Cell Phone
Cell Phone - Mobile Content
Mobile Content Provider Agreement
A sample of a Mobile Content Provider Agreement is provided here for educational and informational purposes only. It shall not in any way howsoever be treated as constituting legal advice, or anything like that (howsoever remote).
THIS AGREEMENT is made on this ____ day of __________ 2006
BETWEEN
CELL PHONE NETWORK OPERATOR, a company incorporated in [country] and having its registered address at [address] (hereinafter referred to as “CELL PHONE NETWORK OPERATOR”) of the one part;
AND
The party whose particulars are set out in Section 1 of Schedule A and B hereto (hereinafter referred to as “CONTENT PROVIDER”) of the other part.
1. PREAMBLE
1.1 CELL PHONE NETWORK OPERATOR is licensed to operate and maintain various telecommunication and multimedia services in [country] including the provision of Mobile Content to its Subscribers via the CELL PHONE NETWORK OPERATOR's Short Message Service ("SMS"), Wireless Application Protocol Service ("WAP"), Multimedia Messaging Service ("MMS") and Website ("WEB") (hereinafter SMS, WAP, MMS and WEB shall collectively be referred to as “the Platform”).
1.2 CONTENT PROVIDER is desirous to utilize CELL PHONE NETWORK OPERATOR’s Platform in providing the Contents to CELL PHONE NETWORK OPERATOR and/or the Subscribers particularly described in Section 2 of Schedule A subject to the terms and conditions hereinafter appearing.
2. DEFINITIONS
2.1 In this Agreement, unless the context otherwise require and save as specifically defined in this Agreement, words and expression shall have the following meanings:
Agreement : means this Agreement including all schedules annexed hereto and all documents taken together, shall be deemed to form one agreement and shall be complementary with one another.
Contents : means the contests, ringtones, Java games, MMS and video streaming contents provided by the CONTENT PROVIDER via the Platform.
GPRS :means the General Packet Radio Service, a packet based technology that enables data to be transmitted at speeds up to 50kbps. GPRS serves as data communication bearer for GSM users to send and received the Contents information using their GPRS & MMS enabled mobile terminals.
GSM : means the Global System for Mobile operating at 900 MHz and/or 1800 MHz currently maintained by CELL PHONE NETWORK OPERATOR under the prefix number of XXX and YYY.
MACP : means Music Authors Copyright Protection
MPA : means Music Publishing Association.
Multimedia Message Service (MMS) : means a service that allows the Subscribers to send and receive, request and download multimedia content through their GPRS, MMS and 3G enabled mobile terminals.
Platform : means the MMS, SMS, WAP, WEB and 3G.
Server : means the servers owned and operated by the CONTENT PROVIDER hereto for the purpose of providing the Service and Contents.
Service : means the Interactive applications including but not limited to recording, processing, analyzing and generating appropriate response to request for the Contents from the Subscribers via the Platform.
Short Message Service (SMS) : means a service that allows the Subscribers to send and receive text messages up to 150 characters through their mobile terminals.
Subscribers : means customers of CELL PHONE NETWORK OPERATOR who subscribe to the Service, including without limitation, XXX and YYY Postpaid and Prepaid customers.
Wireless Application Protocol (WAP) : means a set of protocols that provides a universal open standard for bringing Internet content and advanced Value Added Services to mobile phones and other wireless devices. WAP will enable users of mobile phones supporting the protocol to have access to information, rich contents and transactional services.
WEB : means the website. 3G the third generation of mobile communications, or the next phase of new mobile technologies based on global standards.
In this Agreement, unless the context otherwise requires, any reference to:
(a) this agreement or any other agreement or document shall be construed as a reference to this Agreement or such other agreement or documents as may be amended or supplemented from time to time by agreement between the relevant parties;
(b) a “clause”, “subclause” or “Schedule” shall be construed as a reference to a clause or subclause of or a Schedule A and B to this Agreement;
(c) “Party”, “Parties”, “CELL PHONE NETWORK OPERATOR” or “Content Provider” shall include a reference to such person’s successors and permitted assigns and transferee; and
(d) any statute or statutory provision or regulation shall be construed as a reference to such statute or statutory provision or regulation as amended, replaced or re-enacted from time to time and shall include any subordinate legislation made under the relevant statute.
3. THE SERVICE AND THE CONTENTS
3.1 The scope of this Agreement shall be limited to the provision of the Service and/or the Contents as particularly described in Section 2 of the Schedule A of this Agreement, The CONTENT PROVIDER hereby agrees that the Service and/or the Contents can be provided by CELL PHONE NETWORK OPERATOR to the Subscribers, which include customers of CELL PHONE NETWORK OPERATOR, and consequently, the CONTENT PROVIDER will procure all necessary rights for this provision.
3.2 The Service and/or the Contents provided by CONTENT PROVIDER shall not be fraudulent in nature, inaccurate, defamatory, scandalous, obscene in nature, improper or of such nature which contravenes any laws, rules or government regulations.
3.3 This Agreement shall commence on the Commencement Date as specified in Section 3 of the Schedule A of this Agreement and continue for the period stated thereof until its expiry. Upon the expiry of this period, this Agreement shall be terminated and each and every Part in this Agreement shall have no further claim against each other save and except claim on outstanding amount due under this Agreement.
4. FEES, CHARGES, REVENUE APPORTIONMENT AND PAYMENT
4.1 CONTENT PROVIDER shall upon execution of this Agreement pay to CELL PHONE NETWORK OPERATOR the non-refundable fees as stated in Section 4 of the Schedule A of this Agreement (“the Fees”).
4.2 The Charges of the Contents shall be in the sum particularly described in Section 5 of the Schedule A of this Agreement (“the Charges”).
4.3 CELL PHONE NETWORK OPERATOR shall pay to CONTENT PROVIDER the Charges based on the revenue sharing based on Mobile Terminating and/or payment based on the nett amount of the revenue sharing (after deducting other telecommunication operators fees) from other telecommunication operators as specified in Section 6 of the Schedule A of this Agreement (“the Revenue Apportionment”).
4.4 CELL PHONE NETWORK OPERATOR shall have the rights to review the Fees, Charges and the Revenue Apportionment at any time by giving fourteen (14) days notice in advance.
4.5 Payments shall be made based on the logs generated from CELL PHONE NETWORK OPERATOR’s data and CELL PHONE NETWORK OPERATOR shall provide the CONTENT PROVIDER with the summary of its monthly statement and such statement is final, binding and conclusive. For the purposes of this clause, he logs generated from the data shall indicate the number of Contents successfully transmitted by CELL PHONE NETWORK OPERATOR to the Subscriber arising from the Subscriber’s request for the Service and accordingly, the charges shall only be calculated and paid for Contents successfully transmitted evidenced by the said logs or data. Contents which are retrieved from the CONTENT PROVIDER’s server(s) but not successfully transmitted or failed to be transmitted to the Subscriber regardless a request for such Contents was made by CELL PHONE NETWORK OPERATOR’s network arising from the request by the Subscriber for the Service and such request was accordingly logged by the CONTENT PROVIDER’s server(s) and later presented by CONTENT PROVIDER to CELL PHONE NETWORK OPERATOR in its monthly transactional report pursuant to Clause 5.5. below.
4.6 All charges shall be invoiced and payable in [currency].
4.7 All payment terms due from CELL PHONE NETWORK OPERATOR to CONTENT PROVIDER shall be made within forty-five (45) days from the date of receipt of the said invoices and/or other payment advices. CELL PHONE NETWORK OPERATOR reserves the right to withhold, counterclaim, deduct or set-off any payment due to CONTENT PROVIDER in the event the CONTENT PROVIDER fails to comply with and/or perform any of its duties and obligations pursuant to this Agreement.
4.8 Should the payment hereunder be subject to the withholding tax as required by the [tax jurisdiction] tax authorities, CELL PHONE NETWORK OPERATOR shall deduct the amount of withholding tax from the relevant payment to be made under this Agreement. For avoidance of doubt, any tax withheld by CELL PHONE NETWORK OPERATOR under this clause shall be deducted from the payment due to CONTENT PROVIDER under this Agreement. CELL PHONE NETWORK OPERATOR shall furnish CONTENT PROVIDER with evidence to establish that the aforementioned withholding tax, if any, has been paid to the [tax jurisdiction]tax authorities, so that CONTENT PROVIDER may claim such credit as may be allowable under the tax laws in the country of CONTENT PROVIDER.
5. CONTENT PROVIDER’S OBLIGATIONS
5.1 CONTENT PROVIDER shall at all times provide the Service and/or the Contents as specified herein in a proper, workmanlike manner.
5.2 CONTENT PROVIDER shall at its costs and expenses operate and maintain its Server in order to ensure that the Server is functioning in good condition for the purpose of providing the Service and/or the Contents contemplated herein.
5.3 CONTENT PROVIDER shall at use its own manpower to host, regularly update and manage Contents in order to ensure that the Contents are up to date and functioning in good condition for the purpose of providing the service and/or the Contents contemplated herein.
5.4 CONTENT PROVIDER hereby acknowledges that the Service and the Contents are provided using CELL PHONE NETWORK OPERATOR’s network and as such is COMPULSORY to connect to the CELL PHONE NETWORK OPERATOR’s Platform. Therefore CONTENT PROVIDER shall at all times comply with any instruction form CELL PHONE NETWORK OPERATOR which is necessary for charging purpose and to protect the security of CELL PHONE NETWORK OPERATOR’s network, products and services.
5.5 Monthly transactional report of the Contents requested for the month shall be submitted by CONTENT PROVIDER to CELL PHONE NETWORK OPERATOR not later than the fifteenth (15th) day of the following month and for any Contents which involving games, the CONTENT PROVIDER has to provide reports of a maximum of five (5) Contents every month to CELL PHONE NETWORK OPERATOR.
5.6 Save where the CONTENT PROVIDER is providing the Service and/or the Contents under their own brand, the CONTENT PROVIDER shall ensure that the Contents are not to be transmitted or routed to local telecommunication operators or downloaded by subscribers from other international telecommunication operators. In such event, CELL PHONE NETWORK OPERATOR reserves the right to immediately terminate this Agreement without any compensation made to CONTENT PROVIDER and shall not be held liable to pay to CONTENT PROVIDER such downloads. For the purpose of this provision, Contents shall include the Contents either in whole or in part and shall also include information pertaining to the Subscriber(s) such as names or assigned phone numbers or any identifier information capable of identifying the Subscriber(s) in the Contents as prescribed by Clause 7.4 of this Agreement.
5.7 In any circumstances and events, CONTENT PROVIDER shall ensure that the provision of the Service and/or the Contents will not interfere, disturb or breach the security and integrity of CELL PHONE NETWORK OPERATOR’s network and if such events occurs and originate from CONTENT PROVIDER’s servers or connections, then CONTENT PROVIDER shall be fully responsible for the same and immediately take action so as remedy the interference or breach of security.
5.8 In the event the CONTENT PROVIDER is not able to remedy the interference, disturbance or breach of security and integrity of CELL PHONE NETWORK OPERATOR’s network arising from the provision of the Service or originating from the CONTENT PROVIDER’s servers of connections, the CONTENT PROVIDER shall immediately notify CELL PHONE NETWORK OPERATOR of the same and shall promptly commence work with CELL PHONE NETWORK OPERATOR to resolve the interference, disturbance or breach. In such event, all reasonable costs arising from the works required for resolution of the interference, disturbance or breach shall be borne by the CONTENT PROVIDER.
5.9 CONTENT PROVIDER shall ensure that there is no spamming, relaying and sending of unsolicited messages. This shall apply to messages originating from the CONTENT PROVIDER’s server and messages originating from other sources. For the purposes of this particular provision and the provision of Clause 7.4 herein, the CONTENT PROVIDER hereby undertakes with CELL PHONE NETWORK OPERATOR not to use the information provided by CELL PHONE NETWORK OPERATOR in relation to the provision of the Service to send any unsolicited messages or engage in any spamming activities whatsoever to the Subscribers.
5.10 Save for where the CONTENT PROVIDER is providing the Service and/or the Contents under their own brand, CONTENT PROVIDER shall ensure that the Contents are not downloaded by subscribers from other local or international telecommunications companies. In the event the CONTENT PROVIDER provides similar content provision services to other local or international telecommunications companies, CELL PHONE NETWORK OPERATOR shall not in anyway whatsoever be held responsible to pay to CONTENT PROVIDER for such downloads and any payment to be made by CELL PHONE NETWORK OPERATOR shall be based on the logs or successful transmission records generated by CELL PHONE NETWORK OPERATOR’s data as stated in Clause 4.5 of this Agreement.
5.11 CONTENT PROVIDER shall apply for license/approval from the relevant owners of the copyrights for the provision of the Contents and shall forward the license and/or approval to CELL PHONE NETWORK OPERATOR within fourteen (14) days from the date of the Agreement. CELL PHONE NETWORK OPERATOR shall not be liable or assume any liability for any unlicensed intellectual property rights used by CONTENT PROVIDER for the purpose of providing the Service to CELL PHONE NETWORK OPERATOR. CONTENT PROVIDER for the purpose of providing the Service to CELL PHONE NETWORK OPERATOR. CONTENT PROVIDER shall assume liability and indemnify and hold CELL PHONE NETWORK OPERATOR harmless in the event CELL PHONE NETWORK OPERATOR is subjected to any legal claims or proceedings arising from the use or provision of unlicensed intellectual property rights in the Contents by CONTENT PROVIDER.
5.12 CONTENT PROVIDER shall settle the royalties and licensing to the rightful copyright owners, MACP/MPA or any authority that have the rights on the intellectual property of the Contents in accordance with the rates as specified in Section 7 of the Schedule A of this Agreement. CONTENT PROVIDER shall provide to CELL PHONE NETWORK OPERATOR on quarterly basis proof of evidence that licensing has been obtained and all royalties have been paid to the rightful copyright owners, MACP/MPA or any authority that have the rights on the intellectual property of the Contents. CELL PHONE NETWORK OPERATOR reserves the right to withhold, counterclaim, deduct or set-off any payment due to CONTENT PROVIDER in the event the CONTENT PROVIDER fails to pay any royalties and licensing payment which CONTENT PROVIDER is liable to pay to the rightful copyright owners for and on behalf of CELL PHONE NETWORK OPERATOR.
5.13 CONTENT PROVIDER shall ensure that the Contents provided by it shall not in anyway contain any harmful or malicious codes which may disrupt the operation of the Subscriber’s mobile communication unit in anyway whatsoever. CONTENT PROVIDER shall ensure that its Server are not connected to any other providers of questionable integrity or ethics or practice questionable security practices whatsoever to prevent any external interference, disturbance or breach of security of CELL PHONE NETWORK OPERATOR’s networks.
5.14 Notwithstanding any other terms and conditions contained in this Agreement, CONTENT PROVIDER hereby acknowledges that it shall at all times fully indemnify and shall hold CELL PHONE NETWORK OPERATOR harmless against any or all actions, suits, claims, proceedings, damages, loss or responsibilities brought by the Subscribers and/or any third party arising out of negligence in providing the Service and/or the Content or in connection with or in relation to any content or material or message transmitted through CELL PHONE NETWORK OPERATOR’s network by CONTENT PROVIDER, including but not limited to content or material which is unlawful, harmful, threatening, slanderous, abusive, defamatory, obscene, fraudulent or otherwise objectionable.
5.15 In relation to contest(s) (being a Content under Section 2 of this Schedule A contained hereunder) which are jointly organized and/or provided by CONTENT PROVIDER as a third party content with the co-branding of CELL PHONE NETWORK OPERATOR, CONTENT PROVIDER hereby undertakes with CELL PHONE NETWORK OPERATOR that it shall honour the terms and conditions of the Contest in relation to the prizes offered for the Contest to the Subscriber(s) who have taken part n such Contest(s) (notwithstanding the possibility of loss incurred by CONTENT PROVIDER that the subscription for the Content by the Subscriber(s) do not reach a certain prescribed limit) and shall indemnify CELL PHONE NETWORK OPERATOR for any claims made by Subscriber(s) in relation to such contest(s).
6. REPRESENTATION AND WARRANTY
CONTENT PROVIDER hereby represent and warrant to CELL PHONE NETWORK OPERATOR that :
(a) it is a company duly incorporated under the laws of [country];
(b) it has the corporate power to enter into and perform its obligations under this Agreement and to carry out obligations, the Service and the provision of the Contents as contemplated herein;
(c) it has taken all necessary actions to authorize the entry into and performance of this Agreement and to carry out the transaction contemplated by this Agreement;
(d) it has obtained all the necessary approvals and licenses from the relevant authorities for the purposes of providing and carrying out the Service;
(e) it has been granted the license or rights to use (exclusive and/or non exclusive) the Contents by the legal owner of such intellectual property for the purpose of the Service;
(f) it shall observe and comply to the guidelines and procedures in Schedule B of this Agreement.
7. CONFIDENTIAL INFORMATION
7.1 This Agreement and all matters pertaining hereto shall be considered confidential and shall not be disclosed to any third Party without the prior mutual agreement of the Parties in writing unless such disclosure is required by law to be so disclosed.
7.2 Both Parties agree to keep all information that either Party may gave or obtained about the other concerning the business, finances, accounts technology, contractual arrangement or other dealings and affairs of the other and in particular but not limited to CELL PHONE NETWORK OPERATOR and CONTENT PROVIDER’s business systems, methodologies, systems, training programs or management procedures regardless of its nature (“Confidential Information”) strictly confidential.
7.3 CONTENT PROVIDER and CELL PHONE NETWORK OPERATOR agree and undertake as follows:
(a) not to use such Confidential Information save as agreed with the disclosing Party;
(b) to procure that all person or entities (including employees) to whom they do disclose the Confidential Information keep it strictly confidential and that they are bound by terms and confidentiality as set out at least equivalent to these terms and conditions in that respect;
(c) not to copy or reproduce such Confidential Information without the prior written consent of the other Party. The provisions of this Clause shall cease to apply and/or shall not apply to any of the following:
(i) Information that is obtained from a third Party without breach of this Clause or any other Party duty of confidentiality;
(ii) Information that has come into the public domain other than by breach of this provision or any other duty of confidentiality;
(iii) Information that is known by either Parties in connection with the other prior to either of the Parties undertaking a program on behalf of this Agreement and which has been disclosed to either if the Parties by a third party other than the other Party and not in breach of any duty of confidence;
(iv) Information that is trivial or obvious; and
(v) Information developed by either of the Parties independently of the other Party’s Information and/or knowledge.
7.4 For the purposes of this Clause, the CONTENT PROVIDER hereby acknowledges that the information contained in CELL PHONE NETWORK OPERATOR’s log or data which may include among others information relating to the Subscriber such as name, phone number or any other data capable of identifying the Subscriber and accordingly shall also be treated as Confidential Information. Accordingly the CONTENT PROVIDER undertakes with CELL PHONE NETWORK OPERATOR not to use the Subscriber’s Confidential Information or to release, make available or disclose them to any other person whatsoever. The CONTENT PROVIDER hereby notes and agrees that this clause shall form part of its obligations in relation to messages as stated in Clause 5.9 of this Agreement.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The owner of the intellectual property may take such steps and proceedings as it considers necessary or desirable to protect its intellectual property rights and the rights of the other Party to which the intellectual property has been disclosed or licensed (“User”) and each User must render all reasonable assistance in connection with these steps or proceedings at the request of CELL PHONE NETWORK OPERATOR.
8.2 Neither Party hereto has the right to use any intellectual property belonging to the other Party without prior written consent of the other Party.
8.3 CONTENT PROVIDER shall assume all liability and indemnify CELL PHONE NETWORK OPERATOR and its officers, agents and employees against liability, including costs as a result of:
(a) infringement or alleged infringement by CONTENT PROVIDER of any intellectual property, copyright, database right or the like protection in any part of the world in respect of the Contents to be supplied under this Agreement or otherwise in the performance of this Agreement;
(b) misuse of any confidential information, trade secret or the like by CONTENT PROVIDER in performing this Agreement.
9 CELL PHONE NETWORK OPERATOR’S LIABILITY
9.1 Without limiting the generality of the foregoing, CELL PHONE NETWORK OPERATOR shall not be liable for loss or damage arising from loss of business, revenue or profits, anticipated savings or wasted expense, corruption, destruction or loss of data or video, costs of substitute services of any nature whatsoever, breach of privacy or security of communication or for any indirect, special or consequential loss whatever including those arising from or occasioned by any malfunction or defect in the Platform, or the Interface of the Server to the Platform, or any claim for liable, slander, infringement of copyright or other rights arising from transmission and/or receipt of any material in connection with the Platform and any claims arising out of any act or omission of CONTENT PROVIDER or such third party in relation to the Platform, or any loss (whether profits or otherwise) or damage caused to CONTENT PROVIDER or such third party as a result of the suspension or termination of this Agreement or the suspension, interruption or loss of the Platform, howsoever caused or any delays in providing the Platform.
9.2 CELL PHONE NETWORK OPERATOR’s maximum liability under this Agreement shall in no event exceed [amount of money] or the total amount of fees paid by CELL PHONE NETWORK OPERATOR to CONTENT PROVIDER, whichever shall be the lesser.
9.3 Except as specified in this Agreement, all express or implied conditions, representations and warranties including without limitation, any implied warranties or conditions of merchantability, fitness for a particular purpose with warranties or conditions of merchantability, fitness for a particular purpose with respect to the Platform are hereby excluded to such extent as permitted by law.
10. NO AGENCY AND NO PARTNERSHIP
10.1 No Party shall by virtue of this Agreement be deemed to be a partner or agent of the other nor shall anything herein contained be construed as creating a partnership, joint association or trust, it being agreed that each Party shall be individually responsible only for its on obligations under this Agreement and no Party shall have the authority to pledge the credit of the other.
11. ASSIGNMENT AND NOVATION
11.1 The CONTENT PROVIDER shall not assign or otherwise transfer this Agreement or any of its rights under this Agreement to any other person, firm or company without the prior written consent of CELL PHONE NETWORK OPERATOR. CELL PHONE NETWORK OPERATOR may assign or novate its rights and obligations under this Agreement to a related body corporate, and the CONTENT PROVIDER hereby agrees that such assignment or novation may be affected by written notice to the CONTENT PROVIDER in accordance with Clause 15.
12. TERMINATION AND SUSPENSION
12.1 This Agreement and the service shall be terminated or suspended without notice upon the occurrence of any one or more of the following events:
(a) If CONTENT PROVIDER goes into liquidation either compulsory or voluntarily (save for the purpose of reconstruction or amalgamations);
(b) If a receiver is appointed in respect of the whole or any part of CONTENT PROVIDER’s assets;
(c) If CONTENT PROVIDER breaches any terms and conditions of this Agreement and the breach is not capable of remedy or is not remedied within fourteen (14) days of receipt of a notice to do so; or
(d) If any demands are made to CELL PHONE NETWORK OPERATOR from rightful copyright owners or authority that lawfully and rightfully represents the rightful copyright owners including but not limited to MACP and/or MPA and such demand is not settled by the CONTENT PROVIDER within fourteen (14) days of receipt of a notice to do so from CELL PHONE NETWORK OPERATOR.
12.2 Termination of this Agreement shall not limit either Party from pursuing nay other remedies available to it, including injunctive nor shall termination relieve either Party of their obligations to pay all charges and costs that have accrued prior to termination.
12.3 Notwithstanding anything to the contrary, either one of the Parties hereto may at any time in its absolute discretion terminate this Agreement by fourteen (14) days notice to the other Party and thereafter no party hereto shall have any claim against the other Party.
12.4 Upon termination of this Agreement as provided in Clauses 11.1 and 11.3 hereof or upon expiry of the term of this Agreement, CONTENT PROVIDER shall cause to disengage its Server where the Contents are located and/or remove the Contents from CELL PHONE NETWORK OPERATOR’s network within a period of seven (7) days from determination of this Agreement failing which CELL PHONE NETWORK OPERATOR or its offices, agents or servants shall be entitled, where the CONTENT PROVIDER’s Server is located outside the premises of CELL PHONE NETWORK OPERATOR, to enter the CONTENT PROVIDER’s premises at all reasonable times including all other premises of the CONTENT PROVIDERS (if any is necessary) for the purpose of disengaging the CONTENT PROVIDER’s server or removing the Contents from the Server where the Contents reside. The cost for the removal as abovestated shall be borne by the CONTENT PROVIDER.
12.5 Notwithstanding anything to the contrary, CONTENT PROVIDER acknowledges that the Service and the Contents are provided by CELL PHONE NETWORK OPERATOR through its network as set out in the Schedule (s) and that CELL PHONE NETWORK OPERATOR reserves the right to temporarily suspend the Service or its network if CONTENT PROVIDER breaches ay other terms and conditions of this Agreement and CELL PHONE NETWORK OPERATOR may permanently suspend from the date of notice of such breach or such extended period as agreed between the Parties PROVIDED ALWAYS THAT the said breach is able to be remedied and/or is not a Force Majeure. The terms of this Clause shall supersede any other terms and conditions of this Agreement.
13. FORCE MAJEURE
13.1 Either Party shall not be liable for breach of any provisions of this Agreement cause by an Act of God, riot, civil commotion, war or military operation, emergency, flood, bad weather or any similar cause or circumstances beyond the reasonable control of either Party.
14. RESOLUTION OF DISPUTES
14.1 All disputes, controversies or differences which may arise between the Parties hereto in respect of this Agreement shall as far as practicable be settled amicably through mutual discussion.
14.2 In the event any such dispute, difference or question which may arise under, out of, in connection with or in relation to this Agreement cannot be resolved amicably under Clause 13.1 within thirty (30) days from the day it arose, then such dispute, difference or question shall be settled by arbitration before a single arbitrator under the auspices of the Kuala Lumpur Regional Centre for Arbitration in accordance with Arbitration Act 1952. The arbitration shall be final and binding on the Parties.
14.3 Notwithstanding the above, it is hereby agreed by the Parties herein that none of the provision contained in this Clause 13 shall be construed in any way to oust or exclude the jurisdiction of the Courts in relation to urgent interlocutory relief or where the Parties have agreed that the dispute is of such nature that arbitration is not possible or would not be able to provide adequate or effective resolution.
15. NOTICE
15.1 All notices and other communications which are required or may be given under this Agreement shall be given in writing within the required time or sent by electronic mail or telefax or delivered by hand to the other Party at the address as specified below and shall unless otherwise specifically provided herein, be deemed to have been given or made on the date of receipt by the other Party:
To CONTENT PROVIDER: The details as specified in Section 1 of the Schedule A
To CELL PHONE NETWORK OPERATOR: [address/phone/fax]
16. WAIVER
Any failure, delay or neglect by either Party in enforcing any terms, conditions or provision of this Agreement shall not be deemed a waiver of any the Party’s rights or as affecting the validity of the whole or any part of this Agreement or the other Party’s right to take whatever action subsequently.
17. BINDING EFFECT
17.1 This Agreement shall be binding on the successors-in-title and permitted assigns, legal representatives and heirs to the Parties hereto.
18. GOVERNING LAW
18.1 This Agreement and the transactions contemplated by it are governed by the laws of Malaysia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of Malaysia.
19. COSTS
19.1 The Parties agree to bear their own legal and other costs incurred in relation to the preparation, negotiation and execution of this Agreement and all documents contemplated by it (except where this Agreement or those other documents expressly provides to the contrary). The stamp duty including penalty charges (if any) in respect of this Agreement shall be borne by CONTENT PROVIDER.
20. VARIATION
20.1 Any variation, amendment, addition or deletion of any of the terms and conditions of this Agreement is only valid if made by the Parties in writing.
21. GENERAL PROVISIONS
21.1 The heading of each of the provisions herein contained are inserted for convenience of reference and shall not have any effect in the interpretation and construction of the provisions herein contained.
21.2 In the event any one or more of the provisions contained in this Agreement shall for any reason be unenforceable, illegal or otherwise invalid in any respect under the laws of [country] or its performance such unenforceability, legality or invalidity shall not affect any other provisions of this Agreement and this Agreement shall be construed as if such unenforceable, illegal or invalid provision(s) have never been included herein.
21.3 This Agreement shall supersede any previous arrangements, agreements or correspondences as agreed between the Parties. The terms and conditions of this Agreement shall be the main and principal terms and conditions of this particular business arrangement between the Parties hereto.
21.4 Any schedules, attachments or additional documents may be annexed to this Agreement upon mutual agreement by the Parties in writing and signed to that effect. The terms and conditions contained in each annexes shall be additional terms and conditions to this Agreement. Should there be conflicting terms between the annexes and this Agreement, then the terms and conditions of this Agreement shall prevail.
21.5 Time whenever mentioned shall be the essence of this Agreement unless mutually agreed to the contrary in writing, by the Parties.
AS WITNESS WHEREOF the Parties hereto have caused this Agreement to be signed by their duly authorized representatives on the date set forth above.
| SIGNED by the Cell Phone Co in the presence of |
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| SIGNED by the Content Provider in the presence of |
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SCHEDULE A
Section 1 |
CONTENT PROVIDER |
Company’s Name : Tel : |
Section 2 |
The Contents |
SMS applications : GPRS applications : Category of Contents : |
Section 3 |
Commencement date and the Duration of this Agreement |
Commencement Date : Duration : |
Section 4 |
The Fees |
Connection Fee : Integration Fee : Monthly Access Fee : |
Section 5 |
The Charges |
Mobil Terminating L
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Section 6 |
The Revenue Apportionment |
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Section 7 |
Royalty Rates |
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Section 8 |
Gateway Number |
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