270 Legal [Sample Agreements]

WIRELESS DATA AGREEMENT

This Wireless Data Agreement (“Agreement”) is effective as of February 5, 2007 (“Effective Date”), between Sprint/United Management Company, a Kansas corporation and wholly owned subsidiary of Sprint Nextel Corporation with offices at 6200 Sprint Parkway, Overland Park, KS 66251 (“Sprint”) and UpSnap, Inc., a Nevada corporation with offices at 134 Jackson St., Suite 203-204, Davidson, NC 28036 (“Service Provider”). The parties desire to provide Service Provider Services as part of the Sprint Services. Sprint and Service Provider are parties to that certain Nextel Online Handset Placement Agreement (the “Original Agreement”) dated October 15, 2001; Amendment No. 1 dated February 11, 2002; Amendment No. 2 dated October 10, 2003; Amendment No. 3 dated 2004 and Amendment No. 4 dated July 21, 2004 (collectively, the “Agreement”). Effective as of the date of this Agreement, the Original Agreement and all subsequent Amendments to the Original Agreement are hereby terminated and replaced by this Agreement.

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3. SERVICES

3.1 Scope of Services. Service Provider shall enter into an agreement (the “Content Provider Agreement”) with a third-party content provider (“Content Provider”) upon terms and conditions to be mutually agreed upon by Service Provider and Content Provider, pursuant to which Content Provider shall provide to Service Provider a certain NASCAR-related audio service (the “NASCAR Audio Service”, which, for purposes of this Agreement, shall be considered Service Provider Services), which Service Provider shall make available to Users with Devices via transmission by Sprint across the Sprint Wireless Network. Service Provider may make Enhancements if: (a) the Enhancement complies with all requirements in this Agreement; and (b) the Service Provider Services continue to include the minimum applications described below. The Service Provider Services for Devices will be provided in formats as may be required by Sprint as specified in the Sprint Style Guide or as may be developed by Service Provider and approved by Sprint during the Term. The Service Provider Services will include, at a minimum, the following applications:

· “NASCAR Audio Service” provides Users with access to NASCAR In-Car Audio.

3.2 Premium Services. Premium Services may not be available on all Devices. In addition, Premium Services will not be provided for any electronic commerce or other non-content applications or transactions (e.g., the purchase of a tangible product). To qualify to provide Premium Services, Service Provider must provide all of the information required on Exhibit A. Initial purchase of premium content is through Sprint’s vending machine, and requires that Sprint host the appropriate application. Service Provider will host any necessary content updates or refreshes as required in the normal operation of the Service Provider Services. Biller reserves the right, in its sole discretion, to not allow certain Users to receive Premium Services and to set limits on the amount of Premium Services Users can use.

3.3 Placement. Sprint will place a link to the Service Provider Services within the Sprint Services during the Initial Term. Actual placement of this link will be in Sprint’s discretion. The link may be moved or repositioned at any time in Sprint’s discretion, and may be otherwise moved or removed by Users as part of any personalization functionality. Sprint has relationships with other providers (“Resale Partner”) for the resale of Sprint PCS services . Under those agreements, Resale Partner may be reselling wireless content to its customers. Service Provider acknowledges that the wireless content resold by Resale Partner may include Service Provider Services. In such instances Service Provider will: (1) allow Resale Partner’s customers to access Service Provider Services through Sprint PCS Network; and (2) allow Resale Partner to bill its customers for Service Provider Premium Services and use Service Provider’s name on its customer invoices.
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