Unassociated Document


    
      Frame
Agreement

    

    


     

    concerning
the purchase

     

    of

    


     

    Handsets
and Accessories

     

      
        

      

    

    


     

    
      	
               

              Contract
      no.

              of

            	
               

              2004-1432

              24.12.2004

               

            
	 
      	
               

              valid
      from

            	
               

              24.12.2004

            	
               

              until

               

            	
               

              unlimited

            
	
               

              Contract

              between

               

            	
               

              Swisscom
      Mobile AG,

              CH-3050
      Bern / Switzerland

               

            	
               

              as
      purchaser

              hereinafter
      referred to as

              „Swisscom
      Mobile“

            
	
              And

            	
              IXI
      MOBILE (EUROPE) LTD

               

              37
      Broadhurst Gardens

               

              London
      NW6 3WT

               

              United Kingdom

            	
              as
      Supplier

              hereinafter
      referred to as

              „Supplier”

            


    

    


    
      

    

     

    
      	
              Swisscom
      Mobile AG

              Purchasing
      & Handset Management

              CH-3050
      Berne / Switzerland

            	 
      	
              Created
      in:                      December  2002

              Printed
      in:                     
       Friday, 26 July
      2002

              Created
      by:                     Handset Sourcing
      Team

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page:
      2

              


      

    

     

    
      Content:

       

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    
                                                                                                      
                                                                                                        
                                                                                                          	
                                                                                                                  1

                                                                                                                	Introduction	 
      	
                                                                                                                  4

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  2

                                                                                                                	Definitions	 
      	
                                                                                                                  5

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  3

                                                                                                                	Subject
      of the Frame Agreement	 
      	
                                                                                                                  8

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  4

                                                                                                                	Parts
      and Application of the Frame Agreement	 
      	
                                                                                                                  8

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  5

                                                                                                                	Delimitation	 
      	
                                                                                                                  9

                                                                                                                
	
                                                                                                                  5.1

                                                                                                                	 
      	
                                                                                                                  Territory

                                                                                                                	 
      	
                                                                                                                  9

                                                                                                                
	
                                                                                                                  5.2

                                                                                                                	 
      	
                                                                                                                  Independent
      Trader

                                                                                                                	 
      	
                                                                                                                  9

                                                                                                                
	
                                                                                                                  5.3

                                                                                                                	 
      	
                                                                                                                  No
      Representation

                                                                                                                	 
      	
                                                                                                                  9

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  6

                                                                                                                	Deliverables
      of Supplier	 
      	
                                                                                                                  9

                                                                                                                
	
                                                                                                                  6.1

                                                                                                                	 
      	
                                                                                                                  Products
      and Accessories

                                                                                                                	 
      	
                                                                                                                  9

                                                                                                                
	
                                                                                                                  6.2

                                                                                                                	 
      	
                                                                                                                  Software

                                                                                                                	 
      	
                                                                                                                  9

                                                                                                                
	
                                                                                                                  6.3

                                                                                                                	 
      	
                                                                                                                  Packages

                                                                                                                	 
      	
                                                                                                                  9

                                                                                                                
	
                                                                                                                  6.4

                                                                                                                	 
      	
                                                                                                                  Type
      Approval

                                                                                                                	 
      	
                                                                                                                  10

                                                                                                                
	
                                                                                                                  6.5

                                                                                                                	 
      	
                                                                                                                  Pre-Configuration
      of Handsets

                                                                                                                	 
      	
                                                                                                                  10

                                                                                                                
	
                                                                                                                  6.6

                                                                                                                	 
      	
                                                                                                                  Testing
      of the Products

                                                                                                                	 
      	
                                                                                                                  10

                                                                                                                
	
                                                                                                                  6.7

                                                                                                                	 
      	
                                                                                                                  Repair
      & Repair Services Management

                                                                                                                	 
      	
                                                                                                                  11

                                                                                                                
	
                                                                                                                  6.8

                                                                                                                	 
      	
                                                                                                                  Samples,
      Dummies and Accessories

                                                                                                                	 
      	
                                                                                                                  11

                                                                                                                
	
                                                                                                                  6.9

                                                                                                                	 
      	
                                                                                                                  Documentation

                                                                                                                	 
      	
                                                                                                                  11

                                                                                                                
	
                                                                                                                  6.10

                                                                                                                	 
      	
                                                                                                                  Training

                                                                                                                	 
      	
                                                                                                                  11

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  7

                                                                                                                	Scheduling,
      Quantity Structure & Ordering Procedures	 
      	
                                                                                                                  11

                                                                                                                
	
                                                                                                                  7.1

                                                                                                                	 
      	
                                                                                                                  Quantity
      Structure (Forecast) and Ordering Procedures

                                                                                                                	 
      	
                                                                                                                  12

                                                                                                                
	
                                                                                                                  7.2

                                                                                                                	 
      	
                                                                                                                  Information
      Flow

                                                                                                                	 
      	
                                                                                                                  12

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  8

                                                                                                                	Prices
      and Terms of Payments	 
      	
                                                                                                                  13

                                                                                                                
	
                                                                                                                  8.1

                                                                                                                	 
      	
                                                                                                                  Pricelist

                                                                                                                	 
      	
                                                                                                                  13

                                                                                                                
	
                                                                                                                  8.2

                                                                                                                	 
      	
                                                                                                                  Price
      Settings

                                                                                                                	 
      	
                                                                                                                  13

                                                                                                                
	
                                                                                                                  8.3

                                                                                                                	 
      	
                                                                                                                  Remuneration

                                                                                                                	 
      	
                                                                                                                  13

                                                                                                                
	
                                                                                                                  8.4

                                                                                                                	 
      	
                                                                                                                  Assignment
      and pledging of receivables

                                                                                                                	 
      	
                                                                                                                  13

                                                                                                                
	
                                                                                                                  8.5

                                                                                                                	 
      	
                                                                                                                  [***]

                                                                                                                	 
      	
                                                                                                                  14

                                                                                                                
	
                                                                                                                  8.6

                                                                                                                	 
      	
                                                                                                                  [***]

                                                                                                                	 
      	
                                                                                                                  14

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  9

                                                                                                                	Benchmarking	 
      	
                                                                                                                  14

                                                                                                                
	
                                                                                                                  9.1

                                                                                                                	 
      	
                                                                                                                  Economical
      Benchmarking

                                                                                                                	 
      	
                                                                                                                  14

                                                                                                                
	
                                                                                                                  9.2

                                                                                                                	 
      	
                                                                                                                  Technical
      Benchmarking

                                                                                                                	 
      	
                                                                                                                  14

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  10

                                                                                                                	Promotion
      Activities	 
      	
                                                                                                                  14

                                                                                                                
	
                                                                                                                  10.1

                                                                                                                	 
      	
                                                                                                                  Marketing,
      Advertising and Sales Promotion

                                                                                                                	 
      	
                                                                                                                  14

                                                                                                                
	
                                                                                                                  10.2

                                                                                                                	 
      	
                                                                                                                  Public
      Relations

                                                                                                                	 
      	
                                                                                                                  14

                                                                                                                
	 
      	 
      	 
      	 
      	 
      
	
                                                                                                                  11

                                                                                                                	Distributor	 
      	
                                                                                                                  15

                                                                                                                


                                                                                                        

                                                                                                      

                                                                                                    

                                                                                                  

                                                                                                

                                                                                              

                                                                                            

                                                                                          

                                                                                        

                                                                                      

                                                                                    

                                                                                  

                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page:  3

              


      

    

     

    
      
        	
                12

              	Import
      Details	 
      	
                15

              
	 
      	 
      	 
      	 
      	 
      
	
                13

              	Delay
      of Delivery and Shipping	 
      	
                15

              
	
                13.1

              	 
      	
                Hard
      Milestones

              	 
      	
                15

              
	
                13.2

              	 
      	
                Soft
      Milestones

              	 
      	
                16

              
	 
      	 
      	 
      	 
      	 
      
	
                14

              	Warranty
      & Liability	 
      	
                16

              
	
                14.1

              	 
      	
                Warranty

              	 
      	
                16

              
	
                14.2

              	 
      	
                Interoperability
      between Network and Handsets

              	 
      	
                17

              
	
                14.3

              	 
      	
                Epidemic
      Failure

              	 
      	
                17

              
	
                14.4

              	 
      	
                Liability

              	 
      	
                18

              
	
                14.5

              	 
      	
                Force
      Majeure

              	 
      	
                18

              
	 
      	 
      	 
      	 
      	 
      
	
                15

              	Intangibles	 
      	
                19

              
	
                15.1

              	 
      	
                Software

              	 
      	
                19

              
	
                15.2

              	 
      	
                Intellectual
      Property Rights

              	 
      	
                19

              
	
                15.3

              	 
      	
                Trademark
      and Marking

              	 
      	
                21

              
	 
      	 
      	 
      	 
      	 
      
	
                16

              	Confidentiality	 
      	
                21

              
	 
      	 
      	 
      	 
      	 
      
	
                17

              	Frame
      Agreement Specifications	 
      	
                21

              
	
                17.1

              	 
      	
                Terms
      and Termination of the Frame Agreement

              	 
      	
                21

              
	
                17.2

              	 
      	
                Amendments
      to the Frame Agreement

              	 
      	
                22

              
	
                17.3

              	 
      	
                Severability
      Clause

              	 
      	
                22

              
	
                17.4

              	 
      	
                Assignment
      of this Frame Agreement

              	 
      	
                22

              
	 
      	 
      	 
      	 
      	 
      
	
                18

              	Applicable
      Law and Jurisdiction	 
      	
                22

              
	 
      	 
      	 
      	 
      	 
      
	
                19

              	Execution	 
      	
                23

              


      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 
      	
              Frame
      Agreement

              Supplier

            
	 
      	
              Page:  4

            


    

     

    
      
        
          	
                  1 

                	
                  Introduction 

                


        

      

      
        

      

       

    

    
      	
               ̈

            	
              Whereas
      the Parties have agreed to engage in a clear and effective business
      relationship;

            


    

     

    
      	
               ̈

            	
              Whereas
      the Parties wish to have predefined terms and conditions, proceedings and
      ways of interacting in order to simplify contract handling by referencing
      to this Frame Agreement;

            


    

     

    
      	
               ̈

            	
              Whereas
      Supplier intends to sell, market and distribute Mobile Handsets and its
      Accessories;

            


    

     

    
      	
               ̈

            	
              Whereas
      Swisscom Mobile is highly interested in selling, marketing and
      distributing Mobile Handsets and its Accessories from
      Supplier;

            


    

     

    the
Parties agree as follows:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

        
          	 
      	
                  Frame
      Agreement

                  Supplier

                
	 
      	
                  Page:  5

                


        

      

       

      
        
          	
                  2 

                	
                  Definitions 

                


        

        
          

        

      

       

    

    
      	
              Affiliate

            	
              An
      economic/juridical entity that is controlled by more than 50% of voting
      power by a Party, an economic/juridical entity that controls a Party by
      more than 50% of the voting power or an economic/juridical entity that is
      controlled by more than 50% of the voting power by the same
      economic/juridical entity that controls a
Party;

            


    

     

    
      	
              Annex

            	
              Document
      attached to this Frame Agreement;

            


    

     

    
      	
              Accessories

            	
              All
      equipment, that supports the use of a Handset and/or enlarges the
      possibilities in using it according to Suppliers’ Accessries
      List;

            


    

     

    
      	
              BAKOM

            	
              Bundesamt
      für Kommunikation (Federal Office for Communications of
      Switzerland);

            


    

     

    
      	
              Benchmarking

            	
              Comparison
      with other companies of the same market on measurable, specific and
      applicable indications of a defined technical or commercial
      performance;

            


    

     

    
      	
              Contract

            	
              Any
      binding set of documents which refers to a commercial agreement entered
      into between the parties such as the Commercial Agreement concerning the
      purchase of commercially traded Products, the Commercial Agreement
      concerning the purchase of UMTS Products based on 3 GPP or
      alike;

            


    

     

    
      	
              Customised

            	
              Any
      function of/or a Deliverable that is developed, designed and made for
      Operator only;

            


    

     

    
      	
              Date
      of Delivery

            	
              Latest
      date of a day when Deliverables are to be or have been
      delivered;

            


    

     

    
      	
              Date

            	
              Day,
      month and year, where business is conducted. For deadlines shall apply in
      any case the date for a day. For a date on which no business is conducted,
      the deadline of the last day of business shall be
  applied;

            


    

     

    
      	
              Deliverable

            	
              Any
      Hardware, Software, Service(s), Maintenance including all related
      Documentation and/or combination
thereof;

            


    

     

    
      	
              Delivery

            	
              Actual
      supply (Delivery) to the agreed address, always in physical form either
      document, tape, disk or equipment;

            


    

     

    
      	
              Distributor

            	
              Economic
      entity with the contractually stipulated purpose to distribute the
      Products for Operator

            


    

     

    
      	
              Documentation

            	
              Information
      concerning a Product or Deliverable with the purpose to explain, to
      specify, to document, to operate and to train it. It does not include
      internal design documents for standard
  Deliveries;

            


    

     

    
      	
              End-Users

            	
              Customers
      using UMTS/GSM/GPRS Infrastructure with
  Handsets;

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page:  6

              


      

    

     

    
      	
              Epidemic
      Failure

            	
              Is
      a failure, which appears above-average frequently by the same type of
      Handset. Above-average frequently means, that more than [***] percent or
      [***] units, whichever is lower of the purchased volume of this Handset
      type (sold to end-user) is affected of this same failure during the period
      of four consecutive weeks.

            


    

     

    
      	
              Forecast

            	
              The
      rolling planning part of the ordering procedure from the purchasing unit
      of Operator to Supplier;

            


    

     

    
      	
              Frame
      Agreement

            	
              The
      entire and signed agreement between Supplier and Swisscom Mobile related
      to the Delivery of Handsets represented by this Contract with all attached
      contractual documents;

            


    

     

    
      	
              GPRS

            	
              General
      Packet Radio Service enhanced mobile communication platform in the
      evolution to third generation;

            


    

     

    
      	
              GSM

            	
              Global
      System for Mobile Telecommunication, the second generation of mobile
      communication;

            


    

     

    
      	
              Hard
      Milestones

            	
              Exact
      deadline for performance with a specific reference to clause 13.1 of this
      Frame Agreement;

            


    

     

    
      	
              Intellectual
      Property

            	
              Shall
      mean all intellectual property rights and proprietary rights including but
      not limited to any copyright, patent, registered industrial designs, trade
      marks, service marks, source codes, specifications, any logo(s) or any
      rights subsisting everywhere or any application for any of the foregoing
      and any modifications, improvements, developments or enhancements
      thereto;

            


    

     

    
      	
              Maintenance

            	
              Improvements
      performed on Deliverables to ensure their optimal
  function;

            


    

     

    
      	
              Milestone

            	
              A
      date specified as such in the time schedule by which Deliveries and/or
      activities indicated in the time schedule shall start at the latest and/or
      an event when Delivery of described results will take place. Milestones
      may be detailed in "Delivery Milestones" (a day on which a product is to
      be delivered by one or the other party) and "start milestones" (a day on
      which an activity must have begun);

            


    

     

    
      	
              Operator

            	
              Swisscom
      Mobile and all of its Affiliates;

            


    

     

    
      	
              Order
      Acceptance

            	
              Written
      confirmation to accept an Order;

            


    

     

    
      	
              Order

            	
              Receipt
      of a duly signed document from Operator to Supplier, confirming acceptance
      of a quotation in full or in part for a Deliverable, stating quantities,
      price, type of product, and requested delivery
  date;

            


    

     

    
      	
              Party

            	
              Swisscom
      Mobile or Supplier;

            


    

     

    
      	
              Parts

            	
              A
      basic Part of a system or sub-system, which cannot be usefully
      subdivided;

            


    

     

    
      	
              Pricelist

            	
              Information
      about list prices for Operator furnished and maintained by
      Supplier;

            


    

     

    
      	
              Product,
      Product range

            	
              Handsets
      and Accessories;

            


    

     

    
      	
              Quotation

            	
              Duly
      signed offer with itemised specifications for a Product/Deliverable and
      services from Supplier to Operator;

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page: 7

              


      

    

     

    
      	
              Soft
      Milestones

            	
              Due
      dates and deadlines without a specific reference to clause 14.1 of this
      Frame Agreement;

            


    

     

    
      	
              Specification

            	
              Full
      description of the functionality, the means and the purpose of a
      Deliverable;

            


    

     

    
      	
              Standard

            	
              Specification
      set by the widespread use in a market (de facto) or by an accepted body
      (de iure);

            


    

     

    
      	
              Handset
      (2G)

            	
              (also
      Mobile Handset):

            


    

    
      	
               
      

            	
              An
      End-User equipment according to 2GSM specifications and, where applicable,
      2+GSM specifications, that allows voice and/or data communication over
      GSM/GPRS networks and all equipment, which is necessary for a normal and
      continuous use of the Handset such as battery charger, external software
      (e.g. CD-ROM) and data-cable (if applicable). This term includes devices
      such as voice centric phones, smartphones, communicators, cardphones,
      PC-cards, GSM-modules for specific applications. If there is a built-in
      mobile communication module or a jacket for GSM then organisers, PDAs,
      Pocket PCs, Mininotebooks, Web- or Screenpads are considered as Handsets
      as well. This list of devices is not
exhaustive;

            


    

     

    
      	
              Handset
      (3G)

            	
              (also
      Mobile Handset):

            


    

    
      	
               
      

            	
              An
      End-User equipment according to 3GPP, that allows voice or data
      communication over 3G and GSM/GPRS networks and all equipment, which is
      necessary for a normal and continuous use of the Handset such as battery
      charger. This term includes devices such as voice centric phones,
      smartphones, communicators, cardphones, PC-cards, 3G modules for specific
      applications. If there is a built in mobile communication module for UMTS
      then organisers, PDAs, Pocket PCs, Mini-notebooks, Web- or Screenpads are
      considered as Handsets as well. This list of devices is not
      exhaustive;

            


    

     

    
      	
              Territory

            	
              Contractually
      agreed geographical scope for reselling of Product delivered under the
      Frame Agreement and the Commercial
Agreements;

            


    

     

    
      	
              UMTS
      (3G)

            	
              Universal
      Mobile Telecommunications Systems, the third generation of mobile
      communication;

            


    

     

    
      	
              UMTS-Product(s)

            	
              Products
      related to the UMTS Project;

            


    

     

    
      	
              Working
      Days

            	
              Mondays
      to Fridays, with the exception of official public holidays in the country
      of the Operator and according to the Operator's working
    time;

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

      
        
          	 
      	
                  Frame
      Agreement

                  Supplier

                
	 
      	
                  Page: 8

                


        

      

       

      
        
          	
                  3 

                	
                  Subject
      of the Frame Agreement 

                


        

        
          

        

      

    

    This
Frame Agreement states the terms and conditions applicable to all aspects in
connection to the Delivery of Mobile Handsets and its Accessories to Swisscom
Mobile for reselling.

     

    
      
        
          	
                  4 

                	
                  Parts
      and Application of the Frame Agreement 

                


        

      

      
        

      

    

    The
following documents form integral parts of the Frame Agreement in the order they
are listed:

     

    
      	
               
      

            	
              i.

            	
              This
      Frame Agreement document itself

            


    

     

    
      	
               
      

            	
              ii.

            	
              Global
      Annexes

            


    

     

    Global
Annex 1 "Scheme of Contractual Structure"

     

    Global
Annex 2 "Shipping instructions for Suppliers of Swisscom Mobile"

     

    Global
Annex 3 “Process of Product Change Management”

     

    
      	
               
      

            	
              iii.

            	
              Commercial
      Agreements

            


    

     

    Commercial
Agreements shall be concluded under the provisions of the Frame Agreement. They
shall cover all economic terms and conditions for a period of one year. They
shall be supplementary to the Frame Agreement and consist of the “Commercial
Agreement” itself and its Local Annexes e.g.:

     

    
      	
               
      

            	
              -

            	
              Commercial
      Agreements concerning the purchase of commercially traded Products &
      Local Annexes Commercial Agreements for UMTS Products based on 3GPP (Test
      & Trial) & Local Annexes

            


    

     

    Both
Parties confirm, that they are in possession of the above-mentioned documents of
the Frame Agreement. Supplier understands and accepts the Contractual Structure
as stated in the Global Annex 1 “Scheme of Contractual Structure”.

     

    The
above-mentioned list of documents of the Frame Agreement is not exhaustive as
new documents (Commercial Agreement, Annexes) may be added from time to time
upon the written agreement of the Parties.

     

    In case
of contradictions between the Frame Agreement document and the Global Annexes
they shall prevail in the order listed above.

     

    In case
of contradictions between the Frame Agreement and the Commercial Agreement the
Frame Agreement shall prevail unless the Commercial Agreement states explicitly
a wilful deviation of the Parties from a specified clause of the Frame
Agreement.

     

    The
general terms and conditions of Supplier and Swisscom Mobile are waived unless
attached to this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page:  9

              


      

    

     

    
      
        
          	
                  5

                	
                  Delimitation

                


        

      

      
        
 

    

    
      
        
          	
                  5.1

                	
                  Territory

                


        

      

      
        
          

        

      

    

    The whole
territory of [***] and [***] shall be the Territory for reselling of Product
delivered under the Frame Agreement and the Commercial Agreements.

    
       

      
        	
                5.2

              	
                Independent
      Trader

              


      

      
        

      

    

    Swisscom
Mobile shall be an independent trader (reseller) of the Handsets and Accessories
from Supplier. Swisscom Mobile buys and sells the Products in its own name and
for its own account.

     

    
      
        	
                5.3

              	
                No
      Representation

              


      

    

    
      

    

    This
Frame Agreement does not authorise either Party to engage in transactions in the
name of the other.

     

    
      
        	
                6

              	
                Deliverables
      of Supplier

              


      

      
        
          

        

      

       

    

    
      
        	
                6.1

              	
                Products
      and Accessories

              


      

      
        

      

    

    The range
of Deliverables for this Frame Agreement is defined as follows:

     

    
      	
            	
               ̈

            	
              The
      whole and actual Mobile Handset Product range of
  Supplier.

            


    

     

    
      
        	
              	
                 ̈

              	
                Any
      new and/or additional Product(s) and/or new versions of Products and any
      related Accessories
therefore.

              


      

    

     

    
      
        	
                6.2

              	
                Software

              


      

      
        

      

      Releases
and updates of software associated with the operating system shall be delivered
free of charge over the lifetime of the Handset. Supplier shall support Swisscom
Mobile in an appropriate way.

    

     

    Releases
and updates of software used with the Handset type shall be delivered free of
charge during the warranty period, provided however, that the software has no
new or additional functionalities.

     

    Major
software upgrades, which enhances Product functionalities will be chargeable at
an agreed price.

     

    
      
        	
                6.3

              	
                Packages

              


      

      
        

      

    

    Product
packaging will be carried out by Supplier and shall basically not be modified by
Swisscom Mobile. If required by certain circumstances Swisscom Mobile shall be
authorised to modify the Packages with the written consent of Supplier, which
Supplier shall not unreasonably withhold. Modify means to add important
information in any form for the End-user.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page: 10

              


      

    

     

    The cost
of production of the packages shall be included in the prices of
Handsets.

     

    Bundles
shall be discussed and agreed case by case with Supplier and the respective unit
of Swisscom Mobile with regard to co-branding, co-marketing and the
determination of the components.

     

    
      
        	
                6.4

              	
                Type
      Approval

              


      

      
        

      

    

    Supplier
is responsible to Swisscom Mobile for ensuring that its Products meet the
relevant Swiss legal regulations and EU conformity requirements. The Handset has
to be certified under the GCF (Global Certification Forum) scheme. Swisscom
Mobile will inform Supplier on any Swiss legal regulation it is aware
of.

     

    The CE
label must be added to the Products in a reasonably permanent and clearly
legible way. The Supplier shall undertake – at its own cost – SAR measurements
and shall appropriately publish the results as required by applicable law or
regulation.

     

    If any of
these obligations regarding type approval are not met and BAKOM contacts
Swisscom Mobile, Swisscom Mobile shall notify Supplier without delay. Supplier
shall handle the issue directly with BAKOM or any other competent authority at
Supplier's own cost and risk. Supplier shall hold Swisscom Mobile with regard to
such type approval harmless of all costs and damages awarded by a competent
authority against Swisscom Mobile and shall give all the necessary support for a
solution.

     

    
      
        	
                6.5

              	
                Pre-Configuration
      of Handsets

              


      

      
        

      

    

    The
pre-configuration of Handsets is a basic necessity for Swisscom Mobile’s sales
business. Details concerning the pre-configuration are fixed in the respective
Commercial Agreement.

     

    
      
        	
                6.6

              	
                Testing
      of the Products

              


      

       

    

    Handsets
delivered by Supplier, according to the HTS (Handset Term Sheet) as applicable
shall be subjected to tests in accordance with the international standards and
the specific requirements of the Swisscom Mobile network. If the delivered
Handsets fail these tests Swisscom Mobile shall have the right to return them to
Supplier. Returned Handsets shall be counted as not delivered.

     

    Any major
technical deviations from international standards can be subject to fail the
tests performed by Swisscom Mobile.

     

    The
failure of Swisscom Mobile to identify faults of the Deliverables during the
tests shall not relieve Supplier from correcting such faults once they have been
found at no additional cost for Swisscom Mobile according to clause 14.1
Warranty.

     

    Swisscom
Mobile shall either (1) approve the successfully passed tests, or (2) approve
the test with reservation listing as detailed as possible the tests which could
not be done due to technology limitations or (3) shall notify Supplier that the
tests were not passed. Such approvals and notices shall be made in writing.
Supplier may deliver a certain type of Handset only after having received an
approval (with or without reservation). Once such approval is given Supplier is
authorised to ship the approved products.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page:  11

              


      

    

     

    Supplier
states hereinafter the standards (standards of ISO etc.) it applies for testing
its own Products in the area of production and Delivery:

     

    
      	
               
      

            	
              -

            	
              ISO
      9001 certified

            


    

     

    
      	
               
      

            	
              -

            	
              ISO
      14001certified

            


    

    
       

      
        	
                6.7

              	
                Repair
      & Repair Services Management

              


      

      
        

      

    

    Supplier
shall provide a clear, efficient and economical repair cycle to handle warranty
cases, maintenance and to repair defective Products in a reasonable timeframe as
well as to deliver spare parts if needed.

     

    All
details concerning Repair & Repair Services Management are agreed between
Parties and are fixed in the Contract concerning After Sales
Services.

     

    
      
        	
                6.8

              	
                Samples,
      Dummies and Accessories

              


      

      
        

      

    

    Supplier
undertakes to deliver Samples, Dummies and new Accessories as requested by
Swisscom Mobile and mutually agreed in the respective Commercial
Agreement.

     

    
      
        	
                6.9

              	
                Documentation

              


      

      
        

      

    

    Supplier
shall provide complete Documentation of the Products including user instructions
and information concerning operation in a format, which can be reproduced by
Swisscom Mobile. On Swisscom Mobile’s request Supplier shall supply additional
documentation against special remuneration.

     

    Swisscom
Mobile may copy, use and distribute the user instructions for the purposes in
accordance with this Frame Agreement.  No other license to
intellectual property of Supplier is granted to
Swisscom.   Supplier reserveseany and all rights not expressly
granted to Swisscom Mobile hereunder.

     

    Documentation
enclosed with the Product shall be in German/French/Italian and in English or
otherwise agreed.

     

    
      
        	
                6.10

              	
                The
      copyrights, patents and any trademarks related to Products, manuals,
      packages and other Documentation shall remain with
      Supplier.  Training

              


      

      
        

      

    

    Supplier
shall provide training for Swisscom Mobile. The scope of this training shall be
specified more detailed in the Commercial Agreement or with the initial order.
If Swisscom Mobile staff can train itself sufficiently based on the
Documentation, then the Documentation and End-Users instructions are considered
as sufficient.

     

    
      
        	
                7

              	
                Scheduling,
      Quantity Structure & Ordering
Procedures

              


      

      
        

      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        
          	 
      	
                  Frame
      Agreement

                  Supplier

                
	 
      	
                  Page:  12

                


        

      

       

    

    
      
        	
                7.1

              	
                Quantity
      Structure (Forecast) and Ordering
Procedures

              


      

      
        

      

    

    The
objectives and predictions of the quantity structure or yearly sold amount of
Handsets is defined and agreed with Supplier in the respective Commercial
Agreement.

     

    [***]
Details about the procedure of the rolling purchase volume Forecast are
described in the Local Annex B “The Forecast process” (Commercial Agreement,
Commercially traded Products).

     

    The
Orders will be submitted with Swisscom Mobile’s Order form.

     

    The
individual Orders shall be issued in writing exclusively by the sole Swisscom
Mobile unit entitled to purchase:

     

    Swisscom
Mobile AG

    Purchasing
& Handset Management

    3050
Berne/Switzerland

     

    Supplier
shall refer all other organisational units of Swisscom Mobile to the entitled
purchasing unit of Swisscom Mobile.

     

    Supplier
shall confirm Orders and Delivery deadlines within 5 Working Days starting with
the day of reception of the official Order from Swisscom Mobile. No order shall
be deemed accepted without Supplier’s written confirmation. The written
Confirmation shall become binding upon the date of the
confirmation.

     

    
      
        	
                7.2

              	
                Information
      Flow

              


      

    

    
      

    

     

    
      	
              7.2.1 

            	
              Product
      Road Map of Supplier

            


    

     

    Supplier
shall proactively inform Swisscom Mobile  regarding existing and new
products (e.g. Handsets and accessories) and marketing and sales activities of
the Supplier on the Territory. .

     

    
      	
              7.2.2 

            	
              Duty
      to inform

            


    

     

    Supplier
shall promptly provide information to Swisscom Mobile regarding relevant
problems observed world-wide in conjunction with the use of its products in the
market which the Suppliers believes may have material impact in the Territory,
as well as the knowledge Supplier has obtained about possible causes and
workaround.

     

    
      	
              7.2.3 

            	
              Information
      Exchange

            


    

     

    For a
better strategic planning and coordination the Parties agree to participate in
meetings upon invitation of Swisscom Mobile. The goal of such meetings is on the
one hand to give Supplier some information about the stage of affairs, sales
performance, running projects including Products of Supplier and to present
projections and trends of purchasing volumes in the future. On the other hand
Supplier has the possibility to present new Products, which will be launched in
the near future and to give an overview over the strategic orientation of
Supplier’s company in the telecommunication market and over Supplier’s Product
range (news and trends).

    
       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        
          	 
      	
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      Agreement

                  Supplier

                
	 
      	
                  Page:  13

                


        

      

       

      
        	
                8

              	
                Changes
      to Products

              


      

      
        

      

    

    The
contracting Parties may apply for changes to the standard Products in writing at
any time. Should SCM require a change to be made, Supplier shall inform Swisscom
within twenty working days whether or not the change is feasible and what effect
the change will have on the Product to be delivered as well as on payments and
deadlines. If necessary, Supplier shall submit proposals for alternatives which
could produce better commercial or operational results. SCM shall decide by the
same deadline whether or not the change is to be carried out, if Supplier deems
it feasible. If Supplier requests a change, SCM shall accept or reject the
request within the same deadline. SCM shall not unreasonably deny cost reduction
proposals from Supplier.

     

    Any
changes must be set down in writing in the form of a signed addendum to the
contract prior to execution. Any adjustment to payments shall be based on the
original cost base. The Parties shall apply the process as set out in Global
Annex 3 “Process of Product Change Management”

     

    Unless
otherwise arranged, delivery of Products shall be continued and will not be
deemed to be restricted by the above.

    
       

      
        	
                9

              	
                Prices
      and Terms of Payments

              


      

      
        

      

       

    

    
      
        	
                9.1

              	
                Pricelist

              


      

      
        

      

    

    Prices
shall accord basically with the [***] (if existing) or [***] from Supplier as
stated in the respective annexes of the Commercial Agreements.

     

    In the
event of price adjustments (lower prices for current Products) or new prices for
new Products, Swisscom Mobile shall be contacted promptly in writing and a new
Pricelist shall be issued and agreed between Parties.

     

    Prices do
not include VAT unless specified otherwise in writing.

     

    
      
        	
                9.2

              	
                Price
      Settings

              


      

      
        

      

    

    Swisscom
Mobile may freely set its resale prices for all Deliverables.

     

    
      
        	
                9.3

              	
                Remuneration

              


      

      
        

      

    

    The
remuneration shall cover all goods and services required for the due fulfilment
of the Frame Agreement. In particular, the remuneration shall include
Documentation, packaging, transport, insurance and unloading costs, and
configuration costs, including manual configuration for the first commercial
volumes. Any other costs, fiscal or other public duties shall be agreed in the
Commercial Agreement.

     

    
      
        	
                9.4

              	
                Assignment
      and pledging of receivables

              


      

      
        

      

    

    Receivables
due to Supplier may not be assigned or pledged to any third parties, which is
not an Affiliate of the Supplier without Swisscom Mobile’s written
permission.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page: 14

              


      

    

     

    
      
        	
                9.5

              	
                Most-favoured
      Party Clause

              


      

      
        

      

    

    [***]

     

    
      
        	
                9.6

              	
                Price
      Protection for Stock

              


      

      
        

      

    

    
      [***]

    

     

    
      
        	
                10

              	
                Benchmarking

              


      

    

    
      

    

    Information
on benchmarking is considered confidential information.

     

    
      
        	
                10.1

              	
                [***]

              


      

    

    
      

    

    [***]

     

    
      
        	
                10.2

              	
                [***]

              


      

      
        

      

    

    [***]

     

    
      
        	
                11

              	
                Promotion
      Activities

              


      

      
        

      

       

    

    
      
        	
                11.1

              	
                Marketing,
      Advertising and Sales
Promotion

              


      

    

    
      

    

    As an
independent trader Swisscom Mobile promotes the Products of Supplier actively at
its own risk and for its own account, whereby the regulations of article 15
(Intangibles) shall apply.

     

    Swisscom
Mobile is not obliged to disclose its strategic promotion activity, marketing,
advertising or sales promotion plans to Supplier.

     

    A
cooperation shall be aimed at single projects and needs always the agreement of
both Parties. In this regard Supplier shall take an active role in
co-advertising, co-marketing and sales promotion and shall search the
cooperation with Swisscom Mobile or with single trade/sales channels of Swisscom
Mobile. Any costs out of such projects and activities shall be shared in
accordance with the mutual agreement of the Parties. Projects may be agreed with
Swisscom Mobile (Marketing Department) or with single trade/sales channels of
Swisscom Mobile. Supplier shall use its reasonable efforts to inform Swisscom
Mobile or the respective trade/sales channels about possible and potential
projects and activities.

     

    If
Supplier plans a national promotion campaign in the Territory to launch a new
Product, Supplier shall inform Swisscom Mobile about these promotion activities
and the conditions for an exclusive participation of Swisscom
Mobile.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

      
        
          	 
      	
                  Frame
      Agreement

                  Supplier

                
	 
      	
                  Page:  15

                


        

      

    

     

    
      
        	
                11.2

              	
                Public
      Relations

              


      

    

    
      

    

    Neither
Party will advertise or publish any information related to the Frame Agreement
without the prior written approval of the other Party.

     

    
      
        	
                11.3

              	
                Investors
      Relations

              


      

      
        

      

    

    Notwithstanding
anything else, Supplier may disclose information related to this agreement and
the sale of Products to Swisscom Mobile with existing and potential investors of
Supplier.

     

    
      
        	
                12

              	
                Distributor

              


      

      
        

      

    

    Swisscom
Mobile is entitled to distribute Supplier’s Products via a contractually bound
Distributor where such contract includes substantially similar terms of this
agreement with regard to confidentiality and IPR’s. Therefore, subject to the
terms of this agreement with regard to confidentiality and IPR’s, Swisscom
Mobile is qualified to support the designated Distributor with the necessary
support, information and data without infringing any confidentiality obligation
or intellectual property right under this Frame Agreement. Especially the
Distributor shall have the right to inspect the shipments in the name of
Swisscom Mobile and to lead the inventory with all appropriate and necessary
means.

     

    
      
        	
                13

              	
                Import
      Details

              


      

      
        

      

    

    Supplier
shall procure all necessary approvals.

     

    All
import details have to be settled according to Swisscom Mobile’s procedure as
defined in the respective Commercial Agreement.

     

    
      
        	
                14

              	
                Delay
      of Delivery and Shipping

              


      

      
        

      

       

    

    
      
        	
                14.1

              	
                Hard
      Milestones

              


      

      
        

      

    

    If the
Parties have, in the written definite order by Swisscom Mobile, confirmed in
writing by Supplier, agreed upon Hard Milestones (exact deadline for performance
with a specific reference to this clause), the Party which does not meet the
deadline so fixed shall be in default immediately upon the expiration of such
deadline, except to the extent such delay is materially caused by the other
party in which case such milestone will be extended accordingly. Unless Swisscom
Mobile notifies Supplier to the contrary, Supplier shall still be under
obligation to supply the Products after the Delivery date has
expired.

     

    If
Supplier is in default it shall be liable to pay a Contract penalty, unless to
the extent it can prove that no fault is attributable to it. This penalty shall
be [***] Deliverables per Order for each week of delay with a maximum of [***],
settlement as mutually agreed. The Contract penalty shall be payable even if the
items are accepted by Swisscom Mobile without reservation. Paying the Contract
penalty shall not release Supplier from its other contractual
obligations.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
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      Agreement

                Supplier

              
	 
      	
                Page: 16

              


      

    

     

    However,
the penalty shall count towards any compensation payable.

     

    
      
        	
                14.2

              	
                Soft
      Milestones

              


      

      
        

      

    

    If the
Parties have agreed upon Soft Milestones (all due dates and deadlines, which are
not Hard Milestones), a Party shall only be in default after being reminded
thereof and after expiration of a 14 (fourteen) days extension to be granted by
the other Party, except to the extent such delay is materially caused by the
other party in which case such milestone will be extended accordingly. Unless
Swisscom Mobile notifies Supplier to the contrary, Supplier shall still be under
obligation to supply the Products after the Delivery date has
expired.

     

    If
Supplier is in default it shall be liable to pay a Contract penalty, unless to
the extent it can prove that no fault is attributable to it. This penalty shall
be [***] deliverables per Order for each week of delay , with a maximum of
[***], settlement as mutually agreed. The Contract penalty shall be payable even
if the items are accepted by Swisscom Mobile without reservation. Paying the
Contract penalty shall not release Supplier from its other contractual
obligations. However, the penalty shall be the only remedy for a delay. Other
compensation as a result of the delay are excluded.

    
       

      
        	
                14.3

              	
                Forecast
      Process

              


      

      
        

      

    

    Supplier
shall be in Delay, if it can not supply the volumes definitely ordered by
Swisscom Mobile and confirmed in writing by Supplier.

    
       

      
        	
                15

              	
                Warranty
      & Liability

              


      

      
        
 

    

    
      
        	
                15.1

              	
                Warranty

              


      

      
        

      

    

    Supplier
warrants that the Performance provided complies with the qualities agreed upon
and any other qualities that are customary in the mobile handset industry in
Europe and which Swisscom Mobile from an objective point of view may assume in
good faith.

     

    The
warranty period shall be 24 months for Device(s) and 12 months for Accessories
from the date of sale from SCM to Customer or 30 for Device(s) and 18 months for
Accessories from the date of delivery from Supplier to SCM, which ever expires
first.

     

    Supplier
shall provide the service (repair or replacement of the same or a comparable
Device or Accessories) for hardware and software for at least 3 years from the
last date of delivery of the relevant type of Device or Accessories to
SCM.

     

    Claims
based on a warranty shall be exclusively handled pursuant to the "Contract
concerning After sales Services & Service Centre
Management".   Besides the warranty claims agreed upon in the
"Contract concerning After sales Services & Service Centre Management"" and
the Liability agreed upon in section 15.4 further warranty and/or liability
claims are expressly excluded.

     

    Where
defects are fraudulently concealed, the corresponding rights of Swisscom Mobile
shall only be time barred after 10 years from the Delivery date to Swisscom
Mobile.

     

    The
warranty periods shall be extended for the period consumed by replacements and
repair services.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page: 17

              


      

    

     

    The
warranty period on repaired Products shall be the warranty period as stated in
the Contract concerning After Sales Services, whichever is longer.

     

    
      
        	
                15.2

              	
                Interoperability
      between Network and Handsets

              


      

      
        

      

    

    If a
Handset is approved by Swisscom Mobile with reservations (see clause 6.6) and
the Handset does not work in Swisscom Mobile's network system environment due to
a failure at the fault of Supplier which was not detected by Swisscom Mobile
because the respective tests could not be done due to technology limitations,
the following regulation shall apply in the following order:

     

    
      	
               
      

            	
              1.

            	
              Supplier
      shall give all the needed support at no additional costs to get a
      solution;

            


    

     

    and if in
the opinion of Supplier no solution can be found in an appropriate
time:

     

    
      	
               
      

            	
              2.

            	
              Swisscom
      Mobile may revoke made and undelivered Orders for the particular Product
      type without any further obligations and
  liabilities;

            


    

     

    
      	
               
      

            	
              3.

            	
              Swisscom
      Mobile may send back unsold Products of the particular Product type and
      claim the paid price of the product and the costs of
    shipment;

            


    

    
      


       

      
        	
                15.3

              	
                Epidemic
      Failure

              


      

    

    
      

    

    If an
Epidemic Failure should arise, the following regulations shall
apply:

     

    
      	
               
      

            	
              1.

            	
              Supplier
      commits to perform all the needed support to correct the
      failure

            


    

     

    and if in
the opinion of Supplier no solution can be found in an appropriate
time:

     

    
      	
               
      

            	
              2.

            	
              Swisscom
      Mobile may revoke already made and undelivered Orders without any further
      obligations and liabilities;

            


    

     

    
      	
               
      

            	
              3.

            	
              Swisscom
      Mobile may send back unsold Products at Supplier’s
  expense;

            


    

     

    
      	
               
      

            	
              4.

            	
              Supplier
      shall be responsible for all costs directly arising from the Epidemic
      Failure, including the cost to correct the failure, replace the defective
      Handsets with new Handsets and shipping
costs.

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page:  18

              


      

    

     

    
      
        
          	
                  15.4

                	
                  Liability

                


        

        
          

        

      

    

    Liability
in case of a defect of a Product

     

    If any
damage arises as a result of a defect, Supplier shall pay compensation except to
the extent it proves that no fault is attributable to it. Supplier shall be
liable for any fault, i.e. intent and all degrees of negligence. Liability shall
not exceed [***] which has actually arisen. Liability for personal injury shall
be unlimited. Liability for damage to property shall be limited to [***] of the
total remuneration of all purchase orders per calendar year; should the
remuneration amount to less than [***], liability shall be limited to [***] per
case and / or year. Liability for purely pecuniary damage shall be limited to
[***] of the total remuneration of all purchase orders per calendar year; should
the remuneration amount to less than [***], liability shall be limited to [***]
per case and / or year.


     

    Liability
for other breaches of the Frame Agreement

     

    Each
Party shall be liable for other breaches of the Frame Agreement and the
Commercial Agreements (e.g. breach of confidentiality, violation of the
obligation to inform the other Party, violation of first call exclusivity,
violation of general obligations of loyalty and due diligence), except to the
extent the Party proves that no fault is attributable to it. The Parties shall
be liable for any fault, i.e. intent and all degrees of negligence. Liability
shall not exceed the amount of damages, which have actually arisen. Liability
shall be limited to [***] of the remuneration of all purchase orders per
calendar year; should the remuneration amount to less than [***], liability
shall be limited to [***] per case and / or year. The compensation for damages
caused by a violation of intellectual property rights and breach of first call
exclusivity shall not be limited.

     

    Liability
for Default

     

    Each
Party shall be liable for any damages arising from failure to meet deadlines or
due dates (default), except to the extent it proves that no fault is
attributable to it. The Parties shall be liable for any fault, i.e. intent and
all degrees of negligence. Liability shall not exceed the amount of damages,
which have actually arisen. The liability for default shall be limited to [***]
of the total remuneration of all purchase orders per calendar year; should the
remuneration amount to less than [***], liability shall be limited to [***] per
case and / or year.

     

    Each
Party shall not be liable for loss of goodwill and loss of anticipated
savings.

     

    No
further liability:  Any liability other than as provided in this
Section 15.4 shall be excluded.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

      
        
          	 
      	
                  Frame
      Agreement

                  Supplier

                
	 
      	
                  Page:  19

                


        

      

    

     

    
      
        	
                15.5

              	
                Force
      Majeure

              


      

      
        

      

    

    Either
Party shall be excused from the performance or punctual performance of any of
its obligations under this Frame Agreement in case the performance thereof is
prevented or delayed by industrial disputes or any cause beyond the affected
Party’s reasonable control which, without in any way limiting the generality of
the foregoing, shall include acts of God, riots, wars, accidents, embargos or
requisitions (acts of government), or delays in the performance of its
subcontractors only if caused by any such circumstances as referred to in this
Clause 14.5 Force Majeure. Such obligations shall be extended for a reasonable
period.

     

    In case
of Force Majeure, the affected Party shall promptly notify the other Party in
writing and furnish all relevant information thereto.

     

    
      
        	
                16

              	
                Intangibles

              


      

    

    
      
        
 

      
        	
                16.1

              	
                Software

              


      

      
        

      

    

    The
software in the Product(s) may only be used as an integrated part of the
Products in selling, marketing and distributing the Products and only in
accordance with and for the purpose of this Agreement. Swisscom Mobile is not
entitled to distribute, sublicense, copy or otherwise use the software as a
standalone product or in any way except as expressly permitted by Supplier in
writing.

     

    Supplier
or any third party, as applicable, shall retain the intellectual property rights
for the software.  SUPPLIER reserves any and all rights not expressly
granted to Swiscom Mobile hereunder.

     

    Where
third party rights are involved, Supplier represents that it owns
the  necessary rights to enable Swisscom Mobile to market and sell the
Products

     

    Swisscom
Mobile shall be granted all rights necessary for the sale and distribution of
the software with the Product (under this agreement), including the right of
sublicensing to the End User as applicable.In addition to the restrictions set
forth above, Swisscom Mobile shall not be entitled to, in particular, copy,
reproduce, modify, reverse engineer, disassemble, decompile, otherwise attempt
to derive source codes from the object of the software nor to damage any
software or make such software available to third parties.

     

    
      
        	
                16.2

              	
                Intellectual
      Property Rights

              


      

    

    
      

    

     

    Supplier
or any third party, as applicable, shall retain the intellectual property rights
for the software.  Supplier reserves any and all rights not expressly
granted to Swisscom Mobile hereunder.

     

    Supplier
shall contest at its own cost and risk any third party claims arising from
infringements of intellectual property rights and shall hold Swisscom Mobile
harmless of all costs and damages awarded against either or both of them. To
qualify for such defense and payment of damages, Swisscom Mobile must: (i) give
Supplier prompt written notice of such claim; and (ii) allow Supplier to
control, and cooperate with IXI in, the defense, settlement, and all related
negotiations.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page:  20

              


      

    

     

    Supplier
will not be obligated to defend nor shall it be liable for any costs and damages
hereunder:

     

    
      	
               
      

            	
              a)

            	
              if
      the infringement arises out of modifications of the Products (including
      software), if made -  without prior written consent of Supplier
      - by Swisscom Mobile or any third party other than Supplier (other than a
      subcontractor of Supplier), or

            


    

     

    
      	
               
      

            	
              b)

            	
              if
      the infringement arises out of modifications of the Products (including
      software) if made by Supplier pursuant to the directions of Swisscom
      Mobile, except for cases where, and only to the extent, the infringement
      concerns intellectual property rights protected by license or other
      contracts between Supplier and such 3rd
      party claiming infringement or

            


    

     

    
      	
               
      

            	
              c)

            	
              if
      the infringement arises out of modifications of the products including
      software made by Supplier in order to comply with Swisscom Mobile's
      specifications, except for cases where, and only to the extent, the
      infringement concerns intellectual property rights protected by license or
      other contracts between Supplier and such 3rd
      party claiming infringement, or

            


    

     

    
      	
               
      

            	
              d)

            	
              if
      the infringement arises out of modifications or a combination with or an
      addition to software or hardware developed or supplied by Swisscom Mobile
      or with the consent of Swisscom Mobile by a third party (other than a
      subcontractor of Supplier), or,

            


    

     

    
      	
               
      

            	
              e)

            	
              if
      the infringement arises out of the manufacturing of Products pursuant to
      Swisscom Mobile’s specifications and/or requirements, except for cases
      where, and only to the extent, the infringement concerns intellectual
      property rights protected by license or other contracts between Supplier
      and such 3rd
      party claiming infringement, or

            


    

     

    
      	
               
      

            	
              f)

            	
              if
      Swisscom Mobile does not comply with the terms of this agreement regarding
      protection of intellectual property
rights.

            


    

     

    If the
Product is likely to, or does, become the subject of a claim
of  infringement, Supplier will at its option and expense either
procure for Swisscom Mobile the right to continue selling the Product or modify
the Product to make it non-infringing or replace it with substantially similar
non-infringing Product, which will come under this same Agreement. Supplier
shall have no liability, and its indemnification obligations hereunder shall
cease, if Swisscom Mobile does not replace the infringing Product so modified or
replaced by Supplier as per Supplier’s instructions.  Supplier will
use commercially reasonable efforts to effectuate one of these options, however,
if none of the foregoing alternatives is available to Supplier, then Supplier
will refund the full purchase price paid to Supplier for those infringing
Products returned to Supplier and Swisscom Mobile may terminate this Agreement
at its sole discretion.

    


    Section
15.4 and the foregoing provisions state the entire liability of Supplier with
respect to infringement of any intellectual property rights by the products or
documentation or any parts thereof and is in lieu of all warranties or
conditions, express or implied.

     

    Swisscom
agrees to defend, indemnify and hold Supplier harmless from and against any and
all claims and damages that Supplier may at any time suffer, or incur, or become
subject to as a result of or arising from acts of Swisscom, its employees,
distributors or agents except for such acts undertaken due to instructions of
Supplier. To qualify for such defence and payment of damages, Supplier must: (i)
give Swisscom Mobile prompt written notice of such claim; and (ii) allow
Swisscom Mobile to control, and cooperate with Swisscom Mobile in, the defence,
settlement, and all related negotiations. Swisscom Mobile will not be obligated
to defend nor shall it be liable for any costs and damages hereunder if these
conditions are not fulfilled. Section 15.4 and the foregoing provision state the
entire liability of Swisscom Mobile with respect to infringement of any
intellectual property rights by Swisscom Mobile and is in lieu of all warranties
or conditions, express or implied.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
       

      
        
          	 
      	
                  Frame
      Agreement

                  Supplier

                
	 
      	
                  Page:  21

                


        

      

    

     

    
      
        	
                16.3

              	
                Trademark
      and Marking

              


      

      
        

      

    

    Swisscom
Mobile may use the trademark for the Products of Supplier only in connection
with (re-) selling and advertising purposes in the Territory. Swisscom Mobile
complies with the fact, that each use of the trademark shall serve the benefit
of Supplier. If the trademark of Supplier is used, e.g. for copies or for
illustration on packages, for advertising material or for other media, Swisscom
Mobile shall apply the terms regulating the rights of the use of the trademark,
actually provided by Supplier regarding the extent, design, positioning,
colouring and other prescriptions of appearance of the trademark. Furthermore
every additional use of the trademark of Supplier needs  the prior
written approval of Supplier.

     

    Supplier
is not authorised to use the trademarks and marking of Swisscom Mobile in any
case without the written consent of Swisscom Mobile such consent not to be
unreasonably withheld.

     

    
      
        	
                17

              	
                Confidentiality

              


      

      
        
 

    

    Swisscom
Mobile and Supplier have entered into that certain Mutual Nondisclosure
Agreement dated December __, 2004  between Swisscom Mobile and
Supplier, (the “Nondisclosure Agreement”) incorporated herein by this reference.
Supplier and Swisscom Mobile hereby ratify and confirm their continuing duties,
rights and remedies under the Nondisclosure Agreement which shall continue
through the term of this Frame Agreement.

     

    
      
        	
                18

              	
                Frame
      Agreement Specifications

              


      

      
        
 

    

    
      
        	
                18.1

              	
                Terms
      and Termination of the Frame
Agreement

              


      

      
        

      

    

    This
Frame Agreement shall come into effect when signed by both Parties and shall be
valid as of the time of conclusion of the Frame Agreement without a time
specified of limitation and termination. Each Party is authorised to terminate
as a whole this Frame Agreement with all the Commercial Agreements together by
the end of a calendar month by giving a [***] notice in writing to the other
Party. Any provisions of the Frame Agreement and the Commercial Agreements that
impose continuing obligations on the Parties shall survive the
termination.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page: 22

              


      

    

     

    
      
        	
                18.2

              	
                Amendments
      to the Frame Agreement

              


      

      
        

      

    

    Supplements
and amendments to this Frame Agreement, its elements and the Commercial
Agreements shall only be valid, if agreed to in writing by both Parties. This
also shall apply for the waiver of this provision.

     

    
      
        	
                18.3

              	
                Severability
      Clause

              


      

      
        

      

    

    If any
provision in the Frame Agreement or the Commercial Agreements is incomplete or
legally invalid or not executable for legal reasons, the other provisions shall
remain in full force and effect. In such cases the Parties shall agree to
replace any void or invalid provisions by legally valid provisions, which are as
equivalent as possible to the original provisions in terms of
economy.

     

    
      
        	
                18.4

              	
                Assignment
      of this Frame Agreement

              


      

    

    
      

    

     

    Either
Party consents to the assignment of this Frame agreement by the other Party to a
third party upon a merger, acquisition, purchase of stock, sale of substantially
all assets or similar change in control transaction of other Party.

    
       

      
        	
                19

              	
                Applicable
      Law and Jurisdiction

              


      

      
        

      

    

    This
Frame Agreement and the Commercial Agreements are governed by the internal
substantive laws of Switzerland to the exclusion of the Vienna Convention on the
International Sale of Goods and any conflict of laws principles.

     

    The place
of jurisdiction shall be Berne.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 
      	
                Frame
      Agreement

                Supplier

              
	 
      	
                Page: 23

              


      

    

     

    
      
        
          	
                  20

                	
                  Execution

                


        

      

      
        

      

    

    This
Frame Agreement document shall be executed in two copies. Each Party shall
receive one signed copy.

    


     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    	
                                            Signatures
      of the Parties

                                          
	 	 	 	 
	
                                            For
      Supplier:

                                          	 
      	 
      	 
      
	
                                            
                                               

                                              )

                                            

                                          	 
      	 
      
	
                                            Signature
      and company stamp (Please write

                                            the
      name of the person signing in CAPITALS)

                                          	 
      	 
      
	 	 	 	 	 
	
                                            Place
      and date:

                                          	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                                            For
      Swisscom Mobile AG:

                                          	 
      	 
      	 
      
	 	 	 	 
	 	 	 	 
	
                                            Carsten
      Schloter

                                          	 
      	
                                            Christian
      Petit

                                          	 
      
	
                                            Chief
      Executive Officer

                                          	 
      	
                                            Head
      of Product Marketing

                                          	 
      
	 	 	 	 
	 	 	 	 
	
                                            Place
      and date:

                                          	 
      	 
      	
                                            Felix
      Kamer

                                            Head
      of
.......