MPP iShop, iDownload & iPay Terms and Conditions
The following Terms and Conditions are MPP Global Solutions Ltd (MPP)’s terms of business and form part of your Agreement with MPP. They apply to the instruction and/or MPP Order Form and any subsequently agreed written variation thereto which together MPP refers to as “the Agreement”. The Agreement supersedes any previous Agreement you may have with MPP for the same Services and contains all the terms that you (hereinafter referred to as “the Client”) and MPP have agreed.
1 Definitions
The following words and phrases shall have the following meanings (except where the context otherwise requires):
‘ACCEPTANCE TESTS’ and ‘ACCEPTANCE TESTING’’ means the tests to be undertaken in accordance with Clause 10.4 below and "Acceptance" shall be construed accordingly;
‘ACCEPTANCE TEST END DATE’ means 5 Working Days after the date on which completion of all Services set-up and/or Bespoke Development is completed and notification is made to the Client;
‘ASP’ means Application Service Provision and describes the means of offering Internet, Web and SMS Services to companies from remote locations;
‘BESPOKE DEVELOPMENT’ means agreed changes to MPP’s standard functionality, as requested in writing by the Client and as agreed in writing by MPP and the Client;
‘BESPOKE DEVELOPMENT FEE’ means the charges to Client for carrying out Bespoke Development;
‘CHANGE ORDER’ means a document signed by MPP and the Client to signify their approval to a change under Clause 10.5 below;
‘CHANGE REQUEST’ means a proposal put by one party to the other to change any or all of the following:
the Configuration Report;
the MPP Order Form;
the Services;
any Schedule to the Agreement;
particular terms of the Agreement;
‘CHARGEBACKS’ means the reverse payment from the credit card processor, commonly as a result of a repudiation of the transaction made by the credit card owner (the Customer);
‘CONFIGURATION REPORT’ means a specification of the requirements of the Client, which necessitates Bespoke Development;
‘CONTRACT PERIOD’ means the duration for which the Agreement is valid;
‘COST OF SALE(S)’ includes, but is not limited to, the original cost(s) of the SMS, Refunds, Chargebacks, Customer support, Telecommunications costs and Credit Card processing fees, as set out in SCHEDULE A – COST OF SALES of the Agreement;
‘CLIENT’ means you, i.e. the person, company or organisation who is contracting with MPP to provide the Services and who is agreeing to these Terms and Conditions;
‘CUSTOMER’ is the person (or end-user) who signs up for Services via the Client Web Site(s);
‘DATA’ means information collected from the Client’s Customers;
‘EMAIL’ means electronic mail and is the transmission of messages over the Internet;
‘EWALLET’ is a Customer’s account details that may include Payment Details and Service Credits;
‘GBP’ means Great Britain Pound and is the currency code for the British pound sterling;
‘GOODS’ are the products purchased by the Customers who have been introduced and signed-up to the Service as a result of Client’s promotional activities;
GO LIVE DATE’ has the same meaning as the Acceptance Test End Date;
‘GROSS REVENUE’ is the total amount, including VAT, of the value of the Goods sold to Customers;
‘INFORMATION’ includes, but is not limited to, any specifications, correspondence, documentation and example software code that MPP may provide to the Client from time to time;
"INTELLECTUAL PROPERTY" means patents, trademarks, designs and design rights, copyright, (whether registered or unregistered), any applications to register any of the foregoing, inventions, confidential information, know-how, business names, trade names, brand names, utility models, topography rights and any similar or analogous rights subsisting in any country, and all arrangements, Agreements and licences in connection with any of the foregoing;
‘INTERNET’ means the world-wide network of computers commonly understood to provide some or all of the following features, among others: electronic mail, file transfers through File Transfer Protocol, Telnet access to local and remote computers, UseNet Newsgroups, Gopher access to information on local and remote computers, Wide Area Information Servers and World Wide Web access including all sites written under WAP protocol for access through cellular networks;
“MACROPAYMENT” is a transaction (normally about or over GBP 5.00), which is charged directly to the Customer’s Credit Card from their eWallet (transactions used to buy Service Credits are excluded, since outpayments are made as “Micropayments’);
‘MANAGEMENT AREA’ means the password protected web pages where the Client can view data, download data, profile data, and send Customers Emails and SMS messages;
“MICROPAYMENT” is a transaction (normally from GBP 0.01 or 1 Service Credit to about GBP 5.00 or 500 Service Credits) which deducts Service Credits from a Customer’s eWallet in exchange for Premium Content, Service or Products;
‘MONTHLY SERVICE FEE’ is the monthly amount to be paid by the Client to MPP for providing the Services;
‘MPP GATEWAY’ means the facility to communicate with Customers by Email and SMS from the Affiliate Management Area;
‘MPP ORDER FORM’ is an MPP Order pro-forma which details the MPP Order Number, the Services ordered by the Client, the Set-up Fee, the Bespoke Development Fee and the Monthly Service Fee and which includes an authorised signature from the Client agreeing both the terms of the Order with MPP and the Client’s Agreement to these Terms and Conditions;
‘NET MARGIN’ is the value of the Goods sold to the Customers less the Cost Of Sales;
‘OUTPAYMENT’ is the sum due to the Client from MPP as stated in the MPP Order Form. If the Outpayment is defined in terms of MPP Commission (“Commission”), the Outpayment will equal the Net Margin less Commission;
‘PAYFORIT’ is a method of billing Customers for Premium Content and Products to their mobile phone bill;
‘PAYMENT DETAILS’ are the details required to obtain payment from the Customer such as credit card information;
‘PIN’ is the four digit number Customers use to authenticate any purchase of Service Credits or Products using the EWallet;
‘PREMIUM CONTENT’ is content for which the Client wishes to obtain a payment from the Customer in respect of any purchase, access, view or download requested by the Customer;
‘PRODUCT(S)’ means any items or Services that the Client wishes to sell;
‘REVERSE BILLING SMS’ is a method of billing Customers for Premium Content and Products to their mobile phone bill;
‘SIP’ and ‘ISS’ which together form the ‘SPECIFICATIONS’ are MPP documents which describe to the Client, if applicable, how to implement the Services;
‘SERVICE or SERVICES’ means the provision by MPP to the Client of eCommerce, Micropayment and Macropayment facilities for the sale of Premium Content and Product(s);
‘SERVICE CREDIT’ means the base unit to which Customers of the Service pay for Premium Content and which are deducted from the Customer’s account (eWallet). Service Credits are non-refundable;
‘SET-UP FEE’ is the amount to be paid by the Client to MPP for setting up the Services and for Bespoke Development as agreed in writing;
‘SMS’ means Short Messaging Service, which is a method of sending text messages to and from mobile devices;
‘URL’ means Uniform Resource Locator, which is the method by which Web Sites are identified and the method of linking to pages with a Web Site;
‘WEB SERVER’ means the computer or computers used to make the Web Site accessible to Internet Customers;
‘WEB SITE’ or ‘WEB PAGES’ means a series of interconnected Web Pages residing on a Web Server or servers. This includes text, static HTML pages, ASP Code, images, sound files and data;
‘WORKING DAYS’ means on any day except a Saturday, Sunday or Bank Holiday between the hours of 9.00 am to 6.00 pm.
2 Introduction
2.1 Under the terms of the Agreement, MPP agrees to provide the Services to the Client. The Service enables the Client to obtain payment for Products, Premium Content and to enable the delivery of the Products and Premium Content to the Customer.
3 Risks
3.1 The Client agrees that, by definition, access to the GSM network and other communication media is associated with risks, for which MPP shall not be liable, concerning authentication, data security, privacy, and availability of Services and reliability of transmission;
3.2 MPP has the right to cancel or suspend the Service to any Customer and/or any Client who is reasonably suspected of committing fraudulent acts whilst using the Service.
4 MPP’s Obligations
4.1 In consideration of the Terms and Conditions of the Agreement, MPP hereby agrees:
4.1.1 to pay to the Client for each transaction the ‘Outpayment’, as set out in the MPP Order Form, which Outpayment is generated by Customers of the Service for the Contract Period;
4.1.2 to track Customers who sign up for the Service, for the purpose of identifying any transaction where an Outpayment to the Client is due;
4.1.3 to provide a Specification to the Client that details how to implement the Services into the Client Website(s);
4.1.4 to provide the customised URLs to the Client, in order for the Client to link to registration, login and Customer account management pages;
4.1.5 to provide a statement to the Client by the 15th (fifteenth) of each month for sales made by the Client in the previous calendar month. This statement will specify the gross payments received from the Customer which the Client will be obliged to declare to HM Revenue and Customs or equivalent EC tax authority. This statement will also confirm the commission due to MPP in respect of the relevant sales, which will be deducted from the sale proceeds. This payment will be made to the Client within 14 (fourteen) days of the statement date and MPP will issue a VAT invoice for the value of the commission earned in the relevant month. If Reverse Billing SMS or Payforit transactions occur Outpayments cannot be made until 45 (forty-five) days after the month-end due to the length of time mobile network operators take to provide statements and Outpayment details.
4.1.6 to provide a platform for the Service(s) that complies with industry standards and reasonable levels of performance;
4.1.7 to provide disaster recovery procedures to avoid the permanent loss of Customer data;
4.1.8 to provide access security that is suitable for the purpose;
4.1.9 to provide effective measures against viruses and hacking attacks that are at least comparable with industry standards;
4.1.10 to provide 24 hour support to reboot level on all hardware;
4.2 to provide Services infrastructure, as specified in the Configuration Report or MPP Order Form, website(s), WAP site(s), re-branded registration, Customer account management and payment facilities;
4.3 to enable the Client to obtain payment from Customers via Web Pages, WAP Pages, Email or SMS for Micropayment or Macropayment transactions;
4.4 to provide secure access via a username and password to a Management Area. This will enable the Client to have an overview of data held, segment the data by the fields obtained, download all segments of the data in a CSV format and send Email and SMS text messages to all or segmented Customers;
4.5 in order to properly carry out the Services set out in this Clause 4, to ensure that a telephone contact number (+44 870 099 2120) is manned between the hours of 09:00 and 17:00 on Working Days so that any reasonable request for assistance by the Client will be actioned and which may include effecting Customer refunds, technical assistance and adequate software support and assistance;
4.6 to use reasonable endeavours to ensure high levels of security are maintained at all times, pursuant to the Data Protection Act 1998 and to carry out quarterly reviews of all security components;
4.7 to ensure at all times that its use of the Web site is in accordance with all applicable laws, licenses, codes of practice and regulations, including the Data Protection Act 1998, the Consumer Credit Act 1974 and all appropriate advertising standards;
4.8 Authorisation and Authentication
4.8.1 After MPP has received the Agreement or the MPP Order Form correctly completed and signed, to provide to the Client the Client’s username and password. This login information serves as identification of the Client to MPP for access to the Management Area and for use with the Specifications. MPP will perform no further authentication of the Client's identity;
4.8.2 The Client agrees that all website, Email and SMS activities which can be traced to the Client’s username and password are deemed as having been performed by the Client.
5 Client’s Obligations
5.1 In consideration of the Terms and Conditions of the Agreement, the Client hereby agrees:
5.1.1 to provide Premium Content and/or Products that may be paid for via Micropayment or Macropayment;
5.1.2 to have links to Premium Content and/or Product(s) prominently displayed within the home pages of the Client web sites and in top level website navigation menus;
5.1.3 to promote registration to the Service via the Web Site and Email communication with Customers;
5.1.4 to prominently display the MPP Logo and a “Powered By MPP” strap line on every page of the site. The logo and strap line should be links to the MPP website (http://www.mppglobal.com) and the link may require periodic updates.
5.2 to source Services exclusively from MPP for the Contract Period, except where both parties agree in writing to source supplementary Services from a third party;
5.3 Use by third parties:
5.3.1 The Client shall be held liable to MPP for any use by third parties of the Client’s username and password. In this regard the Client is recommended to keep in a safe place its username and password to the SMS Services and not to reveal it to third parties. For the avoidance of doubt, the Client will pay for any Email or SMS messages sent either mistakenly or as a result of use by any third party.
5.4 Content of Email and SMS Text Messages:
5.4.1 The Client shall be responsible for the content of any Email and SMS Text message which MPP transmits or processes on the Client’s behalf or on behalf of any third party. The Client shall ensure that the access is not used to worry or annoy any Customers or for any other unlawful purpose. In particular, and in any event, scenes of violence, pornography, incitement to violence and racial discrimination are prohibited.
5.4.2 The Client agrees to indemnify MPP, and/or its subsidiaries, from any claim or demand (including all reasonable legal costs), made by any third party due to or arising out of Email or SMS content Client transmitted through the Service, Client's use of the Service, Client's connection to the Service, the Client's violation of the Terms of Usage, or the Client's violation of any rights of another and which is due to the fault of the Client.
5.5 Action in the event of misuse:
5.5.1 If a competent authority notifies MPP of any unlawful use of the Services, Email or SMS, MPP shall give notice to the Client to cease and/or remedy such unlawful use. If the Client fails to remedy such unlawful use within 7 days MPP may bar the Client access to the Services, Email or SMS for a reasonable period of time or may terminate the contract without notice and without paying compensation.
5.6 As the Client is supplying the product(s) to the Customer the Client is responsible for determining the VAT liability of any given transaction and for paying any VAT that may be due (on the full value of the product(s) to the Customer) to HM Revenue and Customs or equivalent EC tax authority.
6 Transmission of Email and SMS Text messages
6.1 Delivery of Email and SMS Text messages:
6.1.1 The Client acknowledges that MPP delivers Email and SMS messages via major telecommunications companies and mobile network providers and, with regard to transmission, can therefore only influence the delivery of Email and SMS messages within the technical constraints imposed by the abovementioned providers;
6.1.2 SMS messages submitted via MPP’s SMS Servers will be transferred to the addressed recipients within seconds or minutes, provided that the recipient's phone is switched on and located in an area covered by his subscribed mobile network provider. The Client acknowledges that, depending on the recipient's mobile Service provider, it may not be possible to transmit the SMS message to the recipient successfully, particularly if the provider does not support SMS delivery at all;
6.1.3 Email messages submitted via MPP’s Email Servers will be transferred to the addressed recipients within seconds or minutes, provided that the details submitted are correct and the recipient is able to receive such communication;
6.1.4 The Client further acknowledges that certain non-UK mobile Service providers prevent SMS messages being sent to Customers (of their network) and that those mobile Service providers may delay delivery or block delivery altogether, and that this is beyond the control of MPP.
7 Customer support
7.1 MPP shall accept fault reports by Email to cs@mppglobal.com, or by telephone on +44 870 099 2120 from the Client’s staff and shall use all reasonable endeavours to ensure that such faults are remedied as soon as possible;
7.2 Faults cannot be repaired if circumstances beyond MPP's control prevent their repair.
8 Data protection
8.1 In its handling of data, MPP shall adhere to the current legislation, in particular the telecommunications and data protection laws. This applies to the registration, storage and passing on of Customer data. The law may oblige MPP to provide information about Customers' telecommunications traffic to the relevant authorities, e.g. pursuant to court order. MPP cannot eliminate the possibility of unauthorized third parties obtaining access to the contents of transmitted SMS Text messages.
8.2 The Client acknowledges that Email and SMS message content is transmitted unencrypted and that eavesdropping of Email and mobile phone communications, including SMS delivery, by third parties is possible.
9 Technical alterations and provision of Services
9.1 MPP reserves the right to carry out technical alterations to its equipment. MPP have no control over third party systems that may affect the normal working of the Service;
9.2 MPP shall use reasonable endeavors to ensure uptime of the Service is not less than 99.0%.
10 Bespoke Development Work
10.1 If the Client requires Bespoke Development a Configuration Report will be created by MPP.
10.2 Where the Client wishes to accept the Configuration Report, the Client shall return a signed copy of the Configuration Report to MPP which Report will supersede in all respects all previous documentation, correspondence and communications.
10.3 Where the Client does not agree with the requirements defined in the Configuration Report, the Client shall inform MPP within 5 Working Days of receipt of the Configuration Report and both parties will hold good faith discussions, meetings and/or negotiations to amend the Configuration Report accordingly. Where the Client does not inform MPP within that 5 Working Day period that it does not wish to proceed with the Bespoke Development, the Client shall be deemed to have accepted the Configuration Report and MPP shall be entitled to carry out the Services set out in the Configuration Report and to be paid for the Bespoke Development as set out in this Agreement.
10.4 Acceptance Testing
10.4.1 After completion of setting up the Services and/or Bespoke Development, MPP shall notify the Client, whereupon the Client will carry out the Acceptance Tests on the Services.
10.4.2 If the Acceptance Tests discloses any defect which MPP reasonably determines falls outside of the scope of the MPP Order Form or Configuration Report, the Client shall forthwith notify MPP of the defect and shall provide MPP with such information concerning the defect as MPP shall require. MPP shall have the opportunity to remedy any such defect and shall return the modified or altered Services to the Client for repeat Acceptance Testing.
10.4.3 Failure by the Client to notify MPP of any defect before the Acceptance Test End Date shall constitute acceptance of the Services. Acceptance Tests shall also be deemed to have been successfully concluded if the Client uses the Services or permits others to use the Services for any purpose other than Acceptance Testing.
10.5 Change Control
10.5.1 Change Requests may be originated by the Client at any time prior to commencement of Acceptance Testing.
10.5.2 Upon receipt of a Change Request MPP shall notify the Client and no Change Request shall become a Change Order until the following have been established and agreed in writing between the parties in respect of the proposed Change Request:
10.5.2.1 any alterations to the Configuration Report;
10.5.2.2 Acceptance Test criteria including any modification required to any existing Acceptance Test criteria;
10.5.2.3 the details of any consequent effect on the charges and costings and the basis of payment for the work comprised in the Change Order;
10.5.2.4 any other consequential amendments to any of the terms of this Agreement or its Schedules; and
10.5.2.5 confirmation by email and/or signatures of both parties to indicate their approval of and Agreement to the proposed change(s).
10.5.3 MPP may request in writing such further information regarding a Change Request made by the Client as MPP reasonably requires and the Client shall supply the same as soon as is reasonably possible.
10.5.4 If a Change Request results in a delay in the performance of the Services then MPP will not be liable to the Client in respect of such delay and MPP shall be entitled to an extension of time for performing its obligations equal to the period of that delay. Change Requests received within five (5) days of the Go Live Date or extended Go Live Date will automatically attract a minimum extension of time of five (5) days. Should the Client require that the previous Go Live Dates be maintained it does so entirely at its own risk and MPP will not be held responsible for system performance or stability or any costs incurred as result thereof.
11 Billing and payment terms
11.1 Billing
11.1.1 The Client agrees to pay all Set-up Fees and Monthly Service Fees rates plus VAT at the prevailing rate, unless otherwise stated. The Set-up Fees and Monthly Service Fees are set-out in the MPP Order Form;
11.1.2 MPP will bill the Client for all Email messages and SMS alerts sent using the MPP Gateway. These messages will be charged as set out in SCHEDULE A – COST OF SALES and MPP shall be entitled to advance payment if MPP so requests.
11.1.3 All Payments due to MPP (for Service Set-up Fees, Monthly Service Fees or Bespoke Development) shall be paid within 14 days of receipt by the Client of the MPP invoice.
11.1.4 Subject to the terms of the Agreement MPP shall pay the Client, as per paragraph 4.1.1 hereof using MPP server records.
11.1.5 The Client may, at its own expense, and after giving 14 days written notice to MPP, conduct a supervised inspection of the MPP server records. Such inspection shall only be made in regard to data relating to the Client, and shall be undertaken by a suitably qualified technician, in a manner that shall not disrupt MPP’s business.
11.2 Delay in Payment
11.2.1 In the event of delayed payment by the Client, MPP may, upon 7 days written notice, bar the Client from accessing the Service;
11.2.2 Further, if any sum or sums properly due and payable under the Agreement is not paid by the due date, the party entitled to the said sum or sums shall (without prejudice to any of its other rights hereunder), be entitled to charge interest at 3% above the existing base rate of The Royal Bank of Scotland plc payable from the date the sum or sums were due until payment is made, such interest accruing from day-to-day and being payable up to and after any Judgment.
11.3 Outpayments
11.3.1 The Outpayment is dependent upon the number of Micropayment and Macropayment transactions occurring in any calendar month. The Outpayment excludes VAT. There is a required minimum Outpayment, excluding VAT, of GBP 50.00 per month to qualify for an Outpayment;
11.3.2 Revenue payments for any calendar month will be made by MPP to the Client as per Clause 4.1.1;
11.3.3 All Costs of Sales will be deducted from revenues generated, before payment is made to the Client. Outstanding Costs of Sales or other monies owed by the Client to MPP will be deducted from the Client’s Outpayments. Should the said Outstanding Costs of Sales or other monies owed to MPP be greater in value than the Outpayment amount otherwise due to the Client, MPP will invoice the Client accordingly.
11.3.4 In the event that any sum owed by the Client to MPP under the Agreement or any other Agreement, is not paid by the due date MPP shall be entitled to deduct such sum(s) from any payment otherwise payable to the Client and, further, MPP shall be entitled to withhold by way of security such sum(s) that MPP in its discretion shall deem reasonable to withhold as security for any sum(s) due to it, including any sum(s) likely to accrue in the future in circumstances in which the Client has evinced an intention not to pay MPP such future sum(s), or in circumstances in which MPP reasonably believes that the Client has such an intention not to so pay.
Should pursuant to this clause MPP withhold any sum(s) as security for anticipated future liabilities of the Client, MPP shall pay to the Client interest at MPP‘s own Bank’s applicable rate for a sum(s) held on deposit, for such period that accrues until a payment would ordinarily become due to MPP and MPP shall be entitled to deduct from the sum(s) held as security the relevant payment due to it on the relevant date as determined by the MPP Order Form and the ongoing balance on which interest continues to accrue will diminish accordingly.
In the event that any Regulatory Body imposes any fine on the Client and/or MPP or requires the Client and/or MPP to pay any charge or other sum which applies or relates or may apply or relate to the business or activities of the Client and/or MPP, then MPP shall be entitled to withhold or deduct a sum equal to such fine, charge or sum from any sums payable to the Client under this Agreement and to pay the same to the relevant Regulatory Body.
12 Duration and termination of the contract
12.1 Subject to clause 12.4 hereunder the Contract shall endure for a period of 24 months from the Go Live Date (‘the Initial Contract Period’) unless otherwise stated in the MPP Order Form, and the parties agree to be bound by The Agreement for the duration of the Initial Contract Period;
12.2 If the Agreement is terminated by MPP pursuant to the Client’s default of its obligations hereunder the Client shall pay (by way of agreed compensation for MPP's financial loss by reason of such early termination and not as a penalty) a sum equal to the total of the Monthly Service Fee, the Set-up Fee, the Bespoke Development Fee and Commission which would have been payable under the terms of the Agreement, PROVIDED ALWAYS that this Clause 12.2 shall not apply where:-
12.2.1 The Client gives 30 days written notice of termination because of an increase in the Monthly Service Fee of more than 10% within any one year period commencing on the Access Date and
12.2.2 the notice is given within two (2) weeks of the date on which the increase takes effect; or
12.2.3 the Client terminates this Agreement pursuant to the due and proper exercise of its rights set out in Clause 12.3;
12.3 Either party may terminate the Agreement with immediate effect if:
12.3.1 The other party has committed a breach of the Agreement and fails to remedy the breach within 30 days of written notice requiring it to do so, or
12.3.2 The other party or a creditor of the other party takes any steps whatsoever that relate to the winding-up or dissolution of that party’s business, including but not limited to the presentment of a bankruptcy petition and/or the appointment of an Administrator or a Receiver.
12.4 MPP may terminate the Agreement with immediate effect if the gross value of Chargebacks in any whole calendar month is equal to or greater than 6% of Gross Revenue;
12.5 At the end of the Initial Contract Period the Agreement shall be automatically renewed for a period of one (1) year thereafter PROVIDING THAT either party may choose not to accept automatic renewal of the Agreement by giving 90 days’ written notice to the other party, which notice shall not be given later than 90 days before the expiry of the Initial Contract Period.
12.6 Termination of the Agreement shall be without prejudice to the rights and obligations accruing up to and including the date of termination.
12.7 In the event of termination, fees and any charges for the Service shall be payable up to the expiry of the Initial Contract Period or where applicable the duration of any renewal (automatically or otherwise) of the contract period.
12.8 Limitation of liability
12.8.1 MPP shall not be liable for loss or damage resulting from delayed delivery or non-delivery of any of the Service elements, including but not limited to Email and SMS messages; loss or damage resulting from content provided directly or indirectly through the MPP web pages, Email or via SMS text message; the downtime of mobile network provider servers or of its own servers, from Service anomalies or Service errors. The Services and all information, products and other content (including third party information, products and content) included in or accessible from the MPP websites are provided "as is" and are subject to change at any time without notice to the Client.
12.8.2 MPP shall not be liable for any indirect, incidental, special or consequential loss or damage or for interrupted communications, lost data, or loss of profit, or economic loss arising out of or in connection with the Agreement and in particular shall not be liable for any delay in rectification of any such problem.
12.8.3 MPP shall not be liable in negligence for any loss or damage except in relation to death or personal injury caused by the negligence of itself or that of its officers or employees.
12.9 Except as otherwise stated the Client’s remedy for any breach of the Agreement shall be:
12.9.1 Correction by MPP of a remedial breach within a reasonable timescale or otherwise within a timescale as provided for herein;
12.9.2 Replacement of Service(s) supplied.
12.10 Any claim for loss or damage caused as a result of MPP’s breach(es) of the Agreement shall in any event be limited to the previous one (1) month’s payment to the Client (as received by MPP) and in any event the claim and any payment in respect thereof shall not exceed GBP 20,000 for any one event or series of events.
12.11 MPP shall not be liable for any interruption, delay or failure in Service resulting from any matter or event outside of its control, to include, but not limited to, any act of God, inclement weather, storm, flood, drought, lightning, fire, power failure, shortage of power, disturbance to power supplies, disconnection damage or disturbance to telecommunications connections and cables, trade dispute, government action, embargoes, termination of or refusal to grant a license, damage to or loss of Equipment or interruption, failure or delay in any Service provided to us by any third party including governmental or regulatory authority or telecommunications operator, war, military operations, or riot.
12.12 MPP shall have no liability to the Client in respect of any demand or claim where:
12.12.1 The demand or claim arises as a result of the Client’s negligence, misconduct or breach of the Agreement;
12.12.2 The Client does not notify MPP of any claim within seven (7) days of becoming aware of such claim;
12.12.3 The Client does not give MPP full authority to deal with the claim, or does not provide all information requested by MPP and or fails to co-operate with MPP to defend the claim.
12.13 MPP shall not be liable for any losses caused by the Client’s failure to perform its obligations under the Agreement.
13 Indemnity
13.1 Without prejudice to any other indemnity referred to in this or any other Agreement, the Client agrees to indemnify MPP and its parent, subsidiaries, affiliates, officers and employees against any claim or demand, including any made by a third party, arising out of the Client’s or the Customer’s use of the Service and all costs relating thereto. The Client agrees not to hold MPP and/or its parent, subsidiaries, affiliates, officers and employees responsible for any direct or indirect loss or damage resulting from the use of MPP’s software or Services, in particular, but not limited to, the use or impossibility to use the Service, confidence in information obtained, errors and omissions, defects, viruses, delay in transmission, interruption of Service or loss of data.
13.2 The Client agrees to indemnify MPP, and its parent, subsidiaries, affiliates, officers and employees against any claim or demand, arising from any act of the Client or third party including but not limited to:
13.2.1 A breach or allegation of breach of the conditions of the Agreement;
13.2.2 Negligence, misconduct or any allegation of negligence or misconduct by the Client or by any third party;
13.2.3 The marketing or promotion undertaken by or on behalf of the Client;
13.2.4 The Service content provided or marketed by or on behalf of the Client, and all costs relating thereto.
14 Amendments to the contract
14.1 MPP shall notify the Client thirty (30) days in advance of any alterations to the minimum billing amount, charges, Outpayment tariffs, SMS costs, Email costs, Monthly Service Fees, Message Prices as well as their maturities. Unless there is written notice of termination of the contract within fourteen (14) days, the changes shall be deemed approved by the Client. The same rule shall apply to amendments to this Service description and to restrictions of MPP's Service.
15 Confidentiality
15.1 During and after the period while the Agreement remains in force, the parties shall not disclose to any third party the Information gained in connection with the Agreement, nor the terms and payments due, but either party may disclose to its officers and employees such information as may be required for them to fulfill their proper performance of their duties, and maybe used in the proper exercise of its rights and obligations under the Agreement.
15.2 The obligations of confidence, and restrictions on disclosure shall not apply in the following circumstances:
15.2.1 Where the parties agree in writing to make information publicly available;
15.2.2 Where such information was already in the public domain, save as a result of a breach of clause 15.1;
15.2.3 In respect of disclosures by third parties, where a party to the Agreement lawfully disclosed such information to that third party, or
15.2.4 Where disclosure is required by law;
15.3 The Client shall ensure that the confidentiality provisions of this Agreement bind all its employees and agents and shall indemnify MPP against all loss or damage suffered as a result of a breach of confidence by its employees or agents;
15.4 MPP shall have the unconditional and irrevocable right to disclose the identity and address of the Client and the Customer(s) in the event of any complaint received from any regulatory or government body, ICSTIS, BT plc, or any licensed telecommunications carrier, in connection with the Services offered to the Client.
16 Jurisdiction
16.1 The Agreement shall be governed by and construed in accordance with English law and jurisdiction for the resolution of any disputes in relation to the Agreement and the obligations set out herein shall be exclusively with the courts of England and Wales;
17 Assignment of rights and duties
17.1 MPP is entitled to assign this contract to an MPP subsidiary or sub-contractor without the prior written approval of the Client.
18 Intellectual Property Rights
18.1 The United Kingdom and international copyright and other intellectual property rights and confidential information in all communication media and systems associated with the Service and any underlying Services remain the property of MPP. By using the Services, the Client does not obtain any rights in the infrastructure, content or software associated with the Services.
18.2 All Intellectual Property owned by either party prior to the date of the Agreement shall remain the absolute property of that party notwithstanding the existence or operation of the Agreement.
18.3 Each party grants to the other party a non-exclusive license of its Intellectual Property for the term and purposes of the Agreement only. Each party shall not without the prior written consent of the other party use any of the Intellectual Property otherwise than expressly permitted by the Agreement and if during the course of the Agreement either party makes any change whatsoever to the Intellectual Property that party shall not without the prior written consent of the other party provide, disclose or make available for use copies of any such changes or proposed changes to any third party.
18.4 If either party becomes aware of the unauthorised use or infringement by any third party of any of the other party’s Intellectual Property, that party shall notify the other within seven (7) working days and shall at the request and expense of that party take such actions as the other party reasonably deems necessary to protect its Intellectual Property.
18.5 As soon as any design or improvement is made in the course of the Agreement which either MPP or the Client considers to be capable of trademark registration or some other form of protection, that party shall forthwith inform the other party and provide full details to the other party (and to no other person).
18.6 All rights in and to the Client’s Intellectual Property relating to the Client’s services in relation to the Intellectual Property arising in the course of the Agreement shall belong solely and absolutely to the Client and any and all applications to register any intellectual property created in accordance with this clause shall be in the sole name and at the sole cost of the Client.
18.7 All rights in and to MPP’s software, hardware, IT systems, databases, web sites and web pages, Email and SMS delivery and payment systems in relation to the Intellectual Property arising in the course of the Agreement shall belong solely and absolutely to MPP and any and all applications to register any intellectual property created in accordance with this clause shall be in the sole name and at the sole cost of MPP.
19 Interpretation
19.1 If any term of the Agreement is held invalid, illegal or unenforceable, the remaining portions shall not be affected. You must comply with all laws, regulations, obligations and restrictions which apply to you. The Agreement may not be modified, except in writing signed by an authorised officer of MPP and an authorised officer of the Client. No failure or delay in enforcing any term, exercising any option or requiring performance, shall be a waiver of that or any other right.
20 General
20.1 It is agreed between the parties that the Agreement shall take precedence over any Agreement(s) that might otherwise apply between the parties and which are otherwise inconsistent with the Agreement;
20.2 Notwithstanding anything contained in the Agreement, the Client shall indemnify and keep indemnified MPP against all loss, damage, claims, demands, actions, costs, charges, expenses and liabilities of whatsoever nature arising out of or in connection with any materials provided by the Client to MPP pursuant to the Agreement containing material in respect of which any Intellectual Property or proprietary rights belonging to any third party or any claim that the Web site or any other specification, information, goods, Service or material produced or supplied by the Client under or pursuant to this Agreement infringes at any time the Intellectual Property of any third party wheresoever and howsoever arising;
20.3 Notwithstanding anything contained in the Agreement, MPP shall indemnify and keep indemnified the Client against all loss, damage, claims, demands, actions, costs, charges, expenses and liabilities of whatsoever nature arising out of or in connection with any materials provided by MPP to the Client pursuant to the Agreement containing material in respect of which any Intellectual Property or proprietary rights belonging to any third party or any claim that the Web site or any other specification, information, goods, Service or material produced or supplied by MPP under or pursuant to this Agreement infringes at any time the Intellectual Property Rights of any third party wheresoever and howsoever arising.
SCHEDULE A – COST OF SALES
The following is provided as a guideline only since the exact running costs will be calculated on a month-by-month basis and itemised in the monthly statement prepared for the Client;
SMS and Email Costs
Each SMS sent is charged at GBP 0.060 to send to UK networks. Each email sent is charged at GBP 0.005.
Interconnect fees have been introduced by Mobile Operators for sending SMS messages to international networks. These additional charges range from GBP 0.03 to GBP 0.04. MPP will pass these charges on to the Client.
Credit Card Transaction Fee
The credit card processor takes 2.85% of the transaction amount.
Debit Card Transaction Fee
The debit card processor takes GBP 0.26 + 1% of the transaction amount.
PayPal Transaction Fee
For online (web-based payments), 1.40% of the transaction amount + GBP 0.20 per transaction. For mobile (mobile or WAP-based payments), 3.50% of the transaction amount + GBP 0.20 per transaction.
MCPS/PRS
If applicable, MPP is registered to make MCPS payments on behalf of the Client. For music downloads, this is set at 8% of the excluding VAT sales price. For mobile ringtones 15% of the excluding VAT sales price or GBP 0.15 per item, whichever is the greater.
Download Charges
If applicable, depending on the file size of the download, the following charges apply:
Up to 7MB (equivalent up to 3 mins) GBP 0.05 (GBP 0.10)
7MB to 11MB (equivalent up to 5 mins) GBP 0.075 (GBP 0.15)
Thereafter GBP 0.01 per MB, such that a 30 MB clip costs GBP 0.65 (GBP 0.33)
(DRM prices are in brackets)
Customer Support
If applicable tools are provided to enable the Client to provide its own front-line Customer support. There is a per minute fee of GBP 0.80 for this service. For the avoidance of doubt, the charges are only applicable for time spent by MPP Customer support staff who are engaged in the normal running of the Service and not as a result of Customer support enquiries caused by loss of Service of MPP systems. Chargeable Customer support services include answers to general Customer or Client enquiries, processing of Refunds and Chargebacks where applicable.
Chargebacks
“Chargebacks” (or repudiation or a denial of Service by the Customer) is normally due to fraudulent activity and occurs when the credit card company reverses the transaction (and applies a charge) without notice. Although stringent measures are made to reduce the risk of fraud it can never be completely eradicated. The cost of the Chargeback is the value of the original transaction, plus commission and Credit and Debit Card Transaction Fees and an administrative fee of GBP 15.00 per Chargeback. The Client understands that Chargebacks maybe administered some months after the original transaction and that, should the Agreement be terminated, this clause shall survive the termination and the Client agrees to pay the said Chargebacks as invoiced by MPP at any future date. If the volume of Chargebacks is deemed by MPP to be excessive, MPP may request and be entitled to receive a bond from the Client to cover the predicted cost of Chargebacks.
Re-Sends / Refunds
Some Services are often re-sent due to customers claiming they were not received the first time. Likewise customers sometimes claim not to have received Services at all, the payment for which may need to be refunded. A “Refund” is a the reversal of the original Micropayment or Macropayment to the Customer. The costs of the refund is a Cost Of Sale.
Outpayment Adjustments
In the event that OFTEL, or any other regulatory body, or BT plc or any other carrier with which MPP contracts, makes retrospective price adjustments to revenues paid to MPP which result in MPP having overpaid the Client, then MPP at its sole discretion and without prejudice to MPP’s rights to re-claim such overpayment from the Client, may deduct from subsequent payments to Client, sufficient revenues to reflect the sums overpaid to the Client.
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