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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.
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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.
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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.
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