MindMatics_TermsAndConditions_060810

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MindMatics_TermsAndConditions_060810

  1. 1. General Terms and Conditions of MindMatics Limited MindMatics Limited (“MindMatics”) provides a service allowing the billing of telecommunications services offered by the customer (“Customer”) to A.3 Duties of the Customer the Customer’s end users via telephone or mobile phone bills and the sending of text and multimedia messages to telecommunication devices A.3.1 Where the Customer wishes to use the Services, the Customer must (“Services”) pursuant to a service agreement and in accordance with these provide MindMatics with a written description of the service it provides, General Terms and Conditions (“Service Agreement”). . outlining, in particular, the subject matter to be communicated as part of the The General Terms and Conditions under Section A apply to all business Services, the planned course of action, the desired telephone number and dealings between the Customer and MindMatics. the Customer’s desired end customer price including VAT. MindMatics may In addition to these General Terms and Conditions, the special conditions require further information from the Customer. MindMatics may listed under sections B (Mobile Payment), C (Mobile Messaging) and D communicate the information mentioned in this provision to third parties (mopay cockpit) are variations of or supplements to those listed under (e.g. Network Operators and Service Providers) as long as it is necessary Section A, applying to some individual services offered by MindMatics and for the provision of the Services in question. shall prevail where there is any inconsistency with the General Terms and Conditions. Any conflicting Terms and Conditions of the Customer shall not A.3.2 The Customer may only use the Services and offer its service to the public apply, even if they are not expressly contradicted by MindMatics' General after MindMatics has activated the Customer's connection. There can be Terms and Conditions. no guarantee that the Services will be activated in exactly the form applied for. The activation of the Services based on the written description provided Construction. In these General Terms and Conditions, the following rules does not release the Customer from its legal obligations with respect to the apply: Services. • a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); A.3.3 The Customer shall be under an obligation to provide MindMatics with written notice of any subsequent changes to the details in the description • a reference to the singular shall include the plural and vice versa; provided on application for the Services. • a reference to a party includes its successors or permitted assigns; A.3.4 The Customer shall, on request, at any given time provide immediate • a reference to a statute or statutory provision is a reference to such information regarding the use of the Services being provided. The statute or statutory provision as amended or re-enacted and includes any Customer is aware that delays in the provision of this information may subordinate legislation made under that statute or statutory provision, as cause MindMatics considerable damage. amended or re-enacted; • any phrase introduced by the terms including, include, in particular or A.3.5 The Customer may only use the Services exclusively for its own purposes, any similar expression, shall be construed as illustrative and shall not unless agreed otherwise. In this context, it is expressly forbidden to use the limit the sense of the words preceding those terms; and Services on behalf of or for the provision of billing to third parties. • a reference to writing or written includes faxes. A.3.6 The Customer may only use the telephone numbers and short code A. General Terms and Conditions for All Services Provided by numbers provided exclusively for the Services for which they were MindMatics provided. The entire communication between the Customer and their end users shall occur exclusively via the interfaces provided for this purpose by A.1 Creation of Individual Business Relations and Purpose of Agreement MindMatics and using the designated sender identification. A.1.1 A contractual business relationship between the Customer and MindMatics A.3.7 The Customer shall be responsible for the collection and payment of any with respect to individual Services comes into effect with the execution of VAT which is payable by the end users for any of his or her services in the Service Agreement between the Customer and MindMatics. accordance with the taxation law of the country in question. MindMatics is not under an obligation to accept the relevant applications made by the Customer. The previous provision also applies accordingly to A.4 Observance of Legal Regulations Customers’ applications for an expansion of or an alteration to the Services. A.4.1 The Customer shall solely carry the legal responsibility for its services (in particular communications law or competition law responsibilities, e.g. for A.1.2 The Customer shall, in executing contracts with MindMatics, do so news, multimedia messages, audio files), irrespective of the medium used exclusively in his or her commercial or individual business capacity. Use of to communicate the content. The Customer is responsible for the correct MindMatics’s Services for other purposes is not authorised. and proper conclusion and termination of contractual relationships and performance of all resulting obligations with respect to its end customers. A.2 Provision of Services A.4.2 The Customer does not have a right to use the Services for the provision of A.2.1 MindMatics may at any time assign, transfer, charge, subcontract or deal in or facilitation of content, services or actions which: any other manner with all or any of its rights under the Service Agreement • do not fall within the regular scope of the Customer’s business and may subcontract or delegate in any manner any or all of its obligations operations as described to MindMatics; or under the Service Agreement to any third party or agent . • are prohibited under the applicable laws and regulations of the country in question including, but not limited to, the Data Protection Act 1998, the A.2.2 For technological reasons, it is not possible to guarantee the uninterrupted Communications Act 2003, the PhonepayPlus Code of Practice and the availability of the Services to be provided by MindMatics. To the extent of PhonepayPlus and Ofcom regulations in England and Wales, or are in the scope of its responsibility, MindMatics will, however, ensure that the any other way illegal or immoral/unethical; or periods of availability agreed on with the Customer will be observed. • are pornographic or harmful to children in nature or related to such other content, where this content is prohibited in the country in question or A.2.3 Where a Service is usually of such a nature that it would be outsourced by where access to such content is not secured using an age verification MindMatics to a third party, MindMatics provides this service by contracting system. in their own name with a third party who will provide the Service (“Outsourced Services”). For example, this applies to the communication A.4.2A The use of the Services for content, services or actions is expressly of messages to the end users or the invoicing of services used by the end excluded for content: users; these services are carried out by telecommunication Network • the dissemination of which is punishable under the applicable laws of the Operators (“Network Operators”) and/or other service providers (e.g. country in question; or credit institutes, telecommunications service providers) (“Service • to the extent that it is in breach of the applicable child protection laws of Providers”). In these cases, MindMatics limits its liability to the careful the country in question; selection and instruction of the third parties and the conveyance of the • which relate to gambling, irrespective of whether the game in question is respective requirements to the third parties. prohibited under the applicable laws of the country in question or not; or 1
  2. 2. General Terms and Conditions of MindMatics Limited • which are of a predominantly sexual nature; or period has expired, the invoice shall be taken to have been accepted. • which are of a racist or discriminatory nature, even if they are not in MindMatics expressly points this out in the invoice. The Customer may also breach of the applicable laws of the country in question; or request that an invoice be corrected after the expiry of the notice period, • which are intended to encourage the use of hazardous substances; but in this case must prove that the invoice was incorrect or incomplete. • which are prohibited by the applicable competition laws of the country in question; or A.5.3 All invoices become due for immediate payment by the Customer on • which are in breach of the applicable code of conduct in the country in receipt. If the invoice has not been paid 14 days after its receipt, without question; or any explanation by the Customer, they will go into default. MindMatics is • the dissemination of which would be likely to harm the image of entitled to deduct outstanding payments from the Customer from sums MindMatics. owing by MindMatics to the Customer. A.4.3 The Customer shall – where it becomes aware of content related to its A.5.4 Offsetting by the Customer towards MindMatics is only possible when the service which breaches clauses A.4.2 and/or A.4.2A – ensure that the Customer's claim is uncontested or found to be legally binding. offending content is removed immediately. A.6 MindMatics’ Liability A.4.4 Where services are offered which are not made accessible to people of a certain age group, the Customer may offer them in conjunction with an A.6.1 Except as set out in these General Terms and Conditions and the Service effective access controller to ensure that use is only possible for end users Agreement, all warranties, conditions, and other terms implied by statute or of the required age. common law are, to the fullest extent permitted by law, excluded from the Service Agreement. However, nothing in these General Terms and A.4.5 The Customer shall not send the end users any unrequested or unwanted Conditions or the Service Agreement shall limit or exclude MindMatics’ messages (e.g. unwanted advertising messages, computer viruses or chain liability for (a) death or personal injury caused by its negligence, or the letters). negligence of its employees, agents or subcontractors; or (b) fraud or fraudulent misrepresentation; or (c) breach of the terms of Section 12 of the A.4.6 The Customer guarantees that it has the rights of use for all content Sales of Goods Act 1979 or Section 2 of the Supply of Goods or Services communicated by it (e.g. text, photos, graphics, files, audio and video Act 1982. recordings etc.) necessary for the services in question (in particular intellectual property, trademark, copyright or personal rights). The rights of A.6.2 Subject to clause A.6.1, MindMatics shall not be liable to the Customer, use must include the form of communication in question or the conversion whether in contract, tort (including negligence), breach of statutory duty, or into the desired format (e.g. SMS). otherwise for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Service Agreement. A.4.7 The Customer shall observe all applicable laws and the duty to inform in the country in question when providing its services. Furthermore, the Customer A.6.3 This clause 6 shall survive termination of the Service Agreement. shall inform the end user that the Customer is responsible for the content of the service in question and not MindMatics. A.7 Confidentiality, Data Protection A.4.8 MindMatics may, but is under no obligation to, check the content for which A.7.1 Each of the parties shall treat all information or documents acquired from the Customer is responsible. MindMatics has the right to refuse to activate the other party ("disclosing Party") prior or subsequent to the creation of a Services which are in breach of section A.4. The activation of Services by business relationship between the two of them and information otherwise MindMatics does not affect the Customers’ obligations under section A.4. acquired but pertaining to the business relationship or its conditions with MindMatics will not undertake any legal services for Customers. Where strict confidentiality ("Confidential Information"). This applies regardless MindMatics gives the Customer advice in individual cases regarding the of whether the information is expressly marked confidential or should content of the services, the information only represents the provision of reasonably be considered to be confidential. market knowledge by MindMatics. The Customer shall be solely responsible for checking its services or having them checked to ensure their A.7.2. Neither of the parties shall use nor make Confidential Information available legality. to their employees or contractual partners, nor shall they communicate them to third parties (in particular associated businesses of the parties) A.4.9 Where the Customer’s services are carried out in conjunction with a unless this is necessary for the performance of one party’s contractual website, the Customer shall be responsible for the protection of the website duties to the other party. The preceding provision does not apply to the against misuse or external attacks. Should hacking or other attacks lead to disclosure of Confidential Information to advisors who are subject to a misuse which causes harm to MindMatics, the Customer shall be solely and professional or fiduciary duty of confidentiality. The parties shall inform all fully liable unless the harm could not have been prevented using recipients of Confidential Information of its confidential nature before reasonable protection methods. communication of the Information and shall place them under a strict duty of confidentiality as outlined under this section (A.7). A.5 Reimbursement of Expenses / Invoicing / Offset Limitations A.7.3 The duty of confidentiality does not apply to Confidential Information which A.5.1 All expenses incurred by MindMatics in relation to the provision of the is/was already known to the receiving party prior to and independently of Services for the Customer shall be reimbursed by the Customer, as long as the execution and implementation of a contract with the other party, is/was MindMatics reasonably considered these expenses necessary in light of the already common knowledge through means other than through a breach of circumstances. Instead of reimbursement, MindMatics may request to be the provisions of section A.7 by the receiving party or information which released from an obligation which occurs in relation to the expenses. must be disclosed as a requirement of the law or due to an judicial or court Reimbursable expenses within the meaning of this provision include, in order. The disclosing Party shall reasonably support the other party. particular, all contractual penalties and other fees which MindMatics may be charged by Network Operators or Service Providers as a result of contracts A.7.4 All Confidential Information remains the property of the disclosing Party entered into pursuant to clauses B.1.1 and C.1.1 – as long as these and shall only be copied or reproduced with the disclosing Party’s prior contractual penalties or other fees were caused by the Customer’s services written consent. Confidential Information and copies thereof must be – as well as reasonable legal costs arising from appeals against these fees destroyed or returned to the disclosing Party on its request by the receiving or penalties. The Customer is aware that the contractual penalties and fees party, with written proof of destruction being tendered in the case of the may, in some cases, be significantly greater than the profits of the former. Customer’s services. A.7.5 Both parties shall be under an obligation to observe all applicable personal A.5.2 The Customer shall check all invoices issued by MindMatics immediately data protection laws when storing, editing and using this information. and report any discrepancies to MindMatics without delay and no later than six (6) weeks after the date of issue of the invoice in question. After this 2
  3. 3. General Terms and Conditions of MindMatics Limited A.7.6 The duties imposed by the provisions of this section shall remain in force A.10.1 MindMatics may amend contractual agreements with Customers (including after termination of the business relationship until the receiving party service descriptions, these General Terms and Conditions, the Service proves that the Confidential Information became publicly known otherwise Agreement and other contractual provisions). MindMatics shall inform the than through a breach of this section A.7 by the receiving party. Customer of any such changes in writing or by email. The Customer shall be taken to have agreed to such amendments where written notice of A.8 Duration of Agreement, Rights of Termination disagreement is not received within six (6) weeks of receipt of the notice of amendment. MindMatics will expressly mention this provision in the notice. A.8.1 The contractual relationship between the Customer and MindMatics shall have no term and shall end, unless terminated pursuant to one of the rights A.10.2 Both parties may terminate the contractual relationship between of termination under these General Terms and Conditions, with the MindMatics and the Customer in its entirety or to the extent of the Services completion of the performance of the Services. affected by the amendment within six (6) weeks if the Customer provides a timely notice of disagreement rejecting an amendment pursuant to clause A.8.2 MindMatics has a right to stop the provision of the Services to the A.10.1. Customer, either in part or in whole, where the Customer is guilty of a significant breach of its duties under the Service Agreement or these A.10.3 MindMatics may – regardless of the reservation of a right to make General Terms and Conditions (there is a presumption of a significant amendments under clause A.10.1 – unilaterally amend or supplement the breach where the Customer breaches a duty under section A.4) or when a communication guidelines by means of a written notice to the Customer Network Operator, Service Provider or competent public authority orders and observation of the notice period, where MindMatics is subject to MindMatics to stop the provision of the Services to the Customer. Where relevant binding amendments made by third parties (e.g. Network the provision of the Services has been interrupted, MindMatics will inform Operators and Service Providers). This does not, however, release the the Customer immediately. Where the Customer rectifies its breach, it shall Customer from the duty to keep up to date with and observe any changes inform MindMatics of the rectification. MindMatics will advise the Customer to the laws or codes of conduct which are applicable in the country in as to whether it considers the breach as rectified and if it is prepared to question where the Customer provides services. resume service. A.10.4 Contractual agreements, including this requirement of written form, must be A.8.3 MindMatics may terminate the affected Services with seven (7) days’ notice agreed upon by the parties in writing to be effective. if MindMatics stops providing the Services or if a Network Operator or Service Provider wishes to terminate or already has terminated a contract A.11 Correspondence, Contact Person with MindMatics which is vital to the provision of the Services. A.11.1 The Customer shall nominate a professional and competent employee in A.8.4 MindMatics may terminate, in whole or part, the Service Agreement where: writing to act as a contact person and to be authorised to make or • the Customer is in liquidation or when its assets, business or company authorise all necessary decisions and communication with MindMatics. are being disposed of in whole or in part outside of the proper course of business; A.11.2 The Customer shall direct any correspondence or declarations to the • a considerable decline in the Customer’s financial position occurs or contact at MindMatics appointed annexed to the Service Agreement so that threatens to occur which MindMatics reasonably believes may make the they are effective. Customer’s unable to pay amounts due or to perform other obligations owed to MindMatics, even if securities have been offered and made A.12 Miscellaneous Provisions available; or • the Customer has not met its obligations to provide or improve securities A.12.1 The contractual relationship between the Customer and MindMatics and pursuant to these General Terms and Conditions within a reasonable any claim or dispute arising out of it or in connection with it or its subject period of time set by MindMatics. matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, English law and both A.8.5 All terminations must be in writing, excluding communication by email. parties hereby submit to the exclusive jurisdiction of the courts of England and Wales. A.8.6 The Customer has no right to retain the telephone numbers and/or short code numbers provided for its use by MindMatics after the contract ends. A 12.2 Where the Customer and MindMatics have agreed on any terms which Where the transfer of the telephone and/or short code numbers provided depart from those in sections A to C, these terms shall prevail over those in by MindMatics to another Service Provider is to take place after the end of sections A to C. the contractual relationship between the Customer and MindMatics, an agreement regarding the transfer of databases must be made, if A.12.3 The Service Agreement constitutes the entire agreement between the necessary, and the costs which are incurred at an hourly rate as agreed parties for the provision of the Services. The Customer acknowledges that upon at that point in time reimbursed. Where telephone and/or short code it has not relied on any statement, promise or representation made or given numbers are to be transferred, the Customer must also in particular ensure by or on behalf of MindMatics which is not set out in the Service that the respective numbers are from then on registered under its name, Agreement. Any samples, drawings, descriptive matter or advertising with MindMatics being removed from all billing information or other related issued by MindMatics, and any descriptions or illustrations contained in information. MindMatics publications, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall A.9 Limitation Periods not form part of the Service Agreement or any other contract between MindMatics and the Customer for the supply of the Services. All claims that either of the parties may have arising out of this common contractual arrangement are subject to a limitation period of twelve (12) A.12.3 Should any terms or provisions agreed on be ineffective or inexecutable in months from the point in time when the party with the claim becomes whole or in part or at any time in the future lose their validity, this shall not aware or should reasonably have become aware of the circumstances on affect the effectiveness of the remaining provisions. The same applies to which the claim is based and the person responsible. This provision does any ambiguities which may be contained in the provisions agreed on. An not apply to claims based on intentional acts. For the avoidance of doubt, appropriate term shall be implied to replace the ineffective or inexecutable this provision does not affect limitation-barred claims for reimbursement of provision or to remedy the ambiguity which, so far as is legally possible, expenses, even if the service on which the claim is based occurred outside represents the intentions of the parties, had they been aware of the the limitation period. In such cases, the accrual of the right to ineffectiveness, inexecutability or ambiguity. Where the ineffectiveness of a reimbursement is decisive, not the time of provision of the Service. provision affects the scope of a duty or the time of performance (notice period or deadline), the scope or time (notice period or deadline) to be A.10 Contractual Amendments enforced shall be those which most closely represent the parties’ intentions and are legally enforceable. These General Terms and Conditions shall 3
  4. 4. General Terms and Conditions of MindMatics Limited supercede any and all previous terms and conditions between the parties B.3 Instructions to and Authorisation of MindMatics to Sell Claims against regarding the provision of the Services. End Users to Network Operators Due to the contracts which MindMatics enters into with Network Operators B. Special Conditions for Mobile Payment Services: mopay web, mopay or Service Providers as per clause B1.1, MindMatics may be under an 2go, mopay call, and mopay psms obligation to assign billing rights to claims against end users to the Network Operators or Service Providers in question. For this purpose, the Customer B.1 Content of the Service authorises and instructs MindMatics to assign the corresponding claims against end users which have to be assigned to the Network Operators and B.1.1 MindMatics shall enter into contractual agreements with Network Operators Service Providers to them on behalf of the Customer. and Service Providers agreed on with the Customer in its own name but on the Customer’s behalf as a billing agent. Pursuant to these agreements, B.4 Customer’s Duties in Relation to the Services mopay web, mopay the Network Operators and Service Providers in question shall be under an 2go, mopay call und mopay psms obligation to forward the moneys invoiced to and collected by them from end users for services provided by the Customer less their fees to B.4.1 The Customer shall establish a telephone hotline free of charge on which MindMatics. The duties of the Network Operators and Service Providers qualified personnel shall answer any end user questions regarding the will be subject to clause A.2.3. services provided by the Customer and billed via a MindMatics Service. This telephone hotline must be available 24 hours a day, 365 days a year, B.1.2 MindMatics shall forward payments received from Network Operators and with 80% of incoming calls being answered within 30 seconds. Service Providers to the Customer where the payment flows from services which can clearly be linked to the Customer. Where MindMatics – for any B.4.2 The Customer shall observe the communication guidelines posted by reason whatsoever – did not receive any payments from the Network MindMatics on the T&C section of the website www.mopay.com in all Operators or Service Providers, no right to payment from MindMatics correspondence with end users and in all services which are billed via a pursuant to this provision shall arise. Where a short code number is not MindMatics service. This does not affect the Customer’s duty to observe used exclusively (applies to so-called “Shared Short IDs”), a clear link any further regulations imposed by the law. Where the communication between the transactions and the Customer within the meaning of this guidelines are inconsistent with legal requirements, the legal requirements provision can only exist where the end user used a so-called “keyword” in shall prevail. conjunction with the Shared Short ID which had been reserved for the Customer. Where a payment cannot be clearly linked to the Customer, B.4.3 The Customer shall, when performing services which are to be billed using there shall be no right to payment which the Customer can exercise against a MindMatics Service, observe the requirements set out for that particular MindMatics. service in the service description. B.1.3 Where MindMatics advises the Customer of the Network Operators’ and B.5 Payments from MindMatics to the Customer Service Providers’ terms of payment, the Customer shall acknowledge that this information is not binding. These terms of payments only represent B.5.1 MindMatics will send the Customer a statement outlining the anticipated past values and information which should only serve as a guide provided payments which are to be made to the Customer pursuant to clause B.1.2. by the Network Operators and Service Providers. Where MindMatics receives payments within the meaning of clause B.1.2 which fall within the category of payment outlined in sentence one of that B.1.4 Duties to be performed by MindMatics under section B are limited to the provision, MindMatics shall forward these payments to the Customer as types of Service (mopay web, mopay 2go, mopay call, mopay psms) outlined in the statement. In this case, the statement issued pursuant to agreed on with the Customer in the Service Agreement (scope of services). this provision shall be considered an invoice. Where MindMatics receives MindMatics shall undertake closer investigation of the kind outlined in the payments within the meaning of clause B.1.2 which do not fall within the detailed description of service (verification) to see whether the end user type of payment to be included in the statements pursuant to this provision, has access to the devices used to make payment (e.g. landline telephone MindMatics shall send the Customer an adjustment invoice with the or mobile telephone). Furthermore, MindMatics shall, through the method retrospectively identified difference, also forwarding the payments received outlined in the detailed description of service (authorisation), seek to the Customer. Clause A.5.2 applies accordingly. declarations of agreement from the end users allowing the collection and recording of payments. B.5.2 MindMatics shall make access to its “Online Reporting Tool” available to the Customer to give him as a summary. The Customer acknowledges that B.1.5 Further details regarding the specific types of Services, duties to be the data supplied via the Online Reporting Tool may not always correspond performed by MindMatics in relation to the various Services to be provided with the invoices. As such, only the invoices issued are legally binding. and the possible invoicing amounts are outlined in the service description and the other agreements between the Customer and MindMatics. B.5.3 The amounts to be paid by MindMatics to the Customer shall be due for payment within a period of time laid down in the service agreement. B.2 Processing of Complaints from End Users by MindMatics / Authorisation B.5.4 All payments by MindMatics to the Customer shall be subject to the reclamation provision under clause B.6. B.2.1 MindMatics shall deal with end user complaints received by them via the Network Operators and Service Providers. The Customer shall hereby B.5.5 MindMatics may deduct payments due from the Customer (e.g. fees or authorise MindMatics to make agreements with the end users in the name repayment claims) from sums owed by MindMatics to the Customer. of the Customer as it deems fit in order to solve such complaints to the end user's satisfaction. The Customer authorises MindMatics to file the relevant B.6 MindMatics’ Repayment Claim Rights against the Customer declarations of intention. This authorisation is limited to payments of EUR 25 or less per end user and per billing period (according to the Network Where MindMatics makes payments to the Customer, although the Operator, Service Provider and end user in question). MindMatics must not Customer had no right to those payments, MindMatics may demand enter into any such agreements imposing duties beyond these. This does repayment. This especially applies where: not affect clauses B.3 and B.4.1. (1) MindMatics was not under an obligation to make the payment to the B.2.2 MindMatics is entitled to personally pay costs arising out of approved Customer regardless of whether MindMatics was aware of it or not; or claims by end users against the Customer resulting from dealing with complaints pursuant to clause B.2.1. The Customer shall reimburse (2) Payments received by MindMatics and duly forwarded to the Customer MindMatics for any costs arising from such payments. are clawed back from MindMatics by Network Operators or Service Providers. 4
  5. 5. General Terms and Conditions of MindMatics Limited B.7 Exceptional Cases: MindMatics as Service Provider When using the mopay SMS Service, the Customer shall observe the requirements set out in the service description. In different countries and with respect to different Network Operators and Service Providers, it may be the case that, due to contractual relationships D. Special Conditions for mopay cockpit between MindMatics and certain Network Operators and Service Providers, MindMatics itself is the provider of the service in question which is being D.1 Content of the Service offered by the Customer. In these cases, the Customer agrees to carry out all legal arrangements necessary for MindMatics in this situation (e.g. D.1.1 MindMatics shall provide the Customer with a user name and password for granting the required rights of use with respect to the services, information the mopay cockpit Service which the Customer can access via the Internet. and inspection on request from Network Operators and Service Providers). The mopay cockpit enables Customers to view transactions related to its Furthermore, the provisions of sections A. and B. – unless they already services which have been carried out (reporting). apply directly – shall apply in such a way that, in cases where MindMatics is the Service Provider, the same commercial outcome is achieved as if the D.1.2 Further details regarding the duties owed by MindMatics in relation to the Customer had been the Service Provider itself. mopay cockpit Service are outlined in the service description and the other agreements between the Customer and MindMatics. B.8 Securities D.2 Customer’s Duties in Relation to mopay cockpit B.8.1 The Customer shall grant MindMatics a lien with respect to such claims as may arise out of the mutual contractual relationship (including these D.2.1 The Customer shall keep the login details provided by MindMatics secret. General Terms and Conditions) which the Customer shall have against They shall only be communicated to MindMatics via the mopay cockpit MindMatics (e.g. claims pursuant to clauses B.1.2 and B.5). interface and should be kept secret from other people. B.8.2 The lien is held as a security against such existing and future rights and D.2.2 The following is important for the protection of login details: expectancies as may accrue in MindMatics’s favour out of the contractual relationship (e.g. clawback claims pursuant to clause B.6 or expenses • Login details must not be stored electronically. reimbursement claims pursuant to clause A.5.1). • When entering login details, ensure that others cannot see the screen or keyboard. B.8.3 Where, pursuant to the lien right granted under clause B.8.1, MindMatics • The username and password must not be stored together. withholds sums in respect of which the Customer has a right of payment • The Customer must ensure that the system used to access mopay against MindMatics, these sums shall be paid into in an interest-bearing cockpit is equipped with standard, commercially available security account or fund as long this would not cause an unreasonable burden to protection (in particular antivirus and firewall software) and that both the MindMatics. The interest earned shall be payable to the Customer. security software and system software are regularly updated. B.8.4 In addition to the lien right granted under clause B.8.1, MindMatics may require a bank security with respect to any claims arising out of the Version: 06 August 2010 contractual relationship, even if these claims are conditional. Where MindMatics has chosen not to enforce a claim either in wholly or in part when it accrued, to request securities or the improvement of securities or to enforce securities rights agreed on, collateral may still be demanded at a later date, as long as circumstances arise or become known which justify a higher risk assessment of the claims against the Customer. This can especially occur where: (1) the Customer’s financial circumstances decline or threaten to decline; or (2) securities already provided decline or threaten to decline in value. B.8.5 MindMatics shall not have a security claim where it is expressly agreed that the Customer either does not need to provide any security or only individually specified securities. MindMatics shall provide the Customer with a reasonable period of time for the provision or increase of securities. Where MindMatics intends to exercise its right to termination without notice pursuant to clause A.8.4(3) because a Customer has not performed its duty to provide or increase securities, MindMatics will inform the Customer of its intent. C. Special Conditions for Mobile Messaging: mopay sms C.1 Content of the Service C.1.1 MindMatics shall, in accordance with the detailed agreement made with the Customer, send messages in SMS or MMS format containing content provided by the Customer to addressees provided by the Customer. C.1.2 MindMatics shall only be responsible for the transmission of the messages to the transfer point of the Network Operator and engages the Network Operator to forward the message to the end user. Clause A.2.3 applies to the duties to be carried out by the Network Operator. C.1.3 Further details regarding the duties owed by MindMatics with relation to the mopay sms Service are outlined in the service description and the other agreements between the Customer and MindMatics. C.2 Customer’s Duties in Relation to mopay SMS 5

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