AFFILIATION CONDITIONS
SIGNATORIES
Of one party: NET REAL SOLUTIONS S.L., at Vila-Real, Avenida Arcadi Garcia Sanz, 19, 1st floor, with a Company Identification Number (CIF) of B-12550877. Henceforth, NET REAL SOLUTIONS S.L. shall be referred to NRS-GROUP.
The other party, the affiliated with the name, adress and VAT number entered on the register form later addressed as the 'CLIENT'.
Both parties hereby agree to partake mutually and reciprocally, the legalities necessary to fulfil the contract, and to put into agreement the following:
STATEMENT
NRS-GROUP is contracted with the main licensed operators of mobile telephones in Spain, with the possibility to obtain short codes in order to receive and/or send short messages, as the same short codes, that shall be defined later.
That NRS-GROUP has a platform through which the traffic of text messages can be channelled and received to and from the designated operators. The needed human resources and material are available for its development.
That the CLIENT is interested in contracting the services of NRS-GROUP for this very programme and the adoption of its platform. The services and competitions that the CLIENT would like to use and/or develop.
Using the same merits used in the previous paragraph, both parties agree to be legally capable of obligating each other. Both parties are interested in making this contract. The contract shall be in accord with Spanish Law. Spanish Law shall be applicable, especially the following:
CLAUSES
1. AIMS
The aim of the present contract is technical development and operation development in order that the CLIENT offers and promotes contents to mobile telephone users through the communication system SMS.
2. SHORT CODES AND KEY WORDS.
The development of this present contract shall assign telephone numbers from the different mobile telephone operators with whom the NRS-GROUP have gained agreement.
The NRS-GROUP, upon the validation of the contract, shall assign to the CLIENT the numbers, or numbers, that shall be requested in agreement with the conditions established in this contract.
The assigned numbers to the CLIENT shall be subject to those assigned by the COMISIÓN DEL MERCADO DE LAS TELECOMUNICACIONES, or by the appropriate administration body. Therefore the NRS-GROUP are not responsible for the consequences and the responsibilities that could affect the CLIENT directly or indirectly from this clause. When the NRS-GROUP receives the assigned numbers, they shall inform the CLIENT as soon as possible.
The remuneration that the CLIENT receives refers in all cases to the complete charges for every agreed assigned number according to the scale of costs as stated in the contract, or any contract that is attached. Also in agreement with updated versions given to the NRS-GROUP by the Telephone Company through whom the numbers have been supplied.
The CLIENT shall not be able to yield, lease, loan, tax or pawn the assigned telephone numbers without the expressed permission of the NRS-GROUP Any businesses legal department which is outside the limits of this contract that could be used with the CLIENT’s assigned numbers shall be invalid and ineffective.
3. PROMOTION SERVICES
Provided that the COSTUMER promotes the Services that he will be carrying out through the Gateway, he must comply with all the applicable regulations as regards advertising, becoming therefore fully responsible for the consequences that his failure could cause, in particular to the conditions set by the legislation on the subject and as specified in the Code of Conduct attached to the present contract which is detailed in section IV. Every promotion needs the approval of NRS-GROUP.
4. RESPONSIBILITY FOR EACH PARTY
NRS-GROUP is completely exonerated of any responsibility for damages of any sort that could occur because of possible legal actions of the CLIENT. The same applies to the CLIENT from the NRS-GROUP specifically as follows:
Non-compliance of the law, non-compliance of generally accepted good and moral customs of law and order. For example, the consequence of data transmission divulging stored data making disposition of message receiving, message obtaining or accessing messages.
Infringing of intellectual property rights, or industrial, or business secrets of contractual commitments of any kind. Honoured rights, individual privacy, family privacy and the personal image of the property right and of anything relevant to a third party as a result of data transmission divulging stored data making a disclosure of messages, receiving private messages obtaining or accessing the contents of the SMS.
Unfair competition and illicit publicity as a result of data transmission divulging messages, storing data, making a disclosure of messages, receiving private messages, and/or obtaining or accessing the contents of the message.
A lack of relevance, truthfulness and accuracy. For updating the content of sent messages. Messages of any type that is non-compliant. Fulfilment, defective fulfilment or termination by any cause from the contract obligations caused by a third party and contracts with a third party giving access to messages of SMS.
Mistakes, or defects, of any type of transmitted message for which the content of the message is divulged. Storage of message contents, availability of message contents and transmission of message contents.
Both parties acknowledge the “Secretaría de Estado de Telecomunicaciones y para la Sociedad de la Información” of 8th July 2009 published on 27th July 2009. whereby the legal obligation are set out in the Resolution, where the Code of Conduct for the provision of additional rate services based on sending messages are outlined.
The parties agree that the breach of the Code of Conduct by the costumer shall entitle NRS-GROUP the rights to terminate the main contract and its annexes without any right of compensation on the part of the costumer.
The parties acknowledge that a breach by the Costumer of the rules contained within the Code of Conduct may cause irreparable damages to NRS-GROUP, for which case the parties agree if NRS-GROUP should receive any warnings, claims, cancellations or any other notification from the Administration that could violate the rights of NRS-GROUP, the costumer will be obliged to compensate NRS-GROUP
In particular, if the following actions made by the costumer would be susceptible to indemnify NRS-GROUP:
- Any infringements in any aspect related to advertising of products and services covered by the Code of Conduct, NRS-GROUP would be able to claim the sum of 3.000 € for the violation as a compensation of damages.
- Any infringements that could cause NRS-GROUP the opening of a sanction procedure by the “Comisión de Supervisión de los Servicios de Tarificación Adicional”, NRS-GROUP would claim the sum of 5.000 € for each disciplinary action received or any reported issues to this effect as a compensation of damages.
- Any infringements that could cause NRS-GROUP the opening of a sanction procedure by the “Comisión de Supervisión de los Servicios de Tarificación Adicional” which may result in the cancellation of an assigned short code, NRS-GROUP would claim the sum of 10.000 € for each disciplinary action received or any reported issues to this effect as a compensation of damages.
- For multiple infringements that could cause NRS-GROUP the opening of a sanction procedure by the “Comisión de Supervisión de los Servicios de Tarificación Adicional” which may result in the cancellation of the assigned short code numbers, NRS-GROUP would claim the sum of 20.000 € for each disciplinary action received or any reported issues to this effect as a compensation of damages.
Therefore, provided that NRS-GROUP should observes any activity by the costumer that goes against the Code of Conduct, it reserves the right to terminate the main contract and its Annexes without any right of compensation for the costumer and without any prejudice to the compensations for NRS-GROUP as agreed in Section .
The Code of Conduct states, some services should operate under the double opt-in procedure. Under these regulations, if the user does not confirm its initial service request, the operator charges a fee to NRS-GROUP with the cost of each Mobile Terminated message (MT), associated with the first message (MO) sent by the user. In these cases, if the costumer does not confirm the service, NRS-GROUP will charge the COSTUMER a fee for the corresponding MT. The unit cost for these MTs is 0.066€. Should the operator update the charge, NRS-GROUP will inform the costumer at its earliest convenience.
In case any of its actions were against the law and the responsible organization would impose sanctions, warnings or any other type of claim not included in the cases listed in section IV, NRS-GROUP reserves the right to claim from the COSTUMER for the damages caused.
NRS-GROUP can suspend and/or interrupt the services loaned immediately and without warning in the case that the CLIENT is non-compliant to a rule of this document.
5. GENERAL RESPONSIBILITIES OF THE CLIENT TO THIRD PARTY
The CLIENT is uniquely responsible to third parties for the contents of services that are provided and also to promote these services. Furthermore the CLIENT shall be responsible to request and obtain the permission and authorisation that are needed for the publicity, distribution and use of services that are provided to the users of mobile telephones and land lines.
6. DURATION
This contract will be valid for 1 year and it will be prolonged for the same periods of time barring the expressed complaint from any of the parties within 60 days of commencement of the contract, or an extension of the contract.
7. ECONOMIC CONDITIONS
There is a revenue table where the CLIENT can see the benefit obtained for each sms. It depends on the payment method, the kind of content and the country from which the SMS is sent. This revenue table is on-line on the web, and the CLIENT can look up at it when he wishes.
NRS can modify the revenues of this table if the operators conditions change or if there are changes on the market prices. The CLIENT accepts this modifications. The technical or commercial variations that could emerge to affect the fulfilment of conveyed obligations by the mobile telephone operative, do not need the CLIENT’s consent.
All payment will be made via bank transfer 60 days after invoice. Bank details to be provided by client. Minimum transfer will be 100€
8. BAD DEBTS
Regarding bad debts in ‘contract’ clients (post-payment), NRS will deduct monthly those estimated amounts that cannot be charged, both in settlement and billing, as described next.
Amount estimation of bad debts in settlement and billing will be calculated on the basis of an Unpaid Average Percentage (UAP) including what has been collected in the regular cycles on debt collection at NRS for that concept and quarterly. This is, NRS will calculate a percentage of bad debts in ‘contract’ clients as a reference to be applied monthly in settlement and billing. UAP will start at 8% for subscription services.
UAP will be modified with the proportional debt collection expenses that NRS incurs to clear those debts.
NRS will calculate monthly the Unpaid Real Percentage (URP) for every period UAP has applied, so that amounts deducted in previous settlements or billings will be raised or dropped in a retroactive basis.
NRS will apply a new UAP that will match last URP and will be calculated bearing the real amount of bad debts in the last quarter. This new UAP will apply for next settlement or billing.
Regarding ‘pay-as-you-go’ clients (pre-paid), NRS will not attend settlements for bad debts, no matter the origin of this bad debt is. As an example but not a limit, we can find the following bad debt causes:
-Customer has no credit left to be charged
-Message expiration (terminal turned off, full up SIM…)
-Customer migration between operators
-Temporary or definitive line cancellation
NRS will make every possible effort to ensure that every single provider complies with their commitments of service and payment in the agreed terms. Nevertheless, if payment is not received from the service provider, either out of term or non payment, NRS reserves its own right to delay that payment to the CLIENT until service provider delivers funds. In extreme cases, if NRS cannot recover the funds from service provider, NRS reserves its own right to cancel payment to the CLIENT.
9. CONTRACT RESOLUTION
This is based on the established commercial civil law. Furthermore the parties can have the contract before completion or partial completion without the right to ask for compensation in the following:
The cancellation, or suspension, of assigned CLIENT’s telephone number, or numbers, or the cancellation of administrative authority or appropriate judicial authority at any time.
The contract resolution with the mobile telephone operator, or operators.
Substantial changing of costing conditions imposed by the mobile telephone operator.
In the case of objections, with reference, to the offered invoice.
Communications by the mobile telephone operator as irregular traffic is being passed through the CLIENT’s assigned number.
Failure to pay costs to the mobile telephone operators on account of the generation of creating traffic of irregular data. The effects of this stipulation shall be considered when irregular traffic, by means of the CLIENT’s assigned active codes or numbers, is detected by start messages, or telephone traffic, or facts generated artificially, or that are not subscribers to the mobile telephone operator in this case.
In any case, NRS-GROUP could use resolution of this contract at any time, to claim compensation, or charge money, pending the CLIENT’s sanction, when by means of any assigned access key of the CLIENT the telephone traffic or irregular data shows a 5% excess above the expected invoice amount.
10. JURISDICTION
For all the controversies or disputes that could result from this contract caused by interpretation and fulfilment of the contract. Both parties can relinquish their own jurisdiction, or if either party does not correspond, the parties shall submit themselves to the jurisdiction of the judges of the Court of Castellon.
When both parties agree to this document.
|
