VERMILLION SKIES LIMITED SMS TECHNOLOGY network partnering agreement

This document binds VERMILLION SKIES LIMITED a company incorporated in England whose registered office at 25 Floral Street, Covent Garden, London. WC2E 9DS ("VS") and the Affiliate partner engaged in this registration process ("Network Partner")

IT IS AGREED as follows:

1. INTERPRETATION

1.0 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

1.2 Unless the context otherwise requires, the singular includes the plural and vice versa.

1.3 Reference in this Agreement to any statute or regulation shall include references to such statute or regulation as enacted, consolidated, amended or extended from time to time.

1.4 Headings are inserted for convenience only and shall not affect the construction of any provision of this Agreement.

2. PARTNER OBLIGATIONS

2.1 With effect from the Commencement Date, the Network Partner shall allow the VS Frameset to be integrated within certain web pages of the Partner Website subject to the terms and conditions of this Agreement. The integration of the VS Frameset within the Partner Website shall be in a manner agreed between the parties from time to time.

2.2  During the continuance of this Agreement, the Network Partner may in connection with any web page of the Partner Website within which the VS Frameset is set only make use of third party advertising offered by VS.

2.3 The Network Partner:

may not place frames around the VS Frameset nor alter the size, content, structure or form of the VS Frameset or its position in the Partner Website without the prior written consent of VS;

2.3.1 Shall co-operate with any third party nominated by VS engaged in the marketing and promotion of products and/or services offered for sale via the VS Frameset;

2.3.2 Devote such of its time, attention and skill as may be necessary for the proper performance of its obligations under this Agreement; and

2.3.3 Use all reasonable endeavours to promote the interests and goods and/or services promoted by VS via the Partner Website.

3 VS'S OBLIGATIONS

3.1 VS shall within 14 days of the end of each month provide the Network Partner with a report in electronic form providing the following details:

3.1.1 The number of users of the VS Frameset;

3.1.2 The number of messages sent by users to the VS Frameset; and

3.1.3 The number of users registering on the VS Frameset.

3.2 VS shall:

3.2.1 Make available to the Network Partner such of its systems, facilities, documentation, information and documents as may reasonably be necessary to enable the Network Partner to perform its obligations under this Agreement;

3.2.2 be responsible for the costs of providing services via the VS Frameset including associated SMS messaging costs;

3.2.3 set the originator field for each SMS message being sent from the VS Frameset (“Outgoing SMS Message”) to the Partner Website's name but save where any third party is granted such right by VS; and

3.2.4 set the footer text within each Outgoing SMS Message to freesms@sitename.fonetastic.combut save where any third party is granted such right by VS.

3.3 The Network Partner may request the following action at any time during the continuance of this Agreement:

3.3.1 That VS amends the VS Frameset so that it is headed as “[ partnerwebsite ] free SMS system” to assist in developing the brand identity of the Network Partner; and

3.3.2 That viral marketing features which appear as part of the VS Frameset (such as the feature “55 free credits”) or which are from time to time developed by VS as part of the VS Frameset are branded in accordance with the Network Partner's own brand identity.

VS shall however not be obliged to comply with any such request.

4 CONTROL OF WEBSITE CONTENT

4.1 VS may at any time require the Network Partner to remove from the Partner Website any material;

4.1.1 that VS considers may;

4.1.1.1 under the laws of any jurisdiction, infringe the intellectual property, moral or other rights of any third party or be obscene, defamatory or otherwise unlawful;

4.1.1.2 be in breach of any applicable laws, regulations, standards or codes of practice; or

4.1.1.3 harm its reputation, is inconsistent with its commercial policies or strategy or result in a breach of any contractual obligation owed by VS; or

4.1.2 in respect of which a breach or infringement of the type referred to at clauses 4.1.1.1 to 4.1.1.3 above is alleged.

[In any of the circumstances mentioned in clauses 4.1.1 or 4.1.2, VS may also, without prejudice to its other rights or remedies immediately terminate this Agreement by notice in writing to the Network Partner.]

4.2 The Network Partner shall notify VS immediately upon becoming aware of any allegation as is referred to at clause 4.1.2 above.

5. INTELLECTUAL PROPERTY

5.1 All intellectual property rights in the VS Frameset (including without limitation copyright) shall belong to VS. The Network Partner may not use the VS Frameset nor reproduce it (in whole or in part or in any form whatsoever) save for the purpose of performing its obligations under this Agreement.

5.2 The Network Partner shall ensure that all copyright and other credits and notices required at any time by VS shall appear on the Partner Website.

6. DURATION

6.1 This Agreement shall commence on the Commencement Date and shall continue, subject to earlier termination in accordance with the provisions of this Agreement, until terminated by either party on 180 days written notice [or by VS on [90] days written notice].

6.2 Either party may terminate this Agreement immediately upon written notice to the other if the other party commits any material breach of this Agreement provided that if the breach is capable of remedy the notice shall only be given if the other party shall not have remedied the same within 30 days of having been given notice in writing specifying the breach and requiring it to be remedied.

6.3 Upon the termination of this Agreement for whatever reason:

6.3.1 all rights and obligations of the parties under this Agreement shall automatically terminate except for such rights of action or remedies which may have accrued prior to termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such expiration or termination; and

6.3.2  the Network Partner shall return to VS all documents, information, software or other property belonging to VS and cease to use any content from the VS Frameset and shall not retain any copies in any format.

7. CONFIDENTIALITY

7.1 Each party shall keep strictly confidential all information concerning the business and affairs of the other obtained from the other either pursuant to this Agreement or prior to and in contemplation of it, shall use the same exclusively for the purposes of this Agreement, and shall disclose the same only to those of its directors and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of this Agreement.

7.2 The obligations of clause 7.1 above shall not apply to any information which:-

7.2.1 the recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned within clause 7.1 above;

7.2.2 is subsequently disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly from the disclosing party; or

7.2.3 enters the public domain through no act or default of the recipient, its agents or employees.

7.3 The obligations of the parties under this clause 7 shall continue to apply for a period of 5 years following the termination of this Agreement.

8 STANDARDS AND DATA PROTECTION

8.1  Each party warrants to the other that it shall perform its obligations under this Agreement with reasonable skill and care and in conformance with applicable law including without limitation the Data Protection Act 1998 (the “ Act ”).

8.2  Without prejudicing the generality of clause 9 , where either party processes personal data (as defined by the Act) on behalf of or at the request of the other party ( the “Other Party ”), it shall:

8.2.1 do so in strict accordance with the instructions of the Other Party;

8.2.2 notify the Other Party immediately of any notice served on or sent to it under the Act by the Information Commissioner (including in particular any de-registration, enforcement or transfer prohibition notice) or by a customer of the Other Party or subscriber to its network services.

8.2.3 comply in all respects with any data protection policy relating to the processing of personal data as the Other Party may notify to it in writing from time to time.

8.2.4 not assign nor sub-contract the whole or any part of the processing of personal data to a third party without the consent of the Other Party and then only on terms that such assignee or contractor executes a contract direct with the Other Party imposing on them obligations equivalent to those contained in this Agreement.

8.2.5 allow the Other Party on reasonable notice to inspect any premises where the processing of personal data takes place and to inspect and copy any relevant documentation in order for the Other Party to satisfy itself that the provisions of clauses 9 is being complied with.

8.3 Save where the written consent of VS is first obtained, the Network Partner may not:

8.3.1 cause nor facilitate the linking of the VS Frameset to any website or network not owned or operated by VS;

8.3.2 make use of cookies, web bugs or other device or file which track and/or record information specific to browsers accessing the VS Frameset; nor

8.3.3 do anything which impairs or is likely to impair the operation, availability or functionality of the VS Frameset (including without limitation the use of frames) or any other system of VS or any customer of VS.

8.4 The Network Partner warrants that the Partner Website shall be accessible and functional to web browsers at least [99] % of the time during any Quarter Period.

9. INDEMNITY

The Network Partner shall indemnify VS and keep VS fully and effectively indemnified against any and all losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which VS may sustain or incur or which may be brought or established against it by any person and which in any case arise out of the breach by the Network Partner of any provision of this Agreement.

10. FORCE MAJEURE

Neither party shall be liable for any delay in performing any of its obligations under this Agreement if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled (subject to giving the other party full particulars of the circumstances in question and to using its best endeavours to resume full performance without avoidable delay) to a reasonable extension of time for the performance of such obligations.

11. GENERAL

11.1 The Network Partner is an independent contractor and nothing in this Agreement shall render it an agent or partner of VS and the Network Partner shall not hold itself out as such. The Network Partner shall not have any right or power to bind VS to any obligation.

11.2 VS shall not be liable to the Network Partner for any indirect, special or consequential loss or damage, whether for loss of profit or otherwise (whether or not caused by the negligence of VS) which arises out of or in connection with this Agreement. Nothing in this clause shall however exclude or limit VS's liability for fraud or for personal injury or death resulting from its negligence.

11.3 This Agreement is freely assignable by VS. The Network Partner may not assign, transfer or sub-contract any of its rights and obligations under this Agreement save with VS's prior written consent.

11.4 All notices or other documents to be given under this Agreement shall be in writing and in the English language and shall be delivered by hand or sent by registered post or facsimile to the party concerned at the address set out at the head of this Agreement or such other address as one party may from time to time designate by written notice to the other. Any such notice or other document shall be deemed to have been received by the addressee if delivered, upon delivery; if posted, on the second working day following the date of posting; and if sent by facsimile, when the communication is transmitted to the recipient's fax number provided that a copy of the communication is sent by registered post or delivered by hand as soon as practicable after transmission.

11.5 This Agreement constitutes the entire understanding between the parties concerning its subject matter and shall be governed by and construed in accordance with the laws of England . T he parties agree to submit all matters in dispute under or in connection with this Agreement to the non-exclusive jurisdiction of the English courts.

11.6 No waiver or amendment of any provision of this Agreement shall be effective unless made by a written instrument signed by a Director of VS. No other person has any authority to alter or qualify the terms and conditions of this Agreement.

11.7 Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.