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MASTER SERVICES TERMS AND CONDITIONS
These Master Services Terms and Conditions (hereinafter the "Agreement") govern the provision of products and services by the Syniverse
entity named in a Service Attachment or the successor in interest thereto (defined below) on behalf of itself and its affiliates (hereinafter
referred to individually, and collectively as "Syniverse") to the party described in a Service Attachment (defined below) as the customer or
recipient of goods and services from Syniverse or the successor in interest thereto (hereinafter referred to as "Customer"). Syniverse and
Customer shall be hereinafter referred to collectively as the “Parties” and each individually as a “Party.” Affiliate means any entity that is
controlled by, controls or is under common control of a Party. As used herein, “control” shall mean the ownership, in the case of a
corporation, of more than 50% of the common shares of such corporation with voting rights or, in the case of any other entity, the ownership
of a majority of the beneficial or voting interest of such entity.
ARTICLE I. AGREEMENT. The Parties agree that Services provided by Syniverse and acquired by Customer under this Agreement
shall be as stated in a separately executed document for the purchase of products or services hereunder describing the requested
services (the “Services”), charges for the Services, and any additional terms and conditions upon which they are provided. This document,
regardless of its title or description, shall be considered a “Service Attachment” under this Agreement. The Parties agree that in the event
of any conflict or inconsistency, the terms and conditions set forth in the Service Attachment(s) will prevail over the terms and conditions
of the Agreement.
ARTICLE II. TERM. This Agreement shall remain in full force and effect as long as any Service Attachment(s) entered into pursuant to
this Agreement remains in effect. Each Service Attachment(s) shall remain in effect for the Term set forth in the Service Attachment(s),
unless earlier terminated as allowed in this Agreement or the applicable Service Attachment(s) (“Initial Term”). Upon expiration of the
Initial Term of a Service Attachment(s), the Service Attachment(s) shall automatically renew for consecutive one (1) year terms (each, a
“Renewal Term”) unless either Party provides at least ninety (90) days’ prior written notice of its intent to terminate the Service
Attachment(s) upon expiration of the then current Initial or Renewal Term.
ARTICLE III. USE OF SERVICES. The Service(s) provided may be used only as expressly authorized under the applicable Service
Attachment(s) by Customer. Customer shall not use the Service(s) for the benefit of any third party nor make the Service(s) available to
any third party through any resale, sublicense, re-marketing or re-packaging, except to its end-users or as otherwise permitted in the
Service Attachment. Customer shall not use any Service(s) in a manner that unreasonably interferes with the use of Service(s) by other
Syniverse customers or authorized users. Customer is solely responsible for any and all activities that occur on its Services account.
ARTICLE IV. RESPONSIBILITIES OF THE PARTIES. Syniverse shall provide, maintain and support the Service(s) at the price and
terms set forth in the Service Attachment(s). Customer shall (i) pay all charges for the Service(s) set forth in the individual Service
Attachment(s); (ii) provide documentation, information and assistance reasonably requested by Syniverse for the provision or use of the
Service(s) or installation of any equipment, software or network components that may be required for Syniverse to interface to Customer's
facilities, and any related modification to Customer's facilities or operations; (iii) obtain any applicable third party authorizations, access
to premises and other cooperation reasonably required by Syniverse for the provision of the Service(s); (iv) notify Syniverse in writing at
least ninety (90) calendar days prior to any changes to any Customer equipment, software, operations, network components or
procedures that would affect the operation, provision or use of Service(s); (v) report malfunctions of the Service(s) to Syniverse as soon
as reasonably practicable; and (vi) be responsible for the importation of any equipment necessary for the provision of Service(s) into
Customer’s home country or the country designated by Customer if outside the United States.
ARTICLE V. INTELLECTUAL PROPERTY. This Agreement does not grant to Customer any ownership right, title or interest in any
intellectual property rights embodied in or associated with the Services. All intellectual property rights, title and interest in the Services,
including all modifications, enhancements, improvements, alterations or updates, will remain exclusively with Syniverse and its licensors,
as applicable.
ARTICLE VI. CHARGES FOR SERVICES. All charges shall be due and payable, in U.S. Dollars, within thirty (30) calendar days after
the date of the invoice. Any amount not paid when due shall bear interest at the rate of 1.5% per month, or the highest interest rate
allowed by law, whichever is lower. Syniverse invoices will be made available to Customer via Syniverse’s web interface, MySyniverse,
and via email to the address listed below. Customer shall maintain with Syniverse at all times its billing address and two (2) invoice
contact persons who will be responsible for receiving monthly invoices.
Customer shall notify Syniverse within thirty (30) days of the invoice being retrievable from MySyniverse if it believes that an invoice is
incorrect (a “Disputed Invoice”), such notice to identify the invoice in question and provide details explaining and justifying Customer’s
belief that the invoice is incorrect. Any dispute not timely made shall be waived. Customer must remit payment for the undisputed amounts
according to the terms herein but remains liable for any disputed amounts withheld from payment pending the outcome of the
dispute. Upon receipt of Customer’s notice, Syniverse will promptly investigate and, at its sole discretion, conclude such investigation by
either (a) issuing a corrected invoice or (b) affirming that the Disputed Invoice is correct, and/or (c) issuing credits or refunds as
appropriate. Customer may not further dispute any invoice which Syniverse has affirmed as correct pursuant to the foregoing, and upon
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issuance of a corrected invoice, Customer will pay such invoice according to the terms set out herein. Provided that Customer complies
with these terms and conditions regarding the dispute of invoices, Customer will not be charged interest on unpaid invoiced amounts prior
to the conclusion of Syniverse’s investigation of the Disputed Invoice.
Without prejudice of any other of its rights, Syniverse shall be entitled, to set off against, or retain from any sums due to the Customer,
any amounts falling due by such Customer under this Agreement.
Where a Customer address as listed on the relevant Service Attachment is in the U.S. or Canada, the following provisions shall apply:
All charges for Service(s) under this Agreement shall be net of all taxes, assessments or other fees or charges (including without
limitation all applicable withholding taxes, value added taxes and import duties, fees and taxes). Syniverse shall invoice
Customer in an amount equal to any excise, use, value added, privilege, revenue, or sales tax, or any other tax (except U.S.
income and franchise taxes), assessment, or any duties to be paid by Syniverse with respect to the Service(s) provided or
equipment furnished under this Agreement, unless an applicable certificate of exemption in Customer’s name is provided to
Syniverse prior to the imposition of such tax, assessment or duty.
Customer shall provide to Syniverse a valid certificate of exemption no later than thirty (30) days from the Effective Date of this
Agreement. In the event Customer fails to provide Syniverse with such certificate of exemption within thirty (30) days, all
applicable taxes, assessments and other fees and charges will be invoiced pursuant to applicable law. In the event Customer
subsequently provides Syniverse with a valid certificate of exemption, Syniverse will not invoice such taxes, assessments and
other fees and charges prospectively. No credits will be issued for any taxes, assessments or fees and charges collected prior
to the date Syniverse receives Customer’s certificate of exemption.
Where a Customer address as listed on the relevant Service Attachment is outside the U.S. or Canada, the following provisions shall
apply:
All charges for Service under this Agreement are exclusive of tax. All taxes, duties, fees and other governmental charges of any
kind (including sales, services, use and value-added taxes, but excluding taxes based on the net income of Syniverse) on the
fees for any of the Services shall be borne by Customer and shall not be considered a part of a deduction from or an offset
against such fees. All payments due to Syniverse shall be made without any deduction or withholding on account of any tax,
duty, charge or penalty except as required by law in which case the sum payable by Customer in respect of which such deduction
or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or
withholding, Syniverse receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have
received but for such deduction or withholding being required.
For any taxes, assessments or duties which have been withheld in connection with the provision of Services(s) or furnishing of
equipment under this Agreement which Customer has a legal obligation to withhold, shall be withheld, timely paid, and accounted
to Syniverse in a written statement by the thirtieth (30th) day following the close of the calendar quarter in which paid. Such
statement shall be accompanied by the official governmental receipt(s) or bank transfer document indicating the particular tax
for which the payment was made.
ARTICLE VII. EXPORT. Notwithstanding any other provision of this Agreement, Customer will not export or re-export or disclose to any
third party, directly or indirectly, any technical data (e.g., technical documentation, software application interfaces or the like) acquired
from Syniverse or any of its Affiliates, or any equipment provided by Syniverse or its Affiliates without first obtaining the written consent
of Syniverse to do so, which may require appropriate governmental approval.
ARTICLE VIII. WARRANTY. Syniverse warrants that it will provide the Service(s) in a professional and workmanlike manner.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, SYNIVERSE MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR
SUITABILITY, OR FITNESS, FOR A PARTICULAR PURPOSE.
ARTICLE IX. THIRD PARTY CLAIMS. Syniverse shall defend any claims or proceedings brought against Customer alleging that the
furnishing of Service(s) pursuant to this Agreement constitutes an infringement of any United States patent, copyright, or trademark of
third parties, and shall indemnify Customer against all costs, damages, and expenses finally awarded against Customer attributable to
such claim, provided that Syniverse is promptly notified in writing of any such claim or proceeding and is given full and complete authority,
information and reasonable assistance, at Syniverse's expense, to defend such claims or proceedings, and further provided that Syniverse
shall have sole control of all negotiations for its compromise or settlement. In the event of any such claim or proceeding, Syniverse shall
have the right, at its sole option and expense, to secure the rights and licenses to continue to provide the Service(s) to Customer, to
modify the Service(s) to make them non-infringing, to provide a replacement service, or to terminate/cancel this Agreement and cease
providing the Service(s).
Syniverse Technologies Proprietary and Confidential
©Syniverse Technologies, LLC
All rights reserved under U.S. and international copyright laws.
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Syniverse shall have no liability or obligation pursuant to the foregoing, including but not limited to any liability or obligation for contributory
infringement or the inducement to infringe, to the extent a claim is based upon or relates to: (i) use of the Service(s) in combination with
other products, services, methods, techniques, software, or data not expressly approved by Syniverse; (ii) modifications or additions to
the Service(s) made or provided by other than Syniverse; (iii) Syniverse’s compliance with Customer’s specifications or requirements for
Service(s) which results in a claim; (iv) resale, license or other provision of such Service(s), alone or in combination with other products,
services, methods, techniques, software or data, by Customer to third parties; (v) data transmitted using the Service(s); or (vi) intellectual
property rights owned by, in whole or in part, Customer or its Affiliates.
Notwithstanding the limitations in Article XI., Customer will defend, indemnify, and hold harmless Syniverse against all costs, losses,
damages, and expenses, including reasonable attorneys’ fees, incurred by Syniverse in connection with any claims or proceedings brought
against Customer or Syniverse alleging that: (1) Customer, its Affiliates, or Customer’s or its Affiliates’ employees, agents, or end users
have violated any applicable acceptable use policy set forth in a Service Attachment; or (2) Customer’s, its Affiliates’, or Customer’s or its
Affiliates’ employees’, agents’, or end users’ unauthorized use of the Services constitutes an infringement of any existing patent, copyright,
or trademark of third parties or violates any rights of a third party.
THE FOREGOING SETS FORTH SYNIVERSE’S SOLE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE RIGHTS,
RELATING TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND SYNIVERSE HEREBY EXPRESSLY DISCLAIMS ANY
WARRANTIES, EXPRESS OR IMPLIED, RELATED TO INTELLECTUAL PROPERTY RIGHTS.
ARTICLE X. CONFIDENTIALITY. The Parties shall not, directly or indirectly, disclose the other party’s technical, personnel and/or business
information whether in written, graphic, oral or other tangible or intangible forms, including, but not limited to, specifications, records, data,
computer programs, drawings, schematics, know-how, notes, models, reports and samples without the prior written permission of the
disclosing Party unless such disclosure is required in the course of performance of a Party’s obligations hereunder. Such information may
contain proprietary or confidential material or material subject to applicable laws regarding secrecy of communications or trade secrets
("Confidential Information"). The terms and conditions of this Agreement are Confidential Information, and neither Party may announce the
execution of this Agreement without the consent of the other Party.
Neither Party shall include the other Party’s name in any advertising, sales promotion, or other publicity materials without prior written
approval other than as allowed under this Article X. Syniverse may include and publish Customer’s name and/or the cities served by
Customer on Syniverse’s customer list without Customer’s prior written approval for investor relations purposes or other purposes as may
be required by law.
The Parties’ obligations under this Article X. shall not extend to any information which: (i) as shown by reasonably documented proof, was
in the other's lawful possession without restriction on use or disclosure prior to receipt thereof from the disclosing Party; or (ii) as shown by
reasonably documented proof, was received by one Party in good faith from a third party not subject to a confidential obligation to the other
Party; or (iii) now is or later becomes Part of the public domain through no breach of confidential obligation by the receiving Party; or (iv) is
disclosed pursuant to a requirement imposed by a governmental agency or is otherwise required to be disclosed by operation of law, except
that prior to any disclosure, the receiving Party shall notify the disclosing Party and provide them with an opportunity to participate in
objecting to production of the information; or (v) was developed by the receiving Party independently from and without the developing
person(s) having access to any of the other Party’s Confidential Information. Each Party agrees that any breach of its obligations under this
Article X. will cause irreparable harm to the other for which its remedies at law will be inadequate and that the offended Party shall be entitled
to injunctive or comparable equitable relief (including without limitation, injunctive relief and specific performance) in addition to other
remedies provided hereunder or otherwise available.
Should Syniverse receive a subpoena or other legal process by which Syniverse is required to produce documents or provide testimony
involving, or in any way, related to Customer’s use of the Services under this Agreement, Customer will compensate and reimburse
Syniverse for the time and expenses that it reasonably incurs, including attorneys’ fees as they are incurred. Syniverse will be compensated
at the then prevailing hourly rates of the personnel responding to such subpoena or legal process.
ARTICLE XI. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY
WHATSOEVER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF
ANTICIPATED PROFITS, REVENUE, OR OTHER ECONOMIC LOSS IN CONNECTION WITH, OR ENSUING FROM THE SERVICES
TO BE PROVIDED PURSUANT TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS
FORESEEABLE BY THE PARTIES.
WITH THE EXCEPTION OF ANY FEES DUE AND PAYABLE FROM CUSTOMER, IN NO EVENT, AND UNDER NO SET OF
CIRCUMSTANCES, SHALL THE TOTAL AGGREGATED LIABILITY OF SYNIVERSE TO CUSTOMER OR ANY THIRD PARTY
CLAIMING THROUGH CUSTOMER FOR ANY CAUSE(S) OF ACTION OR CLAIM(S), EITHER ALONE OR IN THE AGGREGATE,
ARISING OUT OF OR UNDER THIS AGREEMENT AND/OR ANY AND ALL SERVICE ATTACHMENT(S), EXCEED THE FEES
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©Syniverse Technologies, LLC
All rights reserved under U.S. and international copyright laws.
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ACTUALLY PAID DURING THE IMMEDIATE PRECEDING TWELVE (12) MONTHS OF THE SERVICE ATTACHMENT GIVING RISE
TO THE LIABILITY.
ARTICLE XII. TERMINATION. The occurrence of any of the following shall constitute a default, giving the non-defaulting Party the right
to terminate upon written notice any affected Service Attachment(s): (a) either Party commits a material breach of this Agreement and
such failure shall continue for a period of thirty (30) calendar days after the receipt of written notice thereof except that Customer shall
have fifteen (15) calendar days to cure any breach for non-payment; or (b) any insolvency, reorganization, bankruptcy, liquidation,
assignment for the benefit of creditors, appointment of a trustee or receiver, or other similar event. Upon the written notification of material
breach to Customer pursuant to sub-section (a) of this Article, Syniverse reserves the right to immediately suspend its performance under
any affected Service Attachment(s).
In the event of termination by Syniverse pursuant to this Article XII., the Parties acknowledge that Syniverse’s damages will be difficult to
ascertain, and therefore, Customer agrees that as liquidated damages, and not as a penalty, the measure of Syniverse’s damages shall
be the average of all monthly invoices under the Service Attachment(s) being terminated in the twelve (12) months before the termination
became effective multiplied by the number of months remaining in the Term of the Service Attachment(s).
Upon termination of this Agreement, all documentation, software, data and other materials of any kind belonging to a Party in the other
Party’s possession and any copies thereof shall at the other's option be returned to it or destroyed and certificated as such by an officer of
the Party.
ARTICLE XIII. FOREIGN CORRUPT PRACTICE COMPLIANCE. Customer affirms that it has not and agrees that it will not, in connection
with the Services provided under this Agreement or in connection with any other business involving Syniverse, make, offer, promise,
agree to make or authorize any payment or transfer of anything of value, directly or indirectly to: (i) any Government Official as defined
herein; (ii) any political party, party official or candidate; (iii) any person while knowing or having reason to know that all or a portion of the
value will be offered, given or promised, directly or indirectly, to anyone described in items (i) or (ii) above; (iv) any owner, director,
employee, representative or agent of any actual or potential customer of Syniverse; (v) any director, employee, representative or agent
of Syniverse or any of its Affiliates; or (vi) any other person or entity if such payment or transfer would violate the laws of the country in
which made or the laws of any other relevant jurisdiction. It is the intent of the Parties that no payments or transfers of value shall be
made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other
unlawful or improper means of obtaining business or any improper advantage. For the purposes of this Agreement, "Government Official"
means any officer or employee of any government or any department, agency or instrumentality thereof, or of any government-owned or
government-controlled corporation or any public international organization, or any person acting in an official capacity for or on behalf of
any such government or department, agency, instrumentality, corporation or public international organization.
ARTICLE XIV. GENERAL:
(a) Notices. Any notice or other communication required hereunder shall be given in writing to the other Party at the address set forth
in the relevant Service Attachment, or at such other address as shall have been given by either Party to the other in writing. Any notice
or other communication required hereunder shall be deemed to have been given when a) delivered personally; or b) five (5) Business
Days after posting, if sent postage-prepaid by first class mail.
(b) Force Majeure. Neither party shall be responsible for any failure to perform its obligations hereunder (except Customer's obligation
to make payments when due) arising from causes beyond its reasonable control that make such performance commercially impracticable
or impossible, including, but not limited to, fires, strikes, embargoes, allocations of supplies, wars, floods, earthquakes, nuclear disasters,
and acts of God.
(c) No Third-Party Beneficiaries. This Agreement is not intended, nor shall it be construed, to create or convert any right in or upon any
person or entity other than Syniverse and Customer.
(d) Publicity and Advertising. Neither Party may publish or use any advertising, sales promotions, press releases or other publicity which
uses the other Party’s name, logo, trademarks or service marks without the prior written approval of the other Party, provided that
Syniverse may use Customer’s name, logo, trademarks or service marks in Syniverse’s online advertising and sales promotion materials
and without Customer’s prior written approval for investor relations purposes or other purposes as may be required by law.
(e) Assignability. Neither Party shall assign this Agreement to a third party without the other Party’s prior written consent, which such
consent will not be unreasonably withheld, denied, conditioned or delayed; provided, however, that nothing herein will be deemed to
prevent either Party from assigning its rights and/or obligations hereunder without the other Party's consent (i) to any parent, Affiliate or
subsidiary; or (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets.
(f) Compliance With Laws. Both Parties shall comply with all applicable national, federal, state, and local laws, regulations and codes,
including the procurement of permits and licenses, when needed, of their respective states, territories, and/or countries in the performance
of this Agreement.
(g) Independent Contractor. Syniverse will perform its obligations under this Agreement as an independent contractor and not as the
employee or agent of Customer.
(h) No Waiver. Failure by a Party to enforce any provision of this Agreement, or the waiver thereof in any instance, shall not be construed
as a general waiver of rights.
(i) Severability. Each provision of this Agreement is severable from the whole, and if one provision is declared invalid, the other
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provisions shall continue in full force and effect.
(j) Governing Law. This Agreement shall be subject to and interpreted in accordance with the substantive laws of the State of Florida
without regard to choice of law principles.
(k) Survival. The following shall survive expiration or termination of this Agreement or any part hereof: (i) any liability or obligation of
either Party to the other Party for acts or omissions prior to the expiration or termination of this Agreement the nature of which is/are such
that it/they would survive such expiration or termination (including a Party’s obligation to make payments); and (ii) any obligation of a
Party regarding indemnification, protection of the confidentiality of information, intellectual property rights and protections and any
provision regarding limitations of liability.
(l) Dispute Resolution. All disputes arising in connection with this Agreement, or any Service Attachment(s), shall be settled by first
escalating such dispute to the Parties’ respective Managing Directors, or equivalent. If unresolved after fifteen (15) days following such
escalation, the Parties shall further escalate the dispute to their respective Chief Executive Officers, or equivalent. If unresolved after
fifteen (15) days following such escalation, either Party may pursue any and all available legal remedies. Notwithstanding the foregoing,
the Parties may immediately seek legal or equitable relief for an appropriate court without arbitration in the event of a material breach of
confidentiality or intellectual property provisions of this Agreement.
(m) Purchase Orders. The terms and conditions of this Agreement or any Service Attachment pursuant to this Agreement will supersede
the terms of any Customer purchase order or other non-Syniverse ordering document supplied by Customer to Syniverse related to this
Agreement or Service Attachment and no terms included in any such purchase order or other non-Syniverse ordering document shall
apply to Syniverse.
(n) Entire Agreement. This Agreement constitutes the entire understanding between the Parties concerning the subject matter hereof
and may be amended or modified only in a writing signed by both Parties. This Agreement supersedes all prior discussion, negotiation,
representation and agreements, whether oral or written, regarding the subject matter herein. The Parties mutually agree that any Service
Attachment(s) in effect prior to the effective date of this Agreement shall be subject to the terms and conditions of this Agreement upon
its execution.
Syniverse Technologies Proprietary and Confidential
©Syniverse Technologies, LLC
All rights reserved under U.S. and international copyright laws.
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