OGANGI CORPORATION

 

 

Mobile Content Provider Agreement

 

Effective Date:

_________________, 2017

Parties:

Ogangi:



 

 

Customer:

 

OGANGI CORPORATION, a corporation registered under the laws of the state of Delaware, United States of America, whose principal office is located at 9155 S. Dadeland Boulevard, Suite 1504, Miami, Florida 33156, U.S.A. (hereinafter referred to as “Ogangi”).

_____________________, a corporation registered under the laws of ____________________________, ________________, whose principal office is located at _____________________________________________________, (hereinafter referred to as “Customer”).

May each be referred as a "party" and together as the "parties".

Term:

The Agreement will commence as of the Effective Date and will remain in effect for the period of 6 months (the “Initial Term”) or until earlier terminated as provided herein. Thereafter, if not terminated, this Agreement will renew for additional successive 12-month periods (each, a “Renewal Term” and collectively as applicable with the Initial Term, the “Term”) until it is terminated by either party giving to the other not less than ninety (90) days written notice prior to the end of the applicable Term.  After the Initial Term, either party may terminate the Agreement, with or without cause, upon ninety (90) days prior written notice to the other party.

Proposed launch date:

MONTH DAY, 2017

Products and Services to be provided to Customer (hereinafter referred to as “Services”):

One World Wallets provides three types of non-payment mobile passes: Coupons, Tickets, and Premium Passes.  With iOS and Android capabilities, One World Wallets easily allows customers to share their passes via email, banner ads, QR codes, SMS, mobile web, and virtually any other channel to get the most out of their promotions. One World Wallets gives businesses unique social media integration capabilities and the ability to grow their customer database while providing an interactive and personalized pass experience.  These non-payment mobile wallet solutions truly deliver the most utility to consumers, while also providing marketers a cost-effective channel to reach all of their customers on mobile, with no app required.

The specific products and services being acquired by Customer are set forth on Exhibit A-1 hereto (the “Services”).  Any additional Services or deletion of Services shall be effected by an addendum to Exhibit A-1.

The Mobile Engagement Campaign Manager Platform is based on the following key macro-components:

1.     Business Intelligence & Analytics: allows Customer to implement campaigns to a broad consumer base (the “Consumers”) based on multiple media dimensions, such as mobile user behavioral data and usage patterns to increase the overall campaign success rate.

2.     REST API: Customer can integrate Mobile Engagement Campaigns with its own environment because all the delivery channels and campaign management functionality is available through a REST API. Using a simple query string authentication mechanism, Customer can create, update, enable and disable campaigns. Events captured by the REST API are forwarded in real time to the Customer platform via callback URLs so Customer receives notifications every time a Consumer sends an SMS, enters (or exits) a location based perimeter (such as GeoFence for outdoor locations) or approaches a Beacon for indoor locations, clicks a scratch card link or even opens an email, assisting the Consumer and Customer to make engagement decisions and advising Customer in real time of the engagement decisions being made.

3.     SDK: enables the definition of a trigger, such as a GeoFence or Beacon to Customer mobile application.  Once a trigger occurs, the SDK notifies the backend platform via the REST API, and any response is sent as a push notification to the Customer’s mobile application.

4.     Campaign Manager Web Interface: intuitive, web-based interface that allows easy campaign event management. Hosted architecture, through which mobile engagement campaigns are set up, configured and managed and which provides the Consumer with ease of navigation and menu options.

For a general description of the Campaign Manager please see:

https://www.messangi.com/documentation/doku.php?id=campaign_manager.

The following is a non-exclusive list of services and features supported by the Campaign Manager:

a)     Interactive campaigns;

b)     Blasting campaigns;

c)     Digital wallet items;

d)     Gamification;

e)     Location based services;

For a complete list of Campaign Manager services and features please see:

https://www.messangi.com/documentation/doku.php?id=mmcusermanual

 

Distribution Methods: 

a)     SMS: SMS is supported in plain text and UNICODE (binary). Connectivity to mobile operators, directly or through connectivity aggregators, is the responsibility of Customer as is the setup and rating of any shortcode(s)/longcode(s) associated with Services;

b)     Email: email is supported as another channel of communication, similar to SMS. The email can be fixed or dynamically generated based on templates;

c)     Push Notifications: through Apple Push Notification Service (APNS) and Google Cloud Messaging (GCM);

d)     Social Posts: Facebook wall posts and Twitter timeline posts are supported; and

e)     Other delivery methods as agreed to in writing in advance by Ogangi and Customer.

Customer shall be responsible for message termination fees or charges levied by mobile operators or third party service providers associated with Customer’s messaging traffic, including, but not limited to, any pass-through mobile operator fees, as well as any applicable returns, refunds, and/or credits.

Hosting:

Initially the Services are being hosted by Ogangi on Amazon Web Services. Any future hosting arrangement is subject to the mutual agreement of the parties.

Customer Support:

Customer will be responsible to provide initial customer contact support (Tier 1) and second level escalation (Tier 2) support.  Ogangi will provide third level escalation support (Tier 3) when engaged by Customer via Ogangi’s ticketing system. Fees for Tier 3 services will be mutually agreed upon prior to Ogangi rendering such services.  Ogangi will not provide direct Customer support unless specifically requested by Customer in writing. 

Messaging Content:

Customer acknowledges and agrees that it is creating the content of any coupons, tickets, passes, etc. and shall be solely responsible for the content of any and all Customer content that is disseminated under this Agreement and for all errors therein, typographical or otherwise.  Ogangi solely provide the delivery mechanism and shall have no liability for the Customer’s content.

In addition, Customer shall be solely responsible to the extent that any of its messaging or content violates applicable law. 

This provision shall survive the expiration or termination of this Agreement.

Billable Transactions (“Transactions”):

Parties agree that following constitute a non-exclusive list of billable transactions enabled by Services:

a)     Scratchcard

b)     Wallet item download;

c)     Mobile engagement triggers (mobile originated messages, location triggers);

d)     REST API and SDK call;

e)     Reminder (SMS, Push or email);

f)      Email;

g)     Multimedia Messaging Services (MMS), which extends the core SMS capability

Licensing Fees (“Fees”):

The Fees for the various Services are set forth on Exhibit A-2 which is incorporated by reference herein.

 

 

Premium Pass Integration, customization, and training (if applicable):

Billed initially at U.S.$80 per hour during the Term in totality for Integration + Customization + Training module, subject to modification by Ogangi from time-to-time.

 

 

 

Billings

All fees payable to Ogangi hereunder and reimbursement for travel expenses incurred in connection with providing the Services to Customer are due and payable by Customer net thirty (30) days of receipt of an invoice.  Any applicable withholding or other taxes payable by Ogangi on such amounts shall also be paid by the Customer.  All payments not paid when due shall bear interest at the maximum rate permitted by law.   In addition to all available remedies, Ogangi shall have the right to suspend Services with respect to any account which is delinquent by 15 days or more or to terminate this Agreement.

 

 

Mobile Operators and shortcode(s)/longcode(s):

 

To be listed by Customer.

Account Managers:

 

 

 

 

Customer:                                          

Ogangi:

Omar Howell

Ogangi Corporation

9155 S Dadeland Blvd, Suite 1504

Miami, Florida 33156

USA

(T): +1 (305) 670 8082

(F): +1 (305) 670 8082

ohowell@ogangi.com

 

Notices:



 

 

 

 

 

Customer:      

Ogangi:

Ogangi Corporation

9155 S Dadeland Blvd, Suite 1504

Miami, Florida 33156

USA

Attention:  Legal Department

legal@ogangi.com

(T): +1 (305) 670 8081

(F): +1 (305) 670 808

Confidentiality:

 

 

 

 

 

 

 

 

 

 

 

 

 

Ownership:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The terms and conditions described in this Provider Agreement including its existence shall be confidential information and shall not be disclosed to any third party by the Customer or any of its representatives.   Notwithstanding the foregoing, nothing contained herein shall be construed so as to prohibit any party from making any disclosure required by law, including any such disclosure required by any Federal, state or local governmental agency or court of competent jurisdiction. If the Customer determines that it is required by law to disclose information regarding this Provider Agreement or to file this Provider Agreement pursuant to a deposition, interrogation, request for information or documents in legal proceedings, subpoena, civil investigative demand, governmental or regulatory process agency, the Customer shall (a) promptly notify in writing Ogangi, and consult with and assist the Ogangi in seeking a protective order or request for other appropriate remedy, (b) in the event that such protective order or remedy is not obtained, or if the Ogangi waives compliance with the terms hereof, the Customer shall disclose only that portion of this Provider Agreement which, based on the written advice of such party’s legal counsel, is legally required to be disclosed and shall exercise commercially reasonable efforts to provide that the receiving person shall agree to treat this Provider Agreement as confidential to the extent possible (and permitted under applicable law) in respect of the applicable proceeding or process.  This provision shall survive the expiration or termination of this Agreement.

 

Ogangi shall retain sole and exclusive ownership of any and all copyrights, software code, patents, trademarks, trade secrets, know-how, rights in confidential information and all other intellectual property whatsoever throughout the world which may be registered or unregistered ("Intellectual Property") that is or was owned, developed, conceived, or licensed from time-to-time by Ogangi prior to the Effective Date or independent of this Agreement (''Pre­Existing Intellectual Property"). Nothing in this Agreement provides Customer or its Affiliates (or any other party) with any right, title or interest in or to Ogangi’s Pre-Existing Intellectual Property other than the right to use such Pre-Existing Intellectual Property strictly in accordance with this Agreement.

The Pre­Existing Intellectual Property is proprietary to Ogangi, and title to it remains in Ogangi.  All applicable common law and statutory rights in the Pre­Existing Intellectual Property, including, but not limited to, rights in confidential and trade secret material, source code, object code, trademarks, service marks, patents, and copyrights, shall be and will remain the property of Ogangi.  Customer shall have no right, title, or interest in such proprietary rights. 

The terms and conditions under this caption “Ownership” shall survive the expiration or termination of this Agreement.

 

Reverse Engineer:

Customer covenants and agrees that it shall not, and shall not permit its affiliates, employees or any third party to translate, reverse engineer, reverse assemble, reverse compile, decompile, recompile, update, enhance, modify or make derivations from all or any part of the Pre-Existing Intellectual Property or merge the Pre-Existing Intellectual Property Software into any other software, and Customer shall use its best efforts to secure and protect the Pre-Existing Intellectual Property but in no event less than that degree of care which Customer uses in respect to its own confidential or proprietary information of like nature, to prevent the unauthorized disclosure or reproduction of such information.   

 

The terms and conditions under this caption “Reverse Engineer” shall survive the expiration or termination of this Agreement.. 

 

Customer Responsibilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WARRANTIES DISCLAIMED:

 

 

 

 

 

 

 

 

 

Customer is responsible for obtaining and maintaining computers and operating systems compatible with the Pre-Existing Intellectual Property as shown in the technical specifications for the Pre-Existing Intellectual Property provided by Ogangi and for ensuring a proper environment and proper utilities for the computer system on which the Pre-Existing Intellectual Property will operate, including, without limitation, an uninterrupted power supply.  Ogangi assumes no responsibility under this Agreement for obtaining or providing such equipment or the compatibility of Customer’s computers and operating systems with the Pre-Existing Intellectual Property.

Ogangi has no control over the conditions under which Customer and authorized users use the Pre-Existing Intellectual Property, and Ogangi does not and cannot warrant the results obtained by such use.

Ogangi also does not warrant that the functions contained in the Pre-Existing Intellectual Property will meet the requirements of Customer or authorized users or that the operation of the Pre-Existing Intellectual Property will be uninterrupted or error free.

Only an authorized officer of Ogangi may make modifications to this Agreement or additional warranties binding on Ogangi, and such modifications or additional warranties must be in writing.  Accordingly, additional statements such as those made in advertising or presentations, whether oral or written, do not constitute warranties by Ogangi and should not be relied upon as such.

The terms and conditions under this caption “Customer Responsibilities” shall survive the expiration or termination of this Agreement.OGANGI MAKES NO ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (IF APPLICABLE), ALL OF WHICH ARE HEREBY EXCLUDED AND DISCLAIMED.  IN NO EVENT SHALL OGANGI BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY INDIRECT DAMAGES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS OR DAMAGES FOR LOSS OF USE OR LOSS OF DATA OR LOST REVENUES (EVEN IF OGANGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON STATUTE, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.  SOME STATES DO NOT ALLOW SUCH DISCLAIMERS OF WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS ABOVE MAY NOT APPLY.  IN NO EVENT SHALL OGANGI OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE TO CUSTOMER FOR ANY CLAIMS OR DAMAGES IN EXCESS OF AMOUNTS PAID BY CUSTOMER TO OGANGI UNDER THIS AGREEMENT. 

The terms and conditions under this caption “Warranties Disclaimed” shall survive the expiration or termination of this Agreement.

Miscellaneous:

(a)  Governing Law.  This Agreement has been executed and delivered within the State of Florida, is a contract made under the laws of the State of Florida, and shall be governed by and interpreted in accordance with the laws of the State of Florida, without regard to conflict of law principles thereunder. 

(b)  Successors; Non-Assignment.  Except as otherwise specifically provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  The Customer shall not assign this Agreement without the prior written consent of Ogangi.  Ogangi may assign this Agreement to an affiliate. 

(c)  Captions.  Captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provision hereof.

(d)  Severability.  If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, void or unenforceable, the remainder of the Agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid, void or unenforceable, shall not be effected thereby.  Notwithstanding the foregoing, if such severance would render the remaining provisions of this Agreement inadequate to accomplish the basic purposes and mutual intent of the parties, then either party may terminate this Agreement upon written notice within 30 days of such court order or notice effecting severance.

 

(e) Counterparts.  This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.  Delivery of executed signature pages hereof by facsimile transmission or email shall constitute effective and binding execution and delivery hereof.

(f)  Entire Agreement; Amendment.  This Agreement constitutes the entire Agreement between the parties with regard to the subject matter hereof and supersedes all communications, discussions commitments and prior writings.  The parties hereto may amend this Agreement at any time during the Term of this Agreement, but no amendment shall be effective unless it is in writing and duly executed by all of the parties hereto.  Customer acknowledges and agrees that the salespersons representing Ogangi in connection with this Agreement do not have authority to make any statements, promises or representations in conflict with or in addition to the information contained in this Agreement, and Ogangi hereby specifically disclaims any responsibility for any such statements, promises or representations. By execution of this Agreement, Customer acknowledges that Customer has not relied upon such statements, promises or representations, if any, and waives any rights or claims arising from any such statements, promises or representations.

(g)  Equitable Remedies.  Customer acknowledges and agrees that, in the event of a breach or threatened breach of the confidentiality provisions pf this Agreement by Customer or its representatives, Ogangi will be irreparably harmed and that monetary damages would not provide an adequate remedy.  Accordingly, it is agreed that, in addition to any and all other rights which may be available, at law or in equity, Ogangi shall be entitled to injunctive relief and/or specifically to enforce the terms and provisions hereof in any court of competent jurisdiction. 

(h)  Force Majeure.  The inability of Ogangi to provide its Services hereunder resulting from force majeure events, including, without limitation, power outages, failure of utilities or delays caused by strikes, picketing, insurrection, acts of God, war, emergencies, shortages or unavailability of materials, limitations imposed by exchange control regulations, embargoes or foreign investment regulations or other causes beyond Ogangi’s reasonable control, shall not constitute a breach of this Agreement and shall extend the Term of this Agreement for the period equal to the period(s) of any such delays(s), provided that Ogangi shall continue to perform to the extent feasible in view of such force majeure.

(i)  Survival.  The terms and conditions under this caption “Miscellaneous” shall survive the expiration or termination of this Agreement.

(j)  No Waiver.  One or more waivers of a breach of any provision of this Agreement by any party shall not be construed as a waiver of a subsequent breach of the same or any other provision, nor shall any delay or omission by a nondefaulting party to seek a remedy for any breach of this Agreement or otherwise to exercise the rights accruing to a nondefaulting party by reason of such breach be deemed a waiver by a nondefaulting Venturer of its remedies and rights with respect to such breach.  All waivers to be effective shall be in writing.

(k)  Construction.  The parties acknowledge that each has been advised by counsel during the course of negotiation of this Agreement and, therefore, that this Agreement shall be interpreted without regard to any presumption or rule requiring construction against the party causing this Agreement to be drafted.

(l)  Prevailing Party.  If either party commences an action against the other to interpret or enforce any of the terms of this Agreement or as a result of a breach by the other party of any terms hereof, the nonprevailing party shall pay to the prevailing party reasonable attorneys’ fees, costs and expenses incurred in connection with the prosecution or defense of such action (including at any appellate level).  As used herein, the term “prevailing party” shall mean the party which obtains the principal relief it has sought, whether by compromise settlement or judgment.  If the party which commenced or instituted the action, suit or proceeding shall dismiss or discontinue it without the concurrence of the other party, such other party shall be deemed the prevailing party.

(m)  No Parol Evidence.            By execution of this Agreement, each of the parties represents and warrants that it has relied on no oral or written statements, promises, inducements, representations or warranties to enter into this Agreement except for those expressly set forth herein and in this Agreement.  The parties agree that the inclusion of this provision evidences the intent of the parties that no other evidence shall be admissible to alter or vary the terms of this Agreement.  The inclusion of this provision herein has been a material inducement for each of the parties to enter into this Agreement.  The parties agree that this Agreement is intended as the final, complete and exclusive statement of the terms of the agreement between the parties.  The parties agree that parol or extrinsic evidence may not be used to vary or contradict the express terms of this Agreement and that recourse may not be had to alleged prior dealings or course of performance to explain or supplement the express terms of this Agreement. No course of dealing between the parties shall operate as a waiver of any rights hereunder.

(n)  Each party will be and act as an independent contractor and not as the agent or partner of, or joint venturer with, the other party for any purpose, and neither party, by virtue of this Agreement, shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

(o)  Selection of Forum; Venue; Service of Process.  The parties hereby irrevocably agree, in any suit, action or proceeding arising out of or relating to this Agreement or any transactions contemplated hereby (whether during the term hereof or after its termination or expiration), to submit to the exclusive jurisdiction of the United States District Court for the Southern District of Florida or, if jurisdiction is not available therein, the jurisdiction of any court located in Miami-Dade County, Florida, and waive all other possible forums and any and all objections to such jurisdiction or venue that they may have under the laws of any state or country, including, without limitation, any argument that jurisdiction, situs and/or venue are inconvenient, inadequate or otherwise improper.  Each party hereby expressly acknowledges that the courts of Miami-Dade County, Florida provide an adequate forum for the resolution of any and all disputes or claims which might arise under this Agreement or from any Services provided hereunder and that the burdens of those courts are not unreasonable.  Each party further expressly acknowledges that the relative burden of an action brought in Miami-Dade County, Florida is no greater for either party than an action brought elsewhere and that evidence and witnesses are more likely to be found in Miami-Dade County, Florida than elsewhere. Accordingly, the parties irrevocably waive any forum non conveniens assertion intended to divest the courts of Miami-Dade County, Florida  of jurisdiction.  Each party further agrees that process may be served upon such party in any manner authorized under the laws of the United States or Florida, and waives any objections that such party may otherwise have to such process.

(p) Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(q)  Any notification shall be deemed to have been duly given if personally delivered or sent by United States mail or by facsimile transmission confirmed by letter personally delivered or sent by United States mail and shall be deemed given, unless earlier received, (i) if sent by certified or registered mail, return receipt requested, five (5) calendar days after being deposited in the United States mails, postage prepaid; (ii) if sent via expedited courier such as Federal Express, on the next succeeding business day after being delivered to such courier; (iii) if sent by facsimile transmission or email, the date sent if a business day or, if not, the next succeeding business day, provided, that, confirmatory notice was sent by first-class mail, postage prepaid; and (iv) if delivered by hand, on the date of receipt.

 

 

 

 

 

 

 

 

 

 

 

 

 

By their respective execution below, each of the parties agrees to the terms and conditions of this Provider Agreement intending to be legally bound hereby.

For and on behalf of

 

OGANGI CORPORATION

By: ____________________________

      Name:

      Title:

 

 

For and on behalf of

Customer:

 

_______________________________

 

 

By: ____________________________

     Name:

     Title

 

 

 

 


 

 

EXHIBIT A-1

 

LIST OF PRODUCTS

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT A-2

 

LIST OF FEES