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Partner Agreement
between
Vodafone D2 GmbH
Am Seestern 1
40547 Düsseldorf
(hereinafter
referred to as “
VF D2 ”)
and
Twistbox Games Ltd & Co KG
Lohbachstr. 12
58239 Schwerte
Germany
(hereinafter
referred to as “
ASP ”)
I.
Subject of Agreement
Provision
of the Application by the ASP for use on the VF D2 portals
such as, but not limited to the portal
“Vodafone-live” in compliance with VF D2’s
general terms and conditions for Partner Agreements as set out
in the version of such terms and conditions dated 27.08.2007
(hereinafter referred to as (“AGB”) as Annex
1.
II.
Type of the Application
For
all types of product mobile games and applications unless
otherwise agreed.
III.
End user device compatibility
ASP
is responsible for the best possible support of handsets which
are stipulated in the Annex 2 of this Partner Agreement.
Furthermore the ASP is also responsible for delivering
reasonable application updates for supporting new
handsets.
IV.
Rights of use
o
Only
German Vodafone Portals
o
Others:
_______________________________
V.
Brands to be offered for use by VF D2
___________________________________________________________________________________________________
o
Co-branding
with the ASP’s brand agreed
VI.
Normal price
For
the avoidance of doubt, VF D2 is free to set its own charges
for subscriptions for end users in accordance with the
AGB.
VII.
Subscription fee revenue share
If
not otherwise agreed between the parties, the following
revenue share shall apply:
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2] ASP
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2] VF
D2
Calculation
basis, pre-product deductions, free usages, calculation
clauses for packs as well as all accounting and payment
provisions are subject to the AGB.
VIII.
ASP’s minimum fee in the event of discounts or
packs
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2] EUR
IX.
ASP’s Bank
Dortmunder
Volksbank eG
Credit
to: Charismatix Ltd. & Co. KG
Account
number: 633 030 1700
Iban#:
DE78 44160014 6330 3017 00
Reference:
BIC GENODEMIDOR
Bank
Code: 441600 14
X.
Term
Initial
term: [INFORMATION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION UNDER RULE 24B-2] beginning August 27th,
2007
Option
to extend the term in favour of VF D2:
o
yes
o
no
Optional
term:
Automatic
unlimited extension of the Term if not terminated:
o
yes
o
no
Any
time after the initial term, either party may terminate this
Partner Agreement upon at least [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] prior written
notice to the other party which such notice shall be delivered
on or before the 15
th of
June or the 15
th of
December of any year after the expiration of the initial
term.
XI.
ASP Contact persons
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Business
Development:
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Name:
eMail:
Telephone:
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Technical
(Mo-Fri 8-18):
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Name:
eMail:
Telephone:
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Editorial:
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Name:
eMail:
Telephone:
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Customer
Care:
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Name:
eMail:
Telephone:
Mobile:
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XII.
Preferred Aggregator;
1.
Preferred Aggregator. ASP shall be the main (preferred)
content aggregator for the Games and Application Service by VF
D2 such that any new third party which desires to distribute
Games and Applications under a local agreement must first
enter into negotiations for a license agreement with ASP on
commercially reasonable terms and conditions in order for such
third party’s Games and Applications to be available via
VF D2. [INFORMATION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION UNDER RULE 24B-2]
2.
VF D2 guarantees to ASP [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] launch slots
per month for erotic games designated as 18+ in addition to
any other agreed launch slots between parties. [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
XIII.
Special agreements and miscellaneous
1.
RIGHT TO AUDIT
VF
D2 will keep accurate and complete records, in accordance with
generally accepted accounting principles, in order to
determine the accuracy of VF D2’s reports and payments
and retain such records for at least two (2) years following
their generation. ASP, or its representative, will have the
right, subject to ten (10) days prior written notice to VF D2,
to examine, audit, and review all applicable records and
accounts once each calendar year during VF D2’s normal
business hours for so long as this contract is valid. VF D2
will pay to ASP all amounts discovered to be due ASP as a
result of any audit within thirty (30) days of invoice. In
addition, in the event any such audit by ASP reveals a
discrepancy of five percent (10%) or more in ASP’s
favor, VF D2 will pay all reasonable costs of ASP’s
audit, and such costs shall be added to ASP’s invoice
for amounts due.
2.
NOTICES
Any
written notice given under this Agreement shall be to the
addresses set forth below. The notice shall be deemed duly
given, if delivered by hand, on the same business day it was
delivered, or on the next business day if delivered on a
non-business day. The notice shall be deemed duly given, if
delivered by facsimile, upon receipt of confirmation from an
employee of the receiving party. The notice shall be deemed
duly given, if sent by prepaid overnight, registered or
certified mail, on the day of receipt. The failure to send a
notice copy shall not affect the validity of any notice
otherwise properly sent and actually received by a
party.
Notice
to ASP to be provided as follows:
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If
by mail
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Twistbox
Entertainment, Inc.
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or
facsimile:
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14242
Ventura Boulevard, Third Floor
Sherman
Oaks, California 91423 USA
Attn:
International Sales/Distribution
Attn:
EVP/General Counsel
Fax:
(818) 301-6239
Email:
legal@twistbox.com
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With
a copy to:
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Twistbox
Games Ltd & Co KG
Lohbachstr.
12
58239
Schwerte - Germany
Attn:
Eugen Barteska
Email:
ebarteska@twistbox.com
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3.
ASSIGNMENT
Either
party may assign this Partner Agreement, without the consent
of the other party, in the event of an assignment by either
party: (i) to a successor entity resulting from a merger,
combination or consolidation; (ii) to the transferee of all or
substantially all of the assets of the assigning party or its
parent(s); or (iii) to an entity under common control with,
controlled by or in control of the assigning party. In the
case of ASP, it shall not assign this Partner Agreement to a
competitor of VF D2.
4.
INDEMNIFICATION
Each
party (the “Indemnifying Party”) shall indemnify,
defend and hold harmless the other party (including its
parents, subsidiaries and affiliated companies), and its
directors, officers, employees, successors, licensees,
assignees, attorneys and agents
(the “Indemnified Party(ies)”) from and against
any and all claims, losses, deficiencies, damages liabilities,
costs, and expenses (including but not limited to reasonable
attorney fees and related costs and expenses) incurred by the
Indemnified Party(ies) as a result of any claim, judgment, or
adjudication against the Indemnifying Party arising from any
breach or alleged breach of any of the Indemnifying
Party’s covenants, obligations, representations or
warranties under this Partner Agreement; provided that, the
Indemnified Party(ies) promptly notify the Indemnifying Party
in writing of any such claim and gives the Indemnifying Party
the opportunity to defend or settle such claim at the
Indemnifying Party’s expense and cooperates with the
Indemnifying Party in defending or settling such a
claim.
5.
LIMITED
LIABILITY
IN
NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INCIDENTAL DAMAGES (German explanation: entfernter
Mangelfolgeschaden) ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT OR ANY MATTER RELATED HERETO, INCLUDING
WITHOUT LIMITATION, LOST BUSINESS OR LOST PROFITS, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE
PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL
TWISTBOX’S LIABILITY ARISING UNDER THIS AGREEMENT
EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID BY VF D2 TO
ASP AS OF THE DATE ASP BECOMES LIABLE FOR ANY SUCH DAMAGES
HEREUNDER.
6.
SURVIVAL
All
representations, warranties indemnifications and payment
obligations contained in this Partner Agreement shall survive
the termination and/or expiration of this Partner
Agreement
7.
VF
D2 REPRESENTATIONS AND WARRANTIES
7.1
VF
D2 represents and warrants as follows: (VF legal: remove
paragraph)
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(a) |
it
has full authority and ability to enter into and perform its
obligations under this Partner Agreement.
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(b) |
it
has not and will not undertake any action which might impair the
exercise of ASP’s full rights under this
Agreement.
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(c) |
VF
D2 will, on a continuing basis, use its best efforts to ensure the
content is distributed only where receipt and viewing of such
content is lawful and within the contemporary community
standards.
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(d) |
VF
D2 shall not make edits, modifications, changes or otherwise
manipulate or rearrange the content without ASP’s prior
written consent, which may be withheld in ASP’s sole
discretion.
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This
Partner Agreement is subject to VF D2’s general terms
and conditions for Partner Agreements as set out in the
version of such terms and conditions dated 15.03.2005 (Annex
1). Any conflicts between the terms of this Partner Agreement
and the terms of VF D2’s general terms and conditions
for Partner Agreements, the terms of this Partner Agreement
shall govern the rights and obligations of the
parties.
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Düsseldorf,
27.08.2007
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Schwerte,
AUG. 27, 2007
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/s/
Johannes Becher
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/s/
Ian Aaron
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for
VF D2
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for
the ASP
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/s/
Johannes Becher
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for
VF D2
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Annex
1: General
Terms and Conditions for Partner Agreements
Annex
2: Vodafone
D2 Java Games & Applications Local Submission
Specifications
*WE HAVE REQUESTED CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS
CONTAINED IN THIS EXHIBIT. THE COPY FILED AS AN EXHIBIT OMITS THE
INFORMATION SUBJECT TO THE CONFIDENTIALITY
REQUEST.*
GENERAL TERMS AND CONDITIONS
FOR PARTNER-CONTRACTS CONCERNING JAVA-
APPLICATIONS
of
Vodafone
D2 GmbH, Am Seestern 1, D-40547 Düsseldorf,
Germany
(hereinafter
“VF D2”)
| 1.1 |
VF
D2 is a company belonging to the Vodafone Group, which does
business internationally. VF D2 operates several Vodafone portals
among which are the portals “Vodafone-live”,
“Vodafone WAP” and “Vodafone Web” and
provides data for portals operated by Vodafone Group service
providers, all of which are so-called “multi-access
portals” (hereinafter jointly referred to as the
“Portal”), through which third-party users
(hereinafter, “End Users”) are given access to data
which is, if necessary, transmitted to them. This data may be in
the form of texts, pictures, and sounds, singly or also in combined
form or integrated into software programs (such data integrated
into software programs such as but not limited to java-applications
which represent mobile games hereinafter referred to as
“Application(s)”).
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| 1.2 |
“Service
Provider” in terms of this General Terms and Conditions for
Partner-Contracts Concerning Java Applications (the
“Agreement”) shall mean providers of telecommunications
services distributing on their own behalf and for their own account
telecommunications services provided via the Vodafone
telecommunications network to End Users.
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| 1.3 |
Access
to data on the Portal and Applications shall be effected regardless
of the type of the device used in the individual case so long as
ASP’s obligations hereunder ex-tend to such device. Data
access is presently made possible through the WWW and WAP, i.e., by
means of mobile devices (such as mobile telephones) or personal
computers. VF D2 intends to also employ new ways and forms of data
transmission in the future.
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| 1.4 |
The
Partner Agreement between the parties (the “Contract”)
and this Agreement shall regulate the provision of ASP’s
Applications for use by End Users through Portals and rights and
duties of the parties in connection thereto. Unless otherwise
expressly stipulated in the Contract or in this Agreement, the
provision and transmission of all Applications and data provided to
the End Users by ASP shall be effected through VF D2 in its own
name.
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| 2.1 |
ASP
shall provide VF D2 with the Application described in the Contract
for use on the Portal as stipulated in the Annex “Vodafone D2
Java Games & Applications Local submissions
specifications”.
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| 2.2 |
The
consideration rendered by the End Users for use of the Application
shall entitle the End Users to use or to download the Application
for the frequency or the time (in case of the latter with unlimited
frequency) as described in the contract for so long as any such End
User complies with the applicable terms of use and contractual
obligations of VF D2.
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The
End User’s revocable right to use or to download
ASP’s Application pursuant to this Agreement and the
Contract for a consideration paid in advance for a certain
time period or a certain number of times is referred to
hereinafter as a “Subscription”.
| 2.3 |
VF
D2 intends to offer the Application to the End User at the price
named in the Contract (hereinafter, the “Normal Price”)
per Subscription. The parties agree that VF D2 shall be free to set
its own charges for Subscriptions for End Users.
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| 2.4 |
ASP
shall carry out and fulfil its duties as set out in the Contract
and this Agreement with commercially reasonable technical and
commercial diligence according to its best knowledge and ability.
The Applications made available by ASP shall be in compliance with
the Contract and this Agreement including technical specifications
and other specifications provided in advance by VF D2 and approved
by ASP based on the Contract and this Agreement.
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| 2.5 |
ASP
shall be entitled to establish a link from its Application to
applications of third persons only with the prior written approval
of VF D2 in each individual case.
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| 2.5.1 |
If
the Applications connect to an external server, i.e., one residing
outside the Vodafone D2 network, that is hosted by the ASP itself
or an agent thereof, the document “Vodafone Service Level
Agreement for Content Partners” becomes part of the
contract.
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3 |
Rights of Use and Marketing
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| 3.1 |
Unless
otherwise stated in the Contract, ASP grants VF D2 a non-exclusive
right to provide third persons in Germany access to the Application
via a Portal and/or to transmit the Application to third persons
pursuant to the terms of this Agreement and the Contract. This
license is limited in duration to the term of the Contract and in
scope to third parties necessary for delivery and utilisation of
the Services, and the license is only transferable under the
stipulations of the Contract and this Agreement. FOR THE AVOIDANCE
OF DOUBT, IT IS UNDERSTOOD THAT DUE TO VF D2’S INTERNATIONAL
ROAMING AGREEMENTS, GAMES AND APPLICATIONS MAY BE ACCESSED BY A VF
D2 CUSTOMER WHEN THE CUSTOMER IS PHYSICALLY OUTSIDE OF VF
D2’S TERRITORY SIGNAL. SUCH INCIDENTAL ACCESS AND SIGNAL
SPILLOVER WILL NOT CONSTITUTE A BREACH OF THIS
AGREEMENT.
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| 3.2 |
In
particular, ASP grants VF D2 the right to copy and distribute the
Application and/or the results generated by it in whole or in part
by means of on-demand procedure or by means of transfer in order to
make them accessible for End Users. By the right of making
available by means of on-demand procedure, the parties mean the
utilisation of the Application or parts thereof and/or its results
in that they are stored in digital form in a data processing system
and can be requested by and/or transmitted to End Users by means of
wire-bound or wireless systems as a digital signal, with the result
that the stored data is transferred to the End User’s
receiver, where it is decoded either after storage, after temporary
storage, or immediately, and thus can be converted back to texts,
images, sounds and/or other and made visible or audible. The
Application and/or its results may also be made accessible to the
End User in such a way that the End User can call up the
Application or parts thereof repeatedly after transmission to End
User’s receiver. A feature of interactive use on demand is
that the application stored in digital form is made accessible to
members of the public who are not present at the location of the
origin of the accessibility in such a way that they have access and
can request the transfer individually as to time and location even
if the transfer of the application and/or its results to the End
User is effected at a later time than requested. The parties
understand the above-mentioned right to also mean the right of
request and the right of making available to the public within the
meaning of Directive 2001/29/EC of the European Parliament and the
Council of 22 May 2001 (Gazette
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