Agreement

for
Provision of Interactive Mobile
Marketing Campaign Management Platform
and
Value Added Mobile Data Services

between

&
OXYGEN8 COMMUNICATIONS SOUTH AFRICA
(PTY) LTD trading as DYNAMIC MOBILE BILLING
1. PARTIES

(insert) a Company duly incorporated and registered in accordance with the laws of (insert)
with Company Registration Number (insert) and with its registered address situated at (insert),
hereinafter referred to as the“CLIENT”;

and

OXYGEN8 COMMUNICATIONS SOUTH AFRICA (PTY) LTD trading as DYNAMIC MOBILE

BILLING, registration number M2004/017555/07, a Company duly incorporated and registered
in accordance with the laws of the Republic of South Africa, with its principal place of business
situated at 1st Floor, Kiepersol Building, Stonemill Office Park, 300 Acacia Road, Cresta, South
Africa, 2194,hereinafter referred to as “OXYGEN8”.

2. INTERPRETATION

2.1 DEFINITIONS:

In this Agreement and any annexures or schedules hereto, the following words and
expressions shall, unless clearly inconsistent with or the context otherwise requires,
have the following meanings:

2.1.1 Agreement means this document and all annexures and schedules attached hereto;
2.1.2 Associates, in relation to a party, mean the employees, officers, agents and
subcontractors of that party;
2.1.3 Billing means the process which OXYGEN8 will create, manage and give effect to, the
Service which includes (i) invoicing Mobile Network Operators, collecting payment from
them and making payment to the CLIENT for Delivery; and (ii) invoicing CLIENT for
Services rendered by any other party in providing Messages; and (iii) invoicing CLIENT
for Services rendered by OXYGEN8;
2.1.4 Business Day means a day which is not a Saturday, Sunday or public holiday in the
Republic of South Africa;
2.1.5 Business Rules means the agreed processes and procedures for implementing
certain aspects of the Agreement as in accordance with the Mobile Network Operators‟
Business Rules;
2.1.6 Charges mean any costs payable by the CLIENT for licences in relation to Messages
or Marks;
2.1.7 Confidential Information means any information obtained by OXYGEN8 or its
Associates/CLIENT or its Associates which relates to the CLIENT or its
business/OXYGEN8 or its business respectively that is by its nature confidential; is
designated as confidential; OXYGEN8/CLIENT knows or ought reasonably to have
known is confidential; but does not include information in the public domain, other than
that which is in the public domain due to a breach of this Agreement;

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2.1.8 Content Code(s) means the numeric or alpha-numeric codes allocated to a Message
to enable its identification for purposes of Order, Delivery and Billing;
2.1.9 Content Owner means the originator of a Message, having all legal rights to the
image, text and content of a Message;
2.1.10 Content Services means the services to be provided by OXYGEN8, namely response
to an Order; interaction with Content Owners; provision of Messages; facilitation of
SMS Messages; Billing; and Delivery; amongst others, provided that, for the avoidance
of any doubt, it is recorded, acknowledged and agreed that content will be sourced and
supplied by the CLIENT or its contractors, for the purposes of OXYGEN8 providing
such Services. Content services for this specific Agreement are further specified in
schedule 2 of this Agreement;
2.1.11 Data Processor and Data Controller shall have the meanings given to those terms in
the ECT Act as amended from time to time or any other relevant legislation that is
applicable to the industry;
2.1.12 Defect means any failure of the Services or the System to comply with the
Specifications or any other error, problem or malfunction in the Services or the System;
2.1.13 Delivery is the process by which Messages and SMS Messages are successfully
transmitted across the telecommunications networks of Mobile Network Operators, to
the End User;
2.1.14 Documentation means the technical and operating manuals and any other
documentation relating to the use or operation of the System;
2.1.15 ECT Act means the Electronic Communications and Transactions Act of 2002 and any
amendments to it or any other applicable or related legislation which address rights of
privacy and data protection;
2.1.16 End User means the customers of the CLIENT and any person who accesses CLIENT
Services;
2.1.17 Fees mean the fees payable to OXYGEN8 in accordance with clause 7 and
Schedule 3 of the Agreement:
(a) for Support Services; Revenue Share; fees for dedicated Short Codes; and
Delivery; and
(b) for the once-off development fee; Support Services (maintenance) in relation to
the System; Revenue Share; and a fee for Delivery, all in respect of CLIENT
Services;
2.1.18 Force Majeure means any fire, lightning strike, flood, earthquake, natural disaster,
sabotage, nuclear contamination, terrorism, war or civil riot that occurs to the extent
that it:
(a) would be unreasonable to expect the affected party to have planned for, avoided
or minimised the impact of such circumstance by appropriate risk management,
disaster recovery or business resumption plans; and
(b) results in a party being unable to perform an obligation under this Agreement on
time;
2.1.19 Intellectual Property Rights or IPR means copyright (including future copyright),
trademarks, designs, patents, circuit layout rights, topography rights, rights in

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 databases, know-how, trade secrets and confidential information and all other rights
generally falling within the scope of this term or having equivalent or similar effect,
whether registered or unregistered (and including applications for the registration of
such rights) and whether registrable or not;
2.1.20 Marks means any marks, trademarks, logos or brands used by the CLIENT, whether
registered trademarks or not;
2.1.21 Message means a text or multimedia message including text, chat and dating services,
graphics, numerals, symbols, audio and/or video clips but for the purposes of this
Agreement does not include an SMS Message;
2.1.22 Minor means a natural person under the age of 18 years which has not been legally
emancipated;
2.1.23 Mobile Network Operators means a person/juristic person who is licensed to provide
telecommunications services in South Africa in terms of the Telecommunications Act,
1996;
2.1.24 Order means a request by an End User to purchase a Message by using a Short
Code;
2.1.25 PAIA means the Promotion of Access to Information Act, 2000;
2.1.26 Personal Information or Personal Data shall have the meanings given to those terms
in the ECT Act as amended from time to time or any other relevant legislation that is
applicable to the industry and the Agreement;
2.1.27 Records mean the records whether electronic or paper, which OXYGEN8 shall create,
retain and maintain in relation to provision of the Services.
2.1.28 Revenue means all income generated from the sale of Messages to End Users after
the deduction of the Charges;
2.1.29 Revenue Share means the allocation of Revenue after the deduction of applicable
Charges and expenses, and in the following order, amongst:
(a) Mobile Network Operators;
(b) CLIENT and OXYGEN8, as set out in Schedule 3.
2.1.30 SMS means a short message service;
2.1.31 SMS Message means SMS sent by End Users, CLIENT or OXYGEN8;
2.1.32 Services means the Support Services and the Content Services;
2.1.33 Service Levels means any level or standard which must be adhered to when the
Services are provided, as set out in Schedule 2;
2.1.34 Short Code means the 5-digit number which is allocated to OXYGEN8 by Mobile
Network Operators, and which OXYGEN8 may sub-allocate, which an End User can
dial to access the CLIENT Services;
2.1.35 Specifications means the functional and technical specifications for the performance,
output, function and operation of the System, and any other specifications and
requirements set out in Schedule 2;
2.1.36 Support Services means End User support and maintenance services in relation to
the Services and the System, all as specified in Schedules 2;

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2.1.37 System means the server(s), hardware, software and other equipment used by
OXYGEN8 to provide the Services;
2.1.38 VAT means Value-Added Tax payable in terms of the VAT Act;
2.1.39 The VAT Act means the Value-Added Tax Act, 1991, as amended;
2.1.40 CLIENT IP means CLIENT‟s rights to use the Marks, the IPR of the CLIENT, and any
rights in and to the Personal Information collected and/or compiled by OXYGEN8;
2.1.41 CLIENT Services means the products and services including Messages supplied by
CLIENT;
2.1.42 Warranty Period, in relation to the System, means the duration of the Agreement.

2.2 CONSTRUCTION AND INTERPRETATION

Unless expressed to the contrary, in this Agreement:

(a) if a word or phrase is defined its other grammatical forms have corresponding meanings;
(b) “includes” and “including” in relation to a defined or generic word or expression, on the
one hand, and one or more enumerated examples or specific items, on the other, is not
to be construed as limiting the defined or generic expression to the examples or items
so enumerated;
(c) a reference to:
i) a person includes a partnership, joint venture, unincorporated association,
corporation and a government or statutory body or authority;
ii) a person includes the person‟s successors, assignees and persons substituted
by novation;
iii) time refers to local time in Johannesburg, Gauteng, South Africa;
iv) “R” or “Rand” is a reference to South African currency; and
v) this or any other document includes the document as novated, varied, amended
or replaced and despite any change in the identity of the parties;
(d) no rule of construction will apply to a clause to the disadvantage of a party merely
because that party proposed the clause or would otherwise benefit from it;
(e) this Agreement will take precedence over its Annexures and Schedules in the case of
conflicting interpretation;
(f) if the date on or by which any act must be done under this document is not a Business
Day, the act must be done on or by the next Business Day; and
(g) When a particular number of Business Days is provided for between the happening of
one event and another, the number of days must be calculated by:
(i) excluding the day on which the first such event occurs;
(ii) including the day on or by which the second event is to occur; and
(iii) excluding any public holiday in South Africa, Saturday or Sunday that falls on or
between the days contemplated in paragraphs (a) and (b), respectively.

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2.3 HEADINGS

All headings of the Sections of this Agreement have been inserted for convenience of
reference only, are not to be considered a part of this Agreement, and shall in no way
affect the interpretation of any of the provisions of this Agreement.

3. TERM

The initial term of this Agreement shall commence on the date of signature of the last
party thereto and shall continue on a month to month basis until the Agreement is
terminated either by the CLIENT or by OXYGEN8 in accordance with the provisions of
clause17 of this Agreement.

4. ONGOING OBLIGATIONSAND RIGHTS

4.1 OXYGEN8 SHALL:

a) provide the Services as agreed upon between the parties, subject to clause 14.1;
b) report to the CLIENT as required under clause 7.4(c);
c) create, retain and maintain the Records for a period of at least 5 (FIVE) years after
termination of this Agreement for any reason;
d) not do anything likely to give rise to liability to CLIENT or to bring CLIENT into disrepute
or damage or dilute the distinctiveness of the CLIENT‟s Marks in any way;
e) enter into agreement with Mobile Network Operators to facilitate Delivery of Messages
and SMS Messages, and Billing in accordance with this Agreement and to the extent
that it may be required by law (whether by operation of the law, legislation or by virtue
of its contractual obligations to third parties or otherwise), comply with the WASPA
Code of Conduct as published from time to time;
f) establish and configure our System in such a way as to meet the Specifications;
g) allow CLIENT access to our platform in order for CLIENT to set up mobile services
using self-provisioning tools, if required;
h) provide on-going training and support with regards to our platform, as necessary;
i) where required by law or where otherwise it would be reasonable to do so,
acknowledge the Content Owner;
j) revise and review the Business Rules from time to time with CLIENT to ensure that
they are adequate and appropriate;
k) not knowingly at any time provide any Service the provision of which is or may be a
criminal offence or which infringes or may infringe the rights, including without
limitation, the Intellectual Property rights of any third party, or is or may otherwise be
unlawful;
l) act as a Data Processor for CLIENT;
m) in the event that OXYGEN8 is prevented from meeting any of its obligations due to any
cause outside its reasonable control, promptly notify CLIENT in writing of the
circumstances, steps taken by OXYGEN8 to limit the non-compliance and how long it
is anticipated to endure for.

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4.2 CLIENT SHALL:

a) comply with applicable Rules and Regulations issued by the Independent

Communications Authority of South Africa (ICASA) and comply with the Wireless
Application Service Provider Association‟s (WASPA) Code of Conduct and Advertising
Rules and Guidelines and any Code of Practice issued jointly or singularly by any of
the Mobile Network Operators from time to time. Note that compliance is the
responsibility of CLIENT; please peruse the WASPA Code of Conduct and Advertising
Rules and Guidelines (http://www.waspa.org.za/index.shtml) before offering any
Services;
b) comply with the relevant and applicable legislation and regulations currently in force as
well as any amendments thereto and any legislation to come into force during the term
of this Agreement;
c) revise and review the Business Rules from time to time with OXYGEN8 to ensure that
they are adequate and appropriate;
d) register their business as an affiliated member with WASPA on/before the
commencement or launch of any Services. If the CLIENT fails to adhere to this clause,
OXYGEN8 reserves the right to suspend or terminate any/all services of CLIENT until
CLIENT has complied with this clause;
e) notify OXYGEN8 from time to time of the identity of Content Owners;
f) strictly and timeously honour payment obligations in favour ofOXYGEN8 in accordance
with the Agreement.
g) ensure that it secures and pays for appropriate licences (including but without
limitation, appropriate licences from music collection societies), permissions, approvals
or authorisations as may be legally required, in respect of any act of broadcasting,
exhibition, transmission in a diffusion service, distribution, communication or making
available to the public or any other form of dissemination whatsoever, of any material
or content (including but without limitation, artistic, literary and musical works, sound
recordings and cinematograph films) pursuant to this Agreement;
h) not do anything likely to give rise to liability to OXYGEN8 or to bring OXYGEN8 into
disrepute or damage or dilute the distinctiveness of OXYGEN8‟s Marks in any way;
i) not at any time request any Service the provision of which is or may be a criminal
offence or which infringes or may infringe the rights, including without limitation, the
Intellectual Property rights of any third party, or is or may otherwise be unlawful;
j) provide OXYGEN8 with any relevant media (including but not limited to images,
advertisements, payoff lines, prompts and any other audio- or visual cues used to
acquire end-users of a CLIENT‟S service) prior to using such media for advertising or
sign-up purposes for services. Client agrees that all media so submitted will be subject
to a compliance check by OXYGEN8.
k) The parties specifically agree that OXYGEN8 will not be held liable for damages or
sanctions of a regulatory nature or otherwise resulting from media used by CLIENT not
subjected to compliance checks and/or approved by OXYGEN8 in terms of clause (j)
above.

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l) Furnish OXYGEN8 with any/all information as requested by OXYGEN8 from time to
time within 48 (FORTY EIGHT) hours of the request, or any longer period as agreed
upon between the parties. In the event that CLIENT refuses, fails and/or neglects to
adhere to the request within the relevant time period, OXYGEN8 reserves the right to
suspend any/all Services until the request is honoured by CLIENT;
m) not use Spam Messages (unsolicited commercial communications as defined in
WASPA Code of Conduct) under any circumstances. In the event that CLIENT in any
way uses or facilitates Spam, OXYGEN8 reserves the right to suspend any/all Services
immediately or terminate the Agreement and CLIENT will be held liable for any/all fines
and/or claims that originate directly, indirectly or as a consequence of the Spam
Messages;
n) only use OXYGEN8‟s MSISDN (Mobile Station International Subscriber Directory
Number) forwarding if the MSISDN and Service is billed through OXYGEN8. In the
event that the CLIENT contravenes this provision, OXYGEN8 reserves the right to
suspend any/all Services immediately or terminate the Agreement and reserves the
right to claim from CLIENT any/all proceeds and revenue acquired by CLIENT in
contravention of this provision;
o) not abuse the Services or System under any circumstances. OXYGEN8 reserves the
right to suspend any/all Services with immediate effect and no prior notice, in the event
that the Service is deemed to be harmful to OXYGEN8‟s business. In the event that
OXYGEN8 exercises such right the CLIENT will be informed of such suspension within
24 (TWENTY FOUR) hours thereof.
p) remove a no-billing number within 3 (THREE) months or any other period as specified
by the Mobile Network Operators or WASPA;
q) submit a Service approval form for every new Service that CLIENT intends or proposes
to launch(copy of relevant form attached hereto marked Annexure “B”);
r) furnish OXYGEN8 with a list of all Services running, including but not limited to access
URL‟s, as requested by OXYGEN8 from time to time within 48 (FORTY EIGHT) hours
of the request, or any longer period as agreed upon between the parties. In the event
that CLIENT refuses, fails and/or neglects to adhere to the request within the relevant
time period, OXYGEN8 reserves the right to suspend any/all Services until the request
is honoured by CLIENT;
s) take all reasonable steps to ensure that only Minors who have their parents or
guardians‟ consent and the consent of the bill payer to place an Order and take
Delivery of a Message, receive Messages and SMS Messages. OXYGEN8 reserves
the right to suspend any/all Services provided to Minors without prior notice to CLIENT,
in the event that OXYGEN8 becomes aware that this clause has been contravened by
CLIENT;
t) in the event that CLIENT is prevented from meeting any of its obligations due to any
cause outside its reasonable control, promptly notify OXYGEN8 in writing of the
circumstances, and what steps CLIENT is taking to limit the non-compliance and how
long it is anticipated to endure for;
u) ensure the End Users will be provided with all necessary and required terms and
conditions for CLIENT‟s Service.

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5. CONTENT SERVICES

In addition to those obligations in clause 4.1, OXYGEN8 shall comply with and meet or
exceed the Service Levels in relation to the Content Services, as set out in Schedule 2
as well as the Business Rules as agreed upon between the parties from time to time.

6. SUPPORT SERVICES

6.1 In addition to those obligations in clause 4.1, OXYGEN8 shall comply with and meet or
exceed the Service Levels in relation to the Support Services, as set out in Schedule 2
as well as the Business Rules as agreed upon between the parties from time to time.
6.2. CLIENT shall pay for the Support Services in accordance with Schedule 3 (Fees).

7. FEES AND PAYMENT

7.1 FEES

(a) In consideration for the provision of the System and the Services under this Agreement,
CLIENT will pay OXYGEN8 the Fees as set out in Schedule 3.
(b) In the event that Fees or tariffs are increased by the Mobile Network Operators or are
increased due to circumstances beyond OXYGEN8‟s control, OXYGEN8 reserves the
right to increase the Fees accordingly and will notify CLIENT in writing of the increase
within 14(FOURTEEN) days of the relevant change in Fees.

7.2 EXPENSES

No expenses or other costs or charges of whatever nature (including, without limitation,

taxes or other levies imposed on OXYGEN8 for whatever reason) incurred by
OXYGEN8 will be reimbursed by CLIENT or vice versa unless specifically provided for
in the Agreement or otherwise agreed by the parties in writing prior to such expenses
or other costs or charges being incurred.

7.3 REVENUE SHARE

(a) The parties shall share Revenue on the basis set out in Schedule 3.
(b) CLIENT or OXYGEN8 shall have the right to audit and verify the Records in relation to
the reports under clause 7.4(c) from time to time on reasonable notice to OXYGEN8or
CLIENT but not more than once per quarter.
(c) In the event that an audit reveals a discrepancy of more than 5% (FIVE PERSENT)
between Mobile Network Operator reports and the reports provided by OXYGEN8,
CLIENT/OXYGEN8 shall adjust the following month‟s invoice and payment to
OXYGEN8/CLIENT accordingly. This clause (b)shall survive any termination of this
Agreement for any reason and shall continue to apply in relation to the last month‟s
invoicing by OXYGEN8.

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 (d) The audit shall be conducted by an independent auditor who is registered with the
Independent Regulatory Board for Auditors in accordance with the Auditing Profession
Act, 26 of 2005 or in accordance with any other relevant legislation. The costs of the
audit will be for the account of the party who requests the audit.

7.4 INVOICING AND PAYMENT

(a) The Fees will be payable in accordance with the terms of this clause as well as
Schedule 3.
(b) CLIENT will make payment within 30 (THIRTY) days of the end of the month in which a
correctly rendered invoice (having regard to the Reconciled Report) is received from
OXYGEN8 in relation to the Fees, bulk messaging charges and other outbound
message costs.
(c) OXYGEN8 will advise CLIENT (having regard to the Reconciled Report) of its share of
premium rated revenue within 15(FIFTEEN) Business Days of the end of the month or
within 5 (FIVE) Business Days from receiving a statement from the Mobile Network
Operators, whichever is the greatest. The CLIENT will submit a correctly rendered
invoice to OXYGEN8 for this amount.
(d) OXYGEN8 will effect payment within 90 (NINETY) days from the last day of the month
in which the Revenue was generated, conditional on OXYGEN8 having received
payment from the Mobile Network Operators. For the avoidance of doubt, payment of
revenue share will be made by OXYGEN8 to CLIENT only after payment to OXYGEN8
by the Mobile Network Operators.
(e) OXYGEN8 reserves the right to adjust previous statements in the event that there is a
discrepancy between OXYGEN8‟s report and the Mobile Network Operators report on
the relevant traffic.
(f) In the event of a discrepancy as indicated in Clause 7(4)(e), OXYGEN8 reserves the
right to:
(i) deduct these differences from any outstanding or future payments; or
(ii) invoice the CLIENT for the difference, in which event the CLIENT will make
payment within 30 (THIRTY) days of receiving a correctly rendered invoice.
(g) If there is a dispute in relation to payment of any amount under this Agreement, the
dispute will be dealt with in accordance with clause 19. Notwithstanding the referral of
a dispute regarding payment to dispute resolution under clause 19, OXYGEN8 must
continue to supply the Services to CLIENT in accordance with this Agreement.
(h) OXYGEN8 reserves the right to vary or amend the invoicing and/or payment terms in
accordance with the procedure set out in Schedule 1.

8. VAT

Unless otherwise expressly stated, all prices or other sums payable or consideration to
be provided under this Agreement are exclusive of VAT.

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9. CHANGES TO AGREEMENT

Any change, amendment or variation of this Agreement, Schedules or Annexures must

be made in accordance with the procedure as set out in Schedule 1.

10. SUBCONTRACTING

OXYGEN8 may subcontract its obligations under this Agreement to a third party at its
sole discretion, provided that OXYGEN8 shall remain liable for performance of its
obligations under this Agreement regardless of any subcontracting and shall be
responsible for the actions and omissions of any subcontractor.

11. INTELLECTUAL PROPERTY

11.1 The ownership of the Intellectual Property Rights in any item which exists prior to the
Commencement Date will not be altered, transferred or assigned merely by virtue of
that item‟s use for the purposes of this Agreement.
11.2 OXYGEN8 may not use any Marks without CLIENT‟s prior written approval in each
case.
11.3 CLIENT remains the owner of all the CLIENT IP and any ownership rights and
obligations remain vested in the CLIENT.

12. CONFIDENTIALITY

12.1 In addition to the obligations set out in clause 4.1 and 4.2OXYGEN8 and the CLIENT
respectively, must keep the Confidential Information confidential and must not use or
permit the use of that Confidential Information; make copies of that Confidential
Information; or disclose that Confidential Information to any person, other than as
necessary to perform OXYGEN8‟s or CLIENT‟s respective obligations under this
Agreement.
12.2 Nothing in this clause will prevent OXYGEN8/CLIENT from disclosing the Confidential
Information of the other party to those of its Associates who need to know the
Confidential Information in order to perform their obligations under this Agreement,
provided that each party ensures that those Associates are aware of and comply with
clause 12.1.
12.3 OXYGEN8/CLIENT will not breach its obligations under this clause solely because
either party discloses Confidential Information that it is legally required to disclose.
However, Confidential Information that is disclosed by force of law will remain
Confidential Information for all other purposes.
12.4 OXYGEN8/CLIENT must maintain effective security measures to protect all
Confidential Information in its or its Associates‟ possession or control from
unauthorised access, use, copying or disclosure.

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13. PRIVACY AND DATA PROTECTION

13.1 Without limiting any other provision of this Agreement, OXYGEN8 and CLIENT must
comply with the provisions of any applicable privacy legislation (including but not
limited to the ECT Act) in relation to Personal Information and Data collected, used or
disclosed by OXYGEN8 and CLIENT or its Associates in connection with this
Agreement.
13.2 All third party customer or End User data provided directly from CLIENT and relating to
CLIENT‟s customers shall remain the exclusive property of CLIENT, and this shall
include material and data supplied by CLIENT.
13.3 CLIENT andOXYGEN8 agree to secure the integrity of Personal Information and Data
in its possession or under its control by taking appropriate, reasonable technical and
organisational measures to prevent:
(i) loss of, damage to or unauthorised destruction of Personal Information and Data;
and
(ii) unlawful access to or processing of Personal Information and Data;
(iii) accidental loss or destruction of or damage to Personal Information and Data;
and to act in accordance with the ECT Act and any other relevant legislation governing
the processing of Personal Information and Data.
13.4 The parties shall maintain appropriate security, technical and organisational measures
to prevent unauthorised access to, or loss, damage or alteration of, the other‟s files,
documents, data, and systems.
13.5 If CLIENT requires OXYGEN8 to return Personal Data (or End User data), OXYGEN8
shall do so within 48 (FORTY EIGHT) hours of the request or any longer period as
agreed upon between the parties.

14. WARRANTIES

OXYGEN8 warrants that:

14.1 the System and Services will comply with and perform in accordance with the
Specifications during the Warranty Period. This Warranty is however subject to
matters which fall within OXYGEN8‟s control and it is expressly stated that this
warranty does not apply in the event that the System or Services are affected by
circumstances beyond OXYGEN8‟s control;
14.2 the Services will be provided with due care and skill and any materials supplied in
connection with them will be reasonably fit for the purpose for which they are supplied;
14.3 it has the necessary resources, skills and know-how to (if applicable) install and
implement the System, to provide the Services and to give advice in relation to the
Services.

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15. INDEMNITIES AND LIABILITY

15.1 OXYGEN8 will indemnify CLIENT, subject to clause 15.3,from and against any loss,
damages, costs (including reasonable legal costs on party and party scale) or liability
reasonably incurred or suffered by CLIENT from or in connection with:
(a) Any material breach by OXYGEN8, which cannot be rectified or remedied;
(b) any wilful or negligent act or omission of OXYGEN8 in connection with this
Agreement;
15.2 OXYGEN8‟s liability to indemnify the CLIENT under this clause will be reduced
proportionally to the extent that the acts or omissions of the CLIENT contributed to the
loss, damages, costs or liability.
15.3 CLIENT agrees that OXYGEN8‟s liability for loss, damages, cost or liability under or in
connection with this Agreement, shall in no circumstances exceed in the aggregate the
sum of R250, 000 (TWO HUNDRED AND FIFTY THOUSAND RAND).
15.4 CLIENT indemnifies OXYGEN8 against any and all liabilities, claims, actions, suits,
demands, obligations, damages, losses, indemnities, complaints or fines of any kind
whatsoever, including reasonable expenses and professional fees incident thereto,
and including interest accruing thereon, filed, deposited, claimed, raised or made in
relations to a Service that the CLIENT runs.

16. COMPLAINTS, ENQUIRIES OR INVESTIGATIONS

16.1 CLIENT shall cooperate with OXYGEN8 in relation to any complaints, enquiries or
investigations regarding Services offered by CLIENT.
16.2 CLIENT shall, without limitation bear in full any costs of whatsoever nature incurred by
OXYGEN8 and associated with such complaints, enquiries or investigations, including,
inter alia, any legal costs or fines levied by any regulator, trading standards authority,
or Court with relevant jurisdiction, against OXYGEN8 as a result of a breach of the
Codes of Conduct, or any regulatory provision or statutory provision, or other law,
being adjudicated against OXYGEN8 or CLIENT, where such breach is the result of the
failure of CLIENT to abide by any such Code of Conduct, or regulatory provision or
statutory provision, or other law.
16.3 OXYGEN8 reserves the right to suspend any/all Services, at its sole discretion, until the
complaint, enquiry or investigation has been dealt with in accordance with the
applicable procedure.
16.4 In the event that a formal WASPA complaint is made, OXYGEN8 will request WASPA
to assign the complaint to the affiliated member (CLIENT).
16.5 OXYGEN8 reserves the right to at its sole discretion, withhold all or a percentage of the
funds owing to the CLIENT as security in the event that:
(a) WASPA issues a formal complaint against the CLIENT for any Service that
CLIENT runs; or
(b) Mobile Network Operators indicate that they will launch an investigation into the
Service that CLIENT runs; or

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 (c) OXYGEN8 decides to launch an internal investigation into the Service that
CLIENT runs for whatever reason.
16.6 OXYGEN8 shall not be liable to the CLIENT for any interest on the funds withheld in
accordance with clause 16.5 for any reason whatsoever.
16.7 Any funds withheld in accordance with clause 16.5will be available immediately after
the complaint, enquiry or investigation has been resolved, adjudicated or finalized,
subject to clause 16.9.
16.8 Any fines issued by WASPA or the Mobile Network Operators against the CLIENT shall
be payable within 5 (FIVE) Business Days of the adjudication date. Late payment shall
incur a 5% (FIVE PERSENT) penalty charge by OXYGEN8 and bear interest going
forward at the prime interest rate accruing on a daily basis.
16.9 OXYGEN8 reserves the right to offset any monies owed to the CLIENT or withheld in
accordance with clause 16.5with any fines issued by WASPA or Mobile Network
Operators or any other costs or legal fees incurred.
16.10 OXYGEN8 reserves the right to at its sole discretion, invoice the CLIENT for any legal
fees or other fees incurred to attend to any WASPA formal complaint or Network
Operator investigation or complaint which is the result of any Service that the CLIENT
runs.
16.11 OXYGEN8 reserves the right to at its sole discretion, refund an End User for any
amount that OXYGEN8 deems necessary as a result or consequence of a WASPA
complaint or Network Operator investigation or complaint, or as instructed by WASPA,
the refund being for the CLIENTS account.

17. TERMINATION

17.1 TERMINATION BY CLIENT

CLIENT may terminate this Agreement immediately by giving written notice to

OXYGEN8 if:
(a) OXYGEN8 breaches any material term of the Agreement and, if the breach is
capable of being remedied, OXYGEN8 does not remedy it within 7 (SEVEN)
days of CLIENT notifying OXYGEN8 of the material breach;
(b) OXYGEN8 breaches any other term of this Agreement and, if the breach is
capable of being remedied, OXYGEN8 does not remedy it within
14 (FOURTEEN) days of CLIENT notifying OXYGEN8 of the breach;
(c) OXYGEN8 becomes, threatens to become, or is in jeopardy of becoming, subject
to any form of insolvency administration or ceases to conduct business so as to
properly perform is obligations under this Agreement.

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17.2 TERMINATION BY OXYGEN8

OXYGEN8 may terminate this Agreement immediately by giving written notice to

CLIENT if:
(a) CLIENT breaches any material term of the Agreement and, if the breach is
capable of being remedied, CLIENT does not remedy it within 7 (SEVEN) days of
OXYGEN8 notifying CLIENT of the material breach;
(b) CLIENT breaches any other term of this Agreement and, if the breach is capable
of being remedied, CLIENT does not remedy it within 14 (FOURTEEN) days of
OXYGEN8 notifying CLIENT of the breach;
(c) CLIENT becomes, threatens to become, or is in jeopardy of becoming, subject to
any form of insolvency administration or ceases to conduct business so as to
properly perform is obligations under this Agreement;
(d) OXYGEN8 forms the opinion, on reasonable grounds, that mutual confidence
and trust does not or no longer exist between the parties to this Agreement.

17.3 TERMINATION BY NOTICE

The parties to the Agreement may terminate the Agreement at any time by giving 1
(one) month‟s prior written notice to the other party informing the party of its intention to
terminate the Agreement.

17.4 CONSEQUENCES OF TERMINATION

(a) If CLIENT terminates this Agreement, CLIENT will pay OXYGEN8 all amounts
owing to OXYGEN8 up to the date of termination under the Agreement but not
any amounts which would be payable if the Agreement had continued.
(b) On termination of this Agreement OXYGEN8 will upon the written request of
CLIENT, deliver to CLIENT all materials in its possession, power or control
containing or embodying any Personal Information or Data provided to it by
CLIENT in connection with the Agreement.
(c) Termination of this Agreement will be without prejudice to rights accrued prior to
the end of this Agreement.

18. FORCE MAJEURE

18.1 A party will not be liable for any delay or failure to perform its obligations under this
Agreement if such delay is due to Force Majeure. If a delay or failure of a party to
perform its obligations is caused by Force Majeure, the performance of that party‟s
obligations will be suspended while the Force Majeure continues.
18.2 If either party is prevented from meeting any of its obligations due to any cause outside
its reasonable control, it shall promptly notify the other party in writing of the
circumstances, and what steps that party is taking to limit the Force Majeure and how
long it is anticipated to endure for.

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19. DISPUTE RESOLUTION

19.1 Any dispute arising from or in connection with this Agreement will be referred initially to
the parties‟ respective representatives who will attempt to settle the dispute within 5
(FIVE) Business Days of the referral or such other period as is agreed upon.
19.2 If the parties‟ representatives are unable to resolve the dispute under clause 19.1, the
dispute will be referred to the parties‟ respective Managing Directors (or their
nominees). These representatives will attempt to settle the dispute within 5 (FIVE)
Business Days of the referral or such other period as is agreed upon.
19.3 If the parties‟ respective Managing Directors (or their nominees) cannot resolve the
dispute under clause 19.2, the parties may refer the dispute to mediation or terminate
this Agreement in accordance with clause 17. The identity of the mediator must be
agreed upon between the parties. The cost of mediation will be borne by both parties
equally.
19.4 Nothing in this clause will preclude a party from taking immediate steps to seek
interdictory relief, specific performance and/or declaratory relief before the appropriate
Court.

20. GENERAL

20.1 DOMICILIUM CITANDI ET EXECUTANDI

(a) The parties choose as their Domicilium Citandi Et Executandi for all purposes arising out
of or in connection with this Agreement, whether in respect of Court process, notices or
other documents or communications of whatsoever nature the following addresses:

OXYGEN8:
 Physical Address: 1st Floor, Kiepersol Building, Stonemill Office Park, 300 Acacia
Street, Cresta, Johannesburg, South Africa, 2193.

CLIENT:
 Physical Address: (insert)
 Email:

A party may at any time change its Domicilium Address by giving the other party 14
(FOURTEEN) days prior written notice.

20.2 NOTICES

(a) A notice or other communication relating to this Agreement may be given by being
personally served on a party at, or sent by pre-paid registered mail to, the party‟s
Domicilium address as specified in this Agreement (or such other address as notified
by a party) or being sent by facsimile transmission to the party‟s fax number as stated
above.
(b) Notices or other communications shall be deemed to have been properly delivered and
duly received:

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 (i) on the date of delivery in the case of personal service;
(ii) after 5 (FIVE)Business Days in the case of posting the notice or communication
by pre-paid registered mail from a destination in South Africa to another
destination in South Africa;
(iii) on the day after the facsimile transmission in the case of notice by fax.

20.3 AMENDMENT

This Agreement may only be varied or replaced by a document executed by the parties
in writing and agreed upon between the parties, in accordance with Schedule 1 of the
Agreement.

20.4 WAIVER AND EXERCISE OF RIGHTS

A single or partial exercise or waiver by a party of a right relating to this Agreement

does not prevent any other exercise of that right or the exercise of any other right. A
party is not liable for any loss, cost or expense of any other party caused or contributed
to by the waiver, exercise, attempted exercise, failure to exercise or delay in the
exercise of a right.

20.5 GOVERNING LAW, JURISDICTION AND LEGAL FEES

This Agreement is governed by and is to be construed in accordance with the laws of

the Republic of South Africa. The parties agree that legal proceedings, which may
arise out of or in connection with this Agreement, will be instituted in any Court having
jurisdiction over the matter. In the event that OXYGEN8 institutes legal proceedings
against CLIENT for whatever reason, OXYGEN8 will be entitled to legal costs on
Attorney and Client Scale.

20.6 FURTHER STEPS

Each party must promptly do whatever any other party reasonably requires of it to give
effect to this Agreement and to perform its obligations under it.

20.7 ENTIRE UNDERSTANDING

This Agreement contains the entire understanding between the parties as to the
subject matter of this Agreement. All previous negotiations, understandings,
representations, warranties, memoranda or commitments concerning the subject
matter of this Agreement are merged in and superseded by this Agreement and are of
no effect. No party is liable to the other party in respect of those matters.

Page 17 of 24
20.8 NO PUBLICITY

Neither party may disclose or confirm (whether directly or indirectly) to any person,
including potential customers and the media, any term or aspect of this Agreement or
the Services including the fact of provision, without the other‟s prior consent.

20.9 RELATIONSHIP OF PARTIES

Except as provided for in Schedule 2, this Agreement is not intended to create a

partnership, joint venture or agency relationship between the parties and neither party
is authorised to represent the other party in any way or for any purpose whatsoever.

20.10 ADVICE

OXYGEN8 indemnifies and holds itself harmless against any claims or actions from
any party whatsoever, arising from compliance advice and/or any other advice which is
at all times given as a courtesy to CLIENT and is not guaranteed in any way to be
accurate or to constitute formal legal advice.

21. PRIORITY OF DOCUMENTS

21.1 The documents comprising this Agreement will be read in the following order of
precedence:
(a) the terms and conditions contained in this document; and
(b) the schedules and annexures to this document.
21.2 Where any conflict occurs between the provisions contained in two or more of the
documents comprising this Agreement, the document lower in order of precedence will,
where possible, be read down to resolve such conflict. If the conflict remains incapable
of resolution by reading down, the conflicting provisions will be severed from the
document lower in the order of precedence without otherwise diminishing the
enforceability of the remaining provisions of that document.

Page 18 of 24
EXECUTED AS AN AGREEMENT AND SIGNED AT ______________________ON
THIS THE ____ DAY OF ___________ 2018.

EXECUTED BY CLIENT

........................................................... ...........................................................
Authorised representative Name of Authorised representative

........................................................... ...........................................................
Witness Name of Witness

........................................................... ...........................................................
Witness Name of Witness

EXECUTED BYOXYGEN8
COMMUNICATIONS SOUTH AFRICA

........................................................... ...........................................................
Authorised representative Name of Authorised representative

........................................................... ...........................................................
Witness Name of Witness

........................................................... ...........................................................
Witness Name of Witness

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SCHEDULE 1 – CHANGES
1) No Change will be effective unless the parties agree to it in writing.
2) A party is under no obligation to accept or implement any Change and reserves the right
to terminate the Agreement in accordance with clause 17.3.
3) Either party may propose a Change. The parties will meet at OXYGEN8‟s principle place
of business to discuss any proposed Change as soon as reasonably possible.
4) The parties may agree that a proposed Change is minor in nature. A minor Change, if
accepted by both parties, will be implemented by the appropriate party provided that this
agreement and the action arising is recorded in writing. The rest of this procedure applies
to any Change which the parties agree does not fall within the category of a minor
Change.
5) If CLIENT wishes to pursue a proposed Change, it will provide OXYGEN8 with a request
for any necessary details required concerning the Change or details of the terms under
which it is prepared to accept the proposal.
6) As soon as possible after receiving that information, OXYGEN8 must provide CLIENT with
a document (the Quote) which contains at least the following details:
(a) whether the Change is practical;
(b) the procedure, the timetable and cost for implementing the Change;
(c) the impact of the Change on the Services;
(d) any potential risks associated with the Change or its implementation;
(e) any additional personnel or resources required by either party to implement the
Change;
(f) any new hardware, software or services required by either party in order to
implement the Change and the terms and conditions associated with the provision of
these items;
(g) any modification to this Agreement associated with the Change; and
(h) any other information that OXYGEN8 considers relevant.
7) OXYGEN8 must provide any additional information in relation to the Quote as reasonably
required by CLIENT.
8) If CLIENT accepts the Change:
(a) OXYGEN8 and CLIENT will sign a document setting out the agreed Change
including all agreed information from the Quote;
(b) the Agreement will be amended to reflect the agreed Change;
(c) OXYGEN8 will commence implementing the Change;
(d) the Change will become part of the Services as applicable.
9) OXYGEN8 must keep a record of all agreed Changes for inspection by CLIENT at any
time on reasonable notice.

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SCHEDULE 2 – SERVICES & SERVICE LEVELS: FAULT REPORTING

SERVER PLATFORM FEATURES INCLUDE THE FOLLOWING:

 Campaign creation and management
 Shortcode / Long number management
 Interactive Campaign Creation
 MMS composer
 Subscription engine
 Billing and reporting functionality
 Content Pull Mechanics/Engine
 MMS to Web / External Application
 Self provisioning tools
 Data feed set-up and content management
 Alert service creation SMS / MMS
 Feedback applications
 Use of OXYGEN8 Content Management System, if required
 Multi-Format Content Support (Text/Image/Audio/Video/Java)

SCOPE OF THE SERVICE LEVELS & TWO-WAY REPORTING REQUIREMENT

These Service Levels relate to the following components of the Services provided under this
Agreement:
1) availability of content and value-added data services;
2) provision & maintenance of a shortcode (5 digit premium rated code);
3) provision & maintenance of a „mobisite‟ (mobile phone accessible site);
4) continual technical support, including fault management;
5) database maintenance, management & development;
6) marketing strategy & planning support;
7) reportsfrom OXYGEN8 – server statistics/traffic reports on all mobile activity (will be
reflected also as a part OXYGEN8‟s revenue report).

OXYGEN8 OPERATIONAL RESPONSIBILITIES

1) Provide connections to the Mobile Network Operators in South Africa.

2) Provision of SMS, MMS and WAP services.
3) All new software releases and added features to OXYGEN8‟s server will be automatically
installed.

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4) OXYGEN8 will provide a 3 hour training workshop, (if required) to educate CLIENT staff
on our platform and latest features, as appropriate.
5) Full and comprehensive technical support is provided to CLIENT during normal office
hours (08.00am until 05.00pm). Outside of office hours OXYGEN8‟s technical staff shall
endeavour to assist the CLIENT with any queries as far as reasonably possible.
6) As a minimum, OXYGEN8‟s commercial team will be available for bi-weekly meetings to
discuss the content and services strategy as well as give input into marketing.

FAULT REPORTING CONTACTS

If the client experiences a fault in the Service of any sort, then the following list of contacts is
available to the CLIENT for notification & resolution:

1) Technical Fault Reporting : support@oxygen8.co.za / +2711 218 5600

2) Account Management: nadia.brits@oxygen8.co.za / +2776 370 3254

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SCHEDULE 3 – FEES, COSTS & REVENUE SHARE
COMMERCIALS: FIXED CHARGES & REVENUE SHARE

FEES:

All fees are exclusive of Value Added Tax (VAT) at 14% chargeable to South African
Companies.

BILLING SERVICE
Once-off Integration and Setup Fee: R 6 500.00
Service Setup Fee: R 750.00 per service.
Shortcode Rental per month: R1 500.00 pm
Inbound MO charge: R0.04c (In case of Customer opting out or
replying to SMS flow MT)
Customer Service Solution: R4.00 per interaction.
 Includes: Email, Telephone Calls, WASPA Unsubscribe Requests and
Network Operator Requests regardless of volume. The CSS charge will
only be invoiced once CLIENT’S first service is live.

SMS/WAP MESSAGE COSTS:

STANDARD SMS CHARGES

Volume of SMS Traffic by Service Charge per unit byOXYGEN8
Provider per month
Per SMS R0.20 excl VAT

BILLING CHARGES:

 Per unsuccessful transaction 59% and less failure ratio Vodacom R0.06c, MTN R0.05c,
MTN “INSUFFICIENT FUNDS” receipt R0.00 & Cell C R0.00c.
 Per unsuccessful transaction 79% and less failure ratio Vodacom R0.08c, MTN R0.05c,
MTN “INSUFFICIENT FUNDS” receipt R0.00 & Cell C R0.00c.
 Per unsuccessful transaction 80% and more failure ratio Vodacom R0.10c, MTN R0.05c,
MTN “INSUFFICIENT FUNDS” receipt R0.00 & Cell C R0.00c.
 Per successful transaction Vodacom R0.06c, MTN & Cell C R0.00c.

Page 23 of 24
RELEVANT INFORMATION FOR SUBSCRIPTION SERVICES:

 Double Opt-in is applicable to all subscription services;

 Mandatory regulatory messages include, but are not limited to:
 Welcome messages; Monthly Reminder messages; Unsubscribe Confirmation
messages.

PAYOUTS

 The below table is indicative of expected payouts per pricepoint.

 Oxygen8 reserves the right to adjust payouts to reflect the agreed percentage of
actual network payouts as influenced by subscriber-class and/or relevant
Network Business Rules from time to time.

PAYOUTS R0 – R ∞ p/m @ 90%

Tariff Vodacom MTN CellC

R 0.73 R 0.59 R 0.45
R 1,50
R 1.03 R 0.86 R 0.56
R 2,00
R 1.34 R 1.14 R 0.70
R 2,50
R 1.64 R 1.43 R 0.84
R 3,00
R 1.95 R 1.71 R 0.98
R 3,50
R 2.25 R 2.00 R 1.12
R 4,00
R 2.86 R 2.56 R 1.40
R 5,00
R 3.47 R 3.12 R 1.68
R 6,00
R 4.08 R 3.69 R 2.13
R 7,00
R 4.38 R 3.96 R 2.29
R 7,50
R 5.29 R 4.81 R 2.74
R 9,00
R 5.91 R 5.38 R 3.05
R 10,00
R 8.34 R 7.62 R 4.28
R 14,00
R 8.95 R 8.19 R 4.58
R 15,00
R 11.99 R 11.01 R 6.10
R 20,00
R 15.03 R 13.82 R 7.62
R 25,00
R 18.08 R 16.63 R 9.23
R 30,00
R 21.12 R 19.46 R 10.68
R 35,00
R 24.16 R 22.26 R 12.21
R 40,00
R 27.21 R 25.04 R 13.73
R 45,00
R 30.25 R 27.92 R 15.26
R 50,00

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