
|
18.1
|
Except
as may be required by law or any applicable regulatory body,
or as is
strictly required to perform its obligations under this Master Agreement
or a Contract, each Party shall keep secret and confidential and
not use,
disclose or divulge to any third party any information that they
obtain
from the other concerning the business, finances, technology and
affairs
of the other, and in particular but not limited to the terms of this
Master Agreement and any Contract and their subject matters. This
Clause
does not apply to information that has come into the public domain
other
than by breach of this Clause or any other duty of confidence or
is
obtained from a third party without breach of this Clause or is required
to be disclosed by law.
|
|
18.2
|
The
Content Provider agrees that VGSL and Vodafone shall be entitled
to share
any or all information it receives from or generates on behalf of
the
Content Provider pursuant to this Master Agreement and/or any Contract
with other Vodafone Group
Companies.
|
|
18.3
|
Neither
Party shall issue any press statement or other announcements relating
to
this Master Agreement and/or any Contract or the subject matters
thereof
(as the context requires) without the prior written consent of the
other
Party.
|
|
19.
|
DATA
PROTECTION
|
|
19.1
|
All
personal and traffic data generated by or otherwise collected in
relation
to the Content will remain the exclusive property of Vodafone. The
Content
Provider shall be entitled to receive, on written request from time
to
time, aggregated user information for the limited purpose of analysing
the
effectiveness of the Content.
|
|
19.2
|
To
the extent that the Content Provider is required in connection with
the
performance of its obligations under this Master Agreement or a Contract
to process personal data relating to any Customer, the Content Provider
shall:
|
|
19.2.1
|
only
process such personal data on behalf of
Vodafone;
|
|
19.2.2
|
act
solely on the instructions of Vodafone in respect of such personal
data;
and
|
|
19.2.3
|
not
make any use of that data for any reason other than to perform its
obligations hereunder and in particular shall not make any use of
the
personal data for its marketing
purposes.
|
|
19.3
|
To
the extent that the Content Provider processes personal data on behalf
of
Vodafone, the Content Provider must ensure that it has in place
appropriate technical and organisational security measures (in addition
to
those expressly required by this Master Agreement or a Contract)
to
protect such personal data from accidental or unlawful destruction
or
accidental loss, damage, alteration, unauthorised disclosure or access,
in
particular where the processing involves the transmission of data
over a
network, and against all other unlawful forms of
processing.
|
|
20.
|
GENERAL
|
|
20.1
|
No
variation of this Master Agreement or a Contract or of any of the
documents referred to in either agreement shall be valid or effective
unless it is in writing and signed by or on behalf of each of the
Parties
(and, in the case of a Contract, but subject to Clause 2.3, by the
relevant Vodafone Group Company).
|
|
20.2
|
This
Master Agreement may be executed in any number of counterparts, each
of
which, when executed and delivered, shall be an original, and all
the
counterparts together shall constitute one and the same
instrument.
|
|
20.3
|
Any
notice or other communication required to be given or made under
this
Master Agreement or a Contract shall be in writing and addressed
to the
receiving Party’s principal contact at the address of the receiving Party
as set out in the Master Agreement or a Contract (as the context
requires)
or such other person or address as notified from time to time in
accordance with the terms of this Clause. Any such notice or communication
may be delivered by hand, first class post (if both Parties are within
the
UK), airmail (if one of the Parties is overseas) or fax and shall
be
deemed to be given or made if: (a) sent by hand, upon receipt; (b)
by
first class post, on the second working day following the date of
posting;
(c) by airmail, on the seventh working day following the date of
posting;
and (d) by fax or email, when despatched provided that a confirmatory
copy
is immediately despatched by first class post or airmail (as appropriate).
The Content Provider shall, whenever it sends a notice to Vodafone,
provide a copy of such notice to
VGSL.
|
|
20.4
|
This
Master Agreement or each Contract, as the context requires, represents
the
entire understanding between the respective Parties in relation to
its
subject matter and supersedes all agreements and representations
made by
either Party, whether oral or written. In particular, this Master
Agreement supersedes the Directory Agreement (the “Old Agreement”) made on
1 May 2003 between the Content Provider and Vodafone Global Content
Services Limited (whose business was transferred to VGSL on 1 April
2004). The Old Agreement shall only remain in force until (and shall
automatically terminate on) the date that the last “Vodafone Sub-Agent”
(appointed in accordance with clause 5.6 of the Old Agreement) has
entered
into a Contract or otherwise terminated its sub-agency under the
Old
Agreement, save in respect of any accrued rights or liabilities under
or
in relation to the Old Agreement prior to that date. This Clause
shall not
affect either Party’s liability for
fraud.
|
|
20.5
|
Failure
or delay by either Party to enforce any provisions under this Master
Agreement or a Contract shall not be taken as or deemed to be a waiver
of
its rights or operate as a waiver of any subsequent
breach.
|
|
20.6
|
If
any part of this Master Agreement or a Contract is held to be void,
voidable, illegal or unenforceable, the validity or enforceability
of the
remainder of this Master Agreement or a Contract shall not be
affected.
|
|
20.7
|
The
Parties shall perform all such further deeds, assurances, acts and
things
and execute such other documents as may reasonably be required to
carry
the provisions of this Master Agreement or a Contract into full force
and
effect.
|
|
20.8
|
The
following clauses shall survive termination of this Master Agreement
or a
Contract for any reason: 10 (Pricing, Revenue and Payments) 11 (Tax),
13
(Warranties), 14 (Intellectual Property Indemnity), 15 (Liability),
16
(Insurance), 17.8 (Term and Termination), 18 (Confidentiality and
Publicity), 20.4 (Entire Agreement), 20.5 (Waiver), 20.6 (Severability),
20.7 (Further Assurances), 20.8 (Survival of Terms), 20.9 (Force
Majeure),
20.12 (Conflict), 20.13 (Third Party Beneficiaries), 20.14 (Law)
and any
other clause which should, by its nature, survive
termination.
|
9
|
20.9
|
Neither
Party shall be liable for any delay or failure in performing any
of its
obligations under this Master Agreement or a Contract if such delay
or
failure is caused by circumstances outside its reasonable control
including without limitation, any delay or failure caused by any
act or
default of the other Party.
|
|
20.10
|
Neither
Party may assign, transfer or sub-contract to any other party any
of its
rights or obligations under this Master Agreement or a Contract except
that VGSL (in respect of this Master Agreement) and Vodafone (in
respect
of a Contract) may assign or transfer its rights or sub-contract
its
obligations to any Vodafone Group Company. Any Vodafone Group Company
may
appoint a third party (including, without limitation and for the
avoidance
of doubt, another Vodafone Group Company) as its agent for the purpose
of
fulfilling its obligations or exercising its rights under this
Agreement.
|
|
20.11
|
To
the extent that any provision of this Master Agreement as incorporated
into any Contract conflicts with any local legislation or regulation
in
the Territory specified in the Contract, then the provisions of the
local
legislation or regulation shall prevail over the conflicting
provisions.
to
the extent of such conflict.
|
|
20.12
|
If
there is any inconsistency between the provisions of this Master
Agreement
and the provisions set out in any Content Schedule or any other type
of
annexure, exhibit or other attachment, the following order of precedence
shall be applied so that the higher ranking provisions prevail over
the
lower-ranking provisions to the extent of the
inconsistency:
|
|
20.12.1
|
the
Special Conditions;
|
|
20.12.2
|
the
terms of this Master Agreement;
|
|
20.12.3
|
the
Content Schedule (excluding the Special Conditions);
and
|
|
20.12.4
|
any
other type of annexure, exhibit or other attachment.
|
|
20.13
|
Save
where expressly provided to the contrary in this Master Agreement
or in
the provisions of a Contract, this Master Agreement is made solely
and
specifically between the Content Provider and VGSL and each Contract
is
made solely and.
specifically
between the Content Provider and Vodafone and neither is intended
to be
for the benefit of or enforceable by any other person, whether under
the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ or otherwise, and neither
Party nor Vodafone can declare itself a trustee of the rights under
this
Master Agreement or a Contract for the benefit of any such
person.
|
|
20.14
|
This
Master Agreement and each Contract shall be governed by and construed
and
interpreted in accordance with the law of England and Wales and the
Parties to this Master Agreement and each Contract submit to the
exclusive
jurisdiction of the English Courts.
|
|
21.
|
DEFINITIONS
|
|
21.1
|
In
this Master Agreement and each
Contract:
|
|
21.1.1
|
reference
to persons shall include legal as well as natural persons and (where
the
context so admits), references to the singular shall include the
plural
and vice versa;
|
|
21.1.2
|
reference
to Clauses shall be to those clauses of this Master Agreement unless
the
contrary is stated;
|
|
21.1.3
|
reference
to this Master Agreement shall (unless the context otherwise requires)
include reference to any schedule to this Master Agreement as the
same may
be amended, novated or supplemented from time to time in accordance
with
its terms;
|
|
21.1.4
|
section
and clause headings in this Master Agreement are for ease of reference
only and shall not affect its interpretation, validity or
enforceability;
|
|
21.1.5
|
reference
to any statute, act, directive or other regulation includes a reference
to
that statute, act or directive or other regulation as re-enacted
or
amended from time to time;
|
|
21.1.6
|
the
words “include” and “including” shall be construed without limitation to
the words following; and
|
|
21.1.7
|
defined
terms are set out and described in Clause
21.2.
|
|
21.2
|
In
this Master Agreement and each Contract, the following words and
expressions shall have the expanded definitions set out
below.
|
“Anti-Circumvention
Rights”
shall
have the meaning given to that term in Clause 8.3;
“Application
Submission Criteria for QA”
means
those guidelines relating to the standards of Content produced and amended
from
time to time by Vodafone and provided to the Content Provider in connection
with
the Vodafone certification process;
“Chargeable
Event”
means
any purchase of the Content by a Customer (including in the case of Protected
Content any purchase of a subscription service offered pursuant to an applicable
Purchase Option) from the Content Provider for which the Customer is charged
by
Vodafone (as agent for the Content Provider);
“Collecting
Society Royalties”
means
the payment of any royalties due in respect of Collecting Society
Rights;
“Collecting
Society Rights”
means
those rights in or in relation to the Content which are controlled by copyright
and related rights collecting societies, or which copyright and related rights
collecting societies otherwise have the right to exploit, in the Territories
and
which are applicable to the use and exploitation of the Content pursuant to
a
Contract;
“Commencement
Date”
means
the date when the Content Provider receives the signed Contract Acceptance
Notice from a Vodafone Group Company;
“Competitor”
means
any third party competitor of the Vodafone live! service.
in the
Territory including without limitation any consumer focused multi-access
Internet portal, wireless portal or online service provider focused on the
provision of wireless content services including but not limited to any
operator, or any company affiliated with such operator of an electronic
communications network;
“Content”
means
the information, text, data, graphics, images, software and audio and visual
material in whatever media or form described in a Content Schedule or
otherwise provided by or on behalf of the Content Provider to Vodafone with
the
intent to be featured on the Directory and, where the context so requires,
includes any Link supplied by the Content Provider to Vodafone which is to
be
placed in the Directory, any underlying executable code and any
Rights;
10
“Content
Charge”
means
the specific charge to the Customer including any value added tax, turnover
tax
or other local sales or other taxes for the purchase of the Content from it
excluding for the avoidance of doubt the Network Charges;
“Content
Provider”
means
the company, partnership, person or entity identified in the Content Schedule
attached to this Master Agreement;
“Content
Provider Branding Guidelines”
means
the branding, layout, format, “look and feel” and style guidelines governing the
use of the Content and the Content Provider Marks described in a Content
Schedule or otherwise provided by the Content Provider to Vodafone under a
Contract as at the date of each applicable Contract;
“Content
Provider Marks”
means
the trade and service marks, trade names, domain names, logos and any and all
other branding which the Content Provider owns or has the right to license
(whether registered or not and including applications for the same), to be
used
by Vodafone to brand the Content in accordance with a Contract;
“Content
Provider Revenue”
means
the percentage of Net Revenue set out in the relevant Content Schedule which
is
(after deduction of any Deductions) payable to the Content Provider by Vodafone
under a Contract (being the Net Revenue less the Vodafone
Commission);
“Content
Schedule”
means
a
schedule in a format similar to the content schedule attached to this Master
Agreement and in each case completed and signed by VGSL and the Content
Provider,
“Contract”
means
a
contract to appoint as agent for the distribution and resale/licensing of and
associated activities relating to specified Content on the terms of the relevant
Content Schedule and this Master Agreement formed between the Content Provider
and a Vodafone Group Company in accordance with the process described in Clause
2;
“Contract
Acceptance Notice”
means
the form of contract acceptance notice attached to this Master
Agreement;
“Contract
Year”
means
each calendar year of a Contract commencing on the applicable Commencement
Date;
“Creditor”
shall
have the meaning given to that term in Clause 10.11;
“Customer”
means
a
user of the Directory;
“Data
Protection Legislation”
means
any applicable national data protection and privacy legislation;
“Debtor”
shall
have the meaning given to that term in Clause 10.11;
“Deductions”
means:
(1) any deductions or withholdings which VGSL or Vodafone may be required to
make by law from any payment payable under this Agreement or any agreement
between Vodafone Group Companies entered into for the purposes of this
Agreement; (2) any Collecting Society Royalties paid by VGSL, Vodafone and/or
any other Vodafone Group Company; and (3) such other deductions which the
Parties may agree from time to time in writing;
“Delivery
Timetable(s)”
means
the date(s) agreed by the Parties for the delivery of the Content (if any)
as
set out in the relevant Content Schedule or as otherwise agreed by the Parties
in writing from time to time;
“Directory”
means
the mobile content directory or other platform from time to time operated for
and on behalf of or in conjunction with Vodafone that lists or otherwise
facilitates access to various mobile content and services and associated use
rights;
“DRM”
means
technological measures that are designed to prevent or restrict unlawful use,
copying or redistribution of the Content or other acts in respect of the Content
by Customers or third parties which are not authorized by the Content Provider
pursuant to a Contract;
“DRM
Guidelines”
means
the technical, performance and other information relating to the DRM service
offered by VGSL and/or Vodafone as produced and amended from time to time by
VGSL and/or Vodafone and provided to the Content Provider;
“Due
Date”
means
the time for payment of a sum as specified in the relevant
Contract;
“First
Line Customer Support”
means
receiving and handling all Customer inquiries relating to billing and payment
collection, connection to the mobile Internet, access to the Content and any
non-Content specific issues relating to the Directory;
“Format”
means
any format described in the relevant Content Schedule or which Vodafone
specifies from time to time;
“Gross
Revenue”
means
the aggregate Content Charges billed to and collected from Customers by Vodafone
(as agent for the Content Provider) in respect of Chargeable
Events;
“Guidelines”
means
the Application Submission Criteria for QA (if applicable), the Integration
Guidelines and any other rules of procedure (including technical or quality
control procedures), guidelines, directions, policies and/or other requirements
made or adopted by Vodafone or the Vodafone Group from time to time which relate
to content, the operation of the.
Directory, the participation of companies in the Directory, the provision of
content for use on the Directory and/or the subject matter generally of this
Master Agreement and/or a Contract;
“Insurance
Policies”
shall
have the meaning given to that term in Clause 16.1;
“Intellectual
Property Rights”
means
all intellectual and industrial property rights, whether registered or
unregistered, including trade and service marks, patents, utility models,
designs and design rights, trade and business names (including rights in any
get-up or trade dress), domain names, topography rights, copyright and related
rights, database rights, moral rights and all other similar proprietary rights
in every case which may subsist in any part of the world including any
registration of any such rights and applications and any rights to make
applications for any of the foregoing;
“Integration
Guidelines”
means
the technical performance, style and format requirements relating to the Content
produced and amended from time to time by Vodafone and provided to the Content
Provider for use in accordance with the terms of a Contract;
11
“Languages”
means
the languages that the Content is supplied in by the Content Provider as
specified in a Content Schedule;
“Link”
means
any link that the Content Provider provides in order to facilitate access to
the
Content by a Customer via the Directory;
“Marketing
Materials”
means
the marketing and promotional materials specified in each Content Schedule
or
otherwise provided by or on behalf of the Content Provider to Vodafone for
use
in relation to the Content;
“Mobile
Device”
means
the mobile device(s) that the Content must be compatible with as specified
in
the relevant Content Schedule;
“month”
means
a
calendar month and “monthly” shall be construed accordingly;
“Net
Revenue”
means
the Gross Revenue less (1) value added tax, turnover tax or other local sales
tax or other taxes charged to Customers and (2) all Customer refunds (or credits
which may be issued to a Customer in lieu of a refund) in respect of a
Chargeable Event;
“Network
Charges”
means
the charges to a Customer levied by Vodafone in connection with the Customer’s
access, carriage and use of the Content including but not limited to all airtime
revenue, whether measured in terms of time, volume or event consumption and
activation and access fee charges both from voice and data
transmission;
“Party”
and
“Parties”
means
a
party/the parties to a Contract and/or this Master Agreement, as the context
requires;
“Platform”
means
the system, including the equipment, the Link and the software used by the
Content Provider to host and maintain the Content;
“Preview
Options”
means
the provision by Vodafone to a Customer via the Directory of an option to
preview the Content for the purpose of enabling the Customer to evaluate the
Content before purchase;
“Protected
Content”
means
Content to which DRM has been applied by Vodafone in accordance with Clauses
8.1
to 8.8 (inclusive);
“Purchase
Options”
means
the options for use of Protected Content to be presented to Customers via the
Directory in response to a request to purchase Protected Content as specified
in
the relevant Content Schedule;
“QA
Company”
means
a
quality assurance company certified by VGSL;
“Relevant
Contacts”
means
the contacts for each Party from time to time as initially identified in the
relevant Content Schedule;
“Rights”
means
a
collection of permissions, constraints and other information, corresponding
to
the applicable Purchase Option, which identifies the Content and defines under
what circumstances access is granted to, and what usages are permitted for,
Protected Content and any underlying code that represents such
information;
“Second
Line Customer Support”
means
receiving and handling all inquiries from a Vodafone Group Company relating
to
First Line Customer Support;
“Special
Conditions”
means
the special conditions (if any) set out in the relevant Content
Schedule;
“Standing
Offer”
means
the offer made by the Content Provider to Vodafone Group Companies as described
in Clause 2;
“Territory”
means
those countries set out in the relevant Content Schedule or the particular
country(s), as applicable, specified in any signed Contract Acceptance
Notice;
“VAT
Tax”
means
any value added tax, any state or local sales or use tax, any business transfer
tax, any transaction tax and any tax analogous to such taxes in any relevant
jurisdiction;
“VGSL”
means
Vodafone Group Services Limited, a company incorporated in England (registered
number 3802001) and having its registered office at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
“Vodafone”
means
any Vodafone Group Company which has entered into a Contract with the Content
Provider pursuant to Clause 2;
“Vodafone
Commission”
means
the Net Revenue less the Content Provider Revenue, which shall be the sum
retained by Vodafone as commission for its activities as the Content Provider’s
agent under this Master Agreement and each Contract;
“Vodafone
Group”
means
Vodafone Group Plc, Vodafone Partner Network Companies and each company or
entity in which Vodafone Group Plc has a shareholding or interest directly
or
indirectly of 15% or more or has the right to exercise directly or indirectly
15% or more of the voting rights and “Vodafone Group Company”
shall be construed accordingly;
“Vodafone
Partner Network Companies”
means
any company or corporation with which a Vodafone Group Company (which for the
avoidance of doubt excludes another Vodafone Partner Network Company) has
entered into a co-operation agreement with regard to the development and supply
of new products and services and other related matters, and with which Vodafone
Group Plc (or such Vodafone Group Company as Vodafone Group Plc has nominated)
has entered into a brand licence agreement in relation to the licensing and
use
of the Vodafone name and brand and “Vodafone Partner Network
Company” shall be construed accordingly; and
“Vodafone
Network”
means
the wireless communications systems operated and/or provided for and on behalf
of Vodafone within the-Territory.
12
Executed
as an agreement:
|
By
the authorised representative of:
|
)
|
|||||
|
Vodafone
Group Services Limited
|
)
|
|||||
|
)
|
||||||
| ) | ||||||
|
)
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
|
)
|
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|||||
|
)
|
Title:
EXECUTIVE HEAD OF CONTENT DEVELOPMENT
|
|||||
|
)
|
Date:
17TH
DECEMBER 2004
|
|||||
|
|
||||||
|
|
||||||
|
By
the authorised representative of:
|
)
|
|||||
|
The
Content Provider
|
)
|
|||||
|
)
|
||||||
|
)
|
||||||
|
)
|
/s/ Adi McAlian | |||||
|
)
|
Name:
ADI
MCALIAN
|
|||||
|
)
|
Title:
MANAGING
DIRECTOR
|
|||||
|
)
|
Date:
December
8, 2004
|
|||||
*WE
HAVE REQUESTED CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS CONTAINED IN
THIS
EXHIBIT. THE COPY FILED AS AN EXHIBIT OMITS THE INFORMATION SUBJECT TO THE
CONFIDENTIALITY REQUEST.*
13