CONTRACT BETWEEN VIZZAVI ESPAA, S.L. AND ELEPHANT TALK COMMUNICATION HOLDING,AG FOR THE SUPPLY OF OPERATION ANDTECHNICAL SERVICES THROUGH A COMPREHENSIVETECHNOLOGICAL PLATFORM 20 MAY 2009

I.

II.

III.

IV.

 

1..1  

1.2 

The services shall be rendered by ELEPHANT TALK to VIZZAVI over the technological platform described in Annex C of this Contract.

1.3 

This Contract is of an exclusive nature, pursuant to the provisions of the following clauses:

ELEPHANT TALK may not render in Spain the operation and technical support services under this Contract either directly or indirectly to any operator other than VIZZAVI (with or without its own telecommunications network) that is a direct or indirect competitor of VIZZAVI in the Spanish electronic communications market, within a *** counting from the Contract’s execution, as per the obligations laid down in Clause 3.3, except with the express authorization of VIZZAVI.

        1.3.2

Likewise, VIZZAVI may not contract the operation and technical support services that are the object of this Contract with any other comprehensive technological platform other than ELEPHANT TALK, whilst ELEPHANT TALK is not authorized to render such services to other operators within the framework of what is established in Clause 1.3.1 and in accordance with the obligation laid down in Clause 3.6, except with the express authorization of ELEPHANT TALK.

1.4

 

STRUCTURE OF THE CONTRACT 2

2.1

This Contract is structured in accordance with the following schematic:

Main Body: It includes the Contract’s essential principles and the elements that regulate the relations between the Parties.

        2.1.2  

        2.1.3 

2.2

The Annexes may have their own associated Appendices, if so decided with the mutual consent of the Parties.

Guarantee that the rendering of the services under this Contract shall be carried out in accordance with the technologies and modalities currently in existence and working, which shall be suitably maintained and upgraded on the basis of the mobile electronic communications market’s development. In this connection, ELEPHANT TALK guarantees the adequate upgrading of the functionalities, services, platform architectures and technologies available in the telecommunications market at any given moment, as per the roadmap which both Parties will keep updated in order to guarantee their dimensioning in accordance with the growth in the VIZZAVI services. The roadmap will be designed and kept updated on the basis of independent benchmarking, reflecting the existing developments in the market.

Undertaking to make available to VIZZAVI access to future technologies and technological innovations that may appear in the telecommunications market, always provided that a prior request has been made, and that the aforesaid technologies and innovations are within the scope of ELEPHANT TALK.

Guarantee of the adequate updating of commercial conditions, as regards both the services that are the object of this Contract and any new services that may arise, based on the needs expressed by VIZZAVI to keep itself competitive in the market in which it conducts its activities. The economic terms and conditions for the development of new services not included in the object of the Contract, as established in Annexes A, B, C, D and E, shall be established in accordance with the provisions of Annex D.

Guarantee of adequate maintenance of the commercial structure and prices, as described in detail in Annex D, in the cases contemplated in 3.2.1 and 3.2.2.

 

5.1.1 ***

 

5.1.2 ***

 

5.1.3 ***

 

5.1.4 ***

5.2

The negotiations for the Contract’s review and/or amendment must comply with thefollowing rules:

The Parties undertake to mutually make available all the essential information for the development of the negotiations, under the confidentiality obligation established in Clause 9.

During the course of the negotiation process for the Contract’s review, it shall be understood that the validity thereof has been provisionally renewed, except in the case of an agreement of the Parties to the contrary.

6.1

The Contract shall terminate for the general causes accepted in Law and, in particular, for the following causes:

With the mutual consent of the Parties, expressly indicated in writing and with the setting of the Contract’s termination date.

Due to the termination of the initial validity period or of the tacit renewal, as established in Clause 4.1, always provided that one of the Parties notifies the other in writing of its intention to exclude the Contract’s renewal, a minimum of ***in advance of that date.

Due to the revocation, cancellation or modification, by the Authorities, of the legal authorization held by VIZZAVI when, in this latter case, fulfilment of the obligations laid down in this Contract is prevented. Both Parties shall do their utmost to avoid this situation.

Due to the entry in the body of shareholders of ELEPHANT TALK of a direct competitor of VIZZAVI or of the VIZZAVI Group in the mobile electronic communications market, whenever such acquisition of shares involves (i) the taking of control by the direct competitor of ELEPHANT TALK in the sense of Article 42 of Spain’s Commercial Code; or (ii) the appointment of at least one Director on the Board of Directors of ELEPHANT TALK.

Due to the entry in the body of shareholders of ELEPHANT TALK of a company that in the *** following entry becomes a direct competitor of VIZZAVI or of the VIZZAVI Group in the Spanish mobile electronic communications market, whenever such acquisition of shares involves (i) the taking of control by the direct competitor of ELEPHANT TALK in the sense of Article 42 of Spain’s Commercial Code; or (ii) the appointment of at least one Director on the Board of Directors of ELEPHANT TALK.

Likewise, due to the entry of ELEPHANT TALK in the body of shareholders of a competitor of VIZZAVI or of its Group in the Spanish mobile electronic communications market, whenever such acquisition has the same consequences as those described in Clauses 6.1.4 and 6.1.5 above.

Whenever VIZZAVI fails to fulfill any of its essential obligations contained therein and always provided that such non-fulfillment is not remedied by VIZZAVI within a ***term as from the notification requesting remedy.

6.3

VIZZAVI may seek the Contract’s unilateral discharge by means of an express and written communication in the following cases:

Whenever ELEPHANT TALK fails to fulfill any of the Contract’s essential obligations established in Clause 3 thereof.

In the case of repeated non-fulfillment of the operation and quality indications established in Annexes A, B, C and E.

In the event that ELEPHANT TALK decides to contract the wholesale access services in Spain with an operator other than VIZZAVI or the Group to which the latter belongs for the rendering of mobile telephony services to its clients under the VMO model. At any event, ELEPHANT TALK shall communicate its intention to VIZZAVI, *** in advance thereof.

6.4

6.5

In the cases provided for in Clauses 6.1.4, 6.1.5, 6.1.6 and 6.3, should it be VIZZAVI which exercises the right to unilateral discharge of contract on the grounds of the existence of any of the circumstances established as a cause for discharge of contract by a unilateral resolution in its favour, ELEPHANT TALK shall pay VIZZAVI the corresponding amount as established in the following table:

S < ***

 

€

*** =

S <

 

€

*** =

S <

 

€

***=

S <

 

€

 

€

In the case provided for in Clause 6.2, if it is ELEPHANT TALK which exercises the right to unilateral discharge of contract, on the grounds of the existence of any of the circumstances established as a cause for discharge of contract by a unilateral resolution in its favour, VIZZAVI must pay ELEPHANT TALK, as a penalty, an amount equivalent to that which ELEPHANT TALK has invoiced to VIZZAVI during the ***immediately prior to the exercise of the unilateral discharge right, up to a limit equivalent to the applicable penalty as per Clause 7.1.1 for the corresponding number of services ***.

ECONOMIC LIMIT OF THE PARTIES’ LIABILITY IN THE CONTRACT’S PERFORMANCE

There shall be no limitation on their liability other than that which applies pursuant to Spanish legislation in respect of losses that, being due to actions or omissions, comprise: losses produced by the infringement of industrial or intellectual property rights; injuries caused to persons; damage caused to material goods; or losses caused by wilful intent.

Outside the aforementioned cases, in respect of losses caused by serious negligence in actions or omissions, the responsible Party shall be answerable up to a maximum limit of *** euros (*** €) in respect of consequential damages, loss of earnings, loss of profits and/or loss of data.

Outside the aforementioned cases, in respect of losses caused by ordinary negligence in actions or omissions, the responsible Party shall be answerable up to a limit of *** euros (***€).

One Party shall be liable before the other for the losses caused (particularly for the loss of logs, data or any other information) due exclusively to the latter’s non-fulfilment of the obligations accepted by it by virtue of this Contract.

The Parties shall not be responsible for the delay, fault in the execution or any other non-fulfilment of any of their contractual obligations when such delay, fault in the execution or non-fulfilment is due to the existence of a cause of force majeure.

For the purpose of this Contract, the following expressions shall be interpreted as per the definitions that appear after them, as follows:

 

- “Own Information”: As an example but by no means limited thereto, the following shall be deemed to be “Own Information”: discoveries, concepts, ideas, know-how, techniques, designs, drawings, drafts, diagrams, models, samples, databases of all types, and any technical, financial or commercial information of either of the Parties.

 

   “Source”: Either of the Parties shall be deemed to be the “Source” whenever, within the terms of this Contract, it is the one which supplies the Own Information.

 

- “Addressee”: Either of the Parties shall be deemed to be the “Addressee” whenever, within the terms of this Contract, it is the one which receives the Own Information from the other Party.

The Parties agree that any information relating to financial, commercial, technical and/or industrial aspects of either one of them or of their respective businesses supplied to the other Party as a consequence of the agreements they may reach (regardless of whether or not such transfer is verbal, written, on magnetic support or any other computerized mechanism, graphic or of any other type) shall be deemed to be confidential information and shall be treated pursuant to the provisions of this document. For the purpose of this Contract, such information and its copies and/or reproductions shall be deemed to be “Own Information”.

The following information shall not be deemed to be Own Information and neither shall it be treated as such:

 

i)

When it is public knowledge at the moment of the supply to the Addressee or, when the supply has been made, it achieves such condition without the Addressee having infringed the provisions of this Contract.

 

ii)

When it can be demonstrated by the Addressee, through its archives, that it was in its possession through legitimate means prior to the information being supplied by the Source, without any confidentiality agreement being in force at that moment.

 

iii)

When it has been widely disclosed without any limitation by its legitimate creator.

 

iv)

When it was created completely and independently by the Addressee, with the latter being able to demonstrate this fact through its archives.

The Parties shall treat as confidential the other Party’s Own Information that may be supplied to them and agree to its strict safeguard and custody and not to disclose or supply it, whether partially or in full, to whatsoever third party (with the exception of the companies in the Group to which VIZZAVI belongs) without the prior express and written consent of the Source. Such consent shall not be necessary when the obligation to supply or disclose the Source’s Own Information by the Addressee is imposed by Law, a firm legal Judgment, arbitration award or firm Administrative decision.

This Contract does not authorize either of the Parties to demand from the other the supply of information and any such obtainment of information from or about the Source by the Addressee shall be received by the latter with the prior consent of the former.

All consequences deriving from the negligent custody and/or willful or negligent disclosure of the Own Information, consequent information or a consequence of the Own Information or consequent information or a consequence of the Contract shall be deemed to be an act of unfair competition, without exclusion of the definition thereof as a crime that may be made in any applicable legislation, including a criminal wrong.

All or part of the Own Information, papers, books, accounts, recordings, lists of customers and/or partners, computer programs, procedures, documents of all types or technology, the supply of which is made under the condition of Own Information, regardless of the support in which it is contained, shall be treated as secret, confidential and restricted.

It shall be possible for the Own Information to be made known by the Addressee to its managers and/or employees, without prejudice to the Addressee adopting all the necessary measures for the true and exact fulfillment of this Contract, having the obligation of informing the one and the other of the confidential, secret and restricted nature of the information it is making known, and of the existence of this Contract.

Likewise, the right of VIZZAVI to make available the Own Information it receives from the Source to the companies in the Group to which VIZZAVI belongs is hereby recognized, with such companies being subject to the confidentiality and secrecy obligations in the terms and conditions of this Contract.

The Addressee must give its managers and/or employees all the guidelines and instructions it may consider appropriate or advisable for the purpose of safeguarding the confidential, secret and restricted nature of the Source’s Own Information.

Without prejudice to the provisions of the foregoing paragraphs, each Party shall be responsible not only for the conduct of its managers and/or employees but also for the consequences that may result pursuant to the provisions of this Contract.

The addressee shall be responsible for the custody of the Own Information and as many copies as it may have thereof supplied by the Source, for the purpose

ELEPHANT TALK may not assign the rights and obligations under this Contract, either partially or in full, without the prior express and written consent of VIZZAVI. The foregoing notwithstanding, either of the Parties shall be able to partially or fully assign the rights or obligations under this Contract to any company pertaining to its corporate Group in the sense laid down in Article 42 of the Commercial Code, without having to pay any additional amount whatsoever.

At any event, whenever consent to assignment is granted by the non-assigning Party, the assigning Party shall be jointly and severally responsible, with the assignee, for the obligations assumed by virtue of this Contract.

The economic and all other rights generated or that may be generated by this Contract may not be encumbered with rights thereon in favour of third parties without the prior express and written consent of VIZZAVI, which may not be withheld in an unjustified way.

APPLICABLE LEGISLATION AND BINDING SETTLEMENT OF DISPUTES

This Contract shall be signed in Spanish and in English. In the event of a discrepancy on the Contract’s interpretation, amendment or performance, the Parties agree that the Spanish version shall prevail. At any event, the Parties undertake to use their best endeavours to settle such discrepancy, avoiding as far as is possible having to resort to litigation.

For the settlement of whatsoever dispute relating to this Contract’s interpretation and fulfilment, both Parties abide by the jurisdiction of the Courts and Tribunals of the city of Madrid.

ELEPHANT TALK guarantees to VIZZAVI that the quality of the service offered shall maintain the service levels described in Annexes A, B, C and E.

                12.1.2

ELEPHANT TALK shall adequately dimension the infrastructure and resources made available to VIZZAVI for the rendering and economic valuation of the services included in the Contract, in accordance with the necessary traffic and network planning forecasts made available through the mechanisms which the Parties shall establish for the Contract’s correct working. VIZZAVI shall provide ELEPHANT TALK with forecasts on traffic and number of services a minimum of three months in advance. ELEPHANT TALK undertakes to dimension the human and material resources in accordance with these forecasts so as to guarantee the agreed service levels, always provided that the real traffic volumes and/or number of services are kept within deviations of up to ***% with respect to the forecast. Above that value, ELEPHANT TALK undertakes to use its best endeavours to maintain the agreed service levels.

                12.1.3

ELEPHANT TALK shall manage the complete performance of this Contract. For this, ELEPHANT TALK shall act diligently in the performance of the Contract’s object, procuring the supply, execution and completion of the whole in the agreed terms and conditions, rendering such services either directly or through subcontracts with the individuals or bodies corporate that effectively render such services. The contractors selected by ELEPHANT TALK must be duly authorized and qualified for conducting such functions and under no circumstances must VIZZAVI be affected by whatsoever responsibility or liability resulting from such election, lack of performance or negligence in the fulfilment of the obligations assumed by ELEPHANT TALK or the subcontractors chosen by it.

Whenever the safety and integrity of its network is in such danger that this could seriously affect its working.

In those cases in which interoperability of the services of VIZZAVI or of its customers is endangered to the extent that the rendering thereof is seriously affected.

In the event of a serious infringement of the regulations relating to the secrecy of communications and the right to honour, privacy and protection of data of a personal nature, with serious violation of third-party rights.

Whenever, with the existence of any of the causes of discharge of Contract established in Clause 6, the nature thereof makes it essential to disconnect the service or a part thereof, prior to the services’ final cessation during the Transition Period.

All the prices and terms and conditions of an economic content included in this Contract and its Annexes are given without including VAT or other indirect taxes.

All present or future taxes of whatsoever type that may be incurred as a consequence of this Contract’s execution and performance shall be settled by the Parties in accordance with the Law.

 

14.1

At all times ELEPHANT TALK shall guarantee the Secrecy of the Communications to which it may have access during the rendering of the services under this Contract, as per the provisions of the applicable Spanish regulations in force at any given moment.

 

14.2

For the rendering of the services under this Contract, ELEPHANT TALK shall have access to the personal data contained in the files of VIZZAVI; consequently, such data may only be processed in accordance with the provisions of Annex G. At any event, ELEPHANT TALK undertakes to abide by all the provisions that may apply on the subject and, in particular, those of Spain’s Organic Law 15/1999 of 13 December 1999 of the Protection of Personal Data (hereinafter, “LOPD”) and other regulations for its application in force at any given moment.

SAFEGUARDING OF INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS AND THE PARTIES’ RIGHTS

15.1

“Intellectual and Industrial Property Rights” (hereinafter, “IPR”) shall be deemed to beall the intellectual and industrial property rights (including, without limitation, all rights of an economic or personal type, such as copyright) that are recognized at this moment or in the future by Spanish intellectual or industrial property legislation or the laws of any jurisdiction applicable to the case, including, without limitation, all inventions (and, of them, the inventions implemented in the IT sector with or without patent), patents, “utility models”, industrial designs, semiconductor topography rights, trade-marks and service marks, whether registered or unregistered, reproduction rights, logos, presentation names and commercial names, know-how (but only to the extent that the foregoing can confer a legal protection or licence under the pertinent applicable legislation), domain names and goodwill associated with all of them, including in each case the capacity (should it exist) (i) to apply for whatsoever registration whether necessary or simply appropriate for obtaining or protecting such rights in any part of the world and any register thereof, and (ii) to claim whatsoever compensation or any other remedy for the infringement of such rights. IPR shall include, without limitation, all the intellectual and industrial property rights registered with an official register in any part of the world and the applications for registration and the concession rights thereof and any right or form of protection of a similar nature throughout the world.

15.2

The Parties shall maintain all the rights over their respective names, logos, marks, databases and/or any other goods protected by the prevailing rules on the subject of IPR. Likewise, the Parties shall maintain all the rights over their respective patents, “utility models”, industrial designs, databases and/or any other goods protected by the IPR.

15.3

ELEPHANT TALK shall only be able to use the IPR of VIZZAVI (or of the companies in the Group to which it belongs) in the terms and conditions for which the latter authorizes such use and, at any event, such authorization shall refer strictly to the development of the activity under this Contract. In the event of a modification, and at the request of VIZZAVI, ELEPHANT TALK has the obligation of permanently and immediately updating, eliminating or replacing the IPR of VIZZAVI or of the companies in the Group to which it belongs.

15.4

The Parties may not make use of or possess marks, domain names or other IPR rights that can be confused with the industrial property rights which the other Party or other companies in the Group to which it belongs exploit in the placing on the market of their products and services. The Parties may only use the other Party’s IPR for the purpose of carrying out the object of this Contract, having the obligation of using their own name in all their other activities.

15.5

In particular, the ownership and all the IPR over the software, operating manuals, designs, distinctive signs and associated documentation, supplied or made available to VIZZAVI by ELEPHANT TALK as part of the Service or developed within another scope that are the property of ELEPHANT TALK shall continue to be the full property of ELEPHANT TALK or of the owner thereof. Whenever software, owned by ELEPHANT TALK or third parties, is supplied to VIZZAVI or its customers together with any of the Services, ELEPHANT TALK shall grant VIZZAVI or its customers a non-exclusive and non-transferrable licence (except for the companies in the Group to which they belong that operate in the Spanish mobile electronic communications market) to use, store, develop, reproduce and distribute that software solely in connection with those Services. Likewise, VIZZAVI shall also be allowed to make a reasonable number of backup copies thereof.

15.6

Except in the case of an agreement to the contrary between the Parties, the new IPR developments carried out exclusively for VIZZAVI, which are requested through the corresponding document for the special project relating to the Services under the Contract, shall be the exclusive property of VIZZAVI. The foregoing notwithstanding, without prejudice to the Parties convening other conditions, VIZZAVI shall grant to ELEPHANT TALK a non-exclusive and non-transferrable usage licence, which cannot be sub-licensed, for the new IPR developments and solely for the rendering of the Services.

15.7

VIZZAVI undertakes to transfer to its customers the need to sign the agreements that the owner of the IRP may reasonably request in relation to any material provided by ELEPHANT TALK in the Contract’s performance, when so required.

15.8

Whatsoever inclusion of the object of this Contract or the performance thereof in an advertising or promotional campaign, by virtue of which the name of one of the Parties or any other IPR of the latter or of any of the companies in the Group to which it belongs is announced, inserted or used, shall require the prior express and written consent of such Party.

15.9

VIZZAVI is the holder of all the IPR to which ELEPHANT TALK may have access for the purpose of this Contract’s performance. Under no circumstances shall it be understood that by virtue of this Contract VIZZAVI grants to ELEPHANT TALK a licence to use the IPR with which VIZZAVI or any of the companies in the Group to which it belongs place their telecommunications products and services on the market.

15.10

In turn, ELEPHANT TALK declares under its sole responsibility that it is the holder of all the patents, marks, utility models, copyrights, registered designs and other IPR that are necessary for rendering to VIZZAVI the services established in this Contract.

15.11

Within a term of thirty (30) days from this Contract’s execution, ELEPHANT TALK undertakes to sign an agreement with an escrow entity (selected by ELEPHANT TALK) for the purpose of depositing the source code, development programmes, operating manuals and all other associated documentation that may be necessary for the correct maintenance of the deposited software, being that which is necessary for the correct rendering of the Services under this Contract. Likewise, within a term of ten (10) days from this Contract’s execution, ELEPHANT TALK shall remit a copy thereof to VIZZAVI.

 

? Whenever ELEPHANT TALK is liquidated or wound up; it starts whatsoever mercantile or bankruptcy proceeding for the purpose of the company’s liquidation or winding up; it finds itself in a situation of insolvency or takes action for the company’s merger or spin off; or whenever it is going to cease or change the corporate purpose of its business.

 

? Whenever ELEPHANT TALK is accredited as a debtor in a third-party bankruptcy proceeding; it is called by the Administration or whatsoever other official public or private body to declare on all or part of its assets or goods on the occasion of the commencement of an audit or inspection; an administrative order is served on ELEPHANT TALK; it signs an agreement by virtue of which payment to its creditors is established on the basis of the profit obtained by ELEPHANT TALK.

16.1

Neither of the Parties shall be legitimized to use the corporate name and/or marks owned by the other Party without the prior consent, in writing, of the holder thereof.

16.2

Neither of the Parties shall make public announcements (i.e. press releases or verbal presentations) relating to this Contract, its content or the service rendered without the other Party’s prior consent in writing. The Parties shall agree and publish whatsoever press release jointly.

17.1

A declaration of complete or partial nullity of one of more of this Contract’s clauses by the competent authority shall not affect the validity of the remaining clauses, which shall maintain their binding force. In this case, the Parties undertake to negotiate a new clause or clauses to replace the annulled clause or clauses that, within the terms in keeping with the Law and in strict compliance with the judgment or decision declaring such nullity, best maintain the identity of purpose with the annulled clause or clauses, insofar as such purpose has not been declared contrary to Spain’s set of laws.

17.2

The enforceability of this Contract shall be conditional upon the signing of all the Annexes referred to in Clause 2. Be that as it may, once all the Annexes have been signed, the date of the Contract’s entry into force shall be deemed to be that on which the Main Body thereof is signed, date on which it shall take effect and on which the Annexes to the Contract shall also enter into force. The Parties agree that the maximum date for signing the Annexes pending execution is 31 May 2009. In the event that once this date has been reached such execution has not taken place, except with the express and written agreement of the parties to the contrary, for all intents and purposes the Contract shall hereby become invalid, without the Parties being able to claim whatsoever amount. The Parties undertake to make available all the necessary resources and to negotiate in good faith so that the signing of the Annexes is possible within the agreed term.

18.1

This Contract, made up of the Main Body, Annexes and, as and when applicable, Appendices, includes all the terms and conditions and essential aspects of the agreement that currently exists between the Parties.

18.2

The foregoing paragraph notwithstanding, the intervening Parties confer on this Contract a fully valid and binding character, expressly agreeing that the lack or absence of a subsequent agreement on questions of detail or development may not be put forward by either of the Parties as sufficient cause for waiving the binding nature of this Contract or questioning its enforceability and validity. The Parties agree that the discrepancies that may be generated in relation to these developments shall be settled in accordance with the mechanisms provided for in this Contract.

19.1

It shall be the specific and exclusive obligation of ELEPHANT TALK to comply with all the legal obligations that correspond to it, in particular those of a labour and fiscal nature, relating not only to the company itself but to the personnel in its employ.

19.2

In this connection, the Parties expressly agree that this Contract does not represent an association or dependence between them nor the only relationship in the rendering of the services which each one carries out, meaning that both Parties shall be absolutely independent and autonomous, and VIZZAVI shall have no responsibility, not even subsidiary, in respect of the obligations incurred by ELEPHANT TALK in respect of third parties and, in particular, the personnel in its employ.

19.3

In particular, non-fulfilment of the obligations of ELEPHANT TALK or its subcontractors on the subject of Occupational Hazard Prevention or the complete or partial lack of compliance with the provisions of Annex J shall empower VIZZAVI to withhold the monetary consideration in a sufficient amount to cover all the liabilities that effectively derive from any breaches committed by ELEPHANT TALK or its subcontractors. In addition to the foregoing, the joint and several responsibilities of the Parties pursuant to the provisions of Section 42.3 of the prevailing Consolidated Text of Spain’s Law of Corporate Infringements and Penalties may not be eluded.

19.4

ELEPHANT TALK, in the performance of this Contract, shall be the sole Party empowered to adopt all the surveillance and control measures it may deem appropriate to verify compliance by the worker of its labour obligations and duties in relation to ELEPHANT TALK, ensuring in the adoption and application of such power due consideration and taking into account the capacity of each dependent worker of ELEPHANT TALK.

19.5

In accordance with the foregoing, ELEPHANT TALK undertakes to hand over to VIZZAVI, whenever it is required to do so by the latter, a list of the personnel in its employ assigned to the Contract’s performance, in addition to a copy of the TC-1 and TC-2 Social Security contribution forms, a negative Certificate of arrears issued by the Social Security General Treasury and registration in the corresponding accident at work and occupational illness mutual insurance company, in addition to supporting documents of payment to the Public Exchequer of the income tax withholdings made on behalf of the workers on its payroll. As and when applicable, an updated copy of contribution to the Special Self-Employed Workers’ Regime [BETA in its Spanish initials] and all other documents requested of it, such as compulsory and voluntary insurance premium receipts.

19.6

ELEPHANT TALK declares that it has the consent of its workers to be able to hand over to VIZZAVI those of their personal data that are necessary for fulfilling the obligations of this Contract. In the event that any of the workers were to subsequently revoke the consent granted or oppose the processing of their data, ELEPHANT TALK shall notify VIZZAVI and thereafter shall refrain from handing over any data of such worker to VIZZAVI. Likewise, VIZZAVI undertakes not to use the data of the workers of ELEPHANT TALK for any purpose other than that of permitting adequate fulfilment and control of the rendering of services provided for in this Contract.

19.7

VIZZAVI may at any moment demand from the other Party the updated exhibition of the compulsory legal situation of ELEPHANT TALK with respect to its workers.

19.8

The new assignment of a worker to the execution of the contracted services by ELEPHANT TALK must be notified to VIZZAVI and the regularity of its situation must be accredited prior to its incorporation into the Contract’s performance, in the same terms and conditions as those established in the foregoing paragraphs.

19.9

Failure to comply with the aforementioned obligations shall be a cause for this Contract’s automatic discharge, without the right to any compensation in favour of ELEPHANT TALK and without prejudice to the legal actions that may correspond to VIZZAVI before the former for the damages and losses that such non-fulfilment may cause to it.

19.10

ELEPHANT TALK undertakes to assume in full the direction, organization and management of the human and material resources assigned to the Contract’s performance.

20.1

ELEPHANT TALK shall be able to perform the services described in this Contract either directly or through subcontracts with third parties, subject to the prior written authorization of VIZZAVI, which may not be withheld without justification, being responsible before VIZZAVI for complete or partial non-fulfilment or negligent fulfilment of the obligations assumed by virtue of this Contract and for those established in general legislation, particularly those referring to the obligations which it must assume on Labour, Fiscal, Occupational Hazard Prevention and Data Protection matters.

20.2

In the event that ELEPHANT TALK uses for the rendering of the service under this Contract personnel made available to it by a Temporary Employment Agency, ELEPHANT TALK must abide by all the obligations and special limitations in respect of the work to be conducted as imposed by the regulation of this type of service relationship, particularly on the subject of Occupational Hazard Prevention. Consequently, ELEPHANT TALK shall release VIZZAVI from any direct or indirect responsibility resulting from its relations with the Temporary Employment Agency with which it signs a contract for the availability of or with its workers, having the duty of fulfilling all the obligations laid down in this Contract for the case of subcontracting. In addition to the foregoing, the joint and several responsibilities of the Parties pursuant to the provisions of Section 42.3 of the prevailing Consolidated Text of Spain’s Law of Corporate Infringements and Penalties may not be eluded.

20.3

In the event that ELEPHANT TALK subcontracts the partial or complete performance of this Contract, it must reliably communicate this fact to VIZZAVI prior to formalizing such contracting. Upon receipt of this communication, VIZZAVI shall have five (5) working days in which to oppose it for whatsoever reason. If, once this term has elapsed, VIZZAVI has not declared its opposition, it shall be understood that it expressly accepts the subcontracting communicated to it. The foregoing notwithstanding, in the event that the subcontracting involves access on the subcontractor’s part to data for which VIZZAVI is responsible, the provisions of this Contract and its Annexes relating to the protection of personal data must be adopted.

20.4

The legal relations and contracts that ELEPHANT TALK must formalize with third parties for fulfilment of its obligations shall contain amongst their clauses the express exclusion of the responsibility of VIZZAVI in respect of the aforesaid relations, irrespective of the legal nature thereof.

20.5

VIZZAVI shall not be responsible before customers or third parties for the injuries to persons or damage to material objects that may occur, for whatsoever reason, on the occasion of this Contract’s implementation by ELEPHANT TALK or its subcontractors.

20.6

At all times the contracts executed with third parties relating to the rendering of services must respect the rights and obligations laid down in this document.

21.1

ELEPHANT TALK expressly undertakes to fulfil all the legislation with an environmental content that may apply to it in relation to the activities whose execution results from this Contract’s performance.

21.2

Likewise, as established in the prevailing legislation, it undertakes to adequately manage and treat all classes of toxic and hazardous waste that may originate in or result from any activity directly or indirectly related to this Contract’s performance and, in particular, it undertakes to carry out in respect thereof and pursuant to the applicable legal provisions all the specific activities that may be required, be they management, storage, treatment or any other.

21.3

In the same way, ELEPHANT TALK expressly undertakes to comply with the obligations specified below, without prejudice to complying in full with any other obligations that may be imposed on it by a valid legal provision applicable to the activities established through this Contract, the inadequate treatment of which may have repercussions on or affect the environment. Consequently, ELEPHANT TALK agrees to commit itself to:

Carry out all the activities entrusted to it by VIZZAVI as a result of this Contract, strictly complying with the principles and guidelines deriving from the Environmental Policy and guidelines of the Environmental Management System implanted by VIZZAVI, the full content of which it declares it knows.

To make available to VIZZAVI all the information required of it in relation to any impact or incidence on the environment resulting from the activities, the execution of which results from this Contract, and, as and when applicable, to submit to whatsoever inspection, verification or measurement of such effects, either by VIZZAVI or any third party designated by the latter and, in particular, with respect to the generation of waste, its treatment, the emission of noise or other obnoxious elements into the atmosphere and any other similar effects that by virtue of the applicable legislation require specific activities.

As established in Spain’s Waste Law 10/1998 of 21 April 1998 and all other applicable provisions that apply or replace it, to manage and subsequently treat the waste generated during the performance of the activities established by means of this Contract and to hand over to VIZZAVI the corresponding documentation supporting the generated waste’s correct management.

To draw up and, when applicable, send to VIZZAVI, at its request, a study of the environmental impact resulting from whatsoever activity, the execution of which results from this Contract, with the minimum content indicated in Annex N.

ELEPHANT TALK shall be responsible for any infringements or sanctions that may be attributed to it on the grounds of violation of the applicable environmental legislation, without being able to charge to VIZZAVI any amount or charge for these concepts. Likewise, it expressly accepts the responsibility that within any scope may be attributed to it for whatsoever infringement of the applicable environmental legislation relating to the contracted activities and, in particular, in respect of the generation of an environmental impact, whether in the handling of the materials or products used for the execution of any activity resulting from this Contract or their inadequate management, storage or treatment.

ELEPHANT TALK undertakes to adopt all the preventive measures it considers appropriate so as to avoid any negative impact or incidence on the environment during the execution of the work resulting from this Contract, with all charges deriving from the attribution of responsibility for the infringements that derive therefrom being for its account, whether due to non-fulfillment of the regulations applying to the specific activity or any other, without being able to attribute to VIZZAVI any responsibility for these concepts.

Prior to the start of the work resulting from the execution of this document, it undertakes to sign the appropriate contract with a Waste Management Company authorized by the corresponding Regional Government, pursuant to the terms and conditions of Law 10/1998 and other provisions that apply or replace it, in relation to the management of the waste generated during the performance of the work or activities required of it as per the provisions of this Contract.

VIZZAVI reserves the right to demand from ELEPHANT TALK the presentation of at least one copy of the contract signed with the authorized Waste Management Company and the handing over of the documents that, pursuant to the applicable prevailing provisions in this respect, may be required of it subsequent to the completion of execution of the tasks resulting from this Contract’s performance.

ELEPHANT TALK shall be responsible for applying all the corrective measures it considers necessary to avoid the production of whatsoever impact or incidence on the environment during the execution of the work that is the object of this Contract.

Similarly, in the event of whatsoever impact, incidence or violation of the environmental legislation applicable to any activity, the execution of which results from this Contract, it undertakes to adopt the corrective measures that may be necessary to minimize or remedy them.

22.1

For the purpose of the exception of Section 43.1 f) of Spain’s General Tax Law 58/2003 of 17 December 2003, a certificate issued by the Tax Administration demonstrating that ELEPHANT TALK is up-to-date in the payment of its tax obligations is attached as Annex L.

22.2

For the purpose of avoiding the declaration of subsidiary responsibility of VIZZAVI relating to the rule of law referred to in the preceding paragraph, within the terms and with the requirements laid down in the aforementioned Section 43.1 f) of the General Tax Law and the regulations for its application, ELEPHANT TALK must send to VIZZAVI the appropriate certificate demonstrating that it is up-to-date in the payment of its tax obligations.

22.3

Should VIZZAVI not receive such Certificate within the twelve (12) months prior to the moment at which VIZZAVI must make the payment, it shall be empowered to withhold the amount that must be paid until it receives such Certificate and under no circumstances can interests accrue on the withheld amount for delayed payment.

22.4

For the purpose of the exception of Article 42.1 of Royal Legislative Decree 1/1995 of 24 March 1995 of Spain’s Law of the Workers’ Statute, a negative Certificate of arrears issued by the Labour Administration demonstrating that ELEPHANT TALK is up-to- date in the payment of its labour obligations is attached as Annex L.

23.1

The Parties may add rectifications, amendments and annexes or appendices to this Contract, which shall be binding on them as from the date of effect, always provided that such rectifications, amendments and annexes are set down in writing, signed by an authorized representative for the Parties and is incorporated into the Contract.

23.2

Except for the written rectifications, amendments and annexes made after the Contract’s execution, this Contract represents the complete agreement reached by the Parties and invalidates all previous verbal and written negotiations, declarations and agreements.

23.3

Throughout the validity of this Contract and for one year thereafter, VIZZAVI undertakes not to hire, through a labour or mercantile contract, directly or indirectly, whenever it has knowledge thereof, the employees of ELEPHANT TALK relating to the rendering of the services under this Contract.

23.4

Each Party shall meet the charges and costs of all types caused to it as a result of the negotiation and signing of this Contract.