PROMOTIONAL PARTNER
AGREEMENT
Upon provision of service, or acceptance by both parties that a service
is to be provided, you (hereinafter referred to as ‘The Customer’) agree that
an agreement shall exist between yourself and PremTel, whose registered office
is The ID Centre, Lathkill House, RTC Business Park,
London Road, Derby DE24 8UP, England (hereinafter referred to as ‘PremTel’),
the terms of which are defined below:
1
INTERPRETATION
1.1
The
following provisions shall have effect for the Interpretation of this Agreement;
1.2
Words
denoting the singular number only shall include the plural and vice versa, words
importing persons include bodies corporate and non-corporate.
1.3
The
clause headings do not form part of this deed, these are for convenience only
and shall not be taken into account in its construction or interpretation.
1.4
DEFINITIONS
‘Services’ Numbers and SMS products and services allocated to the Customer from time to time, over which
the Customer shall neither acquire any right, title or interest.
‘Rates’ – The rates or revenue share payable by PremTel to
the Customer, as specified in Annex 1.
‘The Act’ - the Telecommunications Act 1984.
‘End User’ - means users of the services provided by the
Customer.
‘Fraud Traffic’ is any traffic, where
there is a reasonable expectation that the End User is not likely to pay their
telephone bill, or where the traffic is subject to a Retention Notice, or where
the Customer is in breach of current legislative guidelines relevant to traffic
both premium rated and non premium rated.
‘Report’ is the monthly revenue statement, produced by
PremTel and showing revenue produced on Services allocated to the Customer,
based on reports provided to PremTel by Suppliers with whom it contracts.
‘Intellectual Property Rights’ – means copyright, database
right, patents, registered and unregistered design rights, registered and
unregistered trade marks, and all other industrial or intellectual property
rights or trade secrets existing at any time in any jurisdiction and all rights
that shall apply to them.
‘Email’ – Electronic Mail.
‘Supplier’ – Any entity with whom PremTel contracts for
delivery or transmission of any Telecommunications or mobile text services.
‘Site’ – Location where services are provided.
2
FORMATION OF CONTRACT
2.1
The
parties acknowledge that no representations, warranties or statements made prior
to concluding this Agreement forms any part of the Contract, nor has induced
either party.
2.2
Any
error, omission or typographical error in any quotation, offer, sales
information, invoice, or document supplied by PremTel shall be subject to
correction without liability.
2.3
PremTel
may vary any provision in this Agreement, (without prior consent from the
Customer), if such change is required because of regulatory, insurance, safety
or statutory changes made after the date of this Agreement. PremTel shall (in
such circumstances) endeavour to give the Customer 30 days notice of such
changes. The Customer shall have the right by giving notice in writing to
PremTel to terminate this Agreement, within 14 days of receiving such notice.
This Agreement would then be terminated within 30 days of such notification.
2.4
This
Agreement is renewable 12 months from the commencement date at the agreed
administration fee. (see annex 1)
3
RESPONSIBILITIES AND OBLIGATIONS
3.1
PremTel
3.1.1
PremTel
shall provide the Customer with network service access and Number/SMS Services
as appropriate. PremTel may also change these services supplied to the Customer
if this is required for regulatory, statutory or legal reason, and in such
instance shall notify the Customer as soon as is reasonably practical.
3.1.2
Notwithstanding the above Clause, PremTel shall in the event of the termination
of this Agreement, not re-allocate numbers/keywords to another customer, that
have been allocated to the Customer under this Agreement, for a period of three
months from the termination date.
3.1.3
PremTel
makes no warranty that services shall be continuous, or will be free from
faults.
3.1.4
PremTel
shall notify the Customer as soon as reasonably practical, of any changes in
rates payable brought about by industry regulation or regulatory bodies.
3.1.5
PremTel may from time to time make
changes to equipment used to handle and provide any service. Such changes are at
the sole discretion of
PremTel, and shall be made without prior consent from
the Customer.
3.1.6
On
signing this Agreement PremTel will use its best endeavours to make Services
ready for service, and notify the Customer of the Services by e-mail, prior to
the Service Commencement Date.
3.1.7
PremTel may assign the rights and
obligation of this Agreement to a third party without the prior consent of the
Customer.
3.2
Customer
3.2.1
The
Customer shall ensure that they have all necessary approvals, permissions or
authorisations for the services offered to its End Users. The Customer shall be
responsible for the content, quality and delivery of services offered, and for
ensuring that these services comply with the Act and this Agreement.
3.2.2
The
Customer shall provide PremTel on request with information or material regarding
the service offered to its End Users, or agents.
3.2.3
The
Customer shall ensure that services provided are not used for any illegal
purpose, or for the transmission or offering of any information or services
which are, libellous, unlawful, abusive, threatening, harmful, threatening,
defamatory, or in anyway infringe the laws governing, but not exhaustively
covering, copyright, intellectual property rights, trademarks, or any other
material that is slanderous or may cause offence in any way.
3.2.4
The
Customer shall cooperate with PremTel in relation to any complaints, enquiries
or investigations regarding services offered by the Customer. The Customer
shall, at the discretion of PremTel, without limitation, bear in full, any costs
associated with such complaints, investigations, or enquiries.
3.2.5
The Customer shall under no circumstance attempt to decompile copy or
imitate any of PremTel’s products or services in any way shape or form.
3.2.6
The
Customer shall not assign the rights and obligations of this license to any
other party without the express permission in writing of PremTel. Moreover the
Customer shall not use PremTel’s name, trademarks, or copyrights in any way that
implies any approval or connection with the services or products offered by the
Customer.
3.2.7
The
Customer shall ensure that any third party using its facilities shall be bound
by the terms of this Agreement
3.2.8
The Customer shall ensure that
they have sufficient financial and other resources necessary to discharge their
obligations to PremTel and ICSTIS, under the ICSTIS Code of Practice.
4
PROVISION OF SERVICES
4.1
It is
acknowledged that PremTel is reliant on a third party for delivery of services,
and therefore PremTel can have no liability of whatever nature, for any delay or
failure in provision of the same, moreover PremTel makes no warranty that its
network or services shall be continuous, or will be free from faults.
4.2
PremTel
may terminate or withdraw any service with 30 days notice and may at PremTel’s
discretion provide an alternative service.
4.3
In the
event that the Customer provides its own equipment, or provide leased lines to
connect to its equipment, this shall require the prior consent of PremTel, and
mutual agreement of charges that the Customer shall pay to PremTel, the Customer
is solely responsible for any costs, without limitation, to include, the
installation, delivery and maintenance of the same, and PremTel can have no
liability whatsoever for equipment provided at the Site by the Customer.
5
RATES & PAYMENTS
5.1
PremTel
shall pay the Customer for services, according to the Rates detailed in Annex I
and detailed in the monthly Report, subject to Clauses 5.6, 5.7 & 5.9. The
Customer shall pre-pay PremTel for any services according to the rates In Annex
1. Payments are based on reports provided to PremTel by Carriers with whom it
contracts.
5.2
PremTel
shall endeavour to send the Customer a monthly report or self-billing invoice
within 45 days from the end of the month in which the traffic was generated.
Subject to PremTel having received cleared funds then payment shall be made to
the Customer within 50 days from the end of the month in which the traffic was
generated. Where cleared funds have not been received within this time period
then PremTel shall make payment within 3 working days of receiving cleared
funds.
5.3
For the
term of this agreement PremTel agrees to issue self-billed invoices for the
Customer, and the Customer agrees not to raise its own VAT invoices. The
Customer shall advise PremTel of any changes which would affect the self-billed
invoices, including: change of VAT status, registration number, address or sale
of business.
5.4
All
rates detailed in Annex I and in the monthly Reports shall be exclusive of all
taxes, duties, levies and Carrier surcharges.
5.5
In the
event that OFTEL, other regulatory bodies, or any other Carriers with which
PremTel contracts make retrospective price adjustments to revenues paid to
PremTel, which result in PremTel having overpaid the Customer, then PremTel at
its sole discretion, may deduct from subsequent payments to the Customer,
sufficient revenues to reflect the sums overpaid to the Customer under this
contract.
5.6
The
Customer’s payment shall be calculated according to data provided by Carriers
with whom PremTel contracts, which shall be accepted, except in the case of
manifest error, as being conclusive for the determination of revenues due to the
Customer.
5.7
PremTel
shall at its sole discretion, not pay any fees or revenue to the Customer for
any traffic generated on Services in the following circumstances;
(a) Where there has been fraudulent traffic, or breaches of OFCOM, ICTSIS or DMA
regulations and it shall be accepted that PremTel’s determination shall be final
and binding.
(b) Where any Carrier does not pay PremTel for traffic generated under this
contract.
(c) Where total revenue payable to the Customer is less than £25.00 per month,
no payment shall be made for that month, and the amount will not be carried over
to subsequent months.
5.8
PremTel reserves the right to reclaim any Service / product that produces
less than 500 /calls/messages per month for three consecutive months. Such
services shall be reclaimed with PremTel giving the Customer 14 days notice.
5.9
PremTel may at any time vary the
Rates detailed in Annex I, but shall give the Customer 30 days written notice of
such change. Where changes to the charges and tariffs introduced by PremTel's
suppliers do not allow for 30 days notice, they will be passed on by PremTel at
cost.
5.10
In
the event that any Network Operator withholds any payment, due to AIT or
otherwise, the Customer shall have no entitlement to recover any part of these
funds from PremTel and indemnifies PremTel fully from any liability, except if
the withheld revenue is later released, in which case, PremTel shall pay the
appropriate revenue to the Customer.
5.11
In the event that PremTel suffers
any losses or costs as a result of withheld payment due to AIT or otherwise, the
Customer agrees to cover these costs and/or losses and pay them to PremTel
immediately upon invoice.
5.12
If the
Customer owes PremTel revenues, which are overdue, the Customer accepts that
PremTel can at its sole discretion deduct these sums from any revenues that are
due to the Customer from PremTel.
5.13
Where the Customer has caused a
breach of any ICTSIS, OFCOM or DMA Regulations, any fines and administrative
charges will be passed directly to the Customer and the Customer accepts full
liability for them. PremTel reserves the right to charge it’s own administrative
charges in line with those imposed by the regulatory body for any work that it
has to undertake in respect to any breaches of regulations.
5.14
PremTel reserves the right to
withhold payment of premium rate monies in the event of complaints which are
investigated by the Regulatory Body until the complaint is resolved, and may
retain money to pay fines and administrative costs associated with processing
the complaint.
5.15
The Customer accepts the loss of
revenue if operators refuse payments for the Customer’s premium rate services
that breach Codes of Practice, or claw-back payments once made if they are later
found to have breached Codes of Practice.
6
AUDIT
6.1
The
Customer may at its own expense, and giving 14 days written notice, inspect the
books of PremTel to audit revenues due to the Customer. Such audit shall only be
made in regard to the traffic due to the Customer only and under this contract,
and shall only be undertaken by a Chartered Accountant, in a manner that shall
reasonably minimise disruption of PremTel’s business.
6.2
The
Customer shall have no audit rights under this contact with respect to any
Carriers with whom PremTel contracts.
7
RESTRICTED AREAS
7.1
The
Customer shall ensure that its End Users are bound contractually to Terms &
Conditions, aimed at ensuring that End Users do not engage in any actions that
might be considered an abuse to PremTel’s and or a Carrier’s network, these
include, but are not limited to;
(a) Attempting to circumvent user authentication, security of any network, or
account;
(b) Attempting to interfere or deny access to any service or host;
(c) Sending any unsolicited messages, this includes adding or attempting to add
addressees to any mailing list without their express permission;
(d) Using the service for any illegal purpose, or for the transmission or
offering of any information or services which are libellous, unlawful, abusive,
threatening, harmful, threatening, defamatory, or in anyway infringe the laws
governing, but not exhaustively covering, copyright, intellectual property
rights, trademarks, or any other material that is slanderous or may cause
offence in any way.
7.2
It is
the Customer’s responsibility to enforce its End User’s adherence to Clause 8.1
7.3
In the
event that PremTel identifies any breach of Clause 8.1., it shall notify the
Customer. If PremTel does not within 48 hours of such notice receive a
satisfactory response from the Customer detailing what action is to be taken
against offending Users to enforce compliance, then PremTel can disconnect the
service.
7.4
The
Customer will provide all reasonable cooperation with PremTel to ensure End User
compliance with Clause 8.1.
8
COPYRIGHT
8.1
All
Intellectual Property Rights owned by one party shall remain vested in such
party, and for clarity, and avoidance of doubt;
(a) the Intellectual Property Rights of the products
and Services shall be vested in PremTel;
(b) equipment provided at the Site, unless purchased by the Customer, all
rights of any nature, trade name, documents, drawings and information including
any access codes provided to the Customer, and information in PremTel’s database
accessed by the End Users and the Customer remain vested in PremTel;
9
TECHNICAL SUPPORT
9.1
PremTel
shall provide the Customer with reasonable technical support, which PremTel in
its sole discretion shall consider necessary and appropriate.
9.2
In the
event that the Customer becomes aware of any faults with the service, it shall
notify PremTel as soon as is practically possible.
9.3
In the
event of a fault being reported, PremTel shall keep a log of faults and shall
use its best endeavours to rectify the fault as soon as is reasonably possible.
9.4
PremTel
reserves the right to charge on an hourly basis for any works undertaken at the
Customer’s request on this service after the service has
been fully signed off.
10
CONFIDENTIALITY
10.1
Neither
party shall during the life of this Agreement or thereafter disclose to any
third party, or use for any purpose the information gained in connection with
this Agreement, nor the terms and payments due, but each party may disclose to
its officers and employees such information as may be required for them to
fulfil their proper performance of their duties, and may be used in the proper
exercise of its rights and obligations under this Agreement.
10.2
The
obligations of confidence and restrictions on disclosure shall not apply in the
following circumstances;
(a) where such information was already known prior to this Agreement;
(b) where such information was already in the public domain, save as a result of
a breach of Clause 11.1.; or
(c) where a third party, who did obtain the same from the disclosing party,
disclosed such information to it lawfully.
10.3
PremTel
shall have the unconditional and irrevocable right to disclose the identity and
address of the Customer and any End User in the event of any complaint received
from any regulatory or governmental body, licensed telecommunications carrier,
in connection with services offered by the Customer.
10.4
All
user data and CLI information gathered through the running of The Customer’s
services shall be confidential to The Customer and may only be used for The
Customer’s own purposes.
11
LIMITATION OF LIABILITY
11.1
PremTel
shall use its best endeavours to ensure its network,
products and services are fault free, and that service is uninterrupted. PremTel
gives no warranty or guarantee that the service is satisfactory or suitable for
the Customer’s purposes or that product and services shall be
uninterrupted or fault free. All
warranties relating to the service from PremTel are excluded, even if implied by
statute.
11.2
The
Customer shall be responsible at all times for maintaining the security of its
and its User’s data, and PremTel shall bear no liability for the loss or damage
in part or whole, of such data, to the extent that such loss or damage has been
caused or contributed to by the Customer.
11.3
PremTel
shall not be liable for any indirect, incidental, special or consequential
damages or for interrupted communications, lost data, or loss of profit, or
economic loss arising out of or in connection with this Agreement, or out of any
consequent negligence by its officers or employees.
11.4
Except
as otherwise stated the Customer’s sole remedy for any breach of this agreement,
shall at PremTel’s sole discretion be;
(a) Correction in a reasonable timescale of any fault;
(b) Replacement of service supplied.
11.5
Direct
damages caused as a result of PremTel’s breaches of this Agreement shall in any
event be limited to the previous 1 months revenue generated by the Customer, and
received by PremTel, but in no event shall exceed £10,000 for any one event or
series of events.
12
INDEMNIFICATION
12.1
The
Customer agrees to indemnify PremTel and its parent, subsidiaries, affiliates,
officers and employees from any claim or demand, including any made by a third
party, arising out of the Customer’s, Customers or End
User’s use of the service. The Customer agrees not to hold PremTel and
its parent, subsidiaries, affiliates, officers and employees responsible for any
direct or indirect damage resulting from the use of PremTel software or
services, in particular, interruption of service or loss of data.
12.2
The Customer agrees to indemnify
PremTel, and its parent, subsidiaries, affiliates, officers and employees from
any claim or demand, arising from, but not limited to;
(a) A breach by the Customer of the conditions of this Agreement;
(b) Negligence or misconduct by the Customer;
(c) The marketing or promotion undertaken by the Customer;
(d) The service content provided or marketed by the Customer.
(e) A breach by the Customer of the ICSTIS Code pf Practice;
(f) A breach by the Customer of the terms of any other relevant regulatory body.
12.3
PremTel
agrees to indemnify the Customer and its parent, subsidiaries, affiliates,
officers and employees from any claim or demand, arising from;
(a) Any claim or action by a third party in relation to PremTel infringing any
Intellectual Property Rights;
(b) A breach by PremTel of this Agreement;
12.4
PremTel
shall have no liability under this clause if;
(a) The demand or claim arises as a result of the Customer’s negligence,
misconduct or breach of this Agreement;
(b) If the Customer does not notify PremTel in a reasonable time of any claim;
(c) If the Customer does not give PremTel full authority to deal with the claim,
or does not provide information and cooperation for PremTel to defend the claim.
12.5
The Customer shall fully indemnify
PremTel in the event that the Customer transmits any unsolicited text messages,
against any claim or demand, including any made by a third party, and all costs
relating thereto.
12.6
The Customer accepts full
responsibility for the service and/or its promotion, and agrees to indemnify
PremTel, and its parent, subsidiaries, affiliates, officers and employees from
any claim or demand, in connection with the Customers services or activity and
undertakes that, in the event that a breach of the ICSTIS Code of Practice, or
any other relevant legislation or regulations, is established and a sanction
and/or administrative charge is imposed, the Customer will be responsible for
full compliance and/or payment.
12.7
The Customer agrees to indemnify
PremTel and its parent, subsidiaries, affiliates, officers and employees from
any claim or demand, arising from PremTel's status as a Service Provider under
the ICSTIS code of Practice where the service in question is provided in
agreement with, or on behalf of, the Customer, and the Customer shall fulfil any
responsibilities as PremTel asks of it whether financial or otherwise,
13
TERM & TERMINATION
13.1
This
Agreement shall commence from the date hereof and shall remain in force for one
year or until either party gives 3 months notice in writing.
13.2
PremTel
may terminate this Agreement with immediate effect by giving notice at any time,
if;
(a) The Customer does not comply with the terms of this Agreement;
(b) The Customer says, or appears to intend, that it will not abide by the terms
of this Agreement;
(c) The Customer ceases trading, convenes a meeting of, or comes to an
arrangement with its creditors, has distress or other seizure levied over any of
its assets or does not satisfy any demand for payment from any legal person;
(d) Any step is taken to wind up or dissolve the Customer, a receiver, and/or
manager or administrator appointed over any assets;
(e) PremTel believes the Customer has allowed services to be used for any
illegal purpose; or
(f) PremTel or the Customer, is instructed by, or receives any complaint or
objection (that is upheld by the regulatory body) from any Carrier with whom it
Contracts, OFTEL, or Regulatory or Governmental body.
(g) Termination is required to protect PremTel’s interests because of
regulatory, insurance, safety or statutory changes made after the date of this
Agreement.
13.3
Either
party may terminate this Agreement if either party has committed a breach of the
Agreement, and fails to remedy the breach within 30 days of notice requiring it
to do so, and;
(a) If either party takes any steps to wind up or dissolve, or
(b) a receiver and/or manager or administrator is appointed over any assets;
13.4
Termination shall be without prejudice to the rights and obligations accruing up
to and including the date of termination, suspension or expiry.
14
GENERAL
14.1
This
Agreement represents the entire understanding between the two parties. No other
prior arrangements, representations or understandings, orally or in writing have
any validity.
14.2
Either
party’s rights and powers under this Agreement are not affected if it fails to
or chooses not to enforce any of them at any time. If any part of this Agreement
is not enforceable it will not affect the remainder.
14.3
The
parties must notify each other in writing of any change of address. All notices
sent by first class post to the registered office of either party, or any
address detailed in this Agreement, are deemed to have been properly served on
the third day after posting.
14.4
Neither
party shall be deemed to be in breach of this Agreement for any failure in
performance caused by events outside of its reasonable control, to include, but
not limited to any act of God, inclement weather, shortage of power, flood,
drought, lightning, fire, lock-out, trade dispute, labour disturbance, act or
omission of Government highway authorities, or telecommunication Operators or
other authority, war, military Operators, or riot.
14.5
English Law applies to this
agreement. Both parties hereby submit to the jurisdiction of the English Courts.
NOTE THIS SHALL BE CONFIRMED IN WRITING PRIOR
TO SERVICE PROVISION AND A RATE CARD SHALL BE PROVIDED.