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August
2007
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Commercial
in Confidence - Not for
Disclosure
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Page:
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A.
General
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5
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1.
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Preamble
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5
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2.
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Subject
Matter of Contract
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5
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3.
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Scope
of Service
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6
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4.
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Content
Handling
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6
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5.
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Service
Development
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8
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6.
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Operating
the Service
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8
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7.
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Reporting
and License Administration
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9
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8.
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Further
Development
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9
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9.
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Prices,
Payments
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10
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10.
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Contracts
of Service
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11
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11.
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Surety
for VF D2
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12
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B.
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Contractual Services |
13
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12.
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Characteristic
of the Services
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13
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13.
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Vendor
Personnel
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14
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14.
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Crisis
Management
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14
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15.
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Certification,
Quality Indicators
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14
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16.
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Other
Testing by Vendor
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15
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17.
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Deadlines,
Delays, System Failures
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15
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18.
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Warranty,
Liability
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16
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19.
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Compensation
for Loss of Sales
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18
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20.
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Monitoring
of Performance of Service
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18
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C.
Acceptance and Further Procedure
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19
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21.
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Acceptance
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19
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22.
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Contractual
Penalty for Faults during Acceptance
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20
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23.
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Services
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11
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24.
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Environmental
Legal Provisions, Waste Disposal
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20
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25.
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Compliance
with Human Rights Principles
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21
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26.
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Rights
to Services Performed, Results of Work, and Means of Work
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21
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D.
Other
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23
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27.
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Third-Party
Rights
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23
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28.
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Contractual
Penalties
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23
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29.
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Contact
Persons
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24
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30.
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Obligation
to Cooperate
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24
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31.
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Confidentiality,
Data Protection
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24
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32.
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Sub-Contractors,
Third Parties
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26
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33.
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Insurance
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26
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34.
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Prohibition
of Transfer of Claims
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26
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35.
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Term
of Contract, Termination
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26
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36.
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Period
of Limitations
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27
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37.
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Changes
to Services
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28
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38.
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Site
of Fulfillment, Court of Jurisdiction
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29
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39.
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Applicability
for Other Vodafone Companies
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29
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40.
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Applicable
Law, Requirement of Written Form, Severance Clause
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29
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| 2.1 |
The
subject matter of this contract is to acquire the hosting and provide
the
following products to end customers, including their further development
(hereafter “contractual services”): Applications and games that end
customers download to their mobile phones or play on line without
the
option of storing (hereafter “contractual products”), including design and
hosting of the related WAP and WEB pages. The details are contained
in the
attachments to this contract, especially in the “Specifications”
attachment.
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| 2.2 |
Services
shall be provided via a number of sales channels, especially the
Vodafone
WAP portal and also WEB portals. The details are contained in the
attachments to this contract, especially in the “Specifications”
attachment.
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| 2.3 |
This
contract governs the vendor’s provision of the infrastructure and
application for use by the customer via the VF D2 network, and
all rights
and obligations resulting from this for the
parties.
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| 2.4 |
The
vendor assumes responsibility for content handling including
the
clarification of rights, pursuant to the requirements in the
“Specifications” attachment. VF D2 and the vendor shall jointly agree on
the focus of content design and optimize it according to the
sales figures
achieved. In the event of disagreement, VF D2’s decision is
binding.
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| 2.5 |
The
vendor shall - if desired by VF D2 - conclude contracts with
content
partners to be named by VF D2 and design an attractive and
up-to-date
portfolio.
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| 2.6 |
If
nothing to the contrary is agreed, all services provided by the vendor
to
VF D2 shall be offered to the customer in the name of VF
D2.
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| 3.1 |
The
vendor shall provide, at no additional cost, the infrastructure and
application for customer use as well as a complete and error-free
integration of vendor systems with all relevant systems belonging
to VF
D2, the Vodafone Group (e.g. GSP) and / or any third-party partners
specified by VF D2. This shall apply irrespective of whether the
vendor,
and / or third parties, were involved in the creation of the existing
relevant VF D2 systems.
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| 3.2 |
The
vendor also undertakes to integrate, at no extra cost, a fully functional
test version of every service in the multi-vendor test center operated
jointly by VF D2 and vendors, which consists of a technical model
of the
VF D2 mobile network.
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| 3.3 |
If
the technical specifications set down in this contract, including
attachments, are incomplete, the vendor shall nevertheless be obligated
to
implement the services, such that the results are functional and
complete,
conforming both with latest technology and all other clauses in this
contract. If the aforementioned specifications are not suited to
achieve
service goals or contain errors, the vendor shall notify VF D2 of
this,
suggest any adjustments or changes needed to achieve the service
goals,
and implement these, should VF D2 demand, at no additional cost.
Where
software is used and no agreement has been made to the contrary,
the
vendor shall use the newest version of the respective
software.
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| 3.4 |
The
vendor shall, for every service performed, provide at no extra charge
operating instructions, documentation, interface descriptions, and
other
information required by VF D2 for use, support, maintenance and repair
of
the contractual services, as well as for understanding how they
function.
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| 3.5 |
The
vendor shall provide training sessions and training documents for
training
the relevant VF D2 personnel (e.g. in Customer Care, Product Management,
Partner Integration) as well as for third-party partners, where
applicable. This shall also apply for when launching new
releases.
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| 4.1 |
The
vendor shall himself acquire licenses for customer use of the contractual
products, if this is desired by VF D2 in specific cases. The vendor
shall
follow VF D2’s specifications in doing
so.
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| 4.2 |
The
vendor hereby transfers to VF D2 the non-exclusive right to offer
and
advertise the contractual products for which the vendor obtained
licenses
in the Vodafone-live! Portal and in the Vodafone internet presence,
and to
make them publicly available via downloads to customers of Germany
mobile
network providers, service providers pursuant to the Telecommunications
Act (TKG), and mobile virtual network operators, such that users
can
determine themselves place and time of access. This includes, in
the case
of a download, the right to grant users the right to duplicate and
save
contractual products to their mobile end devices. The right to advertise
the contractual products in all media is also transferred to VF D2.
Due to
potential non-concurrence on the part of licensers regarding advertising
(product endorsement by artist), VF D2 shall inquire about advertising
in
media other than Vodafone Live! in good time to obtain written approval
by
the vendor or the licenser.
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| 4.3 |
VF
D2 itself owns licenses for the contractual products, which VF D2
acquired
from licensers. VF D2 hereby grants - as far as possible - the vendor
the
right to store the contractual products for which VF D2 acquired
licenses
on the vendor’s servers for use as downloads. The vendor shall be
obligated to observe all rules of the VF D2 licenser regarding the
contractual products, and to perform for VF D2 any contractually-agreed
release processes etc.
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| 4.4 |
The
vendor shall provide the licensers the options for delivering data
for the
contractual products specified in the “Specifications” attachment. The
vendor shall describe these delivery processes in detail in a document
that either vendor or VF D2 shall supply to the
licensers.
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| 4.5 |
The
vendor shall optimize for downloading the data delivered pursuant
to
section 4.4. The vendor shall also ensure that all end devices listed
in
the “Specifications” attachment shall be supported for the contractual
services, by the dates named therein. VF D2 shall provide the vendor
with
an updated version of this list at regular intervals, and notify
the
vendor in good time of any end devices added. The vendor shall support
the
latest versions of the listed end devices for contractual
services.
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| 5.1 |
The
service’s scope of function at time of launch shall comply with the
specification in the “Specifications”
attachment.
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| 5.2 |
The
navigation for the service as well as the page displays shall comply
with
the contract attachments and require clearance from VF D2 in the
framework
of integration preparation.
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| 5.3 |
The
link to VF D2 content tracking system shall conform with the
specifications for the Integrated Purchase Page (IPP) interface contained
in the “Specifications” attachment. If needed, the vendor shall implement
a link to additional billing systems used by VF D2 (such as credit
card,
online payment).
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| 5.4 |
The
vendor shall ensure that categorization of the contractual products
conforms with the specifications set down by VF
D2.
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| 5.5 |
The
vendor shall always protect the contractual products against non-permitted
storing, copying or forwarding according to the relevant VF D2
specifications.
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| 5.6 |
The
vendor shall - if nothing to the contrary is stipulated - implement
the
integration in the Vodafone-live! portal pursuant to the specifications
regarding PML authoring contained in the “Specifications”
attachment.
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| 5.7 |
Where
the specifications and instructions provided by VF D2 are not suited
to
achieve service goals or contain errors, the vendor shall notify
VF D2 of
this, suggest any adjustments or changes needed to achieve the service
goals, and implement these, should VF D2 demand, at no additional
cost.
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| 6.1 |
The
vendor shall be responsible for hosting the service and all contractual
products. Requirements relating to technical availability etc. are
specified in the “Service Level Agreement”
attachment.
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| 6.2 |
The
vendor shall regularly consult with VF D2 on the guidelines for content
design. A detailed description of this is contained in the
“Specifications” attachment.
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| 6.3 |
The
vendor shall regularly update the service portfolio or contents.
A
detailed description of this is contained in the “Specifications”
attachment.
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| 6.4 |
Where
the specifications as described are not suited to achieve service
goals,
or contain errors, the vendor shall notify VF D2 of this, suggest
any
adjustments or changes needed to achieve the service goals, and implement
these, should VF D2 demand, at no additional
cost.
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| 7.1 |
The
vendor shall regularly provide VF D2 with the statistics and management
reports listed in the “Specifications” and “Service Level Agreement”
attachments in electronic form and, if needed, in
writing.
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| 7.2 |
The
vendor shall transfer all types of invoices relating to the licenses
for
the contractual products (such as for GEMA, licensers and other partners)
- either in its own name to the relevant third parties, within the
time
limit specified in the respective agreements, or in the case of VF
D2
license agreements, to VF D2 within the time limit specified, and
to
answer any related queries from third parties or VF D2. The vendor
shall
be responsible for complying with all other contractual obligations
arising from its own license agreements, as well from vendor’s obligations
arising from VF D2 license agreements, in providing the contractual
services. Provided that the vendor shall not be responsible for any
financial obligations owed by VF D2 to any third
parties.
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| 7.3 |
The
vendor shall pay the license payments resulting from these invoices
within
the time specified, on receipt of correct licensers’
invoices.
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| 8.1 |
The
vendor shall continually enhance the contractual service, in mutual
agreement with VF D2, at no additional charge. In order to protect
VF D2’s
first mover status, the vendor shall implement for VF D2 at an
early point
in time additional features made possible by technological progress,
introduced by VF D2 competitors, required by the VF Group in the
framework
of cross-concern product planning, or implemented by the vendor
for other
customers.
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| 8.2 |
For
this purpose, the vendor and VF D2 shall hold a joint workshop once
a
month, unless otherwise agreed. The vendor shall record the result
of this
workshop in the form of a specification together with a project plan
for
implementation, and send it to VF D2 for clearance. In the event
of
clearance being refused, the vendor shall improve the specification
and
project plan to incorporate the wishes of VF
D2.
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| 8.3 |
On
clearance being given, the vendor shall proceed with implementation
pursuant to project plan and to this
contract.
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| 9.1 |
The
prices are specified in the “Prices and Discounts” attachment to this
contract. Prices are exclusive of sales tax and in euros if not otherwise
specified. All contractual services are paid for according to the
“Prices
and Discounts”, and the “Consulting, Prices and Service”
attachments.
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| 9.2 |
The
prices or revenue share agreed cover all the vendor’s costs arising in
connection with service
performance.
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| 9.3 |
If
the vendor draws certain parts of a service from a third party, according
to agreement or stipulated by VF D2, the vendor shall be obligated
to pass
on to VF D2 purchase price savings arising in business with a third
party,
subsequent to agreement on the applicable price between the vendor
and VF
D2. Any price mark-up made for the vendor’s purchase price shall be shared
proportionally.
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| 9.4 |
VF
D2 shall pay the contractual fee to the vendor within 30 days of
receipt
of a correct invoice.
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| 9.5 |
If
the vendor does not dispute the correctness of the usage overviews
provided by VF D2 within a year of their receipt, they shall count
as
correct and binding for the vendor.
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| 9.6 |
The
invoice must contain the vendor’s tax number and sales tax
certificate.
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| 9.7 |
Payment
by VF D2 shall not imply any agreement with the
invoice.
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| 9.8 |
VF
D2 will keep accurate and complete records in accordance with generally
accepted accounting principles in order to determine the accuracy
of the
payments, and retain such records for at least three (3) years
following
their generation. As long as the vendor is providing services to
VF D2
under the terms of this contract, the vendor or its legal representative
will have the right, subject to ten (10) days prior written notice
to VF
D2, to audit, and review all applicable records and accounts once
each
calendar year during VF D2’s normal business hours. VF D2 will pay to the
vendor all amounts discovered to be due to vendor as a result of
any audit
within thirty (30) days of invoice. In addition, in the event any
such
audit by vendor reveals a discrepancy of 10 percent (10%) or more
in
vendor’s favor, VF D2 will pay all reasonable costs of the vendor’s audit,
and such costs shall be added to vendor’s invoice for amounts
due.
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| 10.1 |
If
VF D2 orders additional advisory or consulting services to which
contract
of service laws apply, the terms of this contract are valid as stipulated
above, except for the following
departures:
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| 10.2 |
An
acceptance procedure shall not take place - with the exception of
repair
and error elimination services in the framework of an agreement on
maintenance services.
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| 10.3 |
Payments
are made at 100% within 30 days of fulfillment of service and due
invoicing, on the basis of detailed proof of
service.
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| 10.4 |
If
the vendor’s service comprises the commercial supply of temporary workers,
the vendor shall guarantee the possession of an unlimited permit
for the
commercial supply of temporary workers pursuant to section 1, paragraph 1
of the Temporary Labor Assignment Act (German acronym: AÜG),
and
that the vendor has in the past ensured correct payment of taxes
and
social insurance contributions and shall continue to do
so.
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| 10.5 |
If
payment on a time and material basis has been agreed for individual
secondary services, billing shall comply with the “Consulting Prices and
Services” attachment.
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| 11.1 |
No
later than 6 weeks after the conclusion of this contract, the vendor
will
place at the disposal of VF D2 an absolute surety that waives the
benefit
of discussion, to the sum of [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] euros, in a major
bank
domiciled in the European Union. At the end of the third month after
the
services are operational in accordance with the milestone plan, the
aforementioned surety can be reduced to [INFORMATION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] euros. At
the end
of the twelfth month after the services are operation in accordance
with
the milestone plan, the surety can be reduced to [INFORMATION OMITTED
AND
FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
euros.
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| 11.2 |
The
aforementioned surety shall serve the securing of all VF D2 claims
to
service fulfillment, and claims arising from breach of vendor duties,
especially warranty claims and reimbursement claims. The vendor shall
be
able to reclaim the surety 24 months after the services are
operational.
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| 12.1 |
The
vendor shall faultlessly perform the services pursuant to the relevant
contractual terms. This includes implementation of the latest science
and
technology available at the point in time of service fulfillment
to the
extent relevant for the respective
services.
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| 12.2 |
Furthermore,
the services shall comply with the principles of good business sense,
with
the principles of correct accounting and, where applicable, with
the
principles of correct data
processing.
|
| 12.3 |
The
vendor’s services shall meet all the technical specifications as defined
by VF D2, pursuant to the latest version of the specifications. The
delivery shall conform to the agreed specifications, and comply with
all
relevant laws, ordinances, rules and norms, especially regarding
technical
safety, workplace and health safety, and protection of the environment
and
fire prevention.
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| 12.4 |
If
due to technical or legal circumstances, it becomes urgently necessary
to
change the scope of service, or to depart from the aforementioned
terms,
the vendor shall notify VF D2 of this immediately orally and in writing,
and immediately instruct VF D2 about viable potential solutions,
and agree
any changes with VF D2. VF D2 shall not be obliged to accept any
detrimental price alteration resulting from such changes. Any warranty
claims and / or claims for payment of contractual penalties shall
remain
unaffected.
|
| 12.5 |
The
vendor shall inform VF D2, at no extra charge, of changes in the
state of
science and technology, and of products that have become important
in the
market and might affect the contractual services. The vendor’s obligation
pursuant to section 8.1 shall remain
unaffected.
|
| 12.6 |
The
vendor shall guarantee that services are interoperable with VF D2
IT
systems as they were at the time that the vendor gained knowledge
of them,
or, pursuant to contractual terms between the parties, should have
gained
knowledge of them.
|
| 12.7 |
Connection
of third-party computers or systems (especially PCs, laptops, servers
etc.) to the VF D2 company network is not
permitted.
|
| 13.1 |
The
vendor shall be obligated to deploy qualified personnel, sufficient
in
number for contract implementation.
|
| 13.2 |
The
vendor shall, at own expense, regularly train employees entrusted
with
contract implementation, in order that all services comprising contract
implementation retain a consistent level of quality over the whole
duration of implementation.
|
| 13.3 |
If
the vendor performs services on VF D2 premises, the vendor shall
immediately inform VF D2 of any workplace injuries to vicarious
agents.
|
| 14.1 |
To
avoid major threats to the error-free functioning and utilizability
of the
VF D2 network, i.e. crises, VF D2 conducts business continuity planning
pursuant to BS7799 / ISO IEC 17799. These processes enable VF D2
to be
prepared in advance for a crisis.
|
| 14.2 |
In
order to safeguard delivery and performance during or after a crisis
affecting VF D2 and / or the vendor, the vendor is obligated to implement
similar or equivalent processes describing and securing all relevant
activities and the vendor’s crisis management in such
situations.
|
| 15.1 |
The
parties agree that the vendor shall implement a properly documented
quality management system that meets the EN ISO 9001:2000 standards.
All
services, products, projects, and processes will be implemented according
to the guidelines of said quality management
system.
|
| 15.2 |
The
vendor shall be obligated to comply with the quality standards specified
in the “Example: ASP Quality Requirements”
attachment.
|
| 15.3 |
The
parties shall agree on quality indicators for all services to be
performed
by the vendor. The vendor shall guarantee conformity with these.
This
shall hold in particular for all specifications in the contractual
agreements relating to speed, absence of faults, data throughput,
admissible downtimes and response
times.
|
| 16.1 |
The
vendor shall regularly test the services’ conformity with the contract,
especially regarding compliance with the quality indicators, and
shall
document the test results in writing in meaningful test logs. The
vendor
shall retain these test logs for a period of two years from the date
of
their respective compiling. VF D2 shall have the right to view any
or all
of these test protocols at any time or request the submission of
photocopies.
|
| 16.2 |
If
nothing to the contrary is agreed for specific cases, tests shall
be
performed once a month.
|
| 17.1 |
The
vendor shall perform all services on time, and, in particular, meet
all
agreed service deadlines. Deadlines for providing a defined acceptance
procedure shall also be regarded as service deadlines. If it should
transpire that the performance of a (component) service on time is,
for
what ever reason, not possible, the vendor shall be obligated to
notify VF
D2 of this immediately, orally and in written form by fax, together
with
details of the reasons. The obligation pursuant to sentence 1 remains
unaffected by this.
|
| 17.2 |
Service
performance deadlines are, in particular, specified in the “Milestones”
and “Specifications” attachments to this contract. The legal consequences
of non-compliance with the service performance deadlines specified
in the
aforementioned attachment shall only take effect in cases where,
for the
respective service, VF D2 had an obligation to co-operate of more
than
negligible extent, if the vendor was to blame for the tardiness.
In all
other cases, the vendor need not have been at fault for the legal
consequences to take effect.
|
| 17.3 |
For
service deadlines, a contractual penalty of [INFORMATION OMITTED
AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] euros per day the
deadline is exceeded shall become due and payable during the first
14
days, with a penalty of [INFORMATION OMITTED AND FILED SEPARATELY
WITH THE
COMMISSION UNDER RULE 24B-2] euros for each day hereafter, not to
exceed a
total for a single instance of [INFORMATION OMITTED AND FILED SEPARATELY
WITH THE COMMISSION UNDER RULE 24B-2] euros. The same shall apply
if no
deadline has been agreed, but VF D2 has set the vendor a reasonable
time
period for performing the service, and this has expired without any
result.
|
| 17.4 |
For
service downtime, the vendor shall pay VF D2 the following contractual
penalty: On availability falling short of the agreed level as per
Section
3.3 of the SLA, the contractual penalty shall comprise [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
euros
for every further started hour of system downtime / system impairment.
The
contractual penalty shall not exceed [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] euros for an individual
case, irrespective of the total duration of system failure / impairment.
The terms of the “Service Level Agreement” attachment to this contract, as
well as vendor obligations connected to them pursuant to this contract,
shall remain unaffected.
|
| 17.5 |
In
the event of the vendor’s failure to meet the agreed deadlines,
modification / revision by the parties of the schedule originally
agreed
upon shall not affect the vendor’s obligation to pay contractual penalties
resulting from failure to comply with the original
schedule.
|
| 17.6 |
Legal
rights are not affected by tardy or unperformed services. Temporary
hindering of service performance shall also constitute tardiness
in the
legal sense.
|
| 18.1 |
The
vendor shall be liable for breach of duty pursuant to legal provisions,
without any restriction. This means that, in the event of breach
of duty,
in particular in the event of deficient service performance, VF D2
can
make the following claims for:
|
| · |
Subsequent
performance, including reimbursement of costs arising for VF D2 in
connection with the subsequent
performance.
|
| · |
Reduction
in fee or
|
| · |
Compensation
for wasted expenditure or
|
| · |
Reimbursement
of costs arising from self-
performance
|
| · |
Rescission
of the contract and / or
|
| · |
Compensation
instead of service performance or
|
| · |
Compensation
for wasted expenditure.
|
| 18.2 |
In
the event of subsequent performance, VF D2 shall have the right to
choose
between rectification of defects and
reperformance.
|
| 18.3 |
In
the event of breach of duty, the vendor shall be obligated to provide
VF
D2 written notification of what measures are required to prevent
such
breach of duty occurring in the further course of service
performance.
|
| 18.4 |
In
the event of breach of duty by the vendor, and after expiry without
result
of a subsequent deadline set for the vendor by VF D2, VF D2 can take
upon
itself elimination of the consequences of the breach of duty, or
have them
eliminated by a third party, at the expense of the vendor. If documents
or
data in possession of the vendor are required for this, the vendor
shall
immediately render these free of charge to VF D2. If third party
rights
prevent such elimination, the vendor is obligated to indemnify VF
D2
against claims resulting from these
rights.
|
| 18.5 |
VF
D2 shall only be obligated to serve notification of defects, pursuant
to
German Commercial Code (HGB) section 377, if a defect was identifiable
in
the framework of an appropriate quantity of random sample tests.
Notification of defects can be made within 6 weeks; payment made
by VF D2
shall not constitute acceptance of the
services.
|
| 18.6 |
The
warranty period for defect claims shall comprise 24 months, commencing
with the complete and unreserved acceptance (final acceptance) of
the last
(component) service to be accepted pursuant to this
contract.
|
| 18.7 |
If
the vendor provides VD D2 services free of charge pursuant to section
2.1,
for instance for test purposes, the aforementioned rules shall apply,
even
in the event that the vendor does not expressly refer to this
contract.
|
| 18.8 | Contractual Penalty for Tardy Fault Elimination |
|
Contract
Penalty for Each Time the Escalation Level is Reached
(According
to SLA Attachment)
|
||||||||||
|
Fault
Priority
(according
to SLA attachment)
|
Escalation
Level I
|
Escalation
Level II
|
Escalation
Level III
|
|||||||
|
Priority
1
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
|||||||
|
Priority
2
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
|||||||
|
Priority
3
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
|||||||
|
Priority
4
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]-
€
|
|||||||
| 19.1 |
The
vendor shall be liable to pay compensation - irrespective of other
rights
connected to vendor’s breach of duty pursuant to this contract - but shall
be afforded opportunity for reperformance, or set another deadline.
In the
event that a fault in the service performed by the vendor should
cause
components in the VF D2 mobile network to fail, and consequently
VF D2 to
suffer loss of sales directly attributable to vendor’s breach of duty,
then the vendor shall not be afforded opportunity for reperformance,
or
set any other deadline.
|
| 19.2 |
All
contractual or other penalties payable by the vendor as a direct
result of
the respective fault in service are offset against the loss of
sales.
|
| 19.3 |
For
any compensation for the loss of sales, VF D2 must prove that the
vendor
caused the damages.
|
| 20.1 |
VF
D2 shall have the right to monitor at all times service performance
by the
vendor, in particular the installation of IT systems in the VF D2
network.
Both parties shall bear the costs they respectively incur
themselves.
|
| 20.2 |
The
vendor shall be obligated to demonstrate to VF D2 the functionality
of the
services being performed, on demand and upon reasonable prior notice
during normal business hours at the vendor’s place of business. The vendor
shall ensure that competent personnel are present at the demonstration
to
answer questions from VF D2 connected with the demonstration quickly
and
accurately.
|
| 21.1 |
Work
performed by the vendor - except the services provided under contracts
of
service defined in this contract - shall require acceptance by VF
D2, or
third parties on behalf of VF D2. Acceptance of services - comprising
multiple successive acceptance tests - is regulated in the
“Specifications” attachment and “ASP Quality Requirements” attachment. In
the framework of the acceptance procedure, in particular the following
different declarations of acceptance may be
made:
|
| · |
Conditional
Acceptance - under reservation of all rights - shall be granted if,
by
this point in time, all tests specified have been passed successfully,
and
no Category 1 or 2 faults have been identified, or if the vendor’s
respective service has been in commercial use for VF D2 longer than
2
weeks. Commercial use occurs when VF D2, directly or through vendors
acting in its name, provides all end customers and potential end
customers
services based on the respective work performed, without these customers
receiving notification of any technical
restrictions.
|
| · |
A
further acceptance, called Final Acceptance, shall be given if no
Category
1, 2 and 3 errors exist any longer.
|
| 21.2 |
For
component services, a final acceptance as defined above, independent
of
acceptance of individual component services, can only be granted
subsequent to a final acceptance test of the interaction of the component
services, in particular of hardware and software, including interfaces.
If
the entire work is divided into different phases, where the component
service for the individual phase can stand alone, a project-specific
supplementary agreement can agree on final acceptance for the respective
stand-alone phases.
|
| 21.3 |
The
vendor shall give VF D2 20 working days advance warning of completion
of
work for the individual acceptance tests, in written form by
fax.
|
| 21.4 |
VF
D2 warranty rights shall commence with the vendor’s presenting a service
(a component service) for acceptance. The terms of section 18.6 are
unaffected by this.
|
| 22.1 |
If
faults in the work are identified during acceptance, the vendor shall
be
obligated to pay a contractual penalty, the amount of which shall
be
calculated as follows:
|
|
N=
at least:
|
||||
|
20
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
euros
|
|||
|
25
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
euros
|
|||
|
30
|
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
euros
|
|||
| 22.2 |
The
acceptance evaluation applies to the system as it is provided for
the RFA
(Ready for Acceptance) milestone.
|
| 22.3 |
Contractual
penalties paid shall be balanced against any VF D2 claims for damages
arising from the same cause in law; otherwise VF D2 warranty rights
of all
kinds shall not be affected by the contractual penalty mentioned
above.
|
| 23.1 |
The
vendor shall indemnify VF D2 against any liability relating to its
failure
to comply with material applicable laws for the protection of the
environment that apply to the services performed by vendor under
this
Contract.
|
| 23.2 |
If
the legal provisions adduced in the following are applicable, the
vendor
shall assume the responsibility of a producer pursuant to the German
Battery Ordinance and Directive 2002/96/EG of the European Parliament
and
Council of 27 January, 2003, on Waste Electrical and Electronic Equipment
including the norms implementing this directive in German law. To
this
extent, the vendor shall indemnify VF D2 against all costs resulting
from
the above legal provisions in connection with the contracted work.
Furthermore, the vendor shall be obligated to comply with the terms
of the
Directive 2002/95/EC of the European Parliament and Council of 27
January,
2003, on the Restrictions on Harmful Substances including the norms
implementing this directive in German
law.
|
| 24.1 |
The
vendor shall undertake to comply with the “Declaration on Fundamental
Principles and Rights at Work” accepted by the member states of the
International Labor Organization in 1998, and the principles and
rights
laid down here as well as in the eight core conventions (No. 87,
98, 29,
105, 100, 111, 138, 182) in the context of production and supply
for VF
D2. Furthermore, the vendor shall undertake to comply with the principles
and conditions set forth in the “Ethical Purchasing”
attachment.
|
| 24.2 |
Furthermore,
the vendor shall undertake, with regard to products and deliveries
for VF
D2, to only work with vendors or other third parties similarly respecting
the rights and principles mentioned
above.
|
| 25.1 |
If
creations protected by copyright or trademarks are incorporated in
the
service performed, VF D2 shall acquire a non-exclusive, transferable
right
of use unrestricted in time, space and content for so long as this
contract is valid. This right includes, in particular, use of such
creations in own business, or in third-party businesses, as well
as its
duplication, distribution, showing, exhibiting, transfer via or without
telecommunications, editing or modifying as well as a commercial
exploitation of the results of the work, even subsequent to their
use
(such as editing or modifying). In the case of the application of
above
rule to software, the vendor shall grant a non-exclusive, non-transferable
use right to VF D2 related to property rights over the relevant data
carriers.
|
| 25.2 |
If
the vendor uses third-party software in service performance, and
if the
license conditions for this exclude provision of exclusive rights
for
unrestricted use, or restrict such provision, VF D2 shall receive
a
correspondingly restricted right of use. The vendor shall indicate
to VF
D2 the existence of such a situation, at the latest on conclusion
of this
contract.
|
| 25.3 |
VF
D2 shall have the right, in all cases, to connect services performed
by
the vendor, in the case of an IT system, with other VF D2 systems,
or to
integrate them in other VF D2 systems. This shall apply irrespective
of
whether the other systems are owned by VF D2, or whether they are
operated
by a third party on behalf of D2.
|
| 25.4 |
The
vendor shall not demand any separate fee for providing these rights
described above to VF D2 or to customers of VF D2. The provision
of these
rights is covered by the fee pursuant to this
contract.
|
| 26.1 |
The
vendor shall be responsible for its services or any third- party
software
it supplies being free from third-party rights in Germany or abroad
that
restrict use of the work by VF D2 as set forth in this contract.
The
vendor shall not be liable for any infringement of third party rights
resulting from changes to the work performed, or to third-party software
supplied, by the vendor, made by VF D2 or third parties acting on
behalf
of VF D2.
|
| 26.2 |
The
vendor shall be responsible for seeing that all licenses necessary
for use
and provision of the contractual products in the framework of the
contractual services exist pursuant to the terms of this contract,
and
shall indemnify VF D2 against third-party claims due to absence of
or
infringement of the aforementioned
licenses.
|
| 26.3 |
The
vendor shall be responsible for the proper performance of contractual
services relative to end customers, and indemnifies VF D2 against
all
claims resulting from a breach of duty on the part of the vendor
in
performing the contractual
services.
|
| 26.4 |
Irrespective
of the preceding section, the vendor shall be obligated to notify
VF D2
immediately in writing on learning of third-party
rights.
|
| 27.1 |
If
the vendor has become liable for a contractual penalty, VF D2 shall
be
able to enforce this even subsequent to settlement of vendor invoices
for
the period in which the contractual penalties were incurred. German
Civil
Code section 341 paragraph 3 shall not apply. This holds irrespective
of
whether the contractual penalty rule is contained in this contract,
or in
a supplement, and even if there is no explicit reference to this
rule.
|
| 27.2 |
Any
contractual penalty payments by the vendor shall be balanced against
VF D2
damage claims resulting from the same circumstance as the obligation
to
pay the contractual penalty.
|
| 27.3 |
If
VF D2 makes use of contractual or legal rights of rescission or
termination, claims for payment of contractual penalties already
forfeited
by the vendor at the point of rescission or termination remain
valid.
|
| 28.1 |
The
vendor shall appoint a project manager and a deputy project manager,
who
shall prepare all necessary agreements relating to contract
implementation, and who can attain decisions promptly. Replacement
of the
project manager during the term of the contract shall require written
agreement in advance from VF D2. VF D2 shall provide such agreement
if
there is an important reason for replacing the project
manager.
|
| 28.2 |
VF
D2 shall have the right to demand the replacement of the vendor project
manager during the term of the
contract.
|
| 29.1 |
VF
D2 shall take all measures to co-operate with service performance
by the
vendor, to the extent that this is reasonable according to business
considerations.
|
|
30.1
|
Both
parties shall be obligated to keep secret from third parties all
details
of contractual agreements between them. This applies especially to
prices.
This obligation shall not apply to transferal by VF D2 of information
to
other members of the Vodafone Group Plc who in their turn shall be
obligated to confidentiality.
|
| 30.2 |
In
particular, the vendor shall not name VF D2 as a reference customer,
or
divulge the conclusion of this contract to third parties or to the
public,
unless VF D2 shall give advance permission in
writing.
|
| 30.3 |
Both
parties shall assure each other that they shall treat all information
divulged to them from the other respective party, and expressly marked
as
confidential, or the confidential character of which can be deduced
from
the context, as trade secrets entrusted to them, and shall not divulge
them to third parties:
|
| · |
unless
they were already known to the recipient before the obligation to
confidentiality or
|
| · |
are
generally known or are becoming generally known through no fault
of the
recipient or
|
| · |
they
were legally divulged or rendered to the recipient without obligation
to
confidentiality or
|
| · |
it
can be proved that the recipient developed them independently
or
|
| · |
written
permission was given to the recipient, clearing them for general
circulation, or
|
| · |
they
were divulged to a financing party in the course of capital financing
and
for the sole purpose of obtaining said financing, to the extent that
the
confidentiality agreement in this contract also applies to this third
party, or
|
| · |
they
needed to be divulged due to legal
obligations.
|
| 30.4 |
The
parties shall apply at least the same degree of care to keep confidential
confidential information divulged to them by the other party, that
they
apply to similarly significant information of their
own.
|
| 30.5 |
The
party receiving the confidential information shall only give access
to it
to those personnel requiring it for implementation of the
contract.
|
| 30.6 |
If,
in the framework of the contractual partnership between the parties,
it
becomes necessary to entrust third parties with handling confidential
information, the party concerned shall request written permission
from the
other party in advance. This party shall be able to refuse permission,
if
it is not established that the third party is sufficiently obligated
to
confidentiality.
|
| 30.7 |
On
demand of a contracting party, and at the latest by expiry of the
collaboration between the parties, all confidential information of
the
other party shall be deleted such that it cannot be retrieved, or
returned
to the other party. Deletion must be confirmed in writing
immediately.
|
| 30.8 |
The
vendor shall bear in mind that VF D2 is subject to numerous data
protection obligations, in particular pursuant to the Federal Act
on Data
Protection and the Telecommunications Data Protection Ordinance.
The
vendor shall support VF D2 in meeting these obligations in the
framework
of the respective contractual agreements. If the vendor recognizes
that an
IT system to be deployed in the context of contract implementation,
and
for which the vendor is responsible in the relationship to VF D2,
will
infringe VF D2 data protection obligations, the vendor shall immediately
notify VF D2 of this in
writing.
|
| 30.9 |
The
vendor shall be authorized to process and store data only as specified
by
VF D2 in the context of the legal
provisions.
|
| 30.10 |
All
aforementioned confidentiality and data protection obligations
shall
continue to apply even after expiry of this
contract.
|
| 31.1 |
If
the vendor shall involve third parties in the performance of contractual
duties, the vendor shall be as liable for their behavior as for it
is for
its own behavior.
|
| 31.2 |
The
vendor shall waive any option of presenting exculpatory evidence
pursuant
to German Civil Code section 831 paragraph
2.
|
| 34.1 |
This
contract shall come into effect on August 27, 2007 with both parties
signing it, and will run for an unspecified time that shall, however,
not
be less than [INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION
UNDER RULE 24B-2] years. It shall be terminable with at [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]
months
notice for both parties, to be submitted by 30th
June or 31st December of any year, after expiry of the initial term.
This
shall not affect any right of immediate termination for an important
reason.
|
| 34.2 |
An
important reason for immediate termination of this contract shall
be
given
|
| 34.3 |
In
the event of termination of this contract, for whatever reason, the
vendor
shall be obligated to support VF D2 to the best of its ability in
continuing operation of the service for a commercially reasonable
period
of time and subject to the parties entering into a separate agreement
regarding vendor’s fees for the provision of such support. This shall
apply irrespective of whether VF D2 intends to operate the service
after
contract termination, or to have a third party operate
it.
|
| 34.4 |
Support
to be provided by the vendor pursuant to the preceding section shall
encompass transfer by the vendor of all information, especially parameter
settings, monitoring settings, operating rules, reporting indicators
etc.
at no extra charge for VF D2. The vendor shall be obligated to keep
available, at all times, relevant and up-to-date information for
this
purpose.
|
| 34.5 |
The
vendor shall also be obligated, in the event of termination, or any
other
ending of the contract, to transfer to VF D2, or a third party specified
by VF D2, all files for the contractual products, including metadata,
as
well as any customer data collated during the period of contract.
The
details of this electronic transfer shall be jointly defined in good
time
prior to termination of the
contract.
|
| 34.6 |
If
termination of contract means that further operation of the service
for VF
D2, which is necessary for VF D2 business operations, is impossible
and /
or pointless in business terms, VF D2 shall have the right to demand
from
the vendor that the agreed services be continued for, at the most,
one
year subsequent to contract end. In this case, the parties will agree
to
other contractual terms based on fair market terms and conditions
for such
continued support.
|
| 34.7 |
Termination
of contract, for whatever reason, must be submitted in
writing.
|
| 35.1 |
The
period of limitations for payment claims on the part of the vendor
arising
from this contract shall comprise three (3) years, commencing with
the
start of the period of limitations as specified in
law.
|
| 35.2 |
For
all claims, the periods of limitations laid down by the German Civil
Code
section 438, paragraph 1, no. 3, section 634a, paragraph 1, number
1, and
section 479, paragraph 1, all comprise (3) three years, including
claims
arising from defects of title. Section 15.7 of the General Conditions
of
Purchase of IT Services shall be governed by this section
35.2.
|
| 36.1 |
Changes
to the agreed scope of service shall be agreed in a written supplement
to
this contract.
|
| 36.2 |
Change
requests shall be submitted in written form to the contact person
of the
other respective party. The vendor shall examine change requests
by VF D2
as a rule within one working day, at the latest, however, within
five
working days, and work out the effects of the changes in terms of
functions, schedule and prices, and detail them in writing in a
supplementary proposal. If the change request is labeled urgent by
VF D2,
then the aforementioned deadline shall comprise one working day.
The price
calculation shall be presented
transparently.
|
| 36.3 |
VF
D2 shall examine a supplementary proposal compiled by the vendor
free of
charge, and notify the vendor within an appropriate period of time,
to be
agreed case-by-case, whether VF D2 accepts the supplementary proposal.
The
supplementary proposal shall include in particular: A description
of the
proposal subject matter and the effects on existing documents and
other
results, effects on the scope of service as defined, as well as changes
to
time and material costs, and to the agreed schedule. If VF D2 rejects
the
proposal, this contract shall be enacted as originally
conceived.
|
| 36.4 |
Any
change requests made by the vendor shall be examined by VF D2 as
a rule
within five working days. The vendor shall be obligated to continue
work
pursuant to the original format, if, and for as long as, no agreement
is
reached pertaining to a change in the contract. If the vendor believes
there are technical arguments against implementation of the contract
as it
exists, the vendor shall notify VF D2 of these in writing
immediately.
|
| 36.5 |
Agreements
to suspend work shall be made in mutual agreement and in writing.
If
nothing to the contrary has been agreed for an individual case, the
implementation schedule and deadlines shall be rescheduled to accommodate
the interruption.
|
| 36.6 |
The
parties shall agree on the personnel
and competencies of a joint committee that shall, regularly or
irregularly, discuss preceding and future contractual co-operation
and
that, under defined conditions, can effect contractual changes, or
binding
decisions, on whether services performed are consistent with the
contract.
|
| 37.1 |
The
site of fulfillment for payment is the VF D2 head office. The site
of
fulfillment for the vendor’s services is Düsseldorf, or the respective
site of deployment of the services, if nothing to the contrary has
been
agreed.
|
| 37.2 |
Court
of jurisdiction for all legal disputes resulting from this contract
is
Düsseldorf, unless another exclusive court of jurisdiction is specified
by
law.
|
| 38.1 |
The
vendor shall declare readiness to allow other companies with Vodafone
Group Plc having a direct or indirect stake of more than 25% to enjoy
the
conditions of this contract as negotiated by the parties based on
the
location, size, and business volume of such other company, should
they
wish.
|
| 39.1 |
If
this contract shall be applied, the entire legal relationship between
the
contracting parties shall be governed by German law on legal relations
between parties domiciled in the Federal Republic of Germany. The
parties
rule out any application of the Vienna Convention on the Sale of
Goods.
|
| 39.2 |
Changes
to this contract must be made in written form. This shall also apply
to
the abrogation or alteration of this requirement to make changes
in
written form.
|
| 39.3 |
If
one clause of this contract should be or become void, a legally valid
provision shall replace it, such that it optimally fulfils the declared
will of the parties. If such a clause is not obtained, the respective
provision laid down by German law shall be valid. The validity of
all
other clauses shall, however, not be affected by the nullity of one
clause.
|
| 39.4 |
If
the preceding contract terms contain contradictions, the following
order
of bindingness shall apply:
|
| 39.5 |
The
vendor’s General Terms of Business shall not apply. This shall also hold
true in individual cases where such General Terms of Business are
not
expressly contradicted by VF D2.
|
| 39.6 |
The
language of the contract is German. To the extent that German law
allows,
the parties can draw up parts of the contract in English, and perform
contract implementation in English, as far as this is
pertinent.
|
| 39.7 |
The
attachments to this contract constitute components of the contract.
This
contract contains the following
attachments:
|
|
Attachment
|
1
|
-
Specification
|
|
Attachment
|
2
|
-
Service Level Agreement
|
|
Attachment
|
3
|
-
Quality Requirements
|
|
Attachment
|
4
|
-
Monitoring Alarming
|
|
Attachment
|
5
|
-
Prices and Discounts
|
|
Attachment
|
6
|
-
Consulting, Prices and Services
|
|
Attachment
|
7
|
-
Bank Guarantee
|
|
Attachment
|
8
|
-
Ethical Purchasing
|
|
Attachment
|
9
|
-
Milestones
|
|
Attachment
|
10
|
-
General Conditions of Purchase for IT
Services
|
|
Düsseldorf,
date: 8-27-2007
|
Schwerte,
date: 8-27-2007
|
|
| /s/ Johannes Becher_______________________ | /s/ Ian Aaron | |
|
Vodafone
D2 GmbH
|
Twistbox
Games Ltd & Co KG
|
|
“Applications
& Games Service”
|
Att.05:
“Prices and Discounts”
|
|
August
2007
|
Commercial
in Confidence - Not for Disclosure
|
|
|
“Applications
& Games Service”
|
Att.05:
“Prices and Discounts”
|
|
1
Basic Revenue Share Model
|
3
|
||
|
2
Discount
|
3
|
||
|
Example
calculation
|
3
|
||
|
3
Price Cap
|
3
|
||
|
4
Additional conditions
|
3
|
||
|
5
Systems covered by the revenue share
|
4
|
||
|
6
Service development
|
5
|
||
|
7
Wire Transfer Instructions
|
5
|
|
“Applications
& Games Service”
|
Att.05:
“Prices and Discounts”
|
|
Assumptions
(ficticious month):
|
||||
|
VF
D2 Total Service Revenue:
|
EURO
[INFORMATION OMITTED AND FILED
SEPARATELY
WITH
THE COMMISSION UNDER RULE 24B-2]
|
|||
|
Vendor
Total Content Revenue:
|
EURO
[INFORMATION OMITTED AND FILED
SEPARATELY
WITH
THE COMMISSION UNDER RULE 24B-2]
|
|||
|
Vendor
Total Content Revenue Discount:
|
EURO
[INFORMATION OMITTED AND FILED
SEPARATELY
WITH
THE COMMISSION UNDER RULE 24B-2]
|
(Explanation:
[INFORMATION OMITTED AND FILED SEPARATELY
WITH
THE COMMISSION UNDER RULE 24B-2])
|
||
| · |
The
fulfillment of all requirements of the RfQ is covered by the Revenue
Share, including development, integration, customization, quality
assurance, maintenance, software e.g. for wrapper,
etc.
|
|
“Applications
& Games Service”
|
Att.05:
“Prices and Discounts”
|
|
·
|
Capacity
extensions are covered by the Revenue Share. Capacity extensions
of
bandwidth/traffic and hardware are
included.
|
|
·
|
Features
and requirements marked priority 1 or priority 2 have to be ready-for-use
on launch date. Priority 3 timeline is
below
|
| · |
Quality
assurance covers an average of 7 titles at about 100 Stock Keeping
Units
each per week (also included in the Revenue
Share).
|
|
·
|
VF
D2 SHALL BE ENTITLED TO OFFER TO ITS END USERS EACH MONTH FREE OF
CHARGE A
NUMBER OF DOWNLOADS NOT TO EXCEED [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] PERCENT [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2]%
OF THE
AGGREGATE NUMBER OF DOWNLOADS AS REPORTED BY VF D2 DURING THE PRIOR
MONTH.
|
|
·
|
VF
D2 guarantees to Vendor a minimum of [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] new launch slots
per
month for supplier’s Games in the
portal.
|
|
C2.2.5
UI SVG Support
|
Q1
2008
|
|||
|
|
||||
|
C2.5.4
The platform has to have the automated capability to send out specified
SMS/MMS to upsell additional content
|
Available
with launch of the service
|
|||
|
|
||||
|
C2.6.12
The platform has to provide the capability for a
MMS-Newsletter
|
Q1
2008
|
|||
|
|
||||
|
C2.6.17
Vendor has to provide SMS keyword discovery of content if required
by VF
D2. The customer receives a (Video) MMS with a video trailer and
a
deeplink to the purchase page.
|
Q1
2008
|
|||
|
|
||||
|
C2.5.6
Delivery into non-VF networks
|
Q1
2008
|
|||
|
System
|
|
Production
System
|
|
Redundant
Backup System for Production (Hotswitch)
|
|
Testing
(MVTC)
|
|
Download
Test Server
|
|
“Applications
& Games Service”
|
Att.05:
“Prices and Discounts”
|