SMS CONNECTIVITY AGREEMENT STANDARD TERMS AND CONDITIONS between Mobliss, Inc. and Cingular Wireless LLC
SMS
CONNECTIVITY AGREEMENT
STANDARD
TERMS AND CONDITIONS
between
Mobliss,
Inc.
and
Cingular
Wireless LLC
This
Agreement ("Agreement"),
is
entered into by and between Cingular
Wireless LLC,
a
Delaware limited liability corporation ("Cingular"),
with
and
Mobliss,
Inc, ("Customer") to
be
effective
as of 1/8 , 2004
(the
"Effective
Date").
Exhibits
Exhibit
A Premium
SMS Revenue Share and Fees for Service
Exhibit
B Template
for Shortcodes Applications
Exhibit
C Template
for Premium SMS Billing and Shortcode Applications
Exhibit
D Service
Level Agreement
RECITALS
WHEREAS,
Cingular is a provider of wireless messaging service ("Cingular Services");
and
WHEREAS,
Customer provides content and applications that may be sent via wireless
messaging services;
WHEREAS,
Customer desires to interconnect with Cingular, either directly or through
a
designated party, so as to more efficiently deliver its Content to Cingular
subscribers ("Connectivity");
WHEREAS,
from time to time Customer may request that Cingular provide it with billing
services to enable Subscribers to more easily purchase premium SMS services
from
Customer; and
WHEREAS,
from time to time Customer may request that Cingular provide it with Shortcodes
to make it more convenient for Subscribers to send SMS messages to
Customer.
NOW,
THEREFORE, and in consideration of the mutual promises, representations and
warranties contained in this Agreement, the parties agree as
follows:
1. DEFINITIONS
The
following definitions apply throughout this Agreement, including any
Exhibits:
1.1
"Customer
Marks" means
the
Marks of Customer or its Affiliates that are used in or relate to Customer's
and
its Affiliate's businesses.
1.2
"Customer Content" means
all
data, information, and other content made available
by or on behalf of Customer through the Customer Information Service or
otherwise provided by Customer to Cingular for Cingular's use as described
in
this Agreement. The types of
Customer Content that Customer may transmit under the Agreement are described
in
Section 2.1.1.
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1.3 "Customer
Information Service" means
Customer's service that distributes SMS
content for use in connection with wireless devices of Subscribers.
1.4 "Marks" means
trademarks, service marks, logos, insignias, trade dress and other
proprietary trade designations protected by law.
1.5
"Premium SMS" means
the
charging of Cingular subscribers for a specific use
of
text messaging with the use of Shortcodes for a per event charge in addition
to
their already
prescribed monthly service plan.
1.6
"Shortcodes" means
a
combination of fewer than ten digits to which Subscribers can
direct text messages from their Wireless Equipment and which Cingular will
translate into a valid SMTP address for deliver to Customer.
1.7 "SMS"
mean
short message service.
1.8
"SMS Connectivity" means
the
ability to access with permission the Cingular text
messaging network architecture for the purpose of transmitting SMS messages
to
or from Cingular subscribers.
1.9 "Subscribers"
means
users of Cingular Services.
1.10
"Unsuitable Content" means
Customer Content that Cingular may in its sole discretion
determine to be inappropriate, including content that is in any way unlawful,
harmful, threatening,
defamatory, obscene, harassing, or racially, ethically or otherwise
objectionable; services
that facilitate illegal activity, promote violence, promote discrimination,
promote illegal activities, or incorporate any materials that infringe or assist
others to infringe on any copyright, trademark, or other intellectual property
rights.
1.11
"User Data" means
personally identifiable data generated in connection with a Cingular
User's use of the Customer Information Service, including without limitation,
information
that may be provided at the time of registration for the Customer Information
Service,
but expressly not including personally identifiable data provided to Customer
or
any of its
Affiliates in any manner other than in connection with the Customer Information
Service.
1.12
"Wireless Equipment" means
digital electronic equipment meeting the requirements
of and authorized by Cingular for the use of the Cingular Service, including
the
Cingular Services that enable Cingular Users to receive the Customer Information
Service.
2. SERVICES
2.1
Services Available under this Agreement. This
Agreement includes several services
some of which are available on an ala carte basis for the delivery of Customer
Content to Subscribers as follows:
2.1.1
Customer will be allowed to use the SMS Connectivity for the following
uses
Voting, Polling, Mobile Marketing, Alerts, Content Delivery, and Application
Support. Cingular
must be notified in advance of using the granted connectivity for any additional
uses not identified in this section. Cingular will have thirty (30) days to
respond to these requests and can disapprove the efforts. Notification should
be
sent to the same address c/o the contract ▇▇▇▇▇▇ for Cingular.
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2.1.2
Customer will be granted SMS Connectivity, either through a direct connection
to the Cingular messaging architecture, or through a Cingular designated
intermediary.
Cingular at its sole discretion will determine that appropriate point of
integration. Customer
will initially be provided connectivity directly via Cingular. Cingular at
its
sole discretion
may also request that Customer change the point of connectivity. Cingular will
provide
the appropriate specification and contact information for connectivity at such
time as this agreement is executed.
2.1.3
Cingular may in its sole discretion reserve Shortcodes for Customer to direct
Subscribers to send SMS messages to for ultimate delivery to Customer or
Customer designee.
Short Code reservations (without billing service requirements) shall be
documented by a
signed
writing from both parties as in the form of Exhibit B. The first Short Code
reservations, if
any,
shall be attached hereto as Exhibit B 1, and each subsequent Short Code
reservations, if any,
will
be attached and labeled using the following convention: Exhibit
B-2, Exhibit B-3 and
so
on. To be effective, any changes to a Short Code reservation must be in writing
and signed by authorized
representatives of both parties. Nothing herein is intended to obligate the
Parties to enter
into a Short Code reservation.
2.1.4
Cingular in its sole discretion may provide billing services that will
enable
Customer to charge a premium for delivery of Customer Content to Subscribers
or
for Subscribers who direct SMS messages to Customer via a Short Code. The
details describing any Premium
SMS Campaign shall be set forth is a signed writing in the form shown as Exhibit
C. The
first
Premium SMS Campaign, if any, shall be attached hereto as Exhibit C 1, and
each
subsequent
Premium SMS Campaign, if any, will be attached and labeled using the following
convention:
Exhibit
C-2, Exhibit C-3, and
so
on. To be effective, any changes to a Premium SMS Campaign must be in writing
and signed by authorized representatives of both parties. Nothing
herein is intended to obligate the Parties to enter into a Premium SMS
Campaign.
2.1.5
Customer shall provide appropriate technical and operational supervision
in
support of the Agreement. The support requirements are set forth in Exhibit
D,
Service Level Agreement.
2.2
Nonexclusive Market Rights. It
is
expressly understood and agreed that neither this
Agreement nor any Amendment grants to either party any exclusive privileges
or
rights and that
either party may participate in similar business arrangements and for similar
content as described
herein and contract with other organizations in association with the Customer
Information
Service provided under this Agreement or the Agreement.
2.3
Service
Prohibitions.
2.3.1
Content. Customer
is solely responsible for the development, operation and
maintenance of the Customer Content. Customer also is responsible for ensuring
that the Customer Content (i) does not disparage, defame, or discredit Cingular
or a Cingular Affiliate or their
respective names and is not derogatory or detrimental to the good name or
business reputation
of Cingular or a Cingular Affiliate, and (ii) does not constitute Unsuitable
Content. Cingular or its designated agent may review all Customer Content prior
to its delivery to Subscribers.
Cingular may reject any Customer Content in its sole discretion. Cingular's
failure to
reject
Customer Content shall not constitute an approval or other endorsement of the
suitability of such content.
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2.3.2
Eligible
Subscribers. Customer
shall only send Customer Content to Subscribers who have affirmatively expressed
a desire to receive Customer Content ("Opt-in Consent").
Customer may not send any unsolicited Customer Content. Customer may secure
Opt-in
Consent via Web registration or via SMS request.
2.4
Registration of Users. Customer
will require the Subscribers to register with
Customer for the Subscribers to receive the Customer Content. Customer will
use
Subscriber information only in accordance with Customer's privacy policy in
effect at the time the applicable Subscriber information is collected. Customer
will not sell, disclose, transfer,
or rent any Subscriber information obtained by it under the Agreement to any
third party (other than Customer's Affiliates) or use any User Information
on
behalf of any
third
party (other than Customer's Affiliates), without the permission of the
applicable user specifically approving such use. Notwithstanding the foregoing,
Customer
may share User Information with the sponsor of a discrete campaign using this
agreement, provided that the identity of such sponsor (the "Sponsor") was
provided to the Subscriber at the time of the Subscriber's registration to
receive the Customer Content. Before
sharing information with a Sponsor, Customer must have entered into an
agreement
with the Sponsor with terms prohibiting any further transfer of such
Subscriber
information. Customer will comply with all applicable privacy laws, rules
and
regulations in using or releasing any User Information.
2.5
Advertising Limitation. Customer
shall not deliver unsolicited advertising or coupons
to Subscribers, including delivery of ads/coupons via SMS or via e-mail, unless
Subscribers
have agreed to receive such types of Customer Content.
2.6
No Switchover Marketing. During
the term of the Agreement, Customer shall not
market to Cingular Subscribers (as a targeted group) to attempt to persuade
them
to use any other wireless carriers.
2.7
Ownership.
Subject
to the licenses granted in this Agreement, Customer is and will
remain the owner of all right, title and interest in and to the Customer Marks,
and Customer Content,
including all intellectual property rights therein. Cingular hereby acknowledges
and agrees
that, except as expressly set forth herein, nothing in this Agreement grants
to
it a right or license in any patents, copyrights, trade secrets, trademarks,
logos or other property or rights of Customer
or its Affiliates. Customer hereby acknowledges and agrees that nothing in
this
Agreement
grants to it a right or license in any patents, copyrights, trade secrets,
trademarks, logos
or
other property or rights of Cingular or its Affiliates.
3.
FEES
AND REVENUE SHARING Customer
will pay the fees set out on Exhibit A. Cingular
will collect and remit the revenue share associated with billing services as
set
out in Exhibit
A. All payments made under this Agreement shall be made in U.S.
Dollars,
4. MARKETING
AND PROMOTION
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4.1
Marketing and Placements. From
time
to time, Customer and Cingular may agree
to
implement certain marketing programs in support of the relationship contemplated
by this
Agreement, or any aspect thereof.
4.2 Trademark
License.
4.2.1
License. Subject
to the terms and conditions of this Agreement, each party
(the "Licensee")
hereby
grants the other party (the "Licensor"),
during
the term of this Agreement,
a non-exclusive, royalty-free, non-transferable, worldwide license to use and
reproduce
the Marks provided by Licensor hereunder solely in connection with the
performance of
Licensee's obligations under this Agreement.
4.2.2
License Restrictions. Licensee
will use the Marks provided to Licensee by
Licensor in conformance with Licensor's trademark usage policies as communicated
to Licensee
from time to time. Licensee will not use Licensor's Marks in a manner that
Licensor reasonably
believes dilutes, tarnishes or blurs the value of Licensor's Marks. Licensee
acknowledges
that Licensee's use of Licensor's Marks will not create in Licensee, nor will
Licensee
represent it has, any right, title or interest in or to Licensor's Marks other
than the license
granted by Licensor above. Licensee will not attempt to register any of
Licensor's Marks, nor will it adopt any derivative or confusingly similar names,
brands or marks or create any combination marks with Licensor's Marks. Licensee
acknowledges Licensor's and its Affiliates' ownership
and exclusive right to use Licensor's Marks and agrees that all goodwill arising
as a result
of
Licensee's use of Licensor's Marks will inure solely to the benefit of Licensor
and its Affiliates.
4.3 Style
Guides. Customer
acknowledges that it will follow the Style Guides as provided by
Cingular.
5. FORECASTS
5.1
Forecasts: Customer
shall provide to CINGULAR upon execution of this agreement,
an estimate ("Forecast") of its network usage. This Forecast will be for at
least three (3)
months, and thereafter a three (3) month Forecast shall be provided at the
start
of each Quarter (January
lst, April 1st, July
1',
October
These Forecasts shall include estimated number of total
SMS
messages with a summary of expected mobile originated and mobile terminated
messages.
6.
TERM
AND TERMINATION
6.1
Term. The
Initial Term of this Agreement shall be for one (1) year from signature
by both parties. The Agreement will automatically be extended, without any
further action
by
either party, for additional consecutive periods of one (1) year each (each
a
"Renewal Period").
6.2
Termination. Either
party may terminate this Agreement as to any particular Content
or in its entirety upon sixty (60) days prior notice to the other party of
the
effective date of
such
termination.
6.3 Price
Changes. CINGULAR
reserves the right to change prices for services provided by CINGULAR hereunder
as necessary to account for considerations of CINGULAR
expenses,
competition, and market conditions. Such changes as necessary will be announced
to Customer at least ninety (90) days prior to the effective date of the price
change.
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6.4
Non-Payment. Notwithstanding
any other provisions of this Agreement, CINGULAR
shall have the right to terminate Customer's service and this Agreement without
further notice if an invoice for services provided hereunder by CINGULAR is
not
paid in full within
forty-five (45) days after the due date of such invoice, and such invoice
remains unpaid for ten (10) days after Customer's receipt of written notice
of
such non-payment from CINGULAR.
6.5
Unsuitable Information Services: Customer
may not deliver Unsuitable Information
Services via the connectivity described herein. Cingular may at its sole
discretion determine that Content distributed by Customer under this agreement
is Unsuitable Content. If Cingular determines that Content has been delivered
by
Customer after Cingular has notified Customer
that such Content is an Unsuitable Content, the agreement may be terminated
immediately
by Cingular.
6.6
Breach. If
either
party breaches or defaults on any of the provisions of this Agreement,
and such breach is not cured within thirty (30) days after the breaching party
receives written notice, then in addition to all other rights and remedies
of
law or equity or otherwise, the injured party shall have the right to terminate
this Agreement without any obligation or liability. Failure
to terminate this Agreement following a breach which continues longer than
such
thirty (30)
day
period shall not constitute a waiver, at any time thereafter, of the
non-breaching party's rights under this Section, provided such breach has not
been cured.
6.7
Effect of Termination. Upon
expiration or termination of this Agreement, (i) Cingular will immediately
return to Customer all copies of the Confidential Information of Customer
in the custody of Cingular, and any Customer data, equipment, materials or
other
property
that Cingular has been provided during the term of this Agreement, (ii) Customer
will immediately
return to Cingular all copies of the Confidential Information of Cingular in
the
custody
of Customer, and any Cingular data, equipment, materials or other property
that
Customer
has been provided during the term of this Agreement, and (iii) all licenses
from
one party
to
the other party will immediately terminate. In addition, the provisions of
this
Agreement which by their nature survive termination shall so
survive.
7. NON-DISCLOSURE
7.1
During
the term of this Agreement it may be necessary for one party to provide
other
party with certain written, electronic or oral information that is marked or
described as, identified
in writing as, or provided under circumstances indicating it is, confidential
or
proprietary
("Information").
The
receiving party shall protect such Information received by it from
whatever source from distribution, disclosure or dissemination or use to or
by
anyone except employees
of receiving party with a need to know such Information in conjunction with
the
provision
of services hereunder, except as authorized herein or as otherwise authorized
in
writing.
7.2
Receiving
party will not have an obligation to protect any portion of disclosing party's
Information which:
7.2.1
is
made publicly available by disclosing party or lawfully by a nonparty
to
this
Agreement; or
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7.2.2
is
lawfully obtained by receiving party from any source other than disclosing
party; or
7.2.3
is
previously known to receiving party without an obligation to keep it
confidential; or
7.2.4
is
released by disclosing party in writing.
7.3
Receiving party will only make copies of the Information received from
disclosing
party as are necessary for its use under the terms hereof, and each such copy
will be marked
with the same proprietary notices as appear on the originals. Receiving party
agrees to use
the
Information solely in connection with this Agreement and for no other purpose.
Receiving
party agrees to return promptly all Confidential Information and any copies
thereof to disclosing
party upon termination or expiration of this Agreement or at any time upon
the
disclosing
party's written request.
7.4 Receiving
party's obligations as to the Confidential Information shall
continue
for a
period of two (2) years after the termination or expiration of this
Agreement.
7.5
If
a
demand under legal or regulatory authority of competent jurisdiction or a
requirement
of law for the discovery or disclosure of Confidential Information is made
known
to either party, the receiving party shall give notice of the demand or
requirement prior to disclosing the
Confidential Information and shall, upon the request and at the expense of
the
other party, obtain
or
cooperate in any efforts by the receiving party to seek reasonable arrangements
to protect
the confidential and proprietary nature of such Confidential
Information.
7.6
Both
parties agree that a breach of any of the obligations set forth in this Section
7
would
irreparably damage and create undue hardships for the other party. Therefore,
the non-breaching party shall be entitled to immediate court ordered injunctive
relief to stop any apparent breach of this Section 7, such remedy being in
addition to any other remedies available to such non-breaching
party.
8.
WARRANTY DISCLAIMER. THE
EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE WITH RESPECT TO THE PERFORMANCE
OF
SERVICES PROVIDED UNDER THIS AGREEMENT. BOTH PARTIES SPECIFICALLY DISCLAIM
ALL
OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR WARRANTIES ARISING FROM A COURSE OF DEALING, TRADE USAGE OR TRADE
PRACTICE.
IN ADDITION, NEITHER PARTY MAKES ANY WARRANTIES WHATSOEVER
TO ANY PERSON OR ENTITY (INCLUDING BUT NOT LIMITED TO CINGULAR USERS) OTHER
THAN
TO THE OTHER PARTY HEREUNDER. NO REPRESENTATION OR STATEMENT MADE BY EITHER
PARTY OR BY AGENTS OR EMPLOYEES
OF EITHER PARTY, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED
TO, ANY SPECIFICATIONS, DESCRIPTIONS OR STATEMENTS PROVIDED OR
MADE
TO EACH PARTY BY THE OTHER PARTY SHALL BE BINDING UPON EITHER
PARTY AS A WARRANTY OR OTHERWISE.
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9. INFRINGEMENT
AND INDEMNIFICATION
9.1
Customer
represents and warrants that: it owns all right, title, and interest in and
to,
or
has sufficient authority to use and distribute or make available in the manner
contemplated by
this
Agreement, the Customer Content; none of the Customer Content, nor the Customer
Marks
does or will infringe any U.S. patent, trademark, service ▇▇▇▇, copyright,
or
other intellectual
property right of a third party, or constitute a libel or defamation or false,
deceptive or unfair
advertising or disparagement under applicable law, or fail to comply with any
applicable law,
or
constitute an invasion of the right of privacy or publicity of any
person.
9.2
Cingular represents and warrants to Customer as follows: that it owns all right,
title,
and interest in and to, or has sufficient authority to use and distribute in
the
manner contemplated
by this Agreement, the services provided by Cingular generally; and that none
of
the Cingular services, Cingular trademark and any materials provided by Cingular
to Customer for
Customer's use as described in this Agreement does or will infringe any U.S.
patent, trademark,
service ▇▇▇▇, copyright, or other intellectual property right of a third party,
or constitute
a libel or defamation or false, deceptive or unfair advertising or disparagement
under applicable law, or fail to comply with any applicable law, or constitute
an invasion of the right of privacy or publicity of any person.
9.3
Each
party represents and warrants that it will (a) not make any false or
misleading
representations with regard to the other party or its products and services,
(b)
not represent
that it has any authority to bind the other party to any agreement, (c) obey
all
laws and regulations governing it and its business with respect to performance
hereunder, and (d) not make any representations with respect to the
specifications, features or capabilities of the other party's products or
services that are inconsistent with or beyond the scope of the end user
information distributed by the other party.
Each
party shall defend, indemnify and hold harmless the other party, its affiliates
and their
respective present, former and future officers, directors, employees and agents,
and their respective heirs, legal representatives, successors and assigns,
(collectively the "Indemnitees"), from
and
against any and all claims, actions, losses, costs, liabilities or expenses
(including, without
limitation, reasonable attorneys' fees) which any of the Indemnitees may suffer,
incur or sustain
resulting from, or arising out of (a) any breach of the representations and
warranties in this
Agreement; (b) in the case of Customer that that any of the Information Services
infringe any patent,
copyright, trademark, service ▇▇▇▇ or other right of any third person; (c)
any
claim or action
arising out of either party's failure to obtain any consent, approval or license
for its activities
as contemplated by this Agreement, or its failure to pay any fees due to third
parties in connection therewith; (d) violation by the other party of any
applicable law, rule, or regulation without
regard to source; (e) breach by the other party of any contract with a third
party, including
but not limited to agreements with subscribers; (f) any material provided by
Customer which
is
unlawful, libelous or defamatory; (g) any claim based on the merchantability,
fitness for a
particular purpose, or completeness, of the Information Services; or (h) any
claim that either party's
collection or use of end user personal information violates the privacy
interests of any such
end
user or the privacy policy of the applicable party.
Each
party shall, through counsel of its choice, reasonably acceptable to the other
party, assume
the defense of any claim or action brought against any applicable Indemnitee
giving rise to
the
obligations and liabilities of the indemnifying party under this section,
provided, however, that there is no conflict with such counsel's representation
of both Cingular and Customer in connection therewith.
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9.4
The
indemnification obligations set forth in this Section constitute each party's
sole
and
exclusive remedy and each party's sole and exclusive obligation in connection
with the occurrence
of any event described in Section 9.3.
9.5
As
a
condition of the indemnification obligations set forth in this Section: (a)
the
indemnified
party shall give prompt written notice of any claim subject to indemnification
under this Section and cooperate fully in the defense and/or settlement of
the
applicable claim; and (b) the indemnifying party shall have sole control of
any
defense and/or settlement of the applicable claim.
For the avoidance of doubt, the indemnifying party's obligations under this
Section are limited to the obligation to defend the indemnified party against
a
third party claim, to pay all costs and expenses, including without limitation
attorneys' fees, associated with such defense, and
to
pay all damages awarded (or settlement amounts agreed to) in connection with
such claim.
9.6In
the
event that an indemnifying party's ability to operate its respective
service is
enjoined (or threatened to be enjoined) due to a claim covered by the indemnity
obligations set forth
in
this Section, the indemnifying party will, at its option and expense,
either:
a. Procure
the right to use the applicable service;
b. Replace
the infringing or non-compliant material with non-infringing or compliant
material provided that such non-infringing or compliant material will
not
adversely affect or limit the operation or quality of the applicable
service;
c. Modify
the infringing or non-compliant material so that it is non-infringing
or compliant provided that such non-infringing or compliant material
will
not
adversely affect or limit the operation or quality of the applicable
service;
or,
d. If
none
of the above options are reasonably available after commercially reasonable
attempts by the indemnifying party to obtain such option, either party
may,
at
its option, terminate this Agreement.
10.
LIMITATION OF LIABILITY
10.1
General Limitations. IN
NO
EVENT SHALL EITHER PARTY BE LIABLE TO
THE
OTHER FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE
OR EXEMPLARY DAMAGES, LOST PROFITS OR BUSINESS, OR COSTS OF REPLACEMENT
SERVICES AND/OR DELAY, HOWEVER CAUSED AND ON ANY THEORY
OF
LIABILITY (INCLUDING CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY),
ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY EVEN IF A PARTY
HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
10.2
Limitations on Direct Damages. IN THE EVENT OF ANY DAMAGES TO EITHER
PARTY ARISING OUT OF THIS AGREEMENT, ANY RECOVERY OF DAMAGES BY
THE
OTHER PARTY SHALL NOT EXCEED THE AMOUNT PAID AND/OR OWED BY CUSTOMER IN THE
TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO DAMAGES.
BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATION ON
AMOUNTS PAYABLE HEREUNDER SHALL APPLY, EVEN IF THE PAYING PARTY HAS
BEEN
ADVISED OF THE POSSIBILITY OF HIGHER AMOUNTS OF DAMAGES AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
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10.3
Exclusions.
The limitations set forth in this Section 10 do not apply to
any
breach
by either party of Section 7 (Non-Disclosure).
11. FORCE
MAJEURE. Neither
party shall be held liable for any delay or failure of performance of any part
of this Agreement arising out of or resulting from any cause beyond its control
and without its fault or negligence, including, without limitation, acts of
God,
acts or omissions
of civil or military authority, government regulations, embargoes, epidemics,
war, terrorist
acts, riots, civil commotion or civil uprisings, insurrections, fires,
explosions, nuclear accidents, strikes, lockouts, power blackouts, earthquakes,
floods, hurricanes, tornadoes, volcanic actions,
or other similar causes beyond its control. If such delay or failure occurs,
the
non-delaying
party may without penalty elect to: (a) terminate this Agreement if such Force
Majeure condition
results in a delay or failure to perform which continues for more than thirty
(30) days; or
(b)
suspend such services for the duration of the delaying cause, obtain elsewhere
the services to
be
bought or sold hereunder, and resume performance under this Agreement once
the
delaying cause
ceases. Unless written notice is given within thirty (30) days after such
non-delaying party is
apprised of the delay or failure, (b) shall be deemed selected.
12. DISPUTES.
12.1.
Informal
Resolution. The
parties agree that they shall attempt to resolve any dispute
regarding any right, obligation, duty, or liability arising out of the
provisions of this. Agreement
through informal discussions or negotiations prior to resorting to formal
dispute resolution
procedures contained in Section 12.2 below. If, at any time following the
commencement
of any such discussions or negotiations, either party determines such
discussions or negotiations are not likely to result in a reasonable resolution
of the dispute, it may send to the other party a written statement of the issues
or problems being discussed or negotiated ("Dispute Statement"). If the dispute
has not been resolved within sixty (60) days after the mailing of the Dispute
Statement, either party shall have the right to serve a written demand for
arbitration upon the other and thereby commence binding arbitration in
accordance with the provisions set forth below.
The mailing of the Dispute Statement and the passage of sixty (60) days from
the
date of the
mailing of such Dispute Statement shall be conditions precedent to the
commencement of any arbitration proceedings hereunder.
12.2.
Binding
Arbitration.
12.2.1.
Within
five (5) working days of delivery of a demand, each party shall designate
an arbitrator. The two designated arbitrators shall then select a third
arbitrator to
complete the full arbitration panel within twenty (20) working days, or as
otherwise agreed.
12.2.2.
The arbitration panel shall commence hearing within sixty (60) days of
the
selection of the panel. The scope of document production and the enforcement
of
document
requests may be ordered by the arbitrators to the extent economical and
reasonable.
All discovery requests shall be subject to the proprietary rights of the
parties, and
the
arbitrators shall adopt procedures to protect such rights. Except where contrary
to
the
provisions set forth in this Agreement, the rules of the American Arbitration
Association
("AAA") shall be applied; provided, however, that the arbitration need not
be
conducted
under the auspices of the AAA, in which event the fee schedule of the AAA
shall
not
apply.
10
12.2.3.
All
costs
of arbitration including attorney's fees shall not be recoverable and
each
Party shall pay one half of the costs of arbitration and the Party's own
attorney's
fees, except that the arbitration panel may provide for a different allocation
of such costs and fees as part of any arbitration decision related to this
Agreement.
12.2.4.
Unless the parties agree otherwise, the location of any arbitration shall be
in
New York City, New York.
12.2.5.
Unless otherwise agreed in writing, the parties shall continue to honor
all
commitments under this Agreement during the course of dispute resolution
pursuant to the provisions of this Section 12.2.
12.3.
Time Limitations. The
provisions of this Section 12 shall survive the termination
of this Agreement. The commencement of formal dispute resolution procedures
(i.e., the
delivery of a Dispute Statement), or any other action in law or equity arising
out of this Agreement,
may not occur more than two (2) years after the event giving rise to the dispute
has occurred.
13.
GENERAL
13.1
Publicity. Except
as
otherwise agreed by the parties, neither party shall issue or release
for publication any articles or advertising,
or
publicity matter relating to the work performed
hereunder or mentioning or implying the name of the other party or any
Affiliate, or any
of
their personnel.
13.2
Severability. If
any
provision of this Agreement or the Agreement is held to be unenforceable,
the remaining provisions will remain in effect, to be construed as if the
unenforceable
provisions were originally deleted.
13.3
Taxes. Sales,
use, gross receipts or other taxes or surcharges (excluding taxes on CINGULAR
income) determined by CINGULAR to be due to Federal, state or local taxing
jurisdictions
on the Customer Information Service provided - under this Agreement (but not
including
taxes on SMS or Premium SMS services that Cingular provides its Subscribers)
shall be
separately itemized on the bills rendered by Cingular to Customer and paid
by
Customer. Should
any Federal, state or local jurisdiction determine that additional sales, use,
gross receipts or
other
taxes or surcharges (and interest, penalty and/or surcharges thereon) are due
on
Customer's
provision of the Customer Information Services provided under this Agreement,
CINGULAR
shall so advise Customer and Customer shall be liable for any such tax,
interest, penalty
and surcharge. However, if the Customer disagrees with the assessment of any
such additional tax, penalty, surcharge and interest, the Customer shall, at
its
option and expense (including
payment of any such assessment prior to final resolution of the issue), have
the
right to protest
the assessment and participate in any legal challenge to such assessment, but
shall be liable
for any tax, penalty, surcharge and interest ultimately determined to be due.
C1NGULAR shall,
when requested by Customer and at Customer's expense, cooperate with Customer
in
any such
protest or legal challenge.
13.4
Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, this Agreement
shall not be assigned by either party hereto without the prior written consent
of the other
party hereto, except as provided in the next succeeding sentence, which consent
shall not be unreasonably withheld. If another corporation which is a parent,
a
wholly-owned or controlled subsidiary
of a parent ("Sister Company") or a wholly-owned or controlled subsidiary of
one
of the
parties hereto shall succeed to some or all of the business of the corporation
which is a party hereto,
such party hereto may assign this Agreement to such parent, subsidiary or Sister
Company,
without the consent of the other party, if such parent, subsidiary or Sister
Company shall
expressly undertake in writing the performance of the obligation and duties
of
the party hereto
that it is succeeding pursuant to such assignment. Notwithstanding any other
provision in this
Agreement, either party may assign this Agreement, in whole or in part, to
any
entity acquiring
substantially all of the stock or assets of such party.
11
13.5
Bankruptcy. During
the term of this Agreement, the filing of any Customer bankruptcy,
voluntary or involuntary, or any other event involving an assignment of
Customer's assets for the benefit of creditors, shall give CINGULAR the right,
at its option, and to the extent allowed by law, to require Customer to make
future payments under this Agreement in advance each month, or CINGULAR may
suspend or terminate service, if, in its discretion, CINGULAR deems any such
measures necessary and appropriate.
13.6
Independent Contractors. Each
party agrees that it shall perform its duties, obligations
and services hereunder as an independent contractor and not as the agent,
employee or servant
of the other party. Neither party, nor any person employed or furnished by
such
party, shall
be
deemed the agent, employee, or servant of the other party or be entitled to
any
benefits available
to any employees of such other party. Each party has and hereby retains the
right to exercise
full control and supervision over the performance of its obligations under
this
Agreement,
and retains full control over the employment, supervision, direction,
compensation, and
termination of all of its employees assisting in the performance of such
obligations. Each party
shall be solely responsible for all matters relating to the compensation of
its
respective employees,
including payment of all employment taxes and withholdings. Nothing in this
Agreement
shall be deemed or construed as creating a partnership, joint venture or any
similar relationship between the parties.
13.7
Compliance With Law. Each
party agrees to perform all of its obligations and undertakings prescribed
in
this Agreement in compliance with all applicable tariffs, laws, orders,
rules
and
regulations, specifically including, without limitation, all applicable rules
and regulations
of any regulatory agency having jurisdiction over Customer which may affect
the
matters
covered by this Agreement.
13.8
Third-Party Beneficiaries. This
Agreement shall not provide any person or entity
not a party to this Agreement with any remedy, claim, liability, reimbursement,
cause of action
or
other right in excess of those existing without reference to this
Agreement.
13.9
Governing Law. This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
13.10
Notices. Except
as
otherwise expressly provided herein, all notices, demands or communications
given by either party to the other party pursuant to this Agreement shall be
in
writing and shall be deemed to have been delivered on the date delivered in
person, receipt acknowledged, or deposited, postage prepaid, in the United
States or Canada mail, certified mail, return
receipt requested, or by courier delivery service for which a receipt is
provided, or by telephonic
facsimile transmission ("FAX"), transmission confirmation requested by sender,
and addressed
to such designated representative and address as either party may from time
to
time provide
by written notice to the other party. Unless and until a different designation
is made, such
representative and address for each party shall be as set forth on the signature
page of this Agreement.
12
13.11
Headings. The
headings in this Agreement are for convenience only and shall not
be
construed to
define
or
limit any of the terms herein or affect the meaning or interpretation
of
this
Agreement.
13.12
Integration. This
Agreement constitutes the entire understanding between the parties
concerning the subject matter hereof. All other representations, statements,
negotiations, understandings,
proposals and undertakings, whether oral or in writing, with respect to the
subject matter
hereof, are superseded and replaced by this Agreement.
13.13
Survival. Any
liability or obligation of either party to the other for acts or omissions
prior to
the
expiration or termination of this Agreement or any part hereof, including,
without
limitation, either party's obligation to make payment for services rendered
prior to the effective
date of such expiration or termination, shall survive the expiration or
termination of this Agreement
or any part hereof.
13.14
Entire Agreement. This
Agreement and the exhibits hereto constitute the entire agreement
between
the
parties with respect to the subject matter hereof, and may not be amended
except
in
writing signed by both parties.
IN
WITNESS WHEREOF, the
parties have caused this Agreement to be executed by their
duly authorized representatives, on the last date and year noted
below.
|
CINGULAR
WIRELESS LLC
|
CUSTOMER
|
|||
|
Signature:
by:/s/▇▇▇▇▇ ▇▇▇▇
|
||||
|
Signature:
Name:
Title:
Date:
|
Name:
Title:
Date:
|
▇▇▇▇▇
▇▇▇▇
Coo
1-8-04
|
||
|
|
||||
|
Address:
|
||||
|
Glenridge
Highlands
Two
|
Address:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
|
||
|
5565
Glenridge Connector
|
Seattle
WA 98104
|
|||
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Attn:
|
|
||
|
|
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
|||
|
Attn:
|
||||
|
Facsimile:
404.236.5431
|
||||
|
|
||||
|
With
a copy to:
|
||||
|
Glenridge
Highlands
Two
|
||||
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
||||
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||||
|
Attn:
General Counsel Facsimile: ______
|
||||
13
EXHIBIT
"A"
PREMIUM
SMS REVENUE SHARE AND FEES FOR SERVICES
Premium
SMS Revenue Share
Customer
will receive sixty five percent (65%) of revenue billed by Cingular on behalf
of
Customer pursuant to this agreement to provide Billing Services related to
the
use of text messaging services to Cingular subscribers. Cingular will retain
the
remaining thirty five percent (35%) of such revenue as it fee for the provision
of the shortcode and such the Billing Service.
Cingular
will provide its traditional billing related Tier I customer service for its
subscribers, and shall credit Subscribers with the amount of any charge for
Premium SMS messages, which is disputed by the Subscriber. Cingular shall remit
to Customer the amount collected from Subscribers for Premium SMS messages
sent
or received by Subscriber after subtracting credits, applicable taxes as
directed by Customer, and Cingular's fees.
Transport
Charges
Customer
will pay Cingular three cents--($.03) per SMS message sent or received over
the
connection.
This will include fees for messages associated- with Premium SMS events.
Premium
Outgoing And/Or Incoming SMS Campaign Service Fees
Shortcode
Charges
Shortcodes
can be leased for terms of 3, 6, or 12 months. These rates do not apply to
intercarrier Shortcode reservations. The lease rates are as
follows:
3
Month
Lease - $250
6
Month
Lease - $300
12
Month
Lease - $400
Cingular
will provide 3 shortcodes at no charge to Customer throughout the Term for
use
in testing and related non-revenue-bearing purposes. Also, Cingular will follow
standard billing and operating practices for common shortcodes registered by
Customer with the (CTIA) industry registry.
Premium
SMS Set-up Charges
Cingular
shall charge a set-up fee for each establishment of a unique Premium SMS
Campaign in the Cingular Billing system. A unique event will be defined as
a
campaign or event using the same Shortcodes and premium SMS billing rate
associated to the Customer. The set-up fee is as follows:
Billing
Service Event Charge: $500 per unique event with original set-up
Payment
Terms-
Customer
shall pay Cingular within 30 days upon receipt of invoice. Cingular shall pay
Customer within 45 days of the close of each calendar month for Premium Billing
Campaigns.
14
Exhibit
"B"
SHORTCODE
(ONLY) REQUEST FORM
This
Addendum is for the purpose of requesting and agreeing to provide a Shortcode,
as defined in the
SMS
Connectivity Agreement as entered into by and between Cingular
Wireless LLC, a Delaware
limited liability corporation ("Cingular"),
with
and
("Customer")
to
be
effective as of,
200_
(the "Effective
Date").
Short
Code Reservation Information
|
Information
Categories
|
Required
Information from Customer
|
|
Shortcode(s)
requested: (Identify
by
Number and as appropriate
any
'Vanity' codes)
|
|
|
Shortcode
Use Type: (Identify:
|
|
|
Voting,
Polling, Marketing, Alert,
|
|
|
Content
Delivery, or other)
|
|
|
Description
of Shortcode Use:
|
|
|
Description
of Message Flow:
|
|
|
Forecasted
Message Volume
|
|
|
(Per
Mo.):
|
|
|
Peak
Usage Description: (Define
data&time
if relevant, identify any
expected
'spikes)
|
|
|
Proposed
Start Date:
|
|
|
Shortcode
Request Period (3,
6,
or
12 Mos):
|
|
|
Point
of Connectivity: (Identify,
appropriate
'bind' for Customer)
|
|
|
Prepaids
to Include: (All
or
|
|
|
Identify
as appropriate)
|
|
|
Usage
Coverage: (National,
|
|
|
Regional,
Local, Venue)
|
|
|
Escalation
Procedures: (Point-
|
|
|
*
Contact)
|
|
|
Opt-in
Requirements Met:
|
|
Customer
acknowledges and agrees that the services provided hereunder shall be performed
pursuant to the SMS Connectivity Agreement between Customer and
Cingular.
|
CINGULAR
WIRELESS LLC
|
`Customer'
|
|
|
Signature:
|
||
|
Signature:
______________
|
by:
/s/▇▇▇▇▇ ▇▇▇▇
|
|
|
Name:
______________
|
Name:
▇▇▇▇▇ ▇▇▇▇
|
|
|
Title:
______________
|
Title:
c
oo
|
|
|
Date:
|
Date:
1-
8-
zoo4
|
|
15
Exhibit
"C"
PREMIUM
SMS BILLING AND SHORTCODE REQUEST FORM
This
Addendum is for the purpose of requesting and agreeing to provide billing
services and Shortcode allocation, as defined in the SMS Connectivity Agreement
as entered into by and between Cingular
Wireless LLC, a
Delaware limited liability corporation ("Cingular"),
with
and
,
("Customer")
to
be
effective as of ,
200_
(the
"Effective
Date").
Premium
SMS Billing and Short Code Reservation Information
|
.
Information
Categories
Shortcode(s)
requested: (Identify
by
Number and as appropropriate
any
'Vanity' codes)
|
Required
Information from Customer
|
|
Premium
Billing Rate:
|
|
|
Revenue
Share:
|
|
|
Premium
SMS Type: (Identify:
Voting,
Polling, Marketing, Alert,
Content
Delivery, or other)
|
|
|
Description
of Campaign:
|
|
|
Description
of Message Flow:
|
|
|
Message
Intervals: (Describe
any
relevant delays)
|
|
|
Message
Confirmation
Required:
|
|
|
Event
Restrictions:
|
|
|
Forecasted
Premium Usage
Volume
(Per
Mo.):
|
|
|
Peak
Usage Description: (Define
data&time
if relevant, identify any
expected
'spikes')
|
|
|
Proposed
Start and End Dates:
|
|
|
Shortcode
and Billing Request
Period
(3,
6, or
12 Months):
|
|
|
Point
of Connectivity: (Identify
'bind'
for Customer)
|
|
|
Prepaids
to Include: (All
or
Identify
as appropriate)
|
|
|
Usage
Coverage: (National,
Regional,
Local, Venue)
|
|
|
Escalation
Procedure:
(Point-of-Contact)
|
|
|
Opt-in
Requirements Met:
|
|
Customer
acknowledges and agrees that the services provided hereunder shall be performed
pursuant
to the SMS Connectivity Agreement between Customer and Cingular.
| CINGULAR WIRELESS LLC | `Customer' | |
|
Signature:
___________
|
Name:
|
▇▇▇▇▇
▇▇▇▇
|
|
Name:
___________
|
Title:
|
coo
|
|
Title:
___________
|
Date:
|
^
- 2- 0 olf
|
|
Date:
|
||
|
Signature:
by: /s/▇▇▇▇▇ ▇▇▇▇
|
16
Exhibit
5
Service
Level Agreement
Contacts
If
the
event of connectivity issues, Cingular is concerned about the service levels
of
the Customer's
platforms and connections which will be involved in SMS traffic. As such,
Cingular will
require the following service level commitments and Customer
contacts.
The
following contact information will be required to support service levels. The
primary contact point will need to be staffed 24 hours per day, 7 days a
week.
|
Name
/
Title
|
Role
|
Phone
|
Email
|
|
(Cell/
Work)
|
|||
|
Mobliss
Critical
|
Network
Support
|
▇▇▇-▇▇▇-▇▇▇▇
|
▇▇▇-▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
|
0perations
Support
|
Operational
|
(c)
206.356.7557 ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ (W) 206.332.1749
x6008
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Escalation
Point
|
||
Responsibilities
As
necessary to support either a direct connection or a connection to another
Cingular determined point
of
connectivity, Customer will ensure that the following takes place as required
by
Cingular.
| 1. |
will
ensure its systems are SMPP3.4/XML compatible and capable of integrating
with Cingular Wireless' SMPP gateway or XML
connection.
|
| 2. |
will
ensure its traffic and applications are adequately tested prior to
launch
on Cingular Wireless' network.
|
| 3. |
will
connect to Cingular Wireless LAB for verification to test and verify
functionality.
|
| 4. |
will
make necessary arrangements to establish secure connections with
the
necessary gateway(s) as per Cingular Wireless'
guidelines.
|
| 5. |
will
ensure that its systems do not exceed the pre-determined throttling
level
of
messages per second as established with Cingular Wireless. If the
event is
expected to generate high peaks in network traffic and responses
are
required per the requirements of that event, Cingular Wireless reserves
the right to determine if the responses are to be sent after all
of the
messages for the peak event has been delivered. Cingular Wireless
will
work with the
connection point identified in Exhibit A to determine of such a course
of
action must be taken.
|
17
Transaction
Failure Resolutions
If
a
transaction failure occurs, and Customer is first to recognize this fact, they
will attempt to retry the transaction based on the agreement prior to the event,
though a retry during the event is allowable. For some heavy traffic events,
retries may be held off until the initial push of messages has
been
completed. Cingular Wireless should be notified after the initial retry effort
has failed. In
the
event the transaction is not successful after 5 re-try attempts, Customer will
immediately contact Cingular Wireless' operational contact and provide the
information shown below:
| i. |
The
time the existence of the transaction failure was
recognized.
|
| ii. |
Brief
technical description of the identified (as identified by Customer
personnel) cause
for failure.
|
Cingular
Wireless personnel will work with Customer personnel to identify and correct
the
issue. In the event that Customer is notified by Cingular Wireless of a
transaction failure, Cingular Wireless will provide Customer technical and
operational contact with relevant information. This notice will include the
time
the existence of the transaction failure was recognized and a description of
the
transaction failure. Cingular Wireless personnel will work with Customer
personnel to identify and correct the issue(s).
Exclusions
Customer
acknowledges and agrees that availability of Cingular Wireless' network may
be
dependent upon third party providers and licensors. By way of example such
dependencies include interne connectivity, power supply, natural calamities.
Cingular Wireless will reasonably cooperate
with such third parties in resolving any interruption in the availability of
the
Customer's
content to Cingular Wireless and subscribers.
Registered
Delivery
Notification
of final delivery of messages and/of delivery status may be sent to Customer
as
a registered delivery. Registered delivery of messages will be determined
between Cingular Wireless and Customer prior to the start of an event. This
notification may not occur in all instances and across all connectivity
points.
Cingular
Wireless can request registered delivery for intercarrier traffic but can not
guarantee responses from other carriers.
18
cingular
WIRELESS
January
12, 2004
Cingular
Wireless
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
Mobliss
▇▇▇
▇"
▇▇▇.
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear
▇▇▇▇▇:
Greetings.
I'm returning the signed copy of the executed contracts from Cingular. We're
excited
about the opportunity this relationship presents Cingular. Please feel free
to
contact me
if
there are any additional questions and concerns.
Regards.
▇▇▇▇▇▇▇▇
▇▇▇▇▇ Cingular
Wireless
Attachments:
Signed Copy — SMS Connectivity Agreement
AMENDMENT
TO
AGREEMENT
BETWEEN
Cingular.
Wireless LLC ("CINGULAR")
and
Mobliss,
Inc ("Customer")
WHEREAS,
the parties entered into an Agreement effective August
12, 2004 ("Agreement");
and
WHEREAS,
the Parties wish to modify certain pricing and other terms in the Agreement;
and
WHEREAS,
the parties desire to amend said Agreement to reflect these
intentions;
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration,
the receipt and sufficiency of which is hereby acknowledged, it is agreed as
follows:
| 1. |
Exhibit
D to the Agreement is hereby deleted and the Exhibit D attached hereto
is
substituted in lieu therefore.
|
| 2. |
The
section Labeled "Transport Charges" in Exhibit A is hereby
deleted.
|
Except
as
modified herein, all terms and conditions of the Agreement and all Exhibits
and
Addenda thereto shall remain the same and in full force and effect.
IN
WITNESS WHEREOF the parties hereto have executed, sealed and delivered this
Addendum in two counterparts.
-1-
Exhibit
D
Service
Level Agreement
Contacts
If
the
event of connectivity issues, Cingular is concerned about the service levels
of
the Customer's
platforms and connections that will be involved in SMS traffic. As such,
Cingular
will require the following service level commitments and Customer
contacts.
The
following contact information will be required to support service levels. The
primary
contact point will need to be staffed 24 hours per day, 7 days a
week.
|
Name
/
Title
|
Role
|
Phone
|
Email
|
|
(Cell/
Work)
|
|||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Operational
Escalation
Point
|
(c)
206.356.7557 ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ (W) 206.332.1749
x6008
|
|
Responsibilities
As
necessary to support either a direct connection or a connection to another
Cingular determined point of connectivity, Customer will ensure the following
as
required by Cingular:
| 1. |
its
systems are SMPP3.4/XML compatible and capable of integrating with
Cingular's SMPP
gateway or XML connection.
|
| 2. |
its
traffic and applications are adequately tested prior to launch on
Cingular's network.
|
| 3. |
it
will connect to Cingular LAB for verification to test and verify
functionality.
|
| 4. |
it
will
make
necessary arrangements to establish secure connections with the necessary
gateway(s) as per Cingular's
guidelines.
|
| 5. |
its
systems do not exceed the pre-determined throttling level of 10 messages
per second as established with Cingular. If the event is expected
to
generate high peaks in network traffic and responses are required
per the
requirements of that event,
|
1