EXECUTION
VERSION

     

     SERVICE
AGREEMENT

     

    This
Service Agreement (this “Agreement”),
effective as of December 16, 2010 (the “Effective Date”), is
by and between deltathree, Inc., a Delaware corporation (“deltathree”), and ACN
Korea, Inc., a Korea corporation (“ACN Korea”; ACN Korea
and deltathree may each be referred to herein as a “Party” and
collectively as the “Parties”).

     

    Recitals:

     

    WHEREAS,
deltathree is a provider of integrated video and voice-over-Internet-Protocol
(“VoIP”)
telephony services (the “Service”);
and

     

    WHEREAS,
ACN Korea sells videophones and VoIP telephones (together, the “Phones”) to its
subscribers through its independent sales representatives (the “Sales
Representatives”); and

     

    WHEREAS,
ACN Korea wishes to engage deltathree to provide the Service for the Phones, and
deltathree so wishes to provide the Service for the Phones; and

     

    WHEREAS,
the Parties wish to enter into this Agreement to provide the terms and
conditions pursuant to which deltathree shall provide to ACN Korea, and ACN
Korea shall purchase from deltathree, the Service;

     

    NOW,
THEREFORE, in consideration of the foregoing recitals and the conditions set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:

     

    1.      Scope of
Agreement. Subject to the terms and conditions of this Agreement,
deltathree shall provide, and ACN Korea shall purchase, the Service, on a
non-exclusive basis, as described and in conformance with the Statement of Work
attached as Appendix
A hereto and incorporated herein and as the same may be amended from time
to time upon the express written agreement of the Parties (the “Statement of Work”)
for such consideration as set forth therein.

     

    2.      Definitions.
As used in this Agreement and the Appendixes hereto, the following words and
phrases shall have the following meanings:

     

    “Affiliate” means,
with respect to either Party, any other person, entity or enterprise that,
directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with such person, entity or
enterprise, but excludes the other Party.

     

    “Claim” means any
claims, actions, suits, demands, debts, complaints, sums of money, reckonings,
covenants, contracts (whether oral or written, express or implied from any
source), agreements, warranties, controversies, promises, judgments, extents,
executions, variances, trespasses, liabilities or obligations of any kind
whatsoever, in Law or equity, and causes of action of every kind and nature, or
otherwise (including claims for damages, costs, expenses, and attorneys’,
brokers’ and accountants’ fees and expenses) asserted, commenced or threatened
against a Party or any of its Representatives.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    “Confidential
Information” shall have the meaning set forth in the Mutual Nondisclosure
Agreement dated as of September 2, 2010, by and between deltathree and ACN, Inc.
(“ACN”), the sole shareholder of ACN Korea on behalf of ACN and its subsidiaries
(the “Nondisclosure
Agreement”).

     

    “Control” (including
the correlative terms “Controls”,
“Controlled
by”, and “under
common Control
with”) means, with respect to any person, entity or enterprise, the
power, directly or indirectly, either to (i) vote a majority of the voting
shares or other voting interests in such person, entity or enterprise for the
election of directors or other governing body of such person, entity or
enterprise or (ii) direct or cause the direction of the management and policies
of such person, entity or enterprise, whether through the ownership of voting
securities, by contract or otherwise.

     

    “Documentation” means
any standard operation instructions, technical manuals, user manuals,
system-administrator manuals, training materials, installation instructions,
installation software (if applicable), specifications and all other written
materials in hard copy or electronic format, that are provided by deltathree to
ACN Korea and that describe the functionality and proper installation and use of
the Solution.

     

     “Governmental
Authority” means any domestic or foreign government, governmental
authority, court, tribunal, agency or other regulatory, administrative or
judicial agency, commission or organization, and any subdivision, branch or
department of any of the foregoing.

     

     “Launch Date” means
the date that ACN Korea first makes the Solution commercially available to its
Subscribers.

     

    “Law” means any law,
statute, ordinance, rule, code, judgment, decree, order, ruling, subpoena or
verdict, regulation and any other binding requirement or determination of any
Governmental Authority.

     

    “Liability” means all
liabilities, losses, injuries and damages, and all related expenses, costs and
fees (including reasonable legal fees).

     

    “Marks” means the
Parties’ respective trade names, trademarks, service names, service marks and
logos.

     

    “Material Default”
means the material failure by either Party to comply with one or more of the
following sections of this Agreement: Section 6 (Representations and
Warranties), Section 7 (Compliance with Laws), Section 8 (Invoicing and
Payments), Section 10 (Branding; Licenses), Section 11 (Indemnification),
Section 14 (Confidentiality) and Section 17 (No Solicitation)).

     

    “Representative”
means, with respect to either Party, such Party’s Affiliates and its and their
officers, directors, majority stockholders, members, partners, employees,
partners, attorneys, accountants, consultants, contractors, agents, financial
and other advisors, heirs, successors and assigns.


    
      
         


      

      
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    “Solution” means
deltathree’s proprietary Service that will enable ACN Korea to deploy a video
and VoIP service to its Subscribers.

     

    “Subscriber” means any
customer of ACN Korea who subscribes to the Solution.

     

     “Subscriber Personal
Data” means any information supplied by ACN Korea or a Subscriber that
identifies or describes a particular Subscriber.

     

    “Taxes” means any
taxes, fees, levies, imposts, duties, surcharges or withholdings of any nature
imposed by any Governmental Authority or third party.

     

    3.      Term.
The initial term of this Agreement (the “Initial Term”) shall
commence on the Effective Date and shall continue for a period of two (2) years
from the Launch Date unless terminated earlier in accordance with Section 4.
Following the expiration of the Initial Term, this Agreement shall automatically
for successive terms of one (1) year each unless either Party provides the other
Party written notice of termination at least ninety (90) days prior to the
expiration of the then-current term.  References in this Agreement to
the “Term”
shall include the Initial Term and any extensions thereof.

     

    4.      Termination.  This
Agreement and the Statement of Work may be terminated by either Party as
follows:

     

    a.      If
a Party commits a Material Default under this Agreement or the Statement of Work
and (if such breach is capable of being cured) fails to cure the same within
thirty (30) days after written notice thereof, then, in addition to all other
rights and remedies, the non-defaulting Party may, without incurring any
Liability, immediately terminate this Agreement for cause without further notice
or action.

     

    b.      Without
limiting the generality of the foregoing, either Party may, without incurring
any Liability to the other Party, terminate the Agreement or Statement of Work
by written notice to the other Party upon (i) the other Party’s failure to pay
any amounts past due under the Agreement or Statement of Work within ten (10)
days after written notice thereof, or (ii) the other Party makes an assignment
for the benefit of creditors; admits in writing its inability to pay debts as
they mature; a trustee or receiver of the other Party, or of any substantial
part of its assets, is appointed by any court; or a proceeding is instituted
against the other Party under any provision of the United States Bankruptcy Code
or any other law affecting the rights of creditors, or (iii) the terminating
Party deems the continued provision of the Service to be contrary to, impaired
by, or made substantially impractical by, any Law.

     

    5.      Effect of
Termination.

     

    a.      Liabilities and
Expenses.  Neither the expiration nor termination of this
Agreement shall excuse either Party from any Liabilities or other obligations,
including any applicable fees and expenses, incurred prior to the effective date
of such expiration or termination, and all such Liabilities shall be due and
payable in the manner and within the time periods established by this
Agreement.


    
      
         


      

      
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    b.      End of
Term.  Upon the expiration or termination of this Agreement,
all licenses granted hereunder will automatically terminate and deltathree will
discontinue the provision of Service.  In addition, each Party will
return or destroy all equipment, Confidential Information and tangible and
intangible forms of the other Party’s intellectual or proprietary property then
currently in such Party’s possession and control provided to such Party by the
other Party and provide a written certification thereof.

     

    c.      Survival of
Obligations. Obligations and rights in connection with this Agreement and
the Statement of Work, which by their nature would continue beyond the
termination or expiration of this Agreement (including but not limited to those
in the Sections and subsections entitled “Termination”, “Effect of Termination”,
“Compliance with Laws”, “Invoicing and Payments”, “Indemnification”, “Limitation
of Liability”, “Confidentiality”, “No Warranties”,  “No Solicitation”
and “General”) will survive the termination or expiration of this
Agreement.

     

    6.      Representations
and Warranties.

     

    a.      Each
Party represents and warrants to the other Party that:

     

    (i)          it
is validly existing and in good standing under the laws of the jurisdiction of
its incorporation;

     

    (ii)        it
has the full right, power and authority to execute, deliver and perform its
obligations under this Agreement;

     

    (iii)        its
execution of and performance under this Agreement and any Statement of Work does
not and will not violate any applicable existing regulations, rules, statutes or
court orders of any local, state or national government agency, court or body of
any country or any contract or other agreement to which it is
subject;

     

    (iv)        its
execution and performance under this Agreement and any Statement of Work does
not and will not violate or cause a conflict with or default under any other
binding contract, agreement or understanding to which it is
subject;

     

    (v)         when
executed and delivered by it and by the other Party, this Agreement will
constitute the legal, valid and binding obligation of it, enforceable against it
in accordance with its terms, subject to applicable bankruptcy and other laws
that affect the rights of creditors generally;

     

    (vi)        it
has obtained, or will obtain, all necessary consents, approvals, permits,
certificates and licenses required from any entity, including any Governmental
Authority, with respect to the entering into or the performance of this
Agreement and, in the case of ACN Korea, providing the Service to Subscribers
located in Korea;

     

    (vii)       to
the best of its knowledge, there are no third party Claims that will prevent it
from fulfilling its obligations under this Agreement; and


    
      
         


      

      
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    (viii)      (a)
it will not directly or indirectly use any Confidential Information of the other
Party to engage in or facilitate the trading of any securities, in either case,
in violation of any prevailing laws and regulations in any applicable
jurisdiction, and (b) it is aware that applicable securities laws prohibit any
person who has material, non-public information concerning the other Party or
its Representatives from purchasing or selling any securities of the other Party
or its Representatives, or from communicating such information to any other
person or entity under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities.

     

    b.      deltathree
represents and warrants to ACN Korea that any Service provided hereunder will be
performed in a professional and reasonable manner and, subject to the quality
and reliability of the Subscribers’ underlying Internet service, in accordance
with then-current consumer VoIP service provider industry
standards.

     

    7.      Compliance
with Laws. Each Party shall comply with all applicable Laws in connection
with the exercise of its rights and performance of its obligations under this
Agreement.

     

    8.      Invoicing
and Payments. deltathree will invoice ACN Korea on a monthly basis in
U.S. dollars for all amounts due hereunder.  All payments hereunder
shall be paid by ACN Korea in U.S. dollars. ACN Korea shall pay deltathree those
fees and expenses set forth on such invoice in full via wire transfer directly
to a bank account or accounts designated by deltathree or in such other manner
mutually agreed upon by the parties within thirty (30) days of the date of the
invoice (the “Due
Date”).  Any payments not received by the Due Date will bear
interest at a rate of one and one-half percent (1-1⁄2%) per month (or the pro-rata
portion thereof) or the maximum rate permitted by law, whichever is less, until
paid in full, except where ACN Korea has withheld payment of a charge set forth
on an invoice, in which case ACN Korea shall (i) provide deltathree written
notice that such charge is the subject of a bona fide dispute (which such notice
shall set forth the disputed charge and the reasons (in reasonable detail) why
ACN Korea disputes such charge) within thirty (30) days of receipt of the
invoice containing such charge and (ii) remit amounts equal to the undisputed
charges set forth on such invoice.  deltathree and ACN Korea will
attempt to resolve such dispute in good faith within thirty (30) days of
deltathree’s receipt of such written notice. In the event of a dispute no late
payment interest shall be assessed against ACN Korea unless the dispute is
resolved in favor of deltathree. ACN Korea shall reimburse deltathree for all
reasonable out-of-pocket costs (including reasonable attorneys’ fees) incurred
by deltathree in the collection of any unpaid invoices.

     

    9.      Taxes and
Applicable Fees; Commissions to Sales Representatives.

     

    a.      The
prices and expenses set forth in this Agreement and the Statement of Work do not
include any Taxes imposed on deltathree by any Governmental Authority or third
party in connection with deltathree providing the Service to ACN Korea. All
payments required to be made by ACN Korea to deltathree under this Agreement
shall be made without any deduction or withholding for or on account of any
Taxes of any nature imposed by any Governmental Authority on any payment due
hereunder.  Each party is liable for the payment of any Taxes and/or
duties imposed on such party in connection with the Services provided under this
Agreement.


    
      
         


      

      
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    b.      If
either Party is audited by a taxing authority or other governmental entity, the
other Party agrees to reasonably cooperate with the Party being audited, at the
audited party’s reasonable expense, in order to respond to any audit inquiries
in an appropriate and timely manner, so that the audit and any resulting
controversy may be resolved expeditiously.

     

    c.      ACN
Korea shall be solely responsible for remitting to the applicable Governmental
Authorities all Taxes required by the applicable Governmental Authorities in
connection with ACN Korea’s offering of the Solution to the Subscribers,
including but not limited to the remitting of any emergency service
fees.

     

    d.      ACN
Korea shall be solely responsible for remitting to the Sales Representatives any
commissions due to such Sales Representatives in connection with the
Subscribers, and no such amounts shall be deducted or withheld from the amounts
due to deltathree from ACN Korea hereunder.

     

    10.    Branding;
Licenses.

     

    a.      deltathree
shall brand for ACN Korea all Service and all communications with Subscribers as
“ACN Korea” (or as otherwise directed by ACN Korea), and may otherwise use ACN
Korea’s logos or trademarks solely as is reasonably necessary to perform its
obligations hereunder.

     

    b.      Except
as expressly provided in this Agreement, no licenses, expressed or implied,
under any patents, copyrights, Marks or other intellectual property rights are
granted by either Party to the other Party under this Agreement and nothing
contained herein shall be construed as conferring to either Party by
implication, estoppel, or otherwise, any ownership, title, right, or other
interest in any patent, copyright, Mark or other proprietary right of the other
Party, except for the license to use the Marks as expressly granted
herein.

     

    c.      Each
Party hereby grants to the other Party a non-exclusive, non-transferable,
non-sublicensable, fully-paid license to use the granting Party’s Marks as is
reasonably necessary to perform its obligations under this Agreement, including
from time to time during the Term ACN Korea’s use of the deltathree mark to
advertise the availability of Service purchased from deltathree. Prior to any use of the
other Party's Marks, each Party shall submit a sample of such proposed use to
the other Party’s designated representative for its prior written approval, and
the submitting Party shall not use the other Party’s Marks without such prior
written approval.  Each Party will comply with the other Party’s
instructions as to the form or use of the other Party’s Marks and will avoid any
action that diminishes the value of such Marks, including modifying, altering or
obfuscating the other Party’s Marks.  Each Party’s unauthorized use of
the other Party’s Marks is strictly prohibited.  Each Party may update
or change its Marks usable by the other Party hereunder at any time by written
notice.


    
      
         


      

      
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    d.      Each
Party agrees that it will not dispute the other Party's title to its own
Marks.  Each Party agrees that it will not register or attempt to
register any of the other Party’s Marks or any Marks that the other Party
reasonably deems to be confusingly similar to any of its Marks.

     

    11.    Indemnification.

     

    a.      Each
Party shall defend, indemnify and hold harmless the other Party and its
Representatives against any and all Claims and all Liabilities arising from (i)
the indemnifying Party’s negligence or willful acts or omissions or (ii) the
breach by the indemnifying Party of its representations and warranties under the
Agreement.  ACN Korea shall defend, indemnify and hold harmless
deltathree and its Representatives against any and all Claims and all
Liabilities arising from or related to its Sales Representatives (including any
Claims that any Sales Representative is entitled to additional commissions in
connection with the Subscribers).

     

    b.      deltathree
shall indemnify and hold harmless ACN Korea against any Claims and Liabilities
relating to a third party claim that any Software infringes a patent, or any
copyright or trade secret, of such third party.  If any Software
becomes or is likely to become the subject of any injunction preventing its use
as contemplated herein, deltathree may, at its option (1) obtain for ACN Korea
the right to continue using such Software or (2) upon Licensee’s prior written
approval (such approval not be unreasonably delayed or withheld), replace or
modify such Software so that becomes non-infringing without substantially
compromising its principal functions.  If (1) and (2) are not
reasonably available to deltathree, then it may (3) terminate this Agreement
upon written notice to ACN Korea.

     

    c.      The
indemnified Party shall promptly notify the indemnifying Party in writing of any
claim for which the indemnifying Party is responsible under this Section 11,
provided that the failure or delay in notifying the indemnifying Party of such
Claim will not relieve the indemnifying Party of any Liability it may have to
the indemnified Party, except and only to the extent that such failure or delay
causes prejudice to the indemnifying Party with respect to such Claim. The
indemnifying Party shall assume, at its sole expense, the sole defense of the
Claim through counsel selected by the indemnifying Party and shall keep the
indemnified Party fully informed as to the progress of such defense, provided
that the indemnifying Party will not be entitled to assume the defense of any
Claim and the indemnified Party shall be free to conduct the defense of any
Claim if (i) such Claim seeks, in addition to or in lieu of monetary damages,
any injunctive or other equitable relief, or (ii) the indemnified Party
reasonably determines that there is a conflict between the positions of the
indemnifying Party and the indemnified Party in conducting the defense of such
Claim or that there are legal defenses available to such indemnified Party
different from or in addition to those available to the indemnifying
Party.  The indemnified Party shall cooperate in the defense of the
Claim, and at its option and expense the indemnified Party may retain or use
separate counsel to represent it provided that the indemnifying Party shall
maintain control of the defense.


    
      
         


      

      
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    12.    Limitation
of Liability.

     

    a.      Neither
Party will be liable for indirect, consequential, incidental, special or
punitive damages, or for loss of revenue or profit in connection with the
performance or failure to perform this Agreement, regardless of whether such
Liability arises from breach of contract, tort or any other theory, even if such
Party has been advised of the possibility of such damages, and all such damages
are hereby expressly disclaimed.

     

    b.      Except
as specifically provided herein or due to a Party’s gross negligence or willful
misconduct, the aggregate Liability of a Party to the other Party for all claims
arising out of its indemnification obligations or otherwise in connection with
this Agreement, regardless of whether such liability arises from breach of
contract, tort or any other theory, shall not exceed the total amounts paid by
ACN Korea to deltathree under this Agreement in respect of the one (1) year
period immediately preceding the date of an event giving rise to Liability,
except that a Party’s Liability shall be unlimited with respect to its
indemnification obligation arising under Section 11 above.

     

    c.      The
limitations in this Section 12 apply even if the other Party has been advised of
the possibility of such damages and notwithstanding the failure of the essential
purpose of any limited remedy.

     

    d.      No
Claim by either Party hereto for damages with respect to this Agreement or the
Statement of Work may be made more than two (2) years after the date that the
event giving rise to such claim is known or reasonably should have been known to
have occurred.

     

    
      13.    Records
and Audits. deltathree agrees that it will:

    

     

    a.      Maintain
complete and accurate records related to the Service provided by deltathree to
ACN Korea, including records of all amounts billable to and payments made by ACN
Korea in accordance with generally accepted accounting principles in the United
States, uniformly and consistently applied in a format that will permit
audit;

     

    b.      Retain
such records and reasonable billing detail for a period of at least five (5)
years; and

     

    c.      Permit
ACN Korea, at its sole expense, upon reasonable prior written notice to
deltathree, to audit during normal business hours the amounts invoiced to ACN
Korea relating to the Service, such audit to occur no more frequently than two
times per fiscal year (provided that deltathree shall have the right to exclude
from such inspection any information that is confidential or proprietary to a
third party).


    
      
         


      

      
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    14.    Confidentiality. Any Confidential
Information disclosed to one Party by the other Party in connection with this
Agreement or to which the receiving Party receives as a result of or in
connection with this Agreement shall remain the sole property of the disclosing
Party and shall be subject to the terms and conditions set forth in the
Nondisclosure Agreement, which each of the Parties acknowledges to be in full
force and effect and which is hereby incorporated herein, and which shall govern
the disclosure and use of Confidential Information of a Party
hereunder.

     

    15.    Ownership
of Subscriber.

     

    a.      Status of
Subscribers. The Parties acknowledge
that the Subscribers are customers of ACN Korea and not of deltathree, that
deltathree is
providing the Service under this Agreement and the Statement of Work solely to ACN Korea
and that deltathree shall not be deemed to have any contractual relationship
with, or obligation towards, any Subscribers or Sales Representatives under this Agreement and Statement of Work.

     

    b.      Subscriber Personal
Data. All Subscriber Personal Data shall remain the sole
property of ACN Korea, free and clear of any claim by
deltathree.

     

    16.    No
Warranties. The Service is provided “as is” and deltathree makes no
representation or warranty, either express or implied, with respect to the
Service, including as to the quality, suitability, legality or validity of the
Service, or as to the merchantability or fitness for a particular purpose, or as
to the non-infringement of the technology incorporated in the deltathree
network, of any patent or other intellectual property rights of any third
party.  deltathree does not warrant that the Service is completely
error-free or will operate without packet loss or interruption.

     

    17.    No
Solicitation. During the Term and for
a period of twelve (12) months thereafter, neither Party will, directly or
indirectly, solicit to employ or hire any employee of the other party, without
the prior written consent of the other Party.  The term “solicit to
employ” shall not be deemed to include generalized searches or hiring by either
Party for employees through media advertisements, employment firms or otherwise.
The Parties acknowledge that the restrictions contained in this Section 17 are
reasonable and necessary to protect the legitimate interests of the Parties and
constitute a material inducement to the Parties to enter into this Agreement and
consummate the transactions contemplated hereby and that any violation of this
Section 17 will result in irreparable injury to the non-breaching Party and
agree that the non-breaching Party shall be entitled to injunctive relief in
addition to any other rights or remedies to which the non-breaching Party may be
entitled.

     

    18.    Non-Exclusive.
Nothing in this Agreement or the Statement of Work will be deemed to restrict
(i) ACN Korea’s right to purchase the Service from third parties or enter into a
similar agreement with any third party or (ii) deltathree’s right to provide the
Service to third parties or enter into a similar agreement with any third
party.


    
      
         


      

      
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      19.    General.

    

     

    a.      Notices.  All
notices to either party required or permitted hereunder shall be in writing and
shall be sent to the mailing address or facsimile number set forth for such
party as follows:

     

    (i)           If
to ACN Korea, to:

     

    Grace
Tower

    648-19
Yeoksam-Dong

    Kangnam-Ku,
Seoul

    Republic
of Korea

    Attn:  General
Manager, ACN Korea

    Fax:   704-260-3304

     

    With a
copy to:

     

    ACN,
Inc.

    1000
Progress Place

    Concord,
North Carolina 28025

    Attn: EVP
Global General Counsel

     

    (ii)           If
to deltathree, to:

     

    deltathree,
Inc.

    224 West
35th
Street

    New York,
N.Y. 10001

    Attn:  Chief
Executive Officer

    Fax:  
(212) 500-4888

    


    With a
copy (which shall not constitute notice) to:

    


    General
Counsel

    Fax:  (212)
500-4888

    


    Any such
notice shall be deemed effectively given (i) upon personal delivery to the Party
to be notified; (ii) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next business day; or (iv)
two days after deposit with an recognized international overnight courier,
specifying two day delivery with written verification of
receipt.


    
      
         


      

      
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    b.      Independent
Contractors. This is an agreement between separate legal entities and
neither Party shall be deemed to be the agent or employee of the other Party for
any purpose whatsoever.  The Parties do not intend to create a
partnership or joint venture between themselves pursuant to this
Agreement.  Neither Party shall have the right to bind the other to
any agreement with any third party or to create or incur any obligation or
liability on behalf of the other Party.

     

    c.      No Third Party
Beneficiaries. The Parties intend that this Agreement shall not benefit
or create any right or cause of action in, or on behalf of, any person or
entity, other than the Parties to this Agreement and no person or entity, other
than the Parties to this Agreement, shall be entitled to rely on the provisions
of this Agreement in any action, suit, proceeding, hearing or other
forum.

     

    d.      Force Majeure.
Neither party shall be liable to the other for its failure to perform any of its
obligations under this Agreement during any period in which such performance is
delayed or rendered impracticable or impossible due to circumstances beyond its
reasonable control, provided that the party experiencing the delay promptly
notifies the other of the delay.  Such causes shall include, without
limitation, strikes, lockouts, labor disputes or shortages, threat of imminent
war or other acts of war, threats of imminent terror or acts of terror, acts or
failures to act of any governmental or regulatory body, governmental regulations
superimposed after the fact, power failures, utility curtailments, fires,
explosions, floods, accidents, earthquakes or other natural or man-made
disasters, civil disturbances, acts or omissions of third parties or any other
cause beyond either party’s reasonable control (each, a “Force Majeure
Event”). Dates or times by which either party is required to perform its
duties under this Agreement or the Statement of Work shall be reasonably
extended to the extent that either party is prevented from performing as a
result of any such Force Majeure Event, except that should the Force Majeure
Event prevent deltathree from providing the Services per this Agreement and
Statement of Work for more than thirty (30) days, ACN may re-procure said
Services without liability upon prior written notice to deltathree.

     

    e.      Assignment; Binding
Effect. Neither Party may assign, delegate, subcontract or otherwise
transfer its rights or obligations under this Agreement or the Statement of
Work, except with the prior written consent of the other Party, not to be
unreasonably withheld or delayed; provided, however, that either Party shall
have the right to assign this Agreement to any successor entity (whether due to
operation of law, merger, acquisition or transfer of all or substantially all of
such Party’s business or assets) or affiliate, without obtaining the prior
written consent of the other Party. Any attempted assignment or transfer in
violation of this Section shall be void.  This Agreement and the
Statement of Work shall inure to the benefit of and be binding upon the Parties
and their respective successors and permitted assigns.

     

    f.       Governing Law; Venue.
The Agreement and the Statement of Work shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.  The parties hereto hereby
consent to the co-exclusive jurisdiction of any federal or state court located
within the City and State of New York or Charlotte, North Carolina, and that all
claims, actions or proceedings related to the subject matter hereof may be heard
and determined in such courts.


    
      
         


      

      
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    g.      Entire Agreement;
Amendments. This Agreement, including all appendices and other documents
attached to or referenced herein, constitutes the entire understanding of the
Parties and supersedes all prior agreements, understandings and undertakings,
whether written or oral, between the Parties with respect to the subject matter
hereof.  This Agreement may be amended or modified only through a
subsequent written instrument signed by a representative of each of the
Parties.

     

    h.      Waiver.  Neither
the failure of either Party to insist at any time upon strict compliance with
this Agreement or any of its terms nor any continued course of such conduct on
the part of such party shall constitute or be considered a waiver by such party
of any of its rights or privileges under this Agreement.  No prior
waiver by a Party of any right shall constitute a future waiver by such Party of
such right or any other obligation of the other Party contained
herein.

     

    i.    
  Severability. In the
event that a court of competent jurisdiction finds any provision of this
Agreement or the Statement of Work to be illegal, invalid or unenforceable, it
is the intention of the Parties that such court shall modify such provision as
necessary so that it shall be legal, valid and enforceable.  The
illegality, invalidity or unenforceability of any provision of this Agreement
shall not affect the legality, validity or enforceability of any other provision
of this Agreement.

     

    j.     
 Counterparts.  This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and both of which together shall constitute one and the same
instrument.  To the extent this Agreement is signed and delivered by
means of email, a facsimile machine or other means of electronic transmission,
it shall be treated in all manner and respects and for all purposes as an
original signature, agreement or instrument and shall be considered to have the
same binding legal effect as if it were the original signed version thereof
delivered in person.

     

    [SIGNATURE
PAGE FOLLOWS]


    
      
         


      

      
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    IN WITNESS WHEREOF, the
Parties have caused this Agreement to be executed as of the Effective
Date.

    
       

    


    
      
        
          	
                  DELTATHREE, INC.

                
	 
      	 
      
	
                  By: 

                	
                  /s/ Effi Baruch

                
	 
      	
                  Name: 

                	
                  Effi Baruch

                
	 
      	
                  Title:

                	
                  CEO and President

                
	 
      	 
      	 
      
	
                  ACN
      KOREA, INC.

                
	 
      
	
                  [CORPORATE
      SEAL OF ACN KOREA,
INC.]

                


        

      

    

    


    
      
        
           


        

        
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