| (1) |
Vodafone
Libertel NV, a company incorporated in the Netherlands and whose
registered office
is at Avenue Ceramique 300, 6221 KX Maastricht (“Vodafone NL”).
|
| (2) |
Twistbox
Entertainment, Inc., a company incorporated in Delaware, under company
number
4207607 and whose registered office is at 14242 Ventura Boulevard,
3rd Floor,
Sherman
Oaks, California 91423, United States of America (the
“Company”).
|
| 1 |
Commencement
and Term
|
| 1.1 |
This
Contract shall commence on the Effective Date and shall continue
for the
Initial Term
unless terminated in accordance with Clause 1.2 or Clause
9.
|
| 1.2 |
On
expiry of the Fixed Period either Party shall have the right to
terminate
this Contract
by giving 3 months notice in writing to the other Party in the
event
that:
|
| 1.2.1 |
Vodafone
NL has a change in policy that would prohibit
either:
|
| 1.2.1.1 |
the
Sale of Adult Content in the Directory;
or
|
| 1.2.1.2 |
link(s)
to Adult Content from the
Directory.
|
| 1.3 |
After
the Initial Term this Contract shall continue until terminated by
any
Party on 30 days
written notice to the other Party or otherwise in accordance with
Clause
9.
|
| 2 |
Linking
|
|
2.1
|
The
Company shall supply the Links to Vodafone NL for incorporation into
the
Directory.
|
| 2.2 |
The
Company grants Vodafone NL the Link
Licence.
|
|
2.3
|
Vodafone
NL shall not be deemed to be Selling any content or services to
Customers
or third parties on or through the Link Sites or the
Links.
|
|
2.4
|
Vodafone
NL shall place the Links in the Directory or any other section agreed
between
the Parties.
|
|
2.5
|
Vodafone
NL shall give
the
Links prominent placement in particular sections of the Directory
agreed between the Parties.
|
|
2.6
|
The
Company shall be entitled to link the first 10 On-Net Keyword Search
Results to Link
Sites in the Directory.
|
|
2.7
|
The
Company shall be entitled to link the first 10 Off-Net Keyword Search
Results to:
|
| 2.7.1 |
Link
Sites outside the Directory; or
|
| 2.7.2 |
other
sites where an affiliate arrangement exists between the Company and
that
site owner.
|
| 2.8 |
The
Company shall have the sole and exclusive management and hosting
of the
FON
erotic part of the Vodafone NL WAP portal; provided, however, that
Vodafone NL
shall reserve the right to enter into written binding agreements
with a
maximum of three (3) third parties to directly commercialize erotic
content on the Vodafone NL's FON Erotic WAP portal, without being
in
breach of this Agreement. Vodafone NL shall inform the Company in
writing
whenever it has entered into such written agreements with a third
party.
Any additional third party who desires to provide Vodafone
NL's FON Erotic WAP Portal with erotic content, must first enter
into an
agreement
with the Company, upon reasonable commercial terms and conditions,
and
subject to Vodafone NL's prior written approval, not to be unreasonably
withheld.
|
| 3 |
Payment
and Reporting
|
| 3.1 |
Each
Party
shall
comply with the provisions set out in Schedule 2 (Payment and
Reporting).
|
| 3.2 |
The
relevant currency for this Contract shall be in Euros. All financial
reports, statements,
invoices, purchase orders, charges, payments and credits to be made
or
issued pursuant to this Contract shall be in
Euros.
|
| 3.3 |
If
a Party (in this Clause 3.3 the “Debtor”) fails to pay the other Party (in
this Clause 3.3
the “Creditor”) any amount due and payable to the Creditor under this
Contract by
the time prescribed by this Contract (in this Clause 3.3 the “Due Date”),
the Creditor
shall be entitled to give the Debtor written notice of its intention
to
charge interest. All
such notices shall be given in accordance with Clause 11.3. If
payment
of the amount due has still not been received by the Creditor within
14
days of receipt of such notice by the Debtor, the Debtor shall on
demand
by the Creditor
pay the Creditor interest on the unpaid amount at the rate of 2%
per annum
above
the De Nederlandsche Bank (d/b/a DNB) base rate in force on the Due
Date,
calculated
from the Due Date until payment of the unpaid amount is made in
full.
|
| 4 |
Tax
|
| 4.1 |
Parties
make use of article 4 (3) of the Dutch VAT Act 1968. By which means
The
Company
shall provide Vodafone NL with a valid invoice for fictitious delivered
content
that meets all requirements duly imposed by the relevant taxation
authorities
and which specifically states the VAT (if VAT is applicable) and
reasonably
meets reasonable conditions necessary to allow Vodafone NL to obtain
relief
from such VAT if a relief procedure is available (“Tax Invoice”). The
Company will
pay to the tax authorities any charged VAT stated on the Tax
invoice.
|
| 4.2 |
Vodafone
NL shall provide invoices to end consumers for the fictitious delivered
content
and Vodafone NL will pay the VAT charged on the invoices to the tax
authorities.
|
| 4.3 |
Vodafone
NL handles the standard Dutch VAT rate of 19% on the invoices send
to
the
end consumers. (Unless the Company can prove
to
Vodafone NL that a different VAT
rate should apply and the application of a different VAT rate is
explicit
been agreed
by Vodafone NL.)
|
| 5 |
Directory
and Vodafone NL
Network
|
| 5.1 |
Vodafone
NL does not warrant that the Directory or the Vodafone NL Network
will
be
fault free or free of interruptions. Vodafone NL aims to make the
Directory available
to its customers at all times and will take reasonable steps to do
this.
However,
due
to
constraints
of
radio
and
electronic
communications
it is not possible
for Vodafone NL to provide a fault free Directory service to its
Customers.
|
| 5.2 |
Vodafone
NL shall have no liability to the Company for any failure of the
Directory
or the
Vodafone Network whether this arises from a technical fault or other
failure in the
Directory, the Vodafone NL Network or
otherwise.
|
| 5.3 |
Vodafone
NL may suspend the operation of the Directory and may suspend the
operation
of the Vodafone NL Network for the purposes of remedial or preventative
maintenance
and improvement and Vodafone NL (to the extent within its control)
shall
use all reasonable endeavours to keep such suspensions to a
minimum.
|
| 6 |
IPR
|
| 6.1 |
The
Parties agree that all IPR in the Links shall remain with the Company
and
its licensors.
|
| 6.2 |
The
Company shall be responsible to obtain all licences, clearances,
permissions, waivers,
approvals or consents required in order to grant the Link Licence
to
Vodafone
NL pursuant to Clause 2.2.
|
| 6.3 |
The
Company shall indemnify and keep the Indemnified Parties indemnified
from
and against any and all demands, actions, claims, proceedings, losses,
damages, costs and expenses (including court costs and legal costs
assessed on a solicitor-client
basis, and other professional costs and expenses) and other liabilities
of
whatever
nature (whether foreseeable or not) suffered, incurred or sustained
by any
or
all of the Indemnified Parties as a result of or in connection with
any
action, claim, demand
or proceeding made or brought by any person alleging that the provision
of
any
part
of
the Links by the Company or Vodafone NL's receipt, use or possession
of
any part of the Links in accordance with the Link Licence infringes
the
rights (including
IPRs) of any person.
|
| 7 |
Warranties
|
| 7.1 |
Each
Party warrants and represents to the other that it has full power
and
authority to
enter into and perform its obligations under this
Contract.
|
| 7.2 |
The
Company warrants and represents to Vodafone NL
that:
|
| 7.2.1 |
it
has all necessary rights, title and interest in the Links in order
to
grant
the Link Licence;
|
| 7.2.2 |
the
Link Sites shall be compliant with the Guidelines and shall clearly
classify
any content accessible through the Link Sites with any
adult content
classification framework criteria agreed between Vodafone NL
and
the Company; and
|
| 7.2.3 |
it
will exercise commercially reasonable efforts so that neither the
Links
nor the Link Sites will contain any
Viruses.
|
| 7.3 |
Vodafone
NL represents and warrants to the Company
that:
|
| 7.3.1 |
that
as of September 1, 2006, the total number
of Age Verified Customers was 412,921;
and
|
| 7.3.2 |
it
will exercise commercially reasonable efforts to increase the number
of
Age Verified Customers by 30,000 for each
quarter.
|
| 7.4 |
Each
Party shall indemnify and hold harmless the Indemnified Parties from
and
against
any actions, proceedings, costs, claims and demands brought or made
against any or all of the Indemnified Parties and against any loss
or
expense suffered, incurred or sustained by any or all of the Indemnified
Parties
as a result of any breach of Clause
7.
|
| 8 |
Liability
and Insurance
|
| 8.1 |
Nothing
in this Contract shall be construed to limit or exclude any Party's
liability:
|
| 8.1.1 |
for
death or personal injury caused by such Party or such Party's employee's
or contractor's negligence;
|
| 8.1.2 |
for
fraudulent misrepresentation or
fraud;
|
| 8.1.3 |
pursuant
to Clause 6 (IPR);
|
| 8.1.4 |
pursuant
to Clause 7 (Warranties); or
|
| 8.1.5 |
pursuant
to Clause 10 (Confidentiality and
Publicity).
|
| 8.2 |
Subject
to Clause 8.1, no Party shall be liable for
any
loss of profit,
business,
revenue,
opportunity, goodwill
or anticipated savings in
connection with this Contract.
|
| 8.3 |
Subject
to Clause 8.1, no Party shall be liable for any indirect, incidental,
special or consequential
loss in connection with this
Contract.
|
| 9 |
Termination
|
| 9.1 |
Either
Party may terminate this Contract with immediate effect
by giving written notice
to the other Party, in circumstances where the other
Party:
|
| 9.1.1 |
is
in material breach of any terms of this Contract and fails to remedy
the breach
within 30 days after receiving written notice requiring it
to do so; or
|
| 9.1.2 |
becomes
subject to an Insolvency Event.
|
| 9.2 |
In
the event that search terms and results provided by "Google," or
any other
white label
solution, has a direct negative impact on traffic and revenues generated
by the Company's
content on Vodafone NL's FON Erotic WAP portal, the Parties agree
to
enter
into good faith negotiation to renegotiate the terms of this Agreement.
If
the Parties
fail to reach a compromise, the Company may terminate this Contract
with
immediate
effect by giving written notice to Vodafone
NL.
|
| 9.3 |
Termination
of this Contract shall not affect the accrued rights and remedies
of each
Party.
|
| 10 |
Confidentiality
and Publicity
|
| 10.1 |
Each
Recipient Party agrees to:
|
| 10.1.1 |
use
Confidential Information solely for the purposes envisaged under
this
Contract
and not to use the Confidential Information for any other
purposes;
|
| 10.1.2 |
ensure
that only those of its employees, agents, advisers or sub-contractors
who
are directly concerned with the performance of this Contract
have access to the Confidential Information on a "need to know" basis;
and
|
| 10.1.3 |
keep
the Confidential Information secret and confidential and not to
disclose
such Confidential Information to any third party for any reason
without
the prior written consent of the Disclosing
Party.
|
| 10.2 |
The
obligations of confidence referred to in Clause 10.1 above shall
not
extend to any
Confidential Information which:
|
| 10.2.1 |
is
or becomes generally available to the public otherwise than by reason
of a
breach by the Recipient Party of the provisions of Clause
10.1;
|
| 10.2.2 |
is
known to the Recipient Party and is at its free disposal prior to
its
disclosure
by the Disclosing Party;
|
| 10.2.3 |
is
subsequently disclosed to the Recipient Party without obligations
of
confidence
by a third party owing no such obligations of confidence to the
Disclosing
Party in respect of that Confidential
Information;
|
| 10.2.4 |
is
required to be disclosed by any court or government authority competent
to
require such disclosure; and
|
| 10.2.5 |
by
any material applicable law, legislation or
regulation.
|
| 10.3 |
Notwithstanding
Clause 10.1, Vodafone NL may disclose any Confidential Information
to any
company in the Vodafone Group provided always that such company
agrees to observe the same confidentiality obligations imposed on
Vodafone
NL pursuant this Clause 10.
|
| 10.4 |
No
Party shall make any public statements or issue any press releases
about
this Contract
or its contents or any other arrangements or potential arrangements
between
the Parties without the prior written consent of
the
other Party.
|
| 11 |
Data
Protection and Data
Security
|
| 11.1 |
The
Company shall not allow any personal data it collects pursuant to
this
Contract to
be used for any purpose other than those authorised or permitted
by this
Contract.
|
| 11.2 |
The
Company shall not allow any personal data it collects pursuant to
this
Contract to
be used (whether by the Company or any third party) for any marketing
purposes without
the prior written consent of Vodafone NL and the prior consent of
the
Customer
to whom the personal information relates. Without limitation, this
clause
shall
prevent the use of MSIDNs, targeted advertising, and tailoring Link
Sites
or affiliate
Sites to the Customer without the prior written consent of Vodafone
NL and
the prior consent of the Customer to whom the personal information
relates.
|
| 11.3 |
For
the avoidance of doubt, the Company shall acquire no rights in any
personal data
collected pursuant to this Contract and shall only be entitled to
process
it in accordance
with its obligations under this Contract. On termination of this
Contract
the
Company shall immediately cease to use such personal data and shall
arrange for
its safe return, destruction, erasure or
deletion.
|
| 11.4 |
Each
Party shall strictly comply with:
|
| 11.4.1 |
the
notification requirements under the
DPA;
|
| 11.4.2 |
the
relevant data protection principles specified in the DPA;
and
|
| 11.4.3 |
any
material applicable legislation and regulation in The Netherlands
implementing
European Union Directive
2002/58/EC.
|
| 11.5 |
The
Company shall not allow any personal data it collects pursuant to
this
Contract to
be transferred outside of the EEA without the prior written consent
of
Vodafone NL.
|
| 11.6 |
Each
Party shall ensure that it has appropriate operational and technical
processes in place to safeguard against any unauthorised access,
loss,
destruction, theft, use or
disclosure of any personal data it collects pursuant to this
Contract.
|
| 12 |
Assignment
and Sub-contracting
|
| 12.1 |
Each
Party shall be entitled to subcontract the performance of its rights
and
obligations under this Contract. Notwithstanding
the use of any sub-contractor, each
Party shall remain solely liable to the other Party for the performance
of
its rights
and obligations under this
Contract.
|
| 12.2 |
No
Party shall be entitled to assign, novate or otherwise dispose of
or deal
with this Contract
or any part of it without the previous consent in writing of the
other
Party, which
may be withheld at the other Party's sole discretion; provided, however,
no consent
is necessary 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.
|
| 12.3 |
Notices
given in accordance this Clause 12.3 shall be deemed to have been
duly
given:
when delivered, if delivered by messenger during normal business
hours of
the recipient; when sent, if transmitted by facsimile transmission
(receipt confirmed and
with a confirmation copy sent by post) during normal business hours
of the
recipient;
or on the third business day following posting, if posted by first
class
or recorded
post with postage pre-paid.
|
| If by mail or facsimile: |
Twistbox
Entertainment, Inc..
14242
Ventura Boulevard, Third
Floor
Sherman Oaks, California 91423 USA
Attn:
International Sales/Distribution
Attn:
EVP/General Counsel
Fax:
(818)
708-0598
|
| If by mail or facsimile: |
Vodafone
Netherlands
Avenue
Ceramique 241
6221
HX Maastricht
The
Netherlands
Attn:
Content & VAS wholesale department
Fax:
+31 433558513
|
| 13 |
General
|
| 13.1 |
This
Contract shall be capable of being varied only by a written instrument
signed by
duly authorised representatives of Vodafone NL and the
Company.
|
| 13.2 |
Except
in the case of any permitted assignment pursuant to this Contract
and
except in relation to Clause 6.3 and Clause 7.3, the Parties agree
to
exclude to the fullest extent possible the application of the Contracts
(Rights of Third Parties) Act 1999
to this Contract.
|
| 13.3 |
This
Contract is severable in that if any provision is determined to be
illegal
or unenforceable
by any court of competent jurisdiction such provision shall be
deemed
to have been deleted without affecting the remaining provisions of
this
Contract.
|
| 13.4 |
The
failure to exercise or delay in exercising a right or remedy provided
by
this Contract
or by law does not constitute a waiver of the right or remedy or
a waiver
of other
rights or remedies.
|
| 13.5 |
Except
as expressly stated otherwise in this Contract, nothing in this Contract
constitutes any relationship of employer and employee, agent and
principal, or partnership
between the Parties.
|
| 13.6 |
Except
as may be expressly provided herein, any dispute between the Parties
arising
under this Contract shall be finally settled in London, England pursuant
to the
Rules
of
Arbitration of the International
Chamber
of
Commerce.
|
| 14 |
Definitions
and Interpretation
|
| 14.1 |
In
this Contract the following words and terms shall have the following
meanings unless
the context otherwise requires:
|
|
“Adult
Content”
|
means any adult erotica content which is only accessible by Age Verified Customers. | |
|
“Advertising”
|
means the advertising and promotion of any goods or services offered for sale by any third party; | |
|
“Age
Verified Customers”
|
A customer which has a postpaid subscription for the services provided by Vodafone NL. In order to get a postpaid subscription a person needs to be at least 18 years old. | |
|
“Codes
of Practice”
|
means: | |
|
(a)
all
material applicable codes of practice, laws,
regulations, government
recommendations and
any
recommendations
of
any
applicable
regulatory
body; and
|
||
|
(b)
any
rules, procedures (including technical or quality control
procedures),
guidelines,
directions,
policies
and
any
other
requirements provided to the Company as made
or adopted by Vodafone NL in relation to
the operation of
the Directory,
the participation
of content suppliers in the VLive!
service or the provision of content for placement
in the Directory;
|
||
|
“Confidential
Information”
|
means
any financial, business and technical or other data
and all other confidential information (whether written,
oral, in electronic form or on magnetic or other
media) concerning the business and affairs of a Party that the other
Party
obtains, receives or has access
to as a result of the discussions or dealings leading
up to or the entering into or the performance of
this Contract (including, for the avoidance of doubt,
the terms of this Contract);
|
|
|
“Customer”
|
means a user of the Directory; | |
|
“Directory”
|
means: | |
|
(a)
the
VLive! mobile content directory;
|
||
|
(b)
any
SMS, MMS, video download, audio download
and video and audio streaming services provided by Vodafone NL;
and
|
|
(c)
any
other delivery mechanism provided by Vodafone
NL from time to time;
|
||
|
“Disclosing
Party”
|
means the Party which has disclosed, furnished or made accessible to the Recipient Party, any Confidential Information; | |
|
“DPA”
|
means any material applicable laws, regulations or codes of conduct relating to data protection or the rights of the data subject; | |
|
“EEA”
|
means the European Economic Area consisting of all European Union member states together with Iceland, Liechtenstein and Norway; | |
|
“Effective
Date”
|
means the date that this Contract is signed by the Parties; | |
|
“Fixed
Period”
|
means a period of 6 calendar months commencing on the Effective Date; | |
|
“Guidelines”
|
means any written guidelines provided by Vodafone NL to the Company from time to time which relate to content standards (including anti-social, adult, fraudulent, unlawful or otherwise inappropriate content) and any Codes of Practice; | |
|
“Image”
|
means the images, likenesses, characteristics, names and other aspects of artists, celebrities, well known or famous people; | |
|
“Indemnified
Parties”
|
means Vodafone NL including its officers, servants, agents, contractors and assigns; | |
|
“Initial
Term”
|
means a period of 1 calendar year commencing on the Effective Date; | |
|
“Insolvency
Event”
|
means circumstances in which a Party makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or (being a company) has a receiver or an administrative receiver appointed over all or part of its assets; | |
|
“IPR”
|
means
copyright (and related rights), database
rights,
design rights, topography rights, image rights,
trade marks, service marks, trade and business
names (including all goodwill associated with
any trade marks, trade and
business
names or other
names) or domain names (whether
or not any of the
same
are
registered
and including
applications
for registration of any of the
same);
|
|
“Keywords”
|
means
those adult erotic words and phrases which the
Parties agree in writing will generate the relevant On-Net
Keyword Search Results and Off-Net Keyword
Search Results;
|
|
|
“Link
Licence”
|
means
the licence set out in Schedule 1;
|
|
|
“Links”
|
means
any selectable connections to the Link Sites provided
by the Company to Vodafone NL from time to
time;
|
|
|
“Link
Sites”
|
means
a site featuring Adult Content owned or provided
by the Company;
|
|
|
|
||
|
“Off-Net
Keyword Search
Result”
|
a result from a Customer search for Adult Content
using
a Keyword or Keywords in the Vodafone NL owned
Directory search function which directs a Customer
to Adult Content which is outside the Directory;
|
|
|
“On-Net
Keyword Search
Result”
|
a
result from a Customer search for Adult Content using
a Keyword or Keywords in the Vodafone NL owned
Directory search function which directs a Customer
to Adult Content in the Directory;
|
|
|
“Party”
|
means Vodafone NL and the Company individually; | |
|
“Parties”
|
means Vodafone NL and the Company collectively; | |
|
“Recipient
Party”
|
means the Party to whom Confidential information has been disclosed, furnished or made accessible by the Disclosing Party; | |
|
“Sale”
|
means the licence and supply of content by the Company to a Customer on or through the Link Sites, and the terms “Sell” and “Sold” shall be construed accordingly; | |
|
“Territory”
|
means The Netherlands; | |
|
“VAT”
|
“VAT” means Value Added Tax or any analogous tax in any relevant jurisdiction including but not limited to use, sales and local sales taxes of any kind on any goods or services supplied pursuant to this contract or any goods or services supplied to customers | |
|
“Virus”
|
means any computer virus, trojan horses, worms, logic bombs, time bombs, invasive computer programs, or other computer programming routines that may damage or detrimentally interfere with any computer or telecommunications network (including the Vodafone NL Network), equipment or handsets; | |
|
“Vodafone
NL Network”
|
means
any telecommunication systems operated by Vodafone
NL;
|
| 14.2 |
In
this Contract:
|
| 14.2.1 |
all
references to Clauses and Schedules are references to clauses and
schedules in this Contract, unless the context otherwise
requires;
|
| 14.2.2 |
references
to “includes” or “including” shall be construed without limitation
to the generality of the preceding or proceeding
words;
|
| 14.2.3 |
words
importing gender shall include all genders, words denoting the
singular
shall include the plural, words denoting persons include incorporated
and unincorporated bodies, and in each case vice
versa;
|
| 14.2.4 |
any
reference to a Party to this Contract includes a reference to that
Party's
successors in title and permitted
assigns;
|
| 14.2.5 |
reference
to any directive, statute, statutory provision or statutory instrument
includes a reference to that directive, statute, statutory provision
or statutory instrument together with all rules and regulations
made
under them and as from time to time amended, consolidated or
re-enacted.
|
| 14.3 |
The
headings in this Contract are for information only and are to be
ignored
in construing
the same.
|
| 14.4 |
The
attached Schedules shall form part of this Contract and shall be
construed
and shall
have the same force and effect as if they were expressly set out
in the
main body
of this Contract and any references to this Contract includes the
Schedules.
|
| 14.5 |
In
the event of any inconsistency, the terms of the main body of this
Contract shall prevail
over the terms of any Schedules.
|
| 14.6 |
References
to this Contract shall be deemed to be a reference to the current
version
of
this Contract in the event that it is varied by agreement of the
Parties
in accordance
with Clause 13.1.
|
|
Signed
for and behalf of Vodafone NL
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| Signature: /s/ Harry Odenhoven | |||
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Name:
Harry Odenhoven
Title:
director on-line services
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Signed
for and on behalf of the company
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Signature:
/s/ David
Mandell
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Name:
David
Mandell
Title:
EVP/General
Counsel
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| 1 |
The
Company hereby grants to Vodafone NL a non-exclusive licence for
the term
of this Contract
to use, store, reproduce, display, distribute, transmit, communicate
and
make the Link
available to Customers on or through the Directory in the
Territory.
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| 2 |
The
Company hereby grants to Vodafone NL a non-exclusive licence to edit
and
modify the Link
for the purpose of optimising such Content
for:
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| 2.1 |
the
delivery of the Link to Customers on or through the Directory in
the
Territory; and
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| 2.2 |
the
display of the Link on mobile
phones.
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| 1 |
Definitions
and
Interpretation
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| 1.1 |
In
this Schedule the following words and terms shall have the following
meanings unless
the context otherwise requires:
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“Actual
AVC”
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means
the total number of Age Verified Customers
measured at the end of a Quarter;
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“Actual
Availability”
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means
the percentage of time that the Directory is
available
to
Customers,
measured
across a Quarter;
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“Availability
Factor”
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means,
for each Quarter,
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·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]if Actual Availability is [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]or
greater;
·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual Availability is [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
or greater but less than [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2];
· [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual Availability is [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
or greater
but less than [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2];
·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual Availability is [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
or greater but less than [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2];
·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual Availability is [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
or greater but less than [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2];
·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual Availability is less than [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
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“AVC
Factor”
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means,
for each Quarter
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·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual AVC / Projected AVC expressed
as a percentage is [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]or greater;
·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual AVC / Projected AVC
expressed as a percentage is [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]or greater but less than [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2];
·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual AVC / Projected AVC
expressed as a percentage is 85%
or greater but less than [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2];
·
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
if Actual AVC / Projected AVC
expressed as a percentage
is
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“Q2”
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means
a period of 3 calendar months commencing on
the
date
immediately following the expiration of
Q1;
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“Q3”
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means
a period of 3 calendar months commencing
on
the
date
immediately
following
the expiration of Q2;
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“Q4”
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means
a period of 3 calendar months commencing on
the
date
immediately
following
the expiration of Q3;
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“Quarter”
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means
either Q1, Q2, Q3
or Q4, as appropriate;
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“Quarter
Revenue Guarantee”
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means:
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·
for
Q1, [INFORMATION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
·
for
Q2, [INFORMATION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
·
for
Q3, [INFORMATION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
·
for
Q4, [INFORMATION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
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“Reporting
Address”
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“Revenue
Payment”
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means
the amount payable by the Company to
Vodafone
NL
such
amount
being
calculated in accordance with paragraph 2 of
this Schedule 2;
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“Sale
Deductions”
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means
any VAT Amounts;
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“Sale
Revenue”
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means
the
total
amount
of
revenue
generated
by the Sale of
Adult
Content on Link Sites; by content charging (i.e.
any
data charges
or access charges are excluded).
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“VAT
Amounts”
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means
any Value Added Tax or any analogous
tax in any relevant jurisdiction including
but not limited to use, sales and local sales taxes of any kind
(excluding
any taxes
levied solely on the parties capital or income)
to be paid and accounted for by parties
in respect of a sale.
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1.2
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In
this Schedule all references to paragraphs are references to
paragraphs in
this Schedule
unless the context otherwise
requires.
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| 2 |
Revenue
Payment and Additional Revenue
Payment
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| 2.1 |
The
Revenue Payment payable to Vodafone NL by the Company shall be
calculated
as [INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION
UNDER RULE 24B-2]% of
the Net Partnership Revenue.
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| 2.2 |
All
payments
shall be exclusive of VAT, which shall be paid in addition if
applicable
subject
to receipt of a valid VAT invoice.
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| 2.3 |
The
combined total of all Net Sale Revenue and Net Partnership Revenue,
generated
by Vodafone NL's FON Erotic WAP portal, to be received by Vodafone
NL for
each Quarter shall be no less than the Quarter Revenue Guarantee
which
relates
to that Quarter. Where
the total of all Net Sale Revenue and Net Partnership
Revenue received by Vodafone NL for a particular Quarter is less
than
the
Quarter Revenue Guarantee which relates to that Quarter, the
Company shall
pay
an additional Revenue Payment to Vodafone NL for that Quarter
(“Additional
Revenue Payment”) in the same manner as the Revenue Payments are payable
under
of this Schedule 2. The Additional Revenue Payment shall be calculated
on
the following basis:
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| 3 |
Monthly
Reports
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| 3.1 |
Vodafone
NL shall prepare a Monthly Report for each calendar month (or
part
thereof) during the term of this Contract and provide it to the
Company no
later than
10 working days after the end of each calendar month to which
the monthly
report
relates at the following addresses:
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| 3.2 |
The
Monthly Report shall set out details of the following
matters:
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| 3.2.1 |
the
number and category of sales in that calendar month;
and
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| 3.2.2 |
the
amount of gross sales revenue generated in that calendar
month.
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| 4 |
Revenue
Payment
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| 4.1 |
The
Revenue Payment payable to the Company shall be calculated as
50% of the
Net Sales Revenue. No revenue share shall apply to any data charges
or
time based
charges for browsing in the FON
area.
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| 5 |
Payment
Procedure
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| 5.1 |
In
accordance with the Monthly Report, the Company shall issue an
invoice
which contains
details of the relevant invoice and the amount of the Revenue
Payment
payable
to the Company for any calendar month (or part thereof) during
the term of
this
Contract. The
Company shall provide such invoice to Vodafone NL no later than
thirty (30) days after the end of the calendar month to which
the Revenue
Payment relates.
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| 5.2 |
Vodafone
NL shall pay all invoices issued by the Company no later than
the end of
the
calendar month in which the invoice is received by Vodafone
NL.
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| 5.3 |
Payment
of any Revenue Payment shall be made by Vodafone NL to the Company
as
follows:
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| 6 |
Inspection
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| 6.1 |
During
the term of this Contract and for a period of 12 months after
termination
of this
Contract, Vodafone NL shall, upon reasonable written request
by the
Company,
provide the Company with reasonable access to inspect any information
that
the Company may reasonably require in order to verify the accuracy
of any
financial
report or statement (including any Monthly Report) made or given
by
Vodafone
NL under this Contract.
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| 6.2 |
If
as a result of any inspection carried out by the Company pursuant
to
paragraph 6.1
any discrepancy is discovered, Vodafone NL shall rectify such
discrepancy
within
15 days after being advised of the discrepancy and immediately
pay to the
Company
all amounts discovered to be due the Company as a result of any
such
inspection
within thirty (30) days of invoice. In
addition, in the event any such inspection
reveals a discrepancy of five percent (5%) or more in the Company's
favor,
Vodafone NL will pay all reasonable costs of the Company's inspection,
and
such
costs shall be added to the Company's invoice for amounts
due.
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