Unassociated Document


     

    HOSTED SERVICES AGREEMENT

     

    This
Hosted Services Agreement (the “Agreement”) is made
and entered into as of October __, 2005 (the “Effective Date”), by
and between IXI Mobile
(R&D) Ltd., an Israeli corporation, with its office at 17 HaTidhar
Street, Ra’anana, Israel 43665 (“IXI”) and Followap Inc, a Delaware
corporation with its registered office at 6701 Democracy Boulevard, Suite 300,
Bethesda MD 20817, USA (“Provider”).

     

    WHEREAS,
Provider wishes to make available certain services to IXI for use by customers
and end users  and IXI wishes to purchase such services from
Provider;

     

    NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually agreed by and
between IXI and Provider (the “Parties”) as follows :

     

    1.           Definitions

     

    For the
purpose of this Agreement, the following terms shall have the meaning hereby
assigned to them unless the context would obviously require
otherwise.

     

    “Active Subscriber”
means, in any calendar month, a Subscriber that was logged in to the System
and/or used the Service at least once in  such calendar
month.

     

    “Affiliate” means a
person or entity that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
another person or entity.

     

    “Client ID” shall mean
a unique, identification number generated by Provider for an OGO (as defined
below), and identifiable by IXI Customer, as defined within the System (as
defined below).

     

    “Commercial
Launch” shall have the meaning given to it in Exhibit D.

     

    “Dependencies” shall
have the meaning given to it in Exhibit D.

     

    “IXI Customer” means a
company and or person to whom IXI re-sells the Service (including without
limitation Operators, resellers, distributors, mobile virtual network operators
(MVNO) and internet service providers (ISPs)).

     

    “Key Milestone
Date(s)” means the date specified in Exhibit D for Commercial
Launch.

     

     “OGO” means the mobile
messaging devices known as OGO, CT-10 and/or CT-12 and similar devices,
including any updates, upgrades, modifications, next generation devices or
replacements thereof.

     

    “Operator(s)” means a
supplier, licensor or provider of mobile telecommunications services to
customers and/or end users.

     

    “Portal” shall mean
the following providers of instant messaging and/or email services: MSN, Yahoo!,
ICQ and AOL.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    “Project” means an OGO
launch with an IXI Customer pursuant to an SOW under the terms of this
Agreement.

     

    “Roadmap” means a
roadmap for a Project. Exhibit E.

     

    “Reseller” means a
person or entity who is authorized in writing by IXI to sell or license OGO
devices and/or services.

     

    “Service Level Agreement
(SLA)” means the service level agreement attached hereto as Exhibit
B.

     

    “Services” means the
hosted mobile instant messaging gateway and mobile email gateway services
provided by Provider with respect to the delivery of mobile instant messaging
and mobile email services to Subscribers for use with OGO, and as more fully set
forth in an applicable SOW (as defined below).

     

    “Statement of Work
(SOW)” means a
statement of work for a Project. Exhibit A.

     

    “Subscriber” means a
person who is an end user of the Service (including, without limitation, a
customer of an IXI Customer).  For the avoidance of doubt and as an
example, if an IXI Customer re-sells the Service onto General Motors Inc,
General Motor's employees rather than the corporate entity itself would be
deemed to be the Subscribers (and as such an Active Subscriber Fee would be
payable for each employee that is an Active Subscriber).

     

    “System” means the
combination of hardware and software provided by or on behalf of, or used by,
Provider for the provisioning of the Services.

     

    “Territory” means
[***].

     

     “Year” means a period
of 12 months from Commercial Launch.

     

    Other
capitalized expressions used in this Agreement shall have the meanings assigned
to them elsewhere in this Agreement. Terms in the singular form will also
include the plural, and vice versa, where the context so requires.

     

    2.           Appointment.

     

    
      	
               
      

            	
              2.1

            	
              IXI
      hereby appoints Provider to provide the Services with respect to the IXI
      Customers set forth in Exhibit F below and Provider agrees to provide the
      Services on the terms and conditions set forth herein.  In
      providing the Services, the parties agree that Provider shall host,
      operate and maintain the Systems and IXI will allow Provider to connect
      said Systems to such IXI Customers’ network and/or Portal network if and
      as required to provide the Services as determined by IXI in accordance
      with this Agreement.

            


    

     

    [***].

     

    
      	
               
      

            	
              2.2

            	
              Provider
      hereby grants to IXI a non-exclusive right and license to make the
      Services available to Subscribers in the Territory and to promote and
      market the Services pursuant to the terms and conditions of this
      Agreement.

            


    

     

    
      	
               
      

            	
              2.3

            	
              IXI
      shall only provide the Services to IXI
  Customers.

            


    

     

    
      
         


      

      
        – 2
–

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              2.4

            	
              The
      parties intend the Services to be to be rolled out for the MSN Portal in
      accordance with the timetable set out in Exhibit D.  After
      Commercial Launch of the MSN Portal the parties shall discuss the roll out
      of the Service for other Portals.  Provided that both parties
      agree (in writing) and there is sufficient lead-time (which in any event
      shall be no less than three months) the Service shall be rolled out to
      other specified Portals.

            


    

     

    
      	
               
      

            	
              2.4.1

            	
              Provider
      and IXI will work together collaboratively in good faith to achieve
      commercial launch of AOL IM and email and YAHOO! IM and email by January
      15th 2006.  Provider will make best, commercially reasonable
      efforts to achieve an implementation of the functionality listed Exhibit E
      in as far as is directly under their control.  IXI will assist
      with regard to gaining access to certification with AOL and Yahoo! and
      will pay all time and material costs associated with certification of
      Provider's Services with the OGO provided that these do not include the
      development costs for the Provider to develop working interfaces and
      implementations.  The Parties agree to generate in good faith
      shared implementation milestones and delivery
  dates

            


    

     

    
      	
               
      

            	
              2.5

            	
              IXI
      and Provider shall in good faith jointly prepare the initial forecast of
      Subscribers and a rolling forecast of Subscribers, the forecast being
      revised on a monthly basis and the forecast for the proceeding two months
      to be used by Provider in order to perform capacity planning and to build
      out the infrastructure to implement the Services.  For the sake
      of clarity, Provider shall prepare capacity in advance according to the
      two month window in the jointly prepared rolling forecast.  In
      the case where the capacity set forth in the two month window of the
      rolling forecast is not utilized within a subsequent six month period, and
      is greater than [***] of the preceding month, IXI will reimburse Provider
      in full for time and material costs for building such excess
      infrastructure, provided such time and material costs were jointly agreed
      to by Provider and IXI at the time that such rolling forecast was
      prepared.

            


    

     

    
      	
               
      

            	
              2.6

            	
              Provider
      will provide IXI, free of charge, with access to the Services for up to
      1,000 Subscribers across a variety of IP addresses for the purpose of
      demonstration, engineering and/or testing; provided that no additional
      system will be needed to be setup by
Provider.

            


    

     

    
      	
               
      

            	
              2.7

            	
              IXI
      shall provide to Provider, no later than 30 days after commercial launch
      of Services at IXI Customer, either an acceptance statement of the
      Services or a written report of any deficiencies in the Services, based on
      the SOW (“Punchlist”). Upon fixing the deficiencies as detailed in the
      Punchlist, IXI shall send to Provider an acceptance statement. If IXI
      shall not send an acceptance statement or Punchlist within 30 days after
      commercial launch of Services at IXI Customer or notice that the
      deficiencies in the Punchlist have been fixed, the Services will be deemed
      to have been accepted.   The parties agree and acknowledge
      that this Section 2.7 is not intended to limit in any way IXI’s rights
      under Section 2.1 above.

            


    

     

    3.           Fees.

     

    
      	
               
      

            	
               3.1

            	
              IXI’s
      payment obligations hereunder and payment terms are set forth in Exhibit
      C.

            


    

     

    
      
         


      

      
        – 3
–

        
          

        

      

      
         


      

    


    4.           Reports.

     

    Information
and/or reports (“Service Reports”) will be provided as set forth in the attached
SLA, Statement of Work or as otherwise agreed to by IXI and
Provider.

     

    The
parties hereby agree and acknowledge that all of the information included in any
Service Report is solely the Confidential Information of IXI and Provider
relinquishes any right or claim it may have, now or in the future, to such
information.  Upon IXI’s written request, whether before or after
termination of this Agreement for any reason, Provider will immediately transfer
to IXI all information stored on Provider’s servers (or other infrastructure
equipment) which is included in or related to any and all of the Service
Reports.

     

    The
parties hereby agree that Provider may make use of the data in the Service
Report provided that such data  cannot be related to any specific IXI
Customer.

     

    5.           Limited Service Warranty;
Support

     

    
      	
               
      

            	
              5.1

            	
              Provider
      warrants that the Services will be provided in a professional manner in
      accordance with the terms of this Agreement (including all Exhibits
      hereto).

            


    

     

    
      	
               
      

            	
              5.2

            	
              Provider
      shall (in addition to the Services) provide Service Support throughout the
      Term in accordance with the SLA attached hereto as Exhibit
      B.

            


    

     

    
      	
               
      

            	
              5.3

            	
              THE FOREGOING WARRANTIES SET
      FORTH IN SECTIONS 5.1 AND 5.2 ARE THE SOLE WARRANTIES GRANTED BY PROVIDER
      IN CONNECTION WITH THE SERVICES. The parties exclude all other
      warranties implied by statute, common law or otherwise to the maximum
      extent permitted by applicable law.

            


    

     

    6.           General Warranties and
Representations

     

    
      	
               
      

            	
              6.1

            	
              Provider
      and IXI each hereby represent and warrant
that:

            


    

     

    
      	
               
      

            	
              (i)

            	
              it
      has all right, power and authority to enter into this Agreement and to
      fully perform its obligations hereunder;
and

            


    

     

    
      	
               
      

            	
              (ii)

            	
              the
      execution of this Agreement does not and will not violate any other
      agreement by which it is bound or its charter or
  bylaws.

            


    

     

    
      	
               
      

            	
              6.2

            	
              IXI
      represents and warrants that:

            


    

     

    
      	
               
      

            	
              (i)

            	
              it
      will not use the Services in conjunction with an IXI Customer without a
      written agreement between IXI and such IXI Customer and without a right to
      enable the Services between such IXI Customer and
  Portal.

            


    

     

    
      	
            	
              7.

            	
              Indemnification and
      Liability.

            


    

     

    
      	
               
      

            	
              7.1

            	
              Provider
      shall indemnify, defend and hold harmless IXI and its Affiliates,
      directors, officers and employees (“Indemnitees”) against all actions,
      claims, demands, suits, losses and damages (including reasonable costs,
      expenses and reasonable attorneys’ fees) (collectively, “IPR Losses”)
      insofar as such IPR Losses arise out of or relate to: claims that use of
      the Services, even if running without an OGO would constitute an
      infringement of a patent, trademark, copyright or other intellectual
      property right in the Territory. Provider will reimburse each Indemnitee
      for [***].

            


    

     

    
      
         


      

      
        – 4
–

        
          

        

      

      
         


      

    


    In the
event that use of the Services, or any part thereof, is preliminarily or
permanently enjoined (as a result of a court order or agreement of the parties
to a lawsuit) provided that Provider can establish that the Services would not
have been so enjoined if not used with an OGO, Provider shall promptly, at
Provider’s option and sole expense, do one of the following:

     

    
      	
               
      

            	
              (i)

            	
              procure
      for IXI the rights for continued use and/or sale of the Services in their
      present form; or

            


    

    


    
      	
               
      

            	
              (ii)

            	
              replace
      or modify the Services, if infringing, so that they no longer infringe any
      such rights and compensate IXI for reasonable expenses associated with
      such replacement or modification;
or

            


    

    


    
      	
               
      

            	
              (iii)

            	
              terminate this Agreement and pay
      IXI a termination fee of [***] which the parties agree is a
      reasonable estimate of the costs to be incurred by IXI pursuant to such a
      termination.

            


    

    


    
      	
               
      

            	
              7.2

            	
              Provider
      shall indemnify, defend and hold harmless Indemnitees against all actions,
      claims, demands, suits, losses and damages (including reasonable costs,
      expenses and reasonable attorneys’ fees) (collectively, “Service
      Losses”) insofar as such Service Losses arise out of or relate to
      actions taken or omissions by or on behalf of Provider in providing the
      Services that are not required by the SOW.  Provider will
      reimburse each Indemnitee for
[***].

            


    

     

    
      	
               
      

            	
              7.3

            	
              IXI
      shall indemnify Provider and its directors, officers and employees against
      all actions, claims, demands, suits, losses and damages (including
      reasonable costs, expenses and reasonable attorneys’ fees) (collectively,
      “IXI Losses”) relating to this Agreement which arise out
    of:

            


    

     

    
      	
               
      

            	
              (i)

            	
              any
      unauthorized alteration or modification of the Services;
  or

            


    

     

    
      	
               
      

            	
              (ii)

            	
              any
      unlawful use of the Services by
IXI.

            


    

     

    
      	
               
      

            	
              7.4

            	
              The
      obligations of each party under this Section 7 shall be subject to the
      requirements that (i) the indemnified party notify the indemnifying party
      in writing within a reasonable time after the indemnified party is
      notified of a claim; (ii) the indemnifying party have sole control of the
      defense of the claim (except that the indemnified may participate in the
      defense at its own expense) and all related monetary settlement
      negotiations (any non-monetary terms that bind the indemnified party shall
      require the prior written approval of the indemnified party, not to be
      unreasonably withheld or delayed); (iii) the indemnified party not making
      any written offer of settlement to the third party claimant without the
      prior written consent of the indemnifying party (such consent not to be
      unreasonably withheld or delayed); and (iv) the indemnified party shall,
      at the indemnifying party’s request and expense, provide the indemnifying
      party with assistance reasonably necessary for the indemnifying party to
      perform its obligations under this Section 7; provided that the
      indemnified party shall not be required to admit liability under any
      circumstances.  

            


    

     

    
      
         


      

      
        – 5
–

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              7.5

            	
              Notwithstanding
      any other clause in this Agreement (including, without limitation, IXI's
      obligation to pay the fees in accordance with Clause 3), in no event will
      either party’s total aggregate liability for any Service Losses, IXI
      Losses or other damages arising from or in connection with this Agreement
      whether in actions based on contract, tort or any other legal theory,
      [***].

            


    

     

    
      	
               
      

            	
              7.6

            	
              Notwithstanding
      any other clause in this Agreement (including, without limitation, IXI's
      obligation to pay the fees in accordance with Clause 3), in no event will
      either party’s total aggregate liability for any IPR Losses arising from
      or in connection with this Agreement  whether in actions based
      on contract, tort or any other legal theory,
  [***].

            


    

     

    
      	
               
      

            	
              7.7

            	
              Neither
      party shall under any circumstance or under any legal theory be
      responsible for any loss of profits, loss of business, loss of revenues,
      or interruption of business, or loss of anticipated saving, or damage to
      goodwill, or for any indirect, special, incidental, consequential, or
      punitive damages of any kind arising from or relating to this Agreement or
      the subject matter hereof, even if such party has been informed of the
      possibility of such damage or loss by the other
  party.

            


    

     

    
      	
               
      

            	
              7.8

            	
              Nothing
      in this Agreement shall exclude or limit either party's
      liability:

            


    

     

    (a)           for
death or personal injury arising from its negligence;

     

    8.           Term: Termination; Effects
of Termination; Survival

     

    
      	
               
      

            	
              8.1

            	
              Term.  The
      term of this Agreement shall commence on the Effective Date and shall end
      [***] thereafter the Commercial Launch (the “Term”). This
      Agreement shall automatically renew for additional periods of [***] each
      unless terminated by written notice by either of the parties [***] days
      prior to its expiration (including the end of any renewal period) or
      unless sooner terminated under the terms of this Agreement. “Term” as used
      in this Agreement shall include any such renewal
  periods.

            


    

     

    
      	
               
      

            	
              8.2

            	
              Termination.

            


    

     

    
      	
               
      

            	
              (i)

            	
              Either
      party may terminate this Agreement:

            


    

     

    
      	
               
      

            	
              (a)

            	
              upon
      a material breach by the other party of any of its representations,
      warranties, agreements or obligations hereunder (including without
      limitation each SOW and SLA), which breach is not cured to the reasonable
      satisfaction of the non-breaching party within fifteen (15) days from the
      date of receipt of written notice of such breach (such 15 day period, the
      “Cure
      Period”).  For clarification purposes, any termination of
      this Agreement under this Section 8.2(i)(a) by IXI for Provider’s breach
      of an SLA will not relieve Provider of any amounts owed to IXI resulting
      from such breach.

            


    

     

    
      
         


      

      
        – 6
–

        
          

        

      

      
         


      

    


    Notice of
such termination must be provided no later than 5 days after cure of such
breach. Failure to provide notice of termination within the 5 day period will
result in the end of the right to terminate for that breach.

     

    
      
        	
              	
                (b)

              	
                if
      the other party ceases its operations, or those operations applicable to
      the rights granted hereunder or becomes
  insolvent.

              


      

    

     

    (ii) IXI
may terminate this Agreement for convenience upon one hundred eighty (180) day
written notice to Provider.  Such termination will not
relieve  the terminating Party from paying other Party any amounts due
prior to such termination under this Agreement.

     

    
      	
               
      

            	
              (iii)

            	
              IXI
      may terminate this Agreement upon a material breach by the Provider of any
      of its obligations related to the Roadmap, where a commercially reasonable
      effort to implement the Roadmap was not made by Provider, which breach is
      not cured to the reasonable satisfaction of IXI within thirty (30) days
      from the date of receipt of written notice of such breach for items that,
      according to the Roadmap, are to be implemented before December 16th,
      2005 and fifty (50) days for items that are to be implemented after
      December 16th,
      2005.  For clarification purposes, any termination of this
      Agreement under this Section 8.2(iii) by IXI for Provider’s breach related
      to the Roadmap will not relieve Provider of amounts, if any, owed to IXI
      resulting from such breach.

            


    

     

    Notice of
such termination must be provided no later than Five (5) days after cure of such
breach. Failure to provide notice of termination within the Five (5) day period
will result in the end of the right to terminate for that breach.

     

    
      	
               
      

            	
              8.3

            	
              Effects of
      Termination.  Upon termination of the Agreement, each
      party, to the extent applicable, shall return to the other party (or at
      the other party’s sole election, destroy)  all of the
      Confidential Information of the other party then in such party’s
      possession or control.  Upon written request, each party shall
      provide to the other party a written certificate of an authorized officer
      that it has complied with its termination
  obligations.

            


    

     

    
      	
               
      

            	
              8.4

            	
              Surviving
      Provisions.  In the event of expiration or termination of
      this Agreement for any reason, those Sections under this Agreement that by
      their nature would continue beyond the expiration or termination, shall
      survive expiration or termination.

            


    

     

    9.           Confidential
Information

     

    
      	
               
      

            	
              Provider
      and IXI have entered into a certain Nondisclosure Agreement in October
      2004  (the “Nondisclosure Agreement”) incorporated herein by
      this reference. Provider and IXI hereby ratify and confirm their
      continuing duties, rights and remedies, subject to section 7.5 above,
      under the Nondisclosure Agreement.

            


    

     

    
      
         


      

      
        – 7
–

        
          

        

      

      
         


      

    


    10.         Miscellaneous

     

    
      	
               
      

            	
              10.1

            	
              Governing
      Law.  This Agreement shall be governed by and construed
      in accordance with the substantive laws of the State of Israel, without
      regard to its conflict of laws
principles.

            


    

     

    
      	
               
      

            	
              10.2

            	
              Jurisdiction.  Each
      party hereby irrevocably submits to the jurisdiction of any court sitting
      in  Tel Aviv, Israel over any action or proceeding arising out
      of this Agreement.

            


    

     

    
      	
               
      

            	
              10.3

            	
              Public
      Announcements.  The parties hereto agree that they will
      issue a joint press release as mutually agreed to between the parties
      following execution of this Agreement. In addition, each party has the
      right to make a public announcement on the signature of this agreement.
      Furthermore, Provider has the right to make a public announcement about
      the Provider powering the Services of IXI Customers using the Provider
      product upon commercial launch at the IXI Customer; provided any such
      announcement does not include the identity of any IXI Customer that has
      not been made public. 

            


    

     

    
      
        	
                14.4

              	
                Assignment.  Other
      than as provided for herein, no party shall transfer, assign or convey any
      rights hereunder in whole or in part to any person, whether by contract or
      by operation of law, without the prior written approval of the other party
      which shall not be unreasonably withheld or delayed; provided, however,
      that either party may, without the other party’s prior written approval,
      assign this Agreement to: (i)  an Affiliate of such assigning
      party or (ii) any entity to whom it transfers all or substantially all of
      its assets as part of a corporate reorganization, merger, consolidation,
      initial public offering (IPO), spin-off or
sale.

              


      

    

     

    
      	
               
      

            	
              10.5

            	
              Independent
      Contractor.  Nothing herein shall make either party the
      agent of the other for any purpose whatsoever.  Neither party
      shall bind or attempt to bind the other to any agreement or performance of
      any obligation, nor represent that it has any right to enter into any
      undertaking on behalf of the other.  The relationship of the
      parties shall be of independent
contractors.

            


    

     

    
      	
               
      

            	
              10.6

            	
              Notices.  All
      notices and other communications provided for hereunder shall be in
      writing and deemed delivered (i) upon receipt if by hand, overnight
      courier or telecopy (provided a copy is mailed by certified mail, return
      receipt requested, postage prepaid) and (ii) three days after mailing by
      certified mail, return receipt requested, postage prepaid to the addresses
      set forth in the first page hereof, and if to Provider, to the attention
      of Yoram Katz with a copy to Damian Black (VP Business Development) and
      Mark Rowlinson (CFO) and if to IXI, to the attention of Shai Farkash (VP
      Engineering) with a copy to Amit Haller (CEO) and Gadi Meroz (GC), or to
      such other address or title by giving proper notice
    thereof.

            


    

     

    
      	
               
      

            	
              10.7

            	
              Waiver;
      Severability.  Any failure or delay by either party in
      exercising any right or remedy shall not be deemed a waiver of any
      further, prior, or future right or remedy hereunder.  If any
      provision is declared invalid or unenforceable, the other provisions shall
      remain in full force and effect, and this Agreement shall be deemed
      amended to replace, to the extent legally permitted, the rights and
      obligations contained in the invalid or unenforceable
      provision.  The invalidity or unenforceability of any provision
      shall not constitute a failure of consideration
  hereunder.

            


    

     

    
      
         


      

      
        – 8
–

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              10.8

            	
              Amendment.  No
      modification of or amendment to this Agreement shall be effective unless
      made by mutual agreement of the parties in writing; provided, however,
      that the parties may modify Exhibits as permitted in the
      Agreement.  The parties agree that the project timetable and
      Dependencies can be amended in writing by the  respective
      party's project managers, and if by email then only if approved by an
      officer of each party..

            


    

     

    
      	
               
      

            	
              10.9

            	
              Entire
      Agreement.  This Agreement and its Annexes and Exhibits
      together, and the Nondisclosure Agreement, constitute the entire agreement
      between Provider and IXI, and supersede all prior agreements and
      understandings, whether oral or written, relating to the subject matter
      hereof.  To the extent of any conflict between the terms of this
      Agreement and any Exhibit, except Exhibit C, the terms of  the
      Agreement shall govern. Each party acknowledges that it has entered into
      this Agreement in reliance only upon the representations, warranties and
      promises specifically contained or incorporated in this Agreement and,
      save as expressly set out in this Agreement, each party shall have no
      liability in respect of any other representation, warranty or promise made
      prior to the date of this
Agreement.

            


    

     

    
      	
            	
              10.10

            	
              Counterparts.  This
      Agreement may be executed in one or more counterparts, each of which shall
      be deemed an original, and all of which, when taken together, shall
      constitute one and the same
instrument.

            


    

     

    
      	
            	
              10.11

            	
              No Strict
      Construction.  The language used in this Agreement shall
      be deemed to be the language chosen by the parties hereto to express their
      mutual intent, and no rule of strict construction (or similar concept)
      will be applied against any party
hereto.

            


    

     

    
      	
            	
              10.12

            	
              Force
      Majeure.  Neither party shall be liable hereunder for any
      delay or failure to perform due to causes beyond its reasonable
      control.

            


    

     

    
      	
            	
              10.13

            	
              Headings.
      Section headings are for convenience only and shall not affect their
      interpretation. Unless otherwise indicated, references to a “Section”
      shall be to a Section of this
Agreement

            


    

     

    
      	
            	
              10.14

            	
              Dependencies.
      IXI acknowledges that the provision of the Services is dependent upon IXI
      promptly providing the Dependencies as described in Exhibit D
      below.  The parties agree that any delay by IXI in providing the
      Dependencies to Provider shall automatically result in an adjustment of
      the Key Milestone Dates by the amount of such
  delay.

            


    

     

    
      
        	
              	
                10.15

              	
                Escalation.      If
      any dispute arises between the parties with respect to this Agreement,
      either party may call a meeting of the parties for the purpose of
      resolving such dispute (by service of a meeting notice giving the other
      party not less than 5 days advance warning) and each party agrees to
      procure that ·
      for IXI and ·
      for the Provider (or an appropriate designate) shall attend all such
      meetings.  If the representatives fail to resolve the dispute
      within 14 days of service of such notice or such longer period as may be
      agreed, then this dispute resolution procedure shall be deemed to have
      been exhausted. This Clause 10.15 is without prejudice to either party's
      other rights or remedies including the right to seek injunctive relief or
      otherwise commence legal proceedings at any
  time.

              


      

    

     

    [remainder
of the page shall intentionally be left blank]

     

    
      
         


      

      
        – 9
–

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, Provider and IXI have caused this Agreement to be executed as
of the Effective Date by their duly authorized representatives.

     

    
      
        
          
            	
                    Followap
      Inc

                  	
                    IXI
      Mobile (R&D) Ltd.

                  
	 
      	 
      
	
                    By:

                  	 
      	 
      	
                    By:

                  	 
      	 
      
	 
      	 
      
	
                    Name:

                  	
                    Name:

                  
	 
      	 
      
	
                    Title:

                  	
                    Title:

                  


          

        

      

    

     

    
      
         


      

      
        – 10
–

        
          

        

      

      
         


      

    


    EXHIBIT
A

     

    Statement
of Work

     

    
      
         


      

      
        – 11
–

        
          

        

      

      
         


      

    


    EXHIBIT
B

     

    Service
Level Agreement

     

    
      
         


      

      
        – 12
–

        
          

        

      

      
         


      

    


    EXHIBIT
C

     

    Fees

     

    
      	
              1.

            	
              Up-Front
      Fee

            


    

     

    
      	
               
      

            	
              (a)

            	
              IXI
      shall pay Provider an up-front setup fee of: [***] (“StartUp
      Fee”).  Provider may invoice IXI for this fee any time after the
      Effective Date. This fee is payable upon execution of this Agreement and
      is irrevocable, unconditional and
  non-refundable.

            


    

     

    
      	
               
      

            	
              (b)

            	
              IXI
      shall make a prepayment of Active Subscribers Fees (defined below) to
      Provider of [***] (“Prepayment Fee”) within 60 days of the Effective Date.
      This fee is irrevocable, unconditional and
  non-refundable.

            


    

     

    
      	
              2.

            	
              Active
      Subscriber Fees

            


    

     

    
      	
               
      

            	
              (a)

            	
              Subject
      to the prepayment above, IXI shall pay Provider per Active Subscriber per
      month per Portal per IMEI (“Active Subscriber Fees”): [***] for “Bronze
      Package” under the SLA, [***] for “Silver Package” under the SLA and [***]
      for “Gold Package” under the SLA.

            


    

     

    Notes:

    


    
      	
               
      

            	
              (1)

            	
              As
      an example, if an Active Subscriber has a one account with one Portal IXI
      shall pay Provider [***] per month for “Bronze Package”.  If an
      Active Subscriber has multiple OGOs with a single Portal IXI shall pay
      Provider [***] per OGO per month for “Bronze Package”.  If an
      Active Subscriber has one account with one Portal and another account with
      another Portal IXI shall pay Provider [***] per month for “Bronze
      Package”.

            


    

    
      	
               
      

            	
              (2)

            	
              IXI
      shall make said Payments quarterly in arrears (commencing at the end of
      the calendar quarter within which the Commercial Launch has occurred, and
      continuing on a quarterly basis throughout the Term (each such annual
      quarter, a “Service Quarter”)). IXI will pay within 30 days of the end of
      each Service Quarter.

            


    

    


    
      	
              3.

            	
              Minimum
      Fees

            


    

    


    
      	
               
      

            	
              (a)

            	
              During
      the first three (3) years of the term of this Agreement, IXI’s Active
      Subscriber Fees, in the aggregate, excluding any T&M payments and
      excluding the StartUp Fee, payable by IXI to Provider will be no less than
      the following “Annual Commitments” based on the first three years of the
      Agreement as follows based on the anniversary of the execution of this
      Agreement:

            


    

    


    Year
1                                [***]

    Year
2                                [***]

    Year
3                                [***]

    


    Any
deficit (due to shortfall of Subscribers in any one of the first three Years)
may be invoiced by Provider at any time after the end of the applicable Year
provided the Agreement has not been terminated as described in
sections  3(b) or 3(c) below.

     

    
      
         


      

      
        – 13
–

        
          

        

      

      
         


      

    


    (b)
Should IXI terminate this Agreement for convenience pursuant to Section 8.2(ii)
of the Agreement, then all future IXI payment obligations under this Agreement
shall cease (including those set forth above in Section 3(a) of this Exhibit C), provided,
however, that if IXI has paid Provider less than the pro-rated Annual Commitment
for the year applicable at the time of such termination, then IXI will be
obligated to pay an amount equal to the such pro-rated amount minus the sum of
the Active Subscriber Fees paid so far for that year of the Agreement, and
further provided that if IXI has paid Provider less than [***] when taking into
consideration the Up-Front Fee plus all Active Subscriber fees plus fees arising
from Annual Commitment payments paid from the original execution date of the
Agreement until the termination date, then IXI will be obligated to pay the
balance to ensure that Provider receives a minimum of US [$***] (excluding all
T&M payments) for all such fees. If due pursuant to this section 3(b), then
all such payments are irrevocable, unconditional and
non-refundable.

    


    (c)
Notwithstanding anything else, should IXI terminate this Agreement for breach
pursuant to Section 8.2(i) of the Agreement, then all future IXI payment
obligations under this Agreement shall cease (including those Annual Commitments
set forth above in Section 3(a) of this Exhibit
C).

     

    
      	
              4.

            	
              Any
      such balancing payment shall be made by IXI to the Provider within ninety
      (90) days of termination.

            


    

    


    
      
        	
                5

              	
                Time
      and Materials Payments

              


      

    

     

    IXI will
pay Provider for labor time and materials incurred with any additional work
arising from addition of new IXI Customers to use the Services and arising from
any certification work associated with the Portals supported by the Services
(“T&M”) and from any work required to support new devices or changes to
devices, such T&M to be mutually agreed by the Parties in
advance.  T&M payments are not considered for the purpose of
calculating Annual Commitment contributions.

     

    
      	
              6

            	
              Terms
      of Payment

            


    

     

    
      	
               
      

            	
              (a)

            	
              Unless
      indicated otherwise, all payments made hereunder shall be made in US
      Dollars.

            


    

     

    
      	
               
      

            	
              (b)

            	
              All
      amounts are exclusive of VAT

            


    

     

    
      	
               
      

            	
              (
      c)

            	
              All
      fees due under this Agreement shall be paid by IXI within thirty (30) days
      of receipt of an invoice from Provider, by bank wire transfer in
      immediately available funds to an account or accounts designated by
      Provider

            


    

     

    
      	
               
      

            	
              (d)

            	
              Any
      amounts overdue shall be subject to interest equal to the lesser of one
      percent (1.0%) per month and the maximum amount permitted by law,
      calculated on a daily basis and payable in respect of the period from when
      payment was due until payment is received by Provider (including all
      interest).

            


    

     

    
      
         


      

      
        – 14
–

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (e)

            	
              All
      fees due under this Agreement are exclusive of all taxes and levies which
      shall be paid by IXI at the prevailing
rate.

            


    

     

    
      	
               
      

            	
              (f)

            	
              IXI
      shall issue a Purchase Order to Followap no later than ten (10) days from
      execution of this Agreement, to the sum of [***] subject to the conditions
      of section 3 of this Annex. Purchase Order shall state the SLA package
      required. .

            


    

     

    
      
         


      

      
        – 15
–

        
          

        

      

      
         


      

    

     

    EXHIBIT
D

     

    Timetable
and Dependencies

     

    Timetable

     

    The
Services as described in SOW shall be ready for commercial launch by [***]
(“Commercial Launch”).

     

    
      Dependencies

    

     

    IXI must
supply Provider with the final version of the OGO that will be commercially used
in conjunction with the Services at least 1 month before Commercial
Launch.

     

    IXI must
ensure connectivity to MSN service center at least two weeks before acceptance
tests at IXI Customer.

     

    
      
         


      

      
        – 16
–

        
          

        

      

      
         


      

    


    EXHIBIT
E

     

    Roadmap

     

    
      
         


      

      
        – 17
–

        
          

        

      

      
         


      

    

     

    EXHIBIT
F

     

    Appointed
Customers

     

    [***]

     

    [***]

     

    [***]

     

    
      
         


      

      
        – 18
–