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Partner Agreement
between
Vodafone D2 GmbH
Am Seestern 1
40547 Düsseldorf
(hereinafter
referred to as “
VF D2 ”)
and
Twistbox Games Ltd & Co KG
Lohbachstr. 12
58239 Schwerte
Germany
(hereinafter
referred to as “
ASP ”)
I.
Subject of Agreement
Provision
of the Application by the ASP for use on the VF D2 portals
such as, but not limited to the portal
“Vodafone-live” in compliance with VF D2’s
general terms and conditions for Partner Agreements as set out
in the version of such terms and conditions dated 27.08.2007
(hereinafter referred to as (“AGB”) as Annex
1.
II.
Type of the Application
For
all types of product mobile games and applications unless
otherwise agreed.
III.
End user device compatibility
ASP
is responsible for the best possible support of handsets which
are stipulated in the Annex 2 of this Partner Agreement.
Furthermore the ASP is also responsible for delivering
reasonable application updates for supporting new
handsets.
IV.
Rights of use
o
Only
German Vodafone Portals
o
Others:
_______________________________
V.
Brands to be offered for use by VF D2
___________________________________________________________________________________________________
o
Co-branding
with the ASP’s brand agreed
VI.
Normal price
For
the avoidance of doubt, VF D2 is free to set its own charges
for subscriptions for end users in accordance with the
AGB.
VII.
Subscription fee revenue share
If
not otherwise agreed between the parties, the following
revenue share shall apply:
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2] ASP
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2] VF
D2
Calculation
basis, pre-product deductions, free usages, calculation
clauses for packs as well as all accounting and payment
provisions are subject to the AGB.
VIII.
ASP’s minimum fee in the event of discounts or
packs
[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2] EUR
IX.
ASP’s Bank
Dortmunder
Volksbank eG
Credit
to: Charismatix Ltd. & Co. KG
Account
number: 633 030 1700
Iban#:
DE78 44160014 6330 3017 00
Reference:
BIC GENODEMIDOR
Bank
Code: 441600 14
X.
Term
Initial
term: [INFORMATION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION UNDER RULE 24B-2] beginning August 27th,
2007
Option
to extend the term in favour of VF D2:
o
yes
o
no
Optional
term:
Automatic
unlimited extension of the Term if not terminated:
o
yes
o
no
Any
time after the initial term, either party may terminate this
Partner Agreement upon at least [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] prior written
notice to the other party which such notice shall be delivered
on or before the 15
th of
June or the 15
th of
December of any year after the expiration of the initial
term.
XI.
ASP Contact persons
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Business
Development:
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Name:
eMail:
Telephone:
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Technical
(Mo-Fri 8-18):
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Name:
eMail:
Telephone:
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Editorial:
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Name:
eMail:
Telephone:
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Customer
Care:
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Name:
eMail:
Telephone:
Mobile:
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XII.
Preferred Aggregator;
1.
Preferred Aggregator. ASP shall be the main (preferred)
content aggregator for the Games and Application Service by VF
D2 such that any new third party which desires to distribute
Games and Applications under a local agreement must first
enter into negotiations for a license agreement with ASP on
commercially reasonable terms and conditions in order for such
third party’s Games and Applications to be available via
VF D2. [INFORMATION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION UNDER RULE 24B-2]
2.
VF D2 guarantees to ASP [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24B-2] launch slots
per month for erotic games designated as 18+ in addition to
any other agreed launch slots between parties. [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
XIII.
Special agreements and miscellaneous
1.
RIGHT TO AUDIT
VF
D2 will keep accurate and complete records, in accordance with
generally accepted accounting principles, in order to
determine the accuracy of VF D2’s reports and payments
and retain such records for at least two (2) years following
their generation. ASP, or its representative, will have the
right, subject to ten (10) days prior written notice to VF D2,
to examine, audit, and review all applicable records and
accounts once each calendar year during VF D2’s normal
business hours for so long as this contract is valid. VF D2
will pay to ASP all amounts discovered to be due ASP as a
result of any audit within thirty (30) days of invoice. In
addition, in the event any such audit by ASP reveals a
discrepancy of five percent (10%) or more in ASP’s
favor, VF D2 will pay all reasonable costs of ASP’s
audit, and such costs shall be added to ASP’s invoice
for amounts due.
2.
NOTICES
Any
written notice given under this Agreement shall be to the
addresses set forth below. The notice shall be deemed duly
given, if delivered by hand, on the same business day it was
delivered, or on the next business day if delivered on a
non-business day. The notice shall be deemed duly given, if
delivered by facsimile, upon receipt of confirmation from an
employee of the receiving party. The notice shall be deemed
duly given, if sent by prepaid overnight, registered or
certified mail, on the day of receipt. The failure to send a
notice copy shall not affect the validity of any notice
otherwise properly sent and actually received by a
party.
Notice
to ASP to be provided as follows:
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If
by mail
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Twistbox
Entertainment, Inc.
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or
facsimile:
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14242
Ventura Boulevard, Third Floor
Sherman
Oaks, California 91423 USA
Attn:
International Sales/Distribution
Attn:
EVP/General Counsel
Fax:
(818) 301-6239
Email:
legal@twistbox.com
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With
a copy to:
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Twistbox
Games Ltd & Co KG
Lohbachstr.
12
58239
Schwerte - Germany
Attn:
Eugen Barteska
Email:
ebarteska@twistbox.com
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3.
ASSIGNMENT
Either
party may assign this Partner Agreement, without the consent
of the other party, in the event of an assignment by either
party: (i) to a successor entity resulting from a merger,
combination or consolidation; (ii) to the transferee of all or
substantially all of the assets of the assigning party or its
parent(s); or (iii) to an entity under common control with,
controlled by or in control of the assigning party. In the
case of ASP, it shall not assign this Partner Agreement to a
competitor of VF D2.
4.
INDEMNIFICATION
Each
party (the “Indemnifying Party”) shall indemnify,
defend and hold harmless the other party (including its
parents, subsidiaries and affiliated companies), and its
directors, officers, employees, successors, licensees,
assignees, attorneys and agents
(the “Indemnified Party(ies)”) from and against
any and all claims, losses, deficiencies, damages liabilities,
costs, and expenses (including but not limited to reasonable
attorney fees and related costs and expenses) incurred by the
Indemnified Party(ies) as a result of any claim, judgment, or
adjudication against the Indemnifying Party arising from any
breach or alleged breach of any of the Indemnifying
Party’s covenants, obligations, representations or
warranties under this Partner Agreement; provided that, the
Indemnified Party(ies) promptly notify the Indemnifying Party
in writing of any such claim and gives the Indemnifying Party
the opportunity to defend or settle such claim at the
Indemnifying Party’s expense and cooperates with the
Indemnifying Party in defending or settling such a
claim.
5.
LIMITED
LIABILITY
IN
NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INCIDENTAL DAMAGES (German explanation: entfernter
Mangelfolgeschaden) ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT OR ANY MATTER RELATED HERETO, INCLUDING
WITHOUT LIMITATION, LOST BUSINESS OR LOST PROFITS, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE
PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL
TWISTBOX’S LIABILITY ARISING UNDER THIS AGREEMENT
EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID BY VF D2 TO
ASP AS OF THE DATE ASP BECOMES LIABLE FOR ANY SUCH DAMAGES
HEREUNDER.
6.
SURVIVAL
All
representations, warranties indemnifications and payment
obligations contained in this Partner Agreement shall survive
the termination and/or expiration of this Partner
Agreement
7.
VF
D2 REPRESENTATIONS AND WARRANTIES
7.1
VF
D2 represents and warrants as follows: (VF legal: remove
paragraph)
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(a) |
it
has full authority and ability to enter into and perform its
obligations under this Partner Agreement.
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(b) |
it
has not and will not undertake any action which might impair the
exercise of ASP’s full rights under this
Agreement.
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(c) |
VF
D2 will, on a continuing basis, use its best efforts to ensure the
content is distributed only where receipt and viewing of such
content is lawful and within the contemporary community
standards.
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(d) |
VF
D2 shall not make edits, modifications, changes or otherwise
manipulate or rearrange the content without ASP’s prior
written consent, which may be withheld in ASP’s sole
discretion.
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This
Partner Agreement is subject to VF D2’s general terms
and conditions for Partner Agreements as set out in the
version of such terms and conditions dated 15.03.2005 (Annex
1). Any conflicts between the terms of this Partner Agreement
and the terms of VF D2’s general terms and conditions
for Partner Agreements, the terms of this Partner Agreement
shall govern the rights and obligations of the
parties.
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Düsseldorf,
27.08.2007
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Schwerte,
AUG. 27, 2007
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/s/
Johannes Becher
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/s/
Ian Aaron
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for
VF D2
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for
the ASP
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/s/
Johannes Becher
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for
VF D2
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Annex
1: General
Terms and Conditions for Partner Agreements
Annex
2: Vodafone
D2 Java Games & Applications Local Submission
Specifications
*WE HAVE REQUESTED CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS
CONTAINED IN THIS EXHIBIT. THE COPY FILED AS AN EXHIBIT OMITS THE
INFORMATION SUBJECT TO THE CONFIDENTIALITY
REQUEST.*
GENERAL TERMS AND CONDITIONS
FOR PARTNER-CONTRACTS CONCERNING JAVA-
APPLICATIONS
of
Vodafone
D2 GmbH, Am Seestern 1, D-40547 Düsseldorf,
Germany
(hereinafter
“VF D2”)
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VF
D2 is a company belonging to the Vodafone Group, which does
business internationally.
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