PROMOTIONAL PARTNER AGREEMENT
Between
A2B Telecom Limited
And
Mr ……………………….
This Agreement is dated 04 August 2005.
A2B Telecom Ltd is a provider of telecommunication
network services.
The Customer wishes to utilise A2B Telecom Ltd’s
services.
1
INTERPRETATION
1.1
The following provisions shall have effect for
the Interpretation of this Agreement;
1.1.1
Words denoting the singular number only shall
include the plural and vice versa, words importing
persons include bodies corporate and non-corporate.
1.1.2
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.
1.2
Definitions:
‘Service Numbers’
Numbers allocated to the customer from time to time,
over which the Customer shall neither acquire any right,
title or interest.
‘Rates’
– Specified in Annex I, which are the rates payable by
either party, and these rates are exclusive of value
added tax.
‘The Act’
means the Telecommunications Act 1984.
‘End User’
– means users of the services provided by the Customer.
‘Service Facilities’ – Any software, web site, or
transmission system offered to and used 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.
‘Report’
is the monthly revenue statement, produced by A2B
Telecom Ltd and showing revenue produced on Service
Numbers or Service Facilities allocated to the Customer,
based on reports provided to A2B Telecom Ltd by Carriers
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.
‘Carrier’
– Any entity with whom A2B Telecom Ltd contracts for
delivery or transmission of any mobile 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 A2B Telecom Ltd shall be subject to
correction without liability.
2.3
A2B Telecom Ltd 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. A2B Telecom Ltd shall in such
circumstances give the Customer 30 days notice of such
changes. The Customer shall have the right by giving
notice in writing to A2B Telecom Ltd to terminate this
Agreement, within 14 days of receiving such notice. This
Agreement would then be terminated within 30 days of
such notification, or on a later date specified by the
Customer.
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
A2B Telecom Ltd
3.1.1
A2B Telecom Ltd shall provide the Customer with
network service access and Service Numbers as
appropriate, but not withstanding this, A2B Telecom Ltd
is not obliged to supply Service Numbers or services
requested by the Customer. It may also change numbers
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, A2B Telecom Ltd
shall in the event of the termination of this Agreement,
not re-allocate numbers 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
A2B Telecom Ltd makes no warranty that services
shall be continuous, or will be free from faults.
3.1.4
A2B Telecom Ltd shall notify the Customer as soon
as reasonably practical, of any changes in rates
payable, or modification to the service offered.
3.1.5
A2B Telecom Ltd shall provide the Customer with
reasonable technical and sales support, which A2B
Telecom Ltd in its sole discretion shall consider
necessary and appropriate.
3.1.6
A2B Telecom Ltd may from time to time make
changes to equipment used to handle and provide any
service. Such changes are at the sole discretion of A2B
Telecom Ltd, and shall be made without prior consent
from the Customer.
3.1.7
On signing this Agreement A2B Telecom Ltd will
use its best endeavours to make Service Numbers ready
for service, and notify the Customer of the Service
Numbers by e-mail, prior to the Service Commencement
Date.
3.1.8
A2B Telecom Ltd 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 A2B Telecom Ltd 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 A2B Telecom Ltd
in relation to any complaints, enquiries or
investigations regarding services offered by the
Customer. The Customer shall, at the discretion of A2B
Telecom Ltd, without limitation, bear in full, any costs
associated with such complaints, investigations, or
enquiries.
3.2.5
The Customer shall abide by this Agreement.
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 A2B Telecom Ltd.
Moreover the Customer shall not use A2B Telecom Ltd’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.
4
PROVISION OF SERVICES
4.1
It is acknowledged that A2B Telecom Ltd is
reliant on a third party for delivery of services, and
therefore A2B Telecom Ltd can have no liability of
whatever nature, for any delay or failure in provision
of the same, moreover A2B Telecom Ltd makes no warranty
that its network or services shall be continuous, or
will be free from faults.
4.2
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 A2B
Telecom Ltd, and mutual agreement of charges that the
Customer shall pay to A2B Telecom Ltd, the Customer is
solely responsible for any costs, without limitation, to
include, the installation, delivery and maintenance of
the same, and A2B Telecom Ltd can have no liability
whatsoever for equipment provided at the Site by the
Customer.
5
RATES & PAYMENTS
5.1
A2B Telecom Ltd shall pay the Customer for
services, according to the Rates detailed in Annex I and
detailed in the monthly Report, subject to Clause 5.8.
The Customer shall pre-pay A2B Telecom Ltd for any
services according to the rates In Annex 1. Payments are
based on reports provided to A2B Telecom Ltd by Carriers
with whom it contracts.
5.2
A2B Telecom Ltd shall endeavour to send the
Customer a monthly report within 20 days from the end of
the month in which the traffic was generated. The
Customer must send A2B Telecom Ltd an invoice for the
amount detailed in the Report, no later than 30 days
from the end of the month in which the traffic was
generated. A2B Telecom Ltd shall make payment to the
Customer 35 days from the end of the month in which the
traffic was generated. If the Customer fails to deliver
an invoice within 30 days of the monthly end, A2B
Telecom Ltd may delay, at its sole discretion, payment
for one calendar month for each month that the Customer
fails to deliver an invoice to A2B Telecom Ltd.
5.3
All rates detailed in Annex I and in the monthly
Reports shall be exclusive of all taxes or duties.
5.4
In the event that OFTEL, other regulatory bodies,
or any other Carriers with which A2B Telecom Ltd
contracts make retrospective price adjustments to
revenues paid to A2B Telecom Ltd, which result in A2B
Telecom Ltd having overpaid the Customer, then A2B
Telecom Ltd at its sole discretion, may deduct from
subsequent payments to the Customer, sufficient revenues
to reflect the sums overpaid to the Customer.
5.5
The Customer’s payment shall be calculated
according to data provided by Carriers with whom A2B
Telecom Ltd contracts, which shall be accepted, except
in the case of manifest error, as being conclusive for
the determination of revenues due to the Customer.
5.6
A2B Telecom Ltd shall at its sole discretion, not
pay any fees to the Customer for any traffic generated
on Service Numbers allocated in the following
circumstances;
(a) Where there has been fraudulent traffic, and it
shall be accepted that A2B Telecom Ltd’s determination
shall be final and binding.
(b) Where any Carrier does not pay A2B Telecom Ltd for
traffic generated.
(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.
5.7
A2B Telecom Ltd reserves the right to reclaim any
Service Number that produces less than 500 call minutes
per month for three consecutive months. Such numbers
shall be reclaimed with A2B Telecom Ltd giving the
Customer 14 days notice.
5.8
A2B Telecom Ltd may at any time vary the Rates
detailed in Annex I, but shall give the Customer 30 days
written notice of such change.
5.9
If the customer owes A2B Telecom Ltd revenues
that are overdue, the Customer accepts that A2B Telecom
Ltd can at its sole discretion deduct these sums from
any revenues that are due to the
Customer from A2B Telecom Ltd.
6
AUDIT
6.1
The Customer may at its own expense, and giving
14 days written notice, inspect the books of A2B Telecom
Ltd to audit revenues due to the Customer. Such audit
shall only be made in regard to the traffic due to the
Customer only, and shall only be undertaken by a
Chartered Accountant, in a manner that shall in no way
disrupt A2B Telecom Ltd’s business.
6.2
The Customer shall have no audit rights with
respect to any Carriers with whom A2B Telecom Ltd
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 A2B Telecom Ltd’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 7.1
7.3
In the event that A2B Telecom Ltd identifies any
breach of Clause 7.1., it shall notify the Customer. If
A2B Telecom Ltd 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 A2B Telecom Ltd can
disconnect the service.
7.4
The Customer will provide all reasonable
cooperation with A2B Telecom Ltd to ensure End User
compliance with Clause 7.1.
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 Service
Numbers shall be vested in A2B Telecom Ltd;
(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 A2B
Telecom Ltd’s database accessed by the End Users and the
Customer remain vested in A2B Telecom Ltd;
(c) information provided to the Customer by A2B Telecom
Ltd pursuant to this Agreement, pertaining to the
Customer’s End Users is the property of the Customer.
9
TECHNICAL SUPPORT
9.1
A2B Telecom Ltd shall provide the Customer with
reasonable technical support, which A2B Telecom Ltd 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 A2B Telecom
Ltd as soon as is practically possible.
9.3
In the event of a fault being reported, A2B
Telecom Ltd shall keep a log of faults and shall use its
best endeavours to rectify the fault as soon as is
reasonably possible.
9.4
A2B Telecom Ltd reserves the right to charge on
an hourly basis for any works undertaken at the
Customer’s request to service.
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 use
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 10.1.; or
(c) where a third party, who did obtain the same from
the disclosing party, disclosed such information to it
lawfully.
10.3
A2B Telecom Ltd 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.
11
LIMITATION OF LIABILITY
11.1
A2B Telecom Ltd shall use its best endeavours to
ensure its network and services are fault free, and that
service is uninterrupted. A2B Telecom Ltd gives no
warranty or guarantee that the service is satisfactory
or suitable for the Customer’s purposes, or that service
shall be uninterrupted or fault free. All warranties
relating to the service from A2B Telecom Ltd 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 A2B Telecom Ltd 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
A2B Telecom Ltd 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 A2B
Telecom Ltd’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 A2B Telecom
Ltd’s breaches of this Agreement shall in any event be
limited to the previous 1 months revenue generated by
the Customer, and received by A2B Telecom Ltd, 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 and hold A2B
Telecom Ltd 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 or End User’s use of the service. The
Customer agrees not to hold A2B Telecom Ltd and its
parent, subsidiaries, affiliates, officers and employees
responsible for any direct or indirect damage resulting
from the use of A2B Telecom Ltd software or services, in
particular, but not limited to; the use or impossibility
to use the Service, confidence in information obtained,
errors and omissions, defects, viruses, delay in
transmission, interruption of service or loss of data.
12.2
The Customer agrees to indemnify and hold A2B
Telecom Ltd, 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.
12.3
A2B Telecom Ltd 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
A2B Telecom Ltd infringing any Intellectual
Property Rights;
(b) A breach by A2B Telecom Ltd of this Agreement;
12.4
A2B Telecom Ltd 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 immediately notify A2B
Telecom Ltd of any claim;
(c) If the Customer does not give A2B Telecom Ltd full
authority to deal with the claim, or does not provide
information and cooperation for A2B Telecom Ltd to
defend the claim.
12.5
The Customer shall fully indemnify A2B Telecom
Ltd 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.
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
A2B Telecom Ltd 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) A2B Telecom Ltd believes the Customer has allowed
services to be used for any illegal purpose; or
(f) A2B Telecom Ltd or the Customer, is instructed by,
or receives any complaint or objection from any Carrier
with whom it Contracts, OFTEL, or Regulatory or
Governmental body.
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
A2B Telecom Ltd’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.
14.6
Both parties agree that they have no joint
venture, partnership, or agency relationship as a result
of this Agreement. Neither party shall make any offer,
guarantee, or warranty to any third party, in regard to
the services, that purports to bind the other party.
|
CUSTOMER |
A2B TELECOM LTD |
|
NAME (Print):
|
NAME (Print):
Lawrence Bingham |
|
POSITION
|
POSITION
Director |
|
SIGNATURE
|
SIGNATURE
|
|
DATE: |
DATE: 04/08/2005 |
Unless otherwise agreed by email/in writing as an amendment,
the following rates shall apply.
|
Service Type |
|
Premium Rate Numbers |
Tariff |
|
50p |
60p |
75p |
100p |
150p |
|
Own Recorded Service |
28p |
34p |
45p |
65p |
95p |
|
Live Service to landline |
|
|
|
55p |
90p |
|
Live Adult Bureau Service |
|
|
|
35p |
70p |
|
Live Psychic Bureau Service |
|
|
|
31p |
65p |
|
Recorded Library Service |
Rates may vary by service |
55p |
85p |
|
Joke line |
|
|
|
|
65p |
|
|
|
Premium SMS |
Setup Fee |
150p Tariff |
|
Mobile2web chat |
£100 |
65p |
|
Mobile2bureau chat |
£50 |
50p |
|
Subscription Service |
£75 |
60p |
|
|
|
Other Numbers |
Day |
Evening |
Weekend |
|
0871 |
2.16p |
2.7p |
2.9p |
|
|
|
IVR Setup |
|
|
One Day |
£200 |
|
Two Days |
£350 |
|
Three Days |
£475 |
|
Four Days |
£575 |
|
|
|
Administrative |
|
|
Account Setup |
£100 |
|
Additional Account Setup |
£50 |
|
Advert Design |
£50 |
|
Contract Renewal Fee |
£25 |
Note:
All Costs Are Exclusive of vat
|