Unassociated Document


    
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      	*	
              CERTAIN
                INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
                WITH THE
                COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
                TO THE
                OMITTED PORTIONS.

            


    

     

    [*]
      MOBILE DEVELOPER PROGRAM AGREEMENT 

    (OMA
      IMPS Version)

    


    THIS[*]
      MOBILE
      DEVELOPMENT
      PROGRAM
      AGREEMENT
      (the
“Agreement”)
      is
      made as of [*] (the “Effective
      Date”)
      by and
      between [*],
      a
      Delaware corporation with its principal offices and place of business at [*]
      (“[*]”)
      and
      IXI Mobile (R&D) Ltd., an Israeli corporation, with its principal office and
      place of business at 17 Ha’Tidhar St. Ra’anana, Israel, (“IXI
      ”)
      (each
      of [*] and IXI, a “Party”
and
      collectively the “Parties”).

    


    RECITALS

    


    A. [*]
      is a
      provider of online services to consumers, including, without limitation,
      services that enable and facilitate instant messaging on mobile communications
      devices.

    


    B. IXI
      is,
      amongst other activities, in the business of developing, manufacturing and
      selling certain mobile devices, currently known as OGOTM with embedded software
      applications and related services. 

    


    C. [*]
      has
      established a program based on the Open Mobile Alliance Instant Messaging and
      Presence Services Protocol Specifications (Client-Server Protocol)
      (“[*]
      Mobile Developer Program”),
      whereby [*] provides certain branding rights and proprietary information to
      software developers and mobile communications device manufacturers to enable
      them to produce mobile communication software that works with mobile
      communications devices that are capable of accessing and using [*]’s proprietary
      instant messaging services.

    


    D. 
      IXI
      wishes to participate in the [*] Mobile Developer Program and [*] wishes to
      allow IXI to participate in the [*] Mobile Developer Program pursuant to the
      agreements and terms of this Agreement. 

     

    AGREEMENT

    


    In
      consideration of the mutual promises and covenants in this Agreement, the
      Parties agree as follows:

    


    1. DEFINITIONS. 
      Certain capitalized terms, not otherwise defined, shall have the meanings set
      forth in Exhibit
      A.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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              2.

            	
              PARTICIPATIONIN
                THE [*] MOBILE
                DEVELOPER
                PROGRAM

            


    

     

    2.1 Provision
      of Mobile Developer Kit.
      Upon
      mutual execution of this Agreement by the Parties, [*] will make available
      to
      IXI, at no charge to IXI, a complete copy of the then-current Mobile Developer
      Kit, which shall include the then-current Open Mobile Alliance Implementation
      Conformance Statement (“ICS”).
      From
      time-to-time during the Term, [*] may provide supplements or modifications
      to
      the Mobile Developer Kit, including the ICS, as [*] determines appropriate,
      at
      no charge to IXI. [*] shall use commercially reasonable efforts to make such
      supplements or modifications available to IXI on the same basis that [*]
      provides such supplements or modifications to other [*] Mobile Developer Program
      participants. 

     

    2.2 License
      to Use Mobile Developer Kit. 

     

    Subject
      to the terms and conditions of this Agreement, [*] grants to IXI a
      non-exclusive, non-transferable, non-sublicensable (except to the extent
      specifically provided for in Section
      3.7),
      royalty-free license to use the Mobile Developer Kit solely for the purpose
      of
      developing Candidate Applications intended to be submitted to [*] for testing
      as
      contemplated in this Agreement. IXI agrees that the development and/or
      distribution or commercial use by IXI of any software application, other than
      a
      Candidate Application, that provides access to the [*] Service or [*] Network,
      that is not authorized by [*] pursuant to the terms and conditions of this
      Agreement, and that has not otherwise been authorized in writing by [*], shall
      be considered a material breach of this Agreement. IXI will not develop, promote
      or distribute any features or functionality with respect to the [*] Service
      or
      the [*] Network that enable (a) direct communication between the [*] Service
      and
      any other third party instant messaging service or community, (b) auto-login
      between the [*] community and any other third party instant messaging community,
      or (c) co-mingling of an [*] User’s contact list or and [*] member's [*],
      presence information and/or conversations with the [*] or contact lists,
      presence information and/or conversations of any other instant message service
      provider. 

     

    
      	
              3.

            	
              DEVELOPMENT
                OF
                APPLICATIONS

            


    

     

    3.1 Development
      Responsibility.
      IXI
      shall submit to [*] the first Candidate Application within [*] of Effective
      Date. IXI shall be solely responsible for such development, including, without
      limitation, all associated costs and expenses. 

     

    3.2 Developer
      Program Manager.
      IXI
      shall designate one (1) IXI representative to serve as a liaison between the
      Parties on IXI’s behalf in connection with this Agreement (the “IXI
      Liaison”).
      IXI
      will notify [*] of such designation and agrees to provide current contact
      information for its IXI Liaison at all times during the Term. IXI may change
      such designation from time-to-time by written notice to [*]. IXI shall direct
      all technical and development related inquiries arising under this Agreement
      through the IXI Liaison to the [*] Liaison.

     

    3.3 [*]
      Program Manager.
      [*]
      shall designate one (1) [*] representative to serve as liaison between the
      Parties on [*]’s behalf in connection with this Agreement (the “[*]
      Liaison”).
      [*]
      will notify IXI of such designation and agrees to provide current contact
      information for its [*] Liaison at all times during the Term. [*] may change
      such designation from time-to-time by written notice to Developer. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    3.4 Technical
      Consultation.
      The
      Parties desire to facilitate the efficient development and distribution of
      Approved Complete [*] Applications, and therefore desire to consult with one
      another during the process of designing and planning Developer’s Candidate
      Applications. Accordingly, upon development of initial designs and
      specifications for any particular Candidate Application, IXI may, at its
      election, submit such designs and specifications to [*] for purposes of
      soliciting feedback regarding the same. [*] shall provide such feedback and
      development support to IXI as [*], in its sole discretion, shall determine.
      Such
      feedback that is (a) specific to Developer’s design or user interface related to
      its Candidate Application; (b) in writing; and (c) labeled as “Technical
      Feedback” shall be considered “Technical
      Feedback.”
      Subject to the provisions of Section
      11.3
      (to the
      extent the Technical Feedback contains or makes reference to [*]’s Confidential
      Information), IXI shall be free to use, disclose, reproduce, license or
      otherwise distribute and exploit the Technical Feedback provided to it as it
      sees fit, entirely without obligation or restriction of any kind on account
      of
      intellectual property rights or otherwise. Subject to Section
      19.13,
      IXI
      agrees that it will not, without [*]’s prior written consent, use the Technical
      Feedback in advertising, publicity, or otherwise, or refer to such Technical
      Feedback in press releases, advertising, or materials distributed to prospective
      customers. 

     

    3.5 Testing
      by IXI on Program Testing Server.
      During
      the Term, [*] agrees to maintain and make available for remote access using
      the
      applicable Test Authentication Key (as that term is defined below) one (1)
      or
      more computer servers from which non-production copies of the [*] Service are
      hosted (collectively, the “Test
      Server”).
      [*]
      shall make reasonable efforts to provide a non-production copy of the [*]
      Service that is similar to the production copy of the [*] Service. During the
      process of developing any Candidate Application, IXI or its Third Party
      Developer may remotely access the Test Server, solely according to the protocols
      [*] may specify from time-to-time, and solely for purposes of testing the
      Candidate Application(s) under development using the [*] number, password,
      and/or other authentication credentials issued by [*] for such purpose (the
      “Test
      Authentication Key”).
      IXI
      acknowledges that [*] makes no representations or warranties with respect to
      the
      Test Server or with respect to the software or services accessible on the Test
      Server, including, without limitation, any representations or warranties
      regarding system availability. [*] may provide technical support with respect
      to
      the Test Server solely as it determines in its discretion. For sake of clarity,
      IXI acknowledges that no right or authorization is granted by this Agreement
      to
      access or use (and IXI shall not access or use directly or through its Third
      Party Developer) the actual [*] Service or an [*] Affiliate service in
      connection with development and/or testing of Candidate Applications. In
      addition, IXI will keep and cause any Third Party Developer to keep the Test
      Authentication Key confidential.

     

    3.6 Feedback.
      IXI may
      from time-to-time provide suggestions, comments, ideas or other feedback
      (“Feedback”)
      to [*]
      with respect to the [*] Technical Information. Subject to the provisions of
      Section
      11.3
      (to the
      extent the Feedback contains or makes reference to IXI’s Confidential
      Information) and subject to the provisions of Section
      19.13,
      [*]
      shall be free to use, disclose, reproduce, license or otherwise distribute
      and
      exploit the Feedback provided to it as it sees fit, entirely without obligation
      or restriction of any kind on account of intellectual property rights or
      otherwise.

     

    3.7 Utilization
      of Third-Party Developers.
      IXI
      shall have the right to engage one (1) or more third parties (each a
“Third
      Party Developer”)
      to act
      on IXI’s behalf to use the Mobile Developer Kit, develop Candidate Applications,
      utilize the Test Server pursuant to Section
      3.5,
      to
      submit such Candidate Applications to [*] for review by [*], and to access
      the
      [*] Network, provided that (a) any such Third Party IXI engagement by IXI shall
      be subject to [*]’s prior written approval, and (b) that either (x) such Third
      Party Developer has entered into an MDP Program agreement with [*] or [*] or
      (y)
      IXI enters into a binding, written agreement with the relevant Third Party
      Developer, which agreement is no less protective of [*], the Test Authentication
      Key, the Test Server, the [*] Technical Information and the [*] Service and
      the
      [*] Network than are the terms of this Agreement and shall only enable , such
      Third Party Developer to access to the [*] Network for the use and benefit
      of
      IXI, and (c) IXI shall remain responsible for the acts and omissions of such
      Third Party Developers as if such acts or omissions were undertaken by IXI.
      For
      purposes of clarification, employees and independent contractors employed by
      IXI
      shall not be considered Third Party Developers; provided, however, that IXI
      shall remain liable for any act or omission undertaken by such employees and
      independent contractors. Subject to this Section 3.7,
      the
      aforementioned shall not restrict IXI in changing its IM gateway provider from
      time to time
      provided
      however that such change will no occur more than twice during the Term and
      upon
      a [*] prior written notice to [*].

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    Where
      IXI
      has used a Third party Developer, and such Third Party Developer improperly
      uses
      the [*] Application, Test Authentication Key, the Test Server, the [*] Technical
      Information, Application Branding Elements and the [*] Service and the [*]
      Network, IXI shall use commercially reasonable efforts to assist [*] in pursuing
      any claim against such Third Party Developer related to that Third Party
      Developer’s resulting improper use of the [*] Application, Test Authentication
      Key, the Test Server, the [*] Technical Information, Application Branding
      Elements and the [*] Service and the [*] Network. 

     

    
      	
              4.

            	
              APPROVAL
                OF
                APPLICATIONS

            


    

     

    4.1 Submission
      of Candidate Applications.
      Upon
      completion of any Candidate Application, IXI may submit the same to [*] for
      assessment as a potential Approved Complete [*] Application. Notwithstanding
      the
      foregoing, IXI agrees that it will not submit any such Candidate Application
      for
      [*] assessment unless and until IXI (i) has successfully tested the Candidate
      Application by means of remote access to the Test Server and (ii) has made
      a
      good faith determination that the relevant Candidate Application complies in
      all
      material respects with the Mobile Developer Kit and other Approval Criteria.
      Each submission of a Candidate Application must be made in accordance with
      the
      requirements set forth in the Mobile Developer Kit, including the provision
      to
      [*] at no cost of at least [*] samples of the Candidate Platform on which the
      Candidate Application is to be tested; provided, however, that where the
      Candidate Platform includes an IXI Server or a Third Party Developer Server
      ,
      IXI shall not be required to provide such IXI Server or Third Party Developer
      Server to [*], provided further that IXI or Third Party Developer must provide
      access to such IXI Server or Third Party Developer Server. [*] shall at its
      own
      expense return such samples to IXI within [*] following completion of such
      testing. 

     

    4.2 Assessment
      of Candidate Applications.
      Upon
      receipt of a properly submitted Candidate Application, [*] agrees to conduct
      testing and assessment of such Candidate Application for the purpose of
      determining whether the Candidate Application complies with the applicable
      Approval Criteria. IXI acknowledges that [*] makes no representations or
      warranties regarding the timeframe within which any such testing and assessment
      will be completed; provided, however, [*] agrees to make good faith efforts
      to
      complete such testing and assessment in accordance with a milestone schedule
      that shall be mutually agreed upon in writing by the Parties. IXI agrees to
      provide such information and assistance as [*] may reasonably request in
      connection with such testing and assessment. IXI acknowledges and agrees that
      [*]’s determination of acceptance or failure with respect to the Candidate
      Application and the Mobile Developer Kit and other Approval Criteria is final
      and binding upon the Parties.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    4.3 Notice
      of Approval. 

     

    (a)
      In
      the event that [*] determines that a particular Candidate Application meets
      all
      requirements for designation as an Approved Complete [*] Application, [*] will
      so inform IXI in writing. Upon receipt of such written notice, the relevant
      Candidate Application will be considered an Approved Complete [*] Application
      for purposes of this Agreement. 

     

    (b)
      In
      the event that [*] determines that a particular Candidate Application fails
      to
      meet applicable Approval Criteria, [*] will so inform IXI in writing, stating
      [*]’s reasons for such determinations. IXI may, at its option, thereafter elect
      to modify the relevant Candidate Application for re-submission to [*] for
      evaluation pursuant to Section
      4.2,
      provided that any such re-submission shall comply with the requirements of
      Section
      4.1
      and,
      prior to any such re-submission, IXI shall have (i) successfully tested the
      modified Candidate Application by means of remote access to the Test Server;
      (ii) made good faith determinations that the relevant Candidate Application
      complies in all material respects with the Approval Criteria; and (iii) made
      a
      good faith determination that the modified Candidate Application corrects the
      failures previously identified by [*]. 

     

    4.4 Authentication
      Keys. Once
      the
      Approved Complete [*] Application is approved for distribution as part of a
      Compliant Device by IXI or Approved Third Party Distributors (as defined below
      in Section 5.1) for the use of users of a Compliant Device in an Approved
      Territory, in accordance with Sections
      4.2 and 4.3,
      then
      [*] will provide to IXI a client identifier and, where appropriate, an
      authentication key(s) unique to IXI for use with such Approved Complete [*]
      Application for a particular Authorized Platform (each, an “Authentication
      Key”).
      [*]
      grants to IXI a non-exclusive, non-transferable, non-sublicensable, royalty-free
      license to integrate, in accordance with the requirements of the Mobile
      Developer Kit, such Authentication Key into any Approved Complete [*]
      Application for use as part of Authorized Platform(s) for the relevant Compliant
      Devices. Pursuant to this license, IXI may use such Authentication Key, either
      directly or through Third Party Developer, solely for the purpose of enabling
      use of the Compliant Devices and/or specific Approved [*] Complete Application
      for a particular Authorized Platform with the [*] Service. IXI will integrate
      such Authentication Key into any Approved Complete [*] Application for use
      as
      part of an Authorized Platform(s) for the relevant Compliant Devices. [*] will
      provide such Authentication Key by means of such secure protocols as [*] may
      specify from time-to-time. Under no circumstances may IXI use such
      Authentication Key in connection with any application or device other than
      the
      particular Approved Complete [*] Application and the relevant Authorized
      Platform(s) for which it is issued. IXI shall keep all such Authentication
      Keys
      strictly confidential and shall undertake all precautions specified in the
      Mobile Developer Kit and all other commercially reasonable precautions to
      prevent such Authentication Keys from unauthorized disclosure. IXI shall
      immediately inform [*] if the confidentiality of any Authentication Key has
      been
      compromised. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    4.5 Re-Approval
      of Modified Applications. In
      the
      event that any Approved Complete [*] Application is updated, improved or
      otherwise modified in any way other than Minor Changes, it shall thereafter
      no
      longer be considered an Approved Complete [*] Application unless and until
      it
      has been re-submitted for assessment in accordance with Section
      4.1
      and, as
      modified, has been designated by [*] as an Approved Complete [*] Application.
      IXI agrees that it shall provide to [*] a final version of the Approved Complete
      [*] Application, complete with all Minor Changes, if any, prior to any public
      distribution. 

     

    4.6 Revocation
      of Approval.
      IXI
      acknowledges and agrees that, notwithstanding Section
      18.5,
      [*] may
      deny any Approved Complete [*] Application access to the [*] Services in the
      event of a breach of this Agreement that remains uncured by IXI for [*]
      following written notice and an opportunity to cure the breach. Notwithstanding
      the foregoing, [*] may also deny any Approved Complete [*] Application access
      to
      the [*] Services and [*] Network immediately in the event of compromise to
      the
      security of an Authentication Key or of an Approved Complete [*] Application
      (whether due to a breach of this Agreement or not), in which case the Parties
      shall work together in good faith to mitigate the effects of any such
      revocation. IXI further acknowledges and undertakes to prohibit and/or deny
      any
      Third Party Developer access to the [*] Services upon (i) any acts or omissions
      of a Third Party Developer that (a) would be considered a breach of this
      Agreement if such acts or omissions were undertaken by IXI; (b) are related
      to
      the protection or prohibitions against the misuse of the [*] Services, any
      other
      [*] service, the [*] Network, the [*] IM Network, the [*] Namespace, [*] Users,
      the Application Branding Elements, any Authentication Key (including the Test
      Authentication Key), the [*] Technical Information, and/or [*] owned or licensed
      intellectual property, and (c) is not cured following [*] notice to IXI of
      such
      act or omission. For avoidance of doubt, non compliance with Section by IXI
      shall be deemed a material breach of this agreement and not withstanding any
      other remedy provided to [*] herein, upon such breach [*] may immediately
      suspend or terminate IXI's access to the [*] Network. 

     

    
      	
              5.

            	
              DISTRIBUTION
                AND
                PROMOTION

            


    

     

    5.1 Approved
      Complete [*] Application Distribution.

     

    IXI
      acknowledges and agrees it shall not sell, license, distribute, an Approved
      [*]
      Application to any third party unless the following terms have been met (when
      all terms have been met “Approved Third Party Distributor”):

     

    (a)
      [*]
      has provided prior written approval of that specific third party
      distributor;

     

    (b)
      The
      third party distributor shall only distribute and allow use and /or access
      to
      the Approved Complete Application through the Authorized Platform and Compliant
      Device in the Approved Territories. 

     

    (c
      ) IXI
      have entered into an agreement with the third party distributor that is no
      less
      protective of [*], the [*] Service, the [*] Network, any other [*] or [*]
      service, the [*] IM Network, [*] Users, the [*] Namespace, the Application
      Branding Elements, any Authentication Key (including Test Authentication Key),
      and the [*] Technical Information as are the terms and conditions of this
      Agreement (“IXI- Approved Distributor Agreement”); 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    (d)
      expressly state that [*] is not obligated to provide any technical support
      to
      any third party with respect to the applicable Approved Complete [*] Application
      and/or the [*] Service;

     

    (e)
      expressly state that IXI, and not [*], shall be responsible for developing
      the
      applicable Approved Complete [*] Application, as well as operating and
      supporting the IXI Server (or a Third Party Developer Server);

     

    (f)
      Expressly state that [*] shall be free to prohibit access to the [*] Service
      pursuant to the term and conditions of this Agreement at any time;

     

    (g)
      Shall
      not contemplate the provision of the [*] Services for a period of time exceeding
      [*] from the later of: execution of an IXI-Approved Distributor Agreement or
      the
      launch of an Approved [*] Application which shall in no case be longer than
      [*]
      from the execution of the IXI- Approved Distributor Agreement. 

    


    5.2
      IXI
      acknowledges and agrees that it shall not convey any right, title, or interest
      in or to the Application Branding Elements (other than [*] Marks, of which
      use
      shall be subject to Section
      9
      of this
      Agreement) contained in an Approved Complete [*] Application other than to
      allow
      for the use of such Application Branding Elements solely as embodied within
      an
      Approved Complete [*] Application

     

    5.3
      Where
      IXI has distributed an Approved Complete [*] Application to an Approved Third
      Party Distributor , and such Approved Third Party Distributor improperly uses
      the Approved Complete [*] Application or the Application Branding Elements,
      IXI
      shall use commercially reasonable efforts to assist [*] in pursuing any claim
      against such Approved Third Party Distributor related to that Approved Third
      Party Distributor’s resulting improper use of the Application Branding Elements,
      the Authentication Key, the [*] Technical Information, the [*] Service and
      [*]
      Network. For purposes of clarification, the foregoing shall not impose on IXI
      any additional indemnification obligations not explicitly stated in Section
      16
      of this
      Agreement. 

     

    5.4
      IXI
      acknowledges and agrees that it shall remain liable for any acts or omissions
      of
      any Approved Third Party Distributor as if such acts or omissions were taken
      by
      IXI. 

     

    
      	
              6.

            	
              LICENSE
                TO
                [*] SERVICE

            


    

     

    6.1 Subject
      to the terms and conditions of this Agreement, [*] will permit an [*] User
      to
      access and use the [*] Services solely on Compliant Devices through an Approved
      Complete [*] Application over a GPRS or any upgraded internet access wireless
      protocol approved in writing by [*], using their existing [*] numbers and
      passwords or by registering for such through [*]’s standard registration
      process. [*] hereby provides to IXI a non-exclusive, limited, non-transferable,
      non-sublicensable (except as explicitly provided herein) license solely to
      (i)
      connect the IXI Server or the Third Party Developer Server to the [*] Network
      solely in accordance with the terms and conditions of this Agreement and solely
      for the purpose of providing users of Compliant Devices that are also [*] Users
      the ability to access and use the [*] Services solely on Compliant Devices
      through an Approved Complete [*] Application ; (ii) provide, on behalf of [*],
      a
      non-exclusive, limited, non-transferable, non-sublicensable license to Approved
      Third Party Distributors to distribute the [*] Services to the users of the
      Compliant Device through an Approved Complete [*] Application on Compliant
      Devices. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    6.2 Access
      to
      and use of the [*] Services by [*] Users will be governed by [*]’s then current
      Member Agreements for such [*] Services. IXI acknowledges and agrees that it
      is
      expressly prohibited from providing any Third Party Approved Distributor or
      any
      other third party
      access to the [*] Services. IXI acknowledges and agrees that (x) it shall make
      available to users of Compliant Devices that are also [*] Users all features
      and
      functionality of the [*] Services that [*] makes available to IXI, subject
      to
      technical limitations of the applicable Approved Complete [*] Application;
      (y)
      Approved Third Party Distributors or mobile communication carriers are expressly
      prohibited from connecting directly to the [*] Network; and (z) [*].


     

    
      	
              7.

            	
              Final
                Acceptance Testing 

            


    

     

    7.1 IXI
      acknowledges and agrees that, prior to the commercial launch of the [*] Services
      on any Approved Complete [*] Application on a specific model of Compliant
      Device, and at [*]’s option, [*] and, IXI, shall jointly conduct end to end
      acceptance testing of the Approved Complete [*] Application on that Compliant
      Device to determine if the Approved Complete [*] Application on that Compliant
      Device conforms in all material respects with an acceptance test plan that
      shall
      be mutually agreed upon by the Parties and attached to this Agreement as
Exhibit
      G
      (each,
      an “Acceptance
      Test Plan”).
      IXI
      acknowledges and agrees that, at [*]’s option, (i) such end to end testing shall
      include testing of the IXI Server or the Third Party Developer Server and (ii)
      IXI shall be required to provide access to the IXI Server or the Third Party
      Developer Server for such end to end testing. For purposes of clarification,
      IXI
      acknowledges and agrees that IXI shall not make an Approved Complete [*]
      Application commercially available until [*] and IXI jointly determine that
      such
      Approved Complete [*] Application for any specific Complaint Device has passed
      such end to end testing; provided, however, that [*] in its sole discretion
      may
      waive its right to conduct such end to end testing.

    


    No
      later
      than [*] following completion of such end to end testing, [*] shall notify
      IXI
      in writing regarding whether it deems the tested Approved Complete [*]
      Application to have passed or failed such end to end testing, and a description
      of any defects (“Acceptance
      Testing Notice”).
      IXI
      shall correct any deficiencies identified by either Party in the Acceptance
      Testing Notice related to the tested Approved Complete [*]
      Application.

     

    Connection
      between the [*] Network and the Approved Complete Application (which, for
      purposes of this Section shall run via the IXI Server or the Third Party
      Developer Server) shall be subject to a technical requirements document that
      shall be mutually agreed to by the Parties within [*] from the Effective Date
      and which shall be amended by the mutual agreement of the Parties (“Technical
      Requirements Document”).
      The
      Technical Requirements Document and any amendments thereto shall be attached
      as
Exhibit
      H
      to this
      Agreement. Each Party will bear its own costs associated with the connection.
      IXI shall ensure that, where applicable, all data transmitted between the IXI
      Server or the Third Party Developer Server and access points on a mobile
      communication network are transmitted via a secure or encrypted channel in
      a
      manner reasonably satisfactory to [*].

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    IXI
      acknowledges and agrees that any Approved Third Party] shall acknowledge and
      agree, that a user of the [*] Service, as a condition to using such [*] Service,
      may be required to agree to a standard end-user agreement, to be provided to
      such user by [*], and nothing in this Agreement shall affect or otherwise modify
      the terms and conditions of such standard end-user agreement. Without limiting
      the foregoing, in order to use certain [*] Services, a user first will be
      required to register for the service, and such registration shall occur through
      [*]’s then current registration process and terms of service. All user
      information obtained through such [*] registration process shall be owned by
      [*]
      and become part of the [*] Namespace. IXI acknowledges that this Agreement
      confers no rights to the [*] Namespace and that IXI is prohibited from accessing
      the [*] Namespace in any manner whatsoever without [*]’s prior written consent.
      Except as explicitly required hereunder, to protect user privacy, IXI also
      is
      prohibited from the collection or solicitation of [*] User numbers and/or
      password information without [*]’s express written consent. [*] shall determine,
      in its sole discretion, the terms of use for any [*] Service, including, but
      not
      limited to, terms of conduct, privacy policies and pricing for the [*] Service,
      if any. Notwithstanding any of the foregoing, Parties hereby agree that only
      [*]
      Users who have previously registered to the [*] Service shall be able to access
      the [*] Service and that the Complete Approved Application shall not include
      a
      registration process without [*]’s prior written approval. To the extent that
      such approval is furnished IXI shall insure that no registration to the [*]
      Service shall be made available without potential [*] User going through and
      accepting the standard end-user agreement. 

    


    
      	
              8.

            	
              Service
                Levels. 

            


    

     

    The
      Parties shall mutually agree upon a service level agreement that sets forth
      the
      service levels with respect to the [*] Service, any service offered by IXI,
      and
      the IXI Server or Third Party Developer Server. The Parties will use
      commercially reasonable efforts to comply with such service level agreement,
      attached as Exhibit
      I to
      this
      Agreement. 

     

    
      	
              9.

            	
              Licensing
                and Use of [*] Marks

            


    

     

    9.1 License
      in [*] Consumer Mark.
      Subject
      to the terms and conditions of this Agreement, [*] grants to IXI a limited,
      non-exclusive, non-transferable, non-sublicensable, royalty-free license during
      the Term to use, display and reproduce the [*] Consumer Mark in connection
      with
      IXI’s general marketing activities (other than activities directed primarily
      towards consumers), solely for purposes of identifying IXI as a participant
      in
      [*]’s Mobile Developer Program. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    9.2 Intentionally
      Omitted. 

     

    9.3 License
      in Application Branding Elements. Subject
      to the terms and conditions of this Agreement, [*] grants to IXI a limited,
      non-exclusive, non-transferable, non-sublicensable (except to the extent
      explicitly permitted in Sections
      3.7, and 5.1),
      royalty-free license during the Term to use, display and reproduce the
      Application Branding Elements solely as embodied within an Approved Complete
      [*]
      Application, and solely in accordance with the branding requirements and style
      guides set forth in the most recent version of the Mobile Developer Kit provided
      by [*] to IXI.

     

    9.4 License
      in [*] Consumer Marks. Subject
      to the terms and conditions of this Agreement, [*] grants to IXI and any
      Approved Third Party Distributor, a limited, non-exclusive, non-transferable,
      non-sublicensable, royalty-free license during the Term to use, display and
      reproduce the [*] Consumer Marks solely on Compliant Devices and packaging,
      package inserts, advertising and marketing materials for Compliant Devices
      directed towards consumers, and solely in accordance with such written trademark
      usage guidelines as [*] may from time-to-time provide to IXI. 

     

    9.5 Intentionally
      Omitted 

     

    9.6 Usage
      Standards.
      IXI’s
      uses of the [*] Marks pursuant to Sections
      9.1, 9.2, 9.3 and 9.4, must
      be
      approved by [*] in writing prior to use, and IXI acknowledges and agrees that
      all use of the [*] Marks shall at all times remain subject to such written
      trademark usage guidelines as [*] may from time-to-time provide to IXI. [*]
      agrees to make reasonable commercial efforts to approve the said use within
      [*].
      In an event that [*] disapproves use of the [*] Marks, [*] shall, within the
      specified [*], provide IXI with a written lest of its objections to allow IXI
      to
      resubmit any usage request. For avoidance of doubt, if within the said time
      frame [*] has not provided approval, it will be deemed as disapproval. IXI
      acknowledges the exclusive ownership right of [*] in the [*] Marks and agrees
      that all use of the [*] Marks shall inure to the benefit, and be on behalf,
      of
      [*]. Without limiting the foregoing, IXI will not (i) use the [*] Marks in
      any
      manner that disparages or tarnishes any [*] Marks or the reputation of [*],
      or
      that could reasonably be expected to do so; (ii) modify the [*] Marks, except
      as
      any such modification is expressly permitted in the Mobile Developer Kit; (iii)
      combine in one mark the [*] Marks with any other marks or create any composite
      marks; (iv) register or attempt to register the [*] Marks in any jurisdiction
      or
      create, use, register or attempt to register any confusingly similar mark;
      or
      (v) challenge [*]'s proprietary rights in and to the [*] Marks, or undertake
      any
      action which impairs such proprietary rights of [*] or its licensors, or that
      could reasonably be expected to do so. IXI shall, throughout the Term and for
      a
      period of not less than [*] after the termination or expiration of this
      Agreement, retain representative copies of all uses of the [*] Marks, and IXI
      shall provide such copies to [*] upon [*]'s request at any time prior to the
      date which is [*] after such termination or expiration.

     

    9.7 Corrections.
      Upon
      notice from [*] of its objection to any improper or incorrect use of the [*]
      Marks, IXI shall correct or change such usage. IXI agrees to promptly notify
      [*]
      of any unauthorized use of the [*] Marks of which it has actual knowledge.
      [*]
      shall have the sole right and discretion to bring proceedings alleging
      infringement of the [*] Marks or unfair competition related thereto; provided,
      however, that IXI shall provide [*] with its reasonable cooperation and
      assistance with respect to any such infringement proceedings as long as IXI
      does
      not have to bare any financial expense as a result of such
      assistance.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    9.8 General
      Standards of Conduct.
      IXI
      acknowledges and agrees that [*] derives substantial value from the goodwill
      associated with the [*] Service, other [*] services, the [*] Marks and the
      [*]
      Mobile Developer Program. IXI shall undertake all commercially reasonable
      measures necessary to ensure that its marketing and promotional activities
      hereunder conform to industry standards of professionalism and fair practices,
      and IXI understands that [*] shall have the right to terminate this Agreement,
      pursuant to Section
      18.2,
      in the
      event that [*] reasonably determines that IXI has failed to meet the foregoing
      standards.

     

    9.9 License
      in IXI’s Marks. IXI
      hereby grants to [*] a non-exclusive, non-sublicensable, royalty-free license
      during the Term to use, display and reproduce such trademarks of IXI as provided
      in Exhibit
      C
      of this
      Agreement. [*]’s use of all such marks shall be subject to IXI’s prior written
      approval, which shall not be unreasonably withheld, and any license of such
      marks shall incorporate rights and remedies for IXI that are similar to those
      rights and remedies reserved by [*] for its [*] Marks in Sections
      9.6 and 9.7
      above.


     

    
      	
              10.

            	
              MARKETING
                OF
                APPROVED
                COMPLETE
                [*] APPLICATIONS

            


    

     

    10.1 Intentionally
      Omitted

     

    10.2 [*]
      Marketing Obligations
      [*] may,
      at its sole discretion, promote an Approved Complete [*] Application by using
      [*]'s existing properties and marketing channels. 

     

    10.3 IXI
      Marketing Obligations. 

     

    (a)
      [*]


     

    (b)
      [*]


     

    10.4 Access
      to [*] Services.
      Notwithstanding any designation of Candidate Applications as Approved Complete
      [*] Applications, and notwithstanding any rights expressly granted to IXI under
      this Agreement, IXI acknowledges that no right is granted in this Agreement
      for
      IXI to access or use any [*] Service, the [*] Service, or any other [*]
      Affiliate service nor shall IXI have any right to authorize third parties to
      access or use any [*] Service, the [*] Service, or any other [*] Affiliate
      service, and any rights for an [*] User to access and/or use the [*] Service
      shall be subject to a separate agreement between [*] and the particular user
      of
      an Approved Complete [*] Application. [*] may at any time and in its sole
      discretion deny access to the [*] Service from any device, including Compliant
      Devices, or any Approved Complete [*] Applications. 

     

    10.5 General
      Restrictions on Marketing and Distribution.
      Notwithstanding any other provision of this Agreement, (i) IXI will not
      represent to third parties that any software application is compatible with,
      or
      otherwise capable of accessing or using, the [*] Service, the [*] Namespace,
      or
      [*] Network unless such application is an Approved Complete [*] Application;
      (ii) IXI will not attempt to access or use the [*] Service, or authorize or
      facilitate access or use thereof by third parties, by means of any application
      or device other than a Compliant Device (and shall cause any Third Party
      Developer to comply with the same); (iii) IXI shall not represent that any
      connection or access or use of the [*] Service, the [*] Namespace, or [*]
      Network unless such application is an Approved Complete [*] Application is
      for a
      perpetual term and shall ensure that any Approved Third Party Distributor or
      any
      user of a Compliant Device who is also an [*] User are aware that [*] may deny
      such access at any time and for any reason, and in any case shall not be for
      a
      term longer than the Term of this Agreement and any Transition Period. (iv)
      except as expressly provided herein, IXI will not reproduce, modify or
      distribute any of the [*] Technical Information; and (v) IXI’s use of the [*]
      Technical Information and development of applications for use with the [*]
      Service shall be in accordance with the [*] Network Use Policy. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    10.6 Support
      for Approved Complete [*] Applications. As
      between the Parties, IXI shall bear sole responsibility for the provision of
      technical support or software maintenance services to users of Approved Complete
      [*] Applications and any applicable mobile communication carriers or Approved
      Third Party Distributor, and throughout the Term, IXI agrees to offer user
      of
      the Compliant Device, and to the extent applicable to applicable mobile
      communication carriers or Approved Third Party Distributors, its standard terms
      for maintenance and support. IXI acknowledges that, as between the Parties,
      [*]
      will have no obligation to provide any such support or services to IXI or to
      any
      third party. 

     

    
      	
              11.

            	
              PROPRIETARY
                RIGHTS

            


    

     

    11.1 
      IXI Intellectual Property Rights.
      Subject
      to [*]’s rights in the [*] Technical Information and Application Branding
      Elements, as between the Parties, IXI will own all intellectual property rights
      or similar rights, title and interest in the Candidate Applications and the
      Approved Complete [*] Applications as well as any and all intellectual property
      rights or similar rights in the Authorized Platform, Compliant Device and any
      other service provided as part of the Compliant Device which is not related
      to
      the [*] Service (e.g. e-mail. Email attachments, synchronization etc’). IXI
      grants to [*] and its Parent company and/or its Affiliates a non-exclusive
      license (i) to use, install and operate the Candidate Applications and Approved
      Complete [*] Applications for purposes of testing and assessing the same as
      contemplated in this Agreement; and (ii) to make copies of the Candidate
      Applications and the Approved Complete [*] Applications as reasonably necessary
      to undertake such testing and assessment. For sake of clarity, except as
      explicitly permitted in this Agreement, no right or license is granted, under
      any of IXI’s intellectual property rights, in or to a Candidate Application or
      Approved Complete [*] Application. 

     

    11.2 [*]
      Intellectual Property Rights.
      Subject
      to the limited licenses expressly granted herein, as between the Parties, [*]
      shall own and hold all right, title and interest in and to all [*] Technical
      Information, the [*] Marks, the [*] Service, the [*] Network, the Test Server,
      any Authentication Key (including the Test Authentication Key), [*] owned
      intellectual property as identified and contained in the Mobile Developer Kit,
      software or services accessible on or through such Test Server (except for
      a
      Candidate Application or Approved Complete [*] Application), and all
      intellectual property rights or similar rights associated with, embodied in,
      or
      practiced by the foregoing. Each Party reserves all rights not expressly granted
      in this Agreement. For sake of clarity, except as explicitly permitted in this
      Agreement, no right or license is granted, under any of [*]’s intellectual
      property rights, in or to the Test Server or any software or services accessible
      on or through the Test Server. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    11.3 Confidential
      Treatment.
      Each
      Party acknowledges that Confidential Information may be disclosed to the other
      Party during the course of this Agreement. Each Party agrees that it will take
      reasonable steps, at least substantially equivalent to the steps it takes to
      protect its own proprietary information, during the Term of this Agreement
      and
      thereafter as provided herein, to prevent use of the other Party’s Confidential
      Information for any purpose other than to carry out the rights and obligations
      hereunder and to prevent the disclosure of Confidential Information of the
      other
      Party, other than to its employees, or to its other agents or contractors who
      must have access to such Confidential Information for such Party to exercise
      its
      rights and perform its obligations hereunder, who will each agree to be bound
      by
      agreements with a duty of confidentiality no less protective of Confidential
      Information than provided herein. All Confidential Information disclosed under
      this Agreement shall not be used or disclosed by the receiving Party during
      the
      Term and for a period of [*] thereafter, except in the manner provided herein;
      provided, however, that technical information provided hereunder, shall not
      be
      used or disclosed by the receiving Party for so long as such information remains
      a protectable trade secret under applicable law; provided further that IXI
      shall
      keep all [*] User Data confidential in perpetuity. This
      Agreement imposes no obligation upon either Party with respect to information
      that: (i) was in a Party’s possession before receipt from the other Party; (ii)
      is or becomes a matter of public knowledge through no fault of a Party; (iii)
      is
      rightfully received by a Party from a third party without a duty of
      confidentiality; (iv) is independently developed by a Party; (v) is disclosed
      under operation of law, except that a Party will disclose only such information
      as is legally required and will use reasonable efforts to obtain confidential
      treatment for any Confidential Information that is so disclosed; or (vi) is
      disclosed by a Party with the other Party’s prior written approval.


     

    11.4 Demonstrations
      License. 

     

    IXI
      grants to [*] a limited, non-exclusive, royalty-free, non-sublicensable,
      non-transferable license during the Term (i) to use, install and operate an
      Approved Complete [*] Application on an Authorized Platform solely for the
      purpose of providing demonstrations of the Approved Complete [*] Application
      to
      prospective customers and at industry trade shows and similar public events,
      and
      (ii) to make a reasonable number of copies of the Approved Complete [*]
      Application where reasonably necessary to undertake such demonstrations.


     

    [*]
      grants to IXI a limited, non-exclusive, royalty-free, non-sublicensable,
      non-transferable license during the Term (i) to use, display, and reproduce
      the
      Application Branding Elements solely as embodied within an Approved Complete
      [*]
      Application solely for the purpose of providing demonstrations of the Approved
      [*] Complete Application to prospective customers and at industry trade shows
      and similar public events, and (ii) to make a reasonable number of copies of
      the
      Application Branding Elements where reasonably necessary to undertake such
      demonstrations. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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              12.

            	
              [*]
                USER
                DATA

            


    

     

    12.1 Ownership
      of [*] User Data.
      As
      between the Parties, any and all information collected or otherwise obtained
      from [*] Users by either Party in connection with an [*] User’s use of,
      navigation through, and/or registration for the [*] Service or any other [*]
      service, including, but not limited to, user names, passwords, [*] numbers,
      email addresses, domain names (including vanity domain names), credit card
      information where [*] is the merchant of record, user preferences or history
      or
      other identifying information, shall be owned and controlled by [*]
      (“[*]
      User Data”).
      All
      [*] User Data shall be deemed [*] Confidential Information and nothing in this
      Agreement shall be read to give IXI or any third party a license or any other
      right in or to the [*] User Data, both during and after the Term of this
      Agreement, except and solely to the extent necessary to perform its obligations
      under this Agreement. 

     

    12.2 Disclosure
      of [*] User Data.
      At all
      times either during or after the Term of this Agreement, IXI and any Approved
      Third Party Distributor shall not disclose [*] User Data to any third-party
      without the prior written consent of [*]. Notwithstanding the foregoing, IXI
      may
      disclose [*] User Data solely as necessary to comply with applicable laws,
      rules
      or regulations; provided, however, that IXI provides [*] with as much advance
      written notice of IXI’s intended use or disclosure as is practicable, the
      content of the disclosure, the reasons that such disclosure is required by
      law
      and the time and place that the disclosure will be made and further provided
      that IXI works with [*] to redact mutually agreed upon portions of this
      Agreement to the fullest extent permitted under applicable laws, rules or
      regulations. 

     

    12.3 Use
      of [*] User Data. IXI
      acknowledges and agrees that IXI, any Third Party Developer and any Approved
      Third Party Distributor shall not use the [*] User Data either during or after
      the Term of the Agreement in any manner or for any purpose without [*]’s express
      written consent. In the event that IXI is merged with, or acquired by, an [*]
      Competitor or an [*] Competitor, IXI shall immediately return all [*] User
      Data
      to [*]. 

     

    


    
      	
              13.

            	
              ECONOMIC
                TERMS

            


    

     

    13.1 Fees;
      Expenses.
      IXI
      shall not pay [*]. IXI shall pay [*] such fees related to access to the [*]
      Services as detailed in Exhibit
      E
      to this
      Agreement. Each Party shall bear its own expenses under this Agreement. Without
      limiting the generality of the foregoing, IXI acknowledges that [*] shall have
      no obligation to reimburse IXI for, or pay on IXI’s behalf, any expenses or
      payment obligations of IXI incurred in the exercise of IXI’s rights or
      performance of IXI’s obligations hereunder.

     

    13.2 Pricing
      of Approved Complete [*] Applications; [*] Services. 

     

    (a)
      IXI
      shall have sole authority to determine the pricing according to which it sells,
      licenses or otherwise distributes Compliant Devices and Approved Complete [*]
      Applications to third parties; provided, however, that for Approved Complete
      [*]
      Applications, IXI may not charge a separate fee for the Application Branding
      Elements or otherwise charge an additional fee for the Approved Complete [*]
      Application related to the use of the Application Branding Elements; provided
      further that for the development, porting, and/or customization of an Approved
      Complete [*] Application, IXI may only charge fees commensurate with IXI’s
      standard hourly rates and fees. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    (b)
      [*]
      shall have sole authority to determine the pricing according to which it
      provides the [*] Services or any other [*] products or services. [*] shall
      have
      sole responsibility for the billing and pricing of [*] Services to [*] Users;
      provided, however, that [*] shall not charge a users of a Compliant Device
      any
      unique fees solely due to the fact that the individual is using an Approved
      Application through a Compliant Device for use of the [*] Services, provided,
      further, that nothing herein shall prevent [*] from charging [*] Users fees
      that
      are charged generally to users of the [*] Service, including but not limited
      to,
      any monthly access fees, premium service fees or fees charged for sending
      messages to mobile devices. 

     

    (c
      ) IXI
      shall have sole responsibility for the billing, pricing, collection and
      resolution of billing disputes related to the use of the Complete Approved
      Application. 

     

    (d)
      IXI
      agrees that it shall make reasonable commercial efforts to ensure that any
      fees
      charged by an Approved Third Party Distributor to users of a Compliant Device
      for use of the [*] Services via an Approved Complete [*] Application shall
      not
      be greater than any fees that such Approved Third Party Distributor charges
      its
      subscribers for any application that it provides to its subscribers that provide
      instant messaging services that are similar to, and have functionality
      comparable with, the [*] Services on an Approved Complete [*] Application,
      including, but not limited to, Internal community, [*] and [*]. [*]

    


    13.3 Taxes.
      [*] The
      Parties shall, where possible, cooperate with respect to the transactions
      contemplated in the Agreement to structure any arrangements in an effort to
      minimize taxes for both Parties. Except as expressly stated in this Agreement,
      each Party will be responsible for its own costs and expenses incurred in
      connection with this Agreement. [*]

     

    Notwithstanding
      the aforementioned, if, after a determination by foreign tax authorities, any
      taxes are required to be withheld, on payments made by [*] to [*], [*] may
      deduct such taxes from the amount owed [*] and pay them to the appropriate
      taxing authority; provided however, that [*] shall promptly secure and deliver
      to [*] an official receipt for any such taxes withheld or other documents
      necessary to enable [*] to claim a [*] (or any other foreign jurisdiction)
      Foreign Tax Credit. [*] will make certain that any taxes withheld are minimized
      to the extent possible under applicable law. 

     

    13.4 Audit.
      IXI
      shall maintain complete and accurate accounting records, in a form in accordance
      with generally accepted accounting principles, to substantiate any fees paid
      by
      IXI to [*] pursuant to this Agreement and IXI shall retain such records for
      a
      period of [*] from the date of final payment hereunder. At the request of [*],
      [*] or its representatives may inspect, review and copy IXI’s books and records
      that are related to any fees paid by IXI to [*] pursuant to this Agreement
      at
      reasonable times during normal business hours upon reasonable advance notice
      to
      IXI during the term of this Agreement and for a period of [*] thereafter
      (“Audit”).
      IXI
      shall provide reasonable assistance to [*] in conducting the Audit and [*].
      The
      cost of such an audit shall be borne by the [*] unless a material discrepancy
      is
      found, in which case the cost of the audit shall be borne by IXI. A discrepancy
      shall be deemed material if it involves a payment or adjustment of more than
      [*]
      percent ([*]) of the amount actually due from IXI in any given quarterly
      period. [*]
      has
      the right to perform an Audit once in each [*] period during the Term, provided,
      however that in the event that an Audit identifies discrepancies with fees
      charged related to any fees paid by IXI to [*] pursuant to this Agreement,
      [*]
      will retain the right to perform an Audit monthly until such discrepancies
      are
      resolved. At the conclusion of any Audit, any amounts found due and owing to
      the
      other Party must be paid in full within [*] of the conclusion of the
      Audit.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    13.5 Reporting.
      At the
      request of [*], IXI agrees to provide to [*] a written report, not less
      frequently than once per calendar quarter, which report shall at a minimum,
      (i)
      describe in reasonable detail IXI’s then-current plans for development of
      Candidate Applications during the forthcoming [*] period; (ii) identify the
      particular Candidate Platforms for which IXI intends to develop such Candidate
      Applications during the forthcoming [*] period; (iii) identify the projected
      volumes of Approved Complete [*] Applications and Compliant Devices, if any,
      to
      be distributed during the forthcoming [*] period; (iv) [*], and (v) [*]; (vi)
      [*]; (vii) [*]; (viii) [*]; (ix) [*]; (x) any other information reasonably
      requested by [*] and mutually agreed to by the Parties (the “[*]
      Report”).
      All
      such [*] Reports shall be considered IXI Confidential Information; provided,
      however, that all such [*] Reports shall be non-binding on IXI and IXI agrees
      to
      treat all non-public information of [*] in such report as [*]’s Confidential
      Information. It is agreed that with respect to sub-Sections 13.5 (vi), (viii)
      and (ix) the only reason for not providing such information shall be the refusal
      of a Third Party Developer to provide IXI with said information. In such an
      event, IXI shall make reasonable commercial efforts to provide [*] with similar
      information which is in IXI’s possession. 

     

    
      	
              14.

            	
              REPRESENTATIONS
                AND
                WARRANTIES;
                DISCLAIMERS

            


    

     

    14.1 Mutual
      General Warranties.
      Each
      Party represents and warrants to the other Party that: (i) such Party has the
      full corporate right, power and authority to enter into this Agreement and
      to
      perform the acts required of it hereunder; (ii) the execution of this Agreement
      by such Party, and the performance by such Party of its obligations and duties
      hereunder, do not and will not violate any agreement to which such Party is
      a
      party or by which it is otherwise bound; and (iii) when executed and delivered
      by such Party, this Agreement will constitute the legal, valid and binding
      obligation of such Party, enforceable against such Party in accordance with
      its
      terms.

     

    14.2 No
      Additional [*] Warranties.
      IXI
      understands and acknowledges that the [*] Service or other services made
      available or provided by or on behalf of [*] to any users of Compliant Devices
      or to any other persons are subject to terms and conditions of applicable
      agreements between [*] and such users or other persons, and accordingly, [*]
      bears no responsibility or liability under this Agreement with respect to the
      provision or non-provision of any such [*] Service or other services, or with
      respect to any complaints or allegations by any such users or third parties
      made
      to or against IXI. WITHOUT LIMITING THE FOREGOING, [*] DISCLAIMS ANY AND ALL
      REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY
      AND
      ALL [*] SERVICES, [*] TECHNICAL INFORMATION, OR ANY OTHER SERVICES, INFORMATION
      OR MATERIALS PROVIDED OR MADE AVAILABLE BY [*], INCLUDING, WITHOUT LIMITATION,
      ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM
      INTEGRATION, DATA ACCURACY, TITLE AND NON-INFRINGEMENT.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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              15.

            	
              LIMITATIONS
                OF
                LIABILITIES

            


    

     

    15.1 Exclusion
      of Remedies.
      EXCEPT
      WITH RESPECT TO BREACHES OF [*], NEITHER PARTY SHALL BE LIABLE TO THE OTHER
      FOR
      ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS
      OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS
      OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR
      DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM
      ANY
      SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
      THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD
      TO
      WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN
      INEFFECTIVE. 

     

    15.2 Limitation
      of Liability.
      EXCEPT
      WITH RESPECT TO BREACHES OF [*], THE CUMULATIVE LIABILITY OF EACH PARTY TO
      THE
      OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING,
      WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT
      LIABILITY, SHALL [*]. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT
      REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR
      HAVE
      PROVEN INEFFECTIVE. 

     

    15.3 Essential
      Basis.
      The
      disclaimers, exclusions and limitations of liability set forth in this Agreement
      form an essential basis of the bargain between the Parties, and, absent any
      of
      such disclaimers, exclusions or limitations of liability, the provisions of
      this
      Agreement, including, without limitation, the economic terms, would be
      substantially different.

     

    
      	
              16.

            	
              INDEMNIFICATION

            


    

     

    16.1 By
      IXI.
      IXI
      shall indemnify, hold harmless and defend [*], [*] and its Affiliates from
      and
      against all losses, expenses (including reasonable attorneys’ fees), damages,
      and liabilities resulting from any claim by any third party against [*], [*]
      and
      its Affiliates arising from or in connection with (i) infringement or alleged
      infringement, or misappropriation, as applicable, of such third party’s
      intellectual property rights, including without limitation, patent, copyright,
      trademark and trade secret rights, by any Candidate Application or Approved
      Complete [*] Application, as well as any and all intellectual property rights
      or
      similar rights in the Authorized Platform and Compliant Device. and (ii) any
      act
      or omission by a mobile communication carrier, Approved Third Party Distributor,
      or a Third Party Developer as if such acts or omissions were taken by IXI with
      respect to this Agreement. [*] agrees to give IXI prompt written notice of
      any
      claim for which defense and/or indemnity is or may be due hereunder. [*] agrees
      to give IXI (i) authority to control and direct the defense and/or settlement
      of
      such claim; and (ii) such information and assistance as IXI may reasonably
      request, at IXI’s expense, in connection with such defense and/or settlement.
      Notwithstanding the foregoing, IXI shall not settle any third-party claim
      against [*], [*] and its Affiliates unless such settlement completely and
      forever releases [*], [*] and its Affiliates with respect thereto or unless
      [*]
      provides its prior written consent to such settlement. Notwithstanding the
      foregoing, in any action for which IXI provides defense on behalf of, [*],
      [*]
      and its Affiliates, [*] may participate in such defense at its own expense
      by
      counsel of its choice. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    16.2 By
      [*].
      [*]
      shall indemnify, hold harmless and defend IXI and its Affiliates from and
      against all losses, expenses (including reasonable attorneys’ fees), damages,
      and liabilities resulting from any claim by any third party against IXI arising
      from or in connection with infringement or alleged infringement, or
      misappropriation, as applicable, of such third party’s intellectual property
      rights, including without limitation, patent, copyright, trademark and trade
      secret rights, by any [*] Technical Information, the [*] Marks, the [*] Service,
      the [*] Network, the Test Server, any Authentication Key (including the Test
      Authentication Key), [*] owned intellectual property as identified and contained
      in the Mobile Developer Kit. IXI agrees to give [*] prompt written notice of
      any
      claim for which defense and/or indemnity is or may be due hereunder. IXI agrees
      to give [*]: (i) authority to control and direct the defense and/or settlement
      of such claim; and (ii) such information and assistance as [*] may reasonably
      request, at [*]’s expense, in connection with such defense and/or settlement.
      Notwithstanding the foregoing, [*] shall not settle any third-party claim
      against IXI unless such settlement completely and forever releases IXI with
      respect thereto or unless IXI provides its prior written consent to such
      settlement. Notwithstanding the foregoing, in any action for which [*] provides
      defense on behalf of IXI, IXI may participate in such defense at its own expense
      by counsel of its choice.

     

    
      	
              17.

            	
              EXCLUSIVITY

            


    

     

    17.1 Non-Exclusive.
      This
      Agreement shall be non-exclusive for both Parties, and nothing in this Agreement
      shall be read to preclude either Party from entering into a similar agreement
      with a third party. 

     

    
      	
              18.

            	
              TERM
                AND
                TERMINATION

            


    

     

    18.1 Term.
      This
      Agreement shall commence on the Effective Date and shall continue in full force
      and effect for a period of [*] thereafter, unless terminated earlier as provided
      in this Section
      18
      (the
“Initial
      Term”).
      The
      Agreement shall thereafter automatically renew for [*] successive [*] terms
      (each, a “Renewal
      Term”),
      unless either Party provides written notice of its intent not to renew at least
      [*] prior to the end of the then current Initial Term or Renewal Term, or unless
      terminated earlier as provided herein (the period during which this Agreement
      remains in effect, the “Term”).
      

     

    18.2 Termination
      for Breach.
      Either
      Party may terminate this Agreement at any time in the event of a material breach
      by the other Party that remains uncured after [*] written notice. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    18.3 Termination
      for Bankruptcy/Insolvency.
      Subject
      to applicable law, either Party may terminate this Agreement immediately
      following written notice to the other Party if the other Party (i) ceases to
      do
      business in the normal course; (ii) becomes or is declared insolvent or
      bankrupt; (iii) is the subject of any proceeding related to its liquidation
      or
      insolvency (whether voluntary or involuntary) which is not dismissed within
      [*];
      or (iv) makes an assignment for the benefit of creditors.

     

    18.4 Termination
      for Change of Control. 

     

    [*]
      may
      terminate this Agreement by written notice at any point during the Term upon
      a
      Change in Control of the IXI to an [*] Competitor or an [*] Competitor, as
      reasonably determined by [*]. 

     

    IXI
      may
      terminate this Agreement by written notice at any point during the Term upon
      a
      Change in Control of [*] to an IXI Competitor, as reasonably determined by
      IXI.


     

    18.5 Effect
      of Termination and Expiration.
      Subject
      to Section
      4.6
      of this
      Agreement and to IXI’s payment of the Access Fee as provided in Section C of
      Exhibit E, upon the expiration of the Term of this Agreement pursuant to Section
      18.1 above Parties
      and the applicable Approved Third Party Distributor shall continue to provide
      the Complete Approved Application following such expiration, until such time
      as
      the all then effective IXI - Distributor Agreements expire or are terminated,
      subject to the same terms and conditions under which such Accepted Version
      of
      the Complete Approved Application are offered under this Agreement and/or the
      applicable IXI - Approved Third Party Distributor Agreement (the "Transition
      Period").
      At
      [*]’s option upon the termination of this Agreement due to IXI’s
      Bankruptcy/Insolvency pursuant to Section 18.3 or IXI’s Change of Control
      pursuant to Section 18.4, IXI, and the applicable Approved Third Party
      Distributor shall continue to provide the Accepted Version of the Complete
      Approved Application following such expiration until such time as all then
      effective IXI - Approved Third Party Distributor Agreements expire or are
      terminated subject to the same terms and conditions under which the [*] Services
      are offered under this Agreement and/or the applicable IXI - Approved Third
      Party Distributor Agreement. At IXI’s option upon the termination of this
      Agreement due to [*]’s Bankruptcy/Insolvency pursuant to Section 18.3 or [*]'s
      Change of Control pursuant to Section 18.4, IXI, and the applicable Approved
      Third Party Distributor shall continue to provide Accepted Version of the
      Complete Approved Application following such expiration until such time as
      all
      then effective IXI - Approved Third Party Distributor Agreements expire or
      are
      terminated subject to the same terms and conditions under which the [*] Services
      are offered under this Agreement and/or the applicable IXI - Approved Third
      Party Distributor Agreement; Provided however, that during the Transition Period
      IXI will not be entitled to enter into any new IXI - Approved Third Party
      Distributor Agreements with any distributor. 

     

    18.6 Survival.
      The
      provisions of Sections 2.2, 5.2- 5.4., 9.6, 9.7, 9.8, 10.4, 10.5, 11.1, 11.2,
      11.3, 12, 14, 15, 16, 18.5, 18.6, and 19 shall survive the expiration or
      termination of this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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              19.

            	
              GENERAL
                TERMS
                AND
                CONDITIONS

            


    

     

    19.1 Independent
      Contractor; No Agency.
      The
      Parties are independent contractors. Neither Party shall have any right, power
      or authority to enter into any agreement for or on behalf of, or incur any
      obligation or liability on behalf of, or to otherwise bind, the other Party.
      This Agreement shall not be interpreted or construed to create an employment
      relationship, an association, agency, joint venture or partnership between
      the
      Parties or to impose any liability attributable to such a relationship upon
      either Party.

     

    19.2 Excuse.
      Neither
      Party shall be liable for, or be considered in breach of or default under this
      Agreement on account of, any delay or failure to perform as required by this
      Agreement as a result of any causes or conditions which are beyond such Party's
      reasonable control and which such Party is unable to overcome by the exercise
      of
      reasonable diligence. Provided that the non-performing Party gives reasonably
      prompt notice under the circumstances of such condition(s) to the other Party.
      

     

    19.3 Injunctive
      Relief.
      The
      Parties acknowledge that breach or threatened breach of this Agreement may
      give
      rise to irreparable injury to the other Party, inadequately compensable in
      damages. Accordingly, the aggrieved Party may seek injunctive relief against
      the
      breach or threatened breach of the foregoing undertakings, in addition to any
      other legal remedies which may be available. The Parties acknowledge and agree
      that the covenants contained herein are necessary for the protection of
      legitimate business interests of the Parties and are reasonable in scope and
      content. 

     

    19.4 Remedies.
      Except
      where otherwise specified, the rights and remedies granted to a Party under
      this
      Agreement are cumulative and in addition to, and not in lieu of, any other
      rights or remedies which the Party may possess at law or in equity.


     

    19.5 No
      Waiver.
      The
      failure of either Party to insist upon or enforce strict performance by the
      other Party of any provision of this Agreement or to exercise any right under
      this Agreement shall not be construed as a waiver or relinquishment to any
      extent of such Party's right to assert or rely upon any such provision or right
      in that or any other instance; rather, the same shall be and remain in full
      force and effect.

     

    19.6 Notice.
      Any
      notice, approval, request, authorization, direction or other communication
      under
      this Agreement will be given in writing and will be deemed to have been
      delivered and given for all purposes (i) on the delivery date if delivered
      by
      confirmed facsimile; (ii) on the delivery date if delivered personally to the
      Party to whom the same is directed; (iii) one business day after deposit with
      or
      by a commercial overnight carrier, with written verification of receipt; or
      (iv)
      five business days after the mailing date, whether or not actually received,
      if
      sent by mail, return receipt requested, postage and charges prepaid and if
      confirmed by the receiving party by return receipt, or any other means of rapid
      mail delivery for which a receipt is available. In the case of [*], such notice
      will be provided to the attention of Vice President of Business Development
      of
      [*], at fax no. [*], at the address of [*] set forth in the first paragraph
      of
      this Agreement. In the case of IXI, except as otherwise specified herein, the
      notice will be provided to the attention of the General Counsel at fax no.
      [*],
      at the address set forth in the first paragraph of this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    19.7 Entire
      Agreement.
      This
      Agreement sets forth the entire agreement and supersedes any and all prior
      agreements of the Parties with respect to the transactions set forth herein.
      Neither Party shall be bound by, and each Party specifically objects to, any
      term, condition or other provision which is different from or in addition to
      the
      provisions of this Agreement (whether or not it would materially alter this
      Agreement) and which is proffered by the other Party in any correspondence
      or
      other document, unless the Party to be bound thereby specifically agrees to
      such
      provision in writing.

     

    19.8 Amendment.
      No
      change, amendment or modification of any provision of this Agreement shall
      be
      valid unless set forth in a written instrument signed by the Party subject
      to
      enforcement of such amendment.

     

    19.9 Assignment.
      Neither
      Party shall assign this Agreement or any right, interest or benefit under the
      Agreement without prior written consent of the other Party. Notwithstanding
      the
      foregoing, [*] may assign this Agreement to [*] or any [*] Affiliate. Subject
      to
      the foregoing, the Agreement will be fully binding upon, inure to the benefit
      of
      and be enforceable by the Parties hereto and their respective successors and
      assigns; provided, however, that in no instance shall (i) [*] assign the
      Agreement to a IXI Competitor or (ii) IXI assign the Agreement to an [*]
      Competitor or an [*] Competitor. 

     

    19.10 Construction;
      Severability.
      In the
      event that any provision of this Agreement conflicts with the law under which
      this Agreement is to be construed or if any such provision is held invalid
      by a
      court with jurisdiction over the Parties to this Agreement, (i) such provision
      shall be deemed to be restated to reflect as nearly as possible the original
      intentions of the Parties in accordance with applicable law, and (ii) the
      remaining terms, provisions, covenants and restrictions of this Agreement shall
      remain in full force and effect.

     

    19.11 Applicable
      Law; Jurisdiction.
      This
      Agreement shall be interpreted, construed and enforced in all respects in
      accordance with the laws of the Commonwealth of Virginia except for its
      conflicts of laws principles. Each Party irrevocably consents to the exclusive
      jurisdiction of the courts of the Commonwealth of Virginia and the federal
      courts situated therein, in connection with any action to enforce the provisions
      of this Agreement, to recover damages or other relief for breach or default
      under this Agreement, or otherwise arising under or by reason of this
      Agreement.

     

    19.12 Export
      Controls. Both
      Parties shall adhere to all applicable laws, regulations and rules relating
      to
      the export of technical data and shall not export or re-export any technical
      data, any products received from the other Party or the direct product of such
      technical data to any proscribed country listed in such applicable laws,
      regulations and rules unless properly authorized.

     

    19.13 Publicity.
      Each
      Party agrees that it will not, without prior written consent of the other,
      use
      in advertising, publicity, or otherwise the name of the other, or refer to
      the
      existence of this Agreement in press releases, advertising, or materials
      distributed to prospective customers.

     

    19.14 Headings.
      The
      captions and headings used in this Agreement are inserted for convenience only
      and shall not affect the meaning or interpretation of this
      Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    19.15 Counterparts;
      Facsimile.
      This
      Agreement may be executed in counterparts, each of which shall be deemed an
      original and all of which together shall constitute one and the same document.
      Delivery of an executed signature page to this Agreement by facsimile shall
      be
      effective to the same extent as if such Party had delivered a manually executed
      counterpart.

     

    19.16 Further
      Assurances.
      Each
      Party will take such action (including but not limited to, the execution
      acknowledgment and delivery of documents) as may reasonably be requested by
      the
      other Party for the implementation or continuing performance of the Agreement.
      

     

    19.17 Return
      of Information.
      Upon
      the expiration or termination of this Agreement, each Party will, upon written
      request of the other Party, return or destroy (at the option of the Party
      receiving the request) all confidential information, documents, manuals and
      other materials provided by the other Party. 

     

    Signature
      Page to Follow

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    IN
      WITNESS WHEREOF,
      the
      Parties have caused their duly authorized representatives to execute this
      document as of the Effective Date.

    

      
        	
                IXI
                  Mobile (R&D) Ltd.

              	
                [*]

              
	 	 
	
                Signature:
                  /s/ 

                
                  

                

                
                

                 

                
                

              	
                Signature:
                  [*]

              
	
                Printed
                  Name: 

                
                  

                

                
                

              	
                Printed
                  Name: [*]

              
	 	 
	
                Title:
                  

                
                  

                

              	
                Title:
                  [*]

              

 

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    
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    EXHIBIT
      A

    Definitions


     

     “Active
      [*] User”  shall
      mean an [*] User who according to the [*] records has been online at least
      [*]
      in the preceding [*]. 

    


    “[*]
      Services”
shall
      mean the [*] services, as made available and/or modified by [*] from
      time-to-time.

     

    "Affiliate"
      shall
      mean any distributor or franchisee of an entity, or an entity that, directly
      or
      indirectly, controls, is controlled by, or is under common control with such
      entity, including any entity in which such entity holds, directly or indirectly,
      at least a fifty percent (50%) of the voting power of the shares or other
      securities for election of directors (or other managing authority) of the
      controlled or commonly controlled entity.

    


    "[*]"
      shall
      mean [*]

    


    “[*]
      Competitor”
shall
      mean an entity primarily engaged in the business offering one or more of the
      following: (i) online or Internet connectivity services to the public for
      consumer use (e.g.,
      an
      online service or Internet service provider); or (ii) an interactive site or
      service featuring a broad selection of aggregated third party interactive
      content (or navigation thereto) covering a broad range of subjects and targeted
      at broad audience (e.g.,
      an
      online mall or multiple category e-commerce site) or (iii) communications
      services capable of serving as the principal means through which a user creates,
      sends or receives electronic mail or real time online messages. 

     

     “[*]
      IM Network”
shall
      mean the network and facilities operated by or for [*] (or its affiliates)
      in
      connection with offering presence, messaging, and other real-time communications
      services, including without limitation the [*] instant messaging, [*], and
      [*]
      branded services.

    


    “Application
      Branding Elements”
shall
      mean the [*] proprietary trademarks, service marks, logos, trade names, product
      names, graphic look-and-feel elements, audio and video files, and other indicia
      of [*] origin or ownership required to be used in connection with Approved
      Complete [*] Applications by the branding requirements set forth in the Mobile
      Developer Kit. 

     

    “Approval
      Criteria”
shall
      mean the technical, objective criteria applied by [*] in assessing whether
      to
      designate any particular Candidate Application as an Approved Complete [*]
      Application, including, without limitation, assessment of the level of
      compliance of such Candidate Application with the Mobile Developer Kit, the
      [*]
      Network Use Policy, and such other technical criteria as [*] may specify from
      time-to-time and furnish directly to the IXI.

    


    “Approved
      Complete [*] Application”
shall
      mean a particular version of a software application that: (a) contains
      Application Branding Elements related to the [*] Services, (and for avoidance
      of
      doubt, does not include any branding related to the [*] Service), (b) provides
      an [*] User access only to the [*] Services, (c) contains a complete user
      interface that complies with the branding requirements and style guides of
      the
      Mobile Developer Kit, (d) conforms to the other requirements of the Mobile
      Developer Kit, (e) has been determined by [*] to meet the applicable Approval
      Criteria in order to be considered an “Approved Complete [*] Application,” (f)
      resides on the Authorized Platform, (g) has been approved by [*] for
      distribution either as part of a Compliant Device, and (h) otherwise meets
      the
      requirements of this Agreement. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    “Approved
      Territory”
The
      territories listed in Exhibit F or any other territory approved by [*] in
      writing. 

    


    “Authorized
      Platform”
shall
      mean, with respect to any particular Approved Complete [*] Application, the
      particular model(s) and configuration(s) of mobile communications device(s)
      with
      respect to which such Approved Complete [*] Application has been tested and
      determined by [*] to meet the applicable Approval Criteria. 

     

    “Candidate
      Application”
shall
      mean a software application developed by IXI for use on a Candidate Platform
      and
      submitted by IXI for purposes of assessment by [*] as contemplated in
Section
      4.2
      to
      determine whether it should be an Approved Complete [*]
      Application.

     

    “Candidate
      Platform”
shall
      mean, with respect to any particular Candidate Application, the particular
      model(s) and configuration(s) of mobile communications device(s) with respect
      to
      which such Candidate Application is developed hereunder in accordance with
      the
      Mobile Developer Kit. 

     

    “Change
      in Control”
shall
      mean the acquisition of a Party by a third party (or group acting in concert),
      such that, as a result thereof, such third party obtains more than thirty
      percent (30%) of the outstanding voting securities of such Party or obtains
      the
      contractual power to designate more than thirty percent (30%) of the board
      of
      directors of such Party.

     

    “Compliant
      Device”
shall
      mean a mobile communications device upon which is installed an Approved Complete
      [*] Application, which is an Authorized Platform for that particular Approved
      Complete [*] Application, which has been authorized for distribution under
      Section
      4.4,
      and
      which otherwise meets the requirements of this Agreement.

     

    “Confidential
      Information”
shall
      mean
      any
      information that is disclosed during the Term and that is or should be
      reasonably understood to be confidential or proprietary (which such information
      may include without limitation information concerning a Party’s or its vendors’
business, products, services, content, finances, subscribers, users, tools,
      source code, product designs and plans, customer lists and other marketing
      and
      technical information and other unpublished information). [*]’s Confidential
      Information shall include [*] Technical Information and [*] User
      Data.

     

    “IXI
      Competitor”
shall
      mean a manufacturer of mobile data centric devices listed in Exhibit
      J attached
      hereto. Exhibit J may be amended by IXI from time to time only upon mutual
      agreement of the Parties. 

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    “IXI
      Server” shall
      mean the combination of hardware and software that communicates between the
      [*]
      Network and the IXI network and that is required to enable access to the [*]
      Services through an Approved Complete [*] Application. 

    


    “IXI
      Liaison”
shall
      have the meaning afforded to it in Section
      3.2
      of the
      Agreement.

     

    “Feedback”
shall
      have the meaning afforded to it in Section
      3.6
      of the
      Agreement. 

    


    “ICS”
shall
      have the meaning afforded to it in Section
      2.1
      of the
      Agreement. 


     

    "[*]
      Client"
      Shall
      mean the client software, device or functionality (e.g. browser technology)
      developed and distributed by [*] or an Affiliate of [*] that enables end users
      to access and use the [*] Service. 

     

    "[*]
      Competitor".
      Shall
      mean a third party that distributes an instant messaging, chat, [*] list
      tracking or similar online, real time messaging product; provided, that such
      product line constitutes a significant portion of such third party’s business or
      such third party is a major participant in the business of instant messaging
      or
      similar online, real-time messaging products

     

    “[*]
      Consumer Marks”
      shall
      mean the particular trademark(s) identified in Exhibit
      D
      as an
      [*] Consumer Mark. 

     

    “[*]
      Liaison”
shall
      have the meaning afforded to it in Section
      3.3
      of the
      Agreement.

     

    “[*]
      Marks”
shall
      mean the, [*] Consumer Marks and the Application Branding Elements.


     

    “[*]
      Mobile Developer Program”
shall
      have the meaning afforded to it in Section
      C
      of the
      Recitals. 


     

    "[*]
      Namespace”
      Shall
      mean the
      [*] database of users of the [*] Service, as well as any algorithms, and the
      server complex used by [*] to implement and support the [*]
      Service.

     

    "[*]
      Network"
      Shall
      mean (i) the [*] Service and (ii) any other network, product or service owned,
      operated, distributed or authorized to be distributed by or through [*] or
      its
      Affiliates worldwide (which may include, without limitation, Internet sites
      promoting [*] products and services and any “offline” information browsing
      products of [*] or its Affiliates). 

     

    “[*]
      Network Use Policy”
shall
      mean the requirements set forth in Exhibit
      B.

     

    “[*]
      Report”
shall
      have the meaning afforded to it in Section
      13.5
      of the
      Agreement. 

     

    "[*]
      Service” Shall
      mean the
      [*] brand instant messaging service, including the [*] Service, and any other
      products or services owned, operated, distributed or authorized to be
      distributed by or through [*] or its Affiliates worldwide, as designated by
      [*]
      during the Term.

     

    “[*]
      Technical Information”
shall
      mean the Mobile Developer Kit, all Authentication Keys (including the Test
      Authentication Key), and other non-public information provided by [*] or its
      Affiliates to IXI under this Agreement, including, without limitation,
      information regarding the [*] Services and protocols regarding access to the
      Test Server and/or the [*] Services.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      -
        Final Execution Copy - 

    

     

    "[*]
      User” Shall
      mean any
      user
      authorized by [*] to use any [*] Service(s). 

    


    “[*]
      User Data”
shall
      have the meaning afforded to it in Section
      12.1
      of the
      Agreement. 

    


    “Initial
      Term”
shall
      have the meaning afforded to it in Section
      18.1
      of the
      Agreement.

    


    “IXI
      Mark”
shall
      mean the particular trademark(s) identified in Exhibit C as IXI Mark.


     

     “Minor
      Change”
      shall
      mean the correction of any programming error in the software portion of an
      Approved Complete [*] Application that does not affect the Approved Complete
      [*]
      Application’s conformance with the relevant portions of the Mobile Developer Kit
      and that does not: (a) affect the look and feel of the user interface of the
      Approved Complete [*] Application; (b) change the branding of the Approved
      Complete [*] Application; or (c) change the functionality of the Approved
      Complete [*] Application.

    


    “Mobile
      Developer Kit”
shall
      mean, collectively, the general functional requirements, the client
      certification overview, the UI style guide, the authentication guide, the
      branding guide, the customer acceptance test guide and the functional
      requirements checklist, as updated by [*] or its Affiliates from time-to-time.
      

     

    “Renewal
      Term”
shall
      have the meaning afforded to it in Section
      18.1
      of the
      Agreement.

    


    “Taxes”
shall
      have the meaning afforded to it in Section
      13.3
      of the
      Agreement. 

    


    “Technical
      Feedback”
      shall
      have the meaning afforded to it in Section
      3.4
      of the
      Agreement.

     

    “Technical
      Requirements Document”
shall
      have the meaning afforded to it in Section
      7.1(d)
      of the
      Agreement.

     

    “Term”
shall
      have the meaning afforded to it in Section
      18.1
      of the
      Agreement.

     

    “Test
      Authentication Key”
shall
      have the meaning afforded to it in Section
      3.5
      of the
      Agreement. 

     

    “Test
      Server”
has
      the
      meaning afforded to it in Section
      3.5 of
      the
      Agreement.

     

    “Third
      Party Developer”
      shall
      have the meaning afforded to it in Section
      3.7
      of the
      Agreement. 

     

    “Third
      Party Developer Server”
      An
      IXI
      Server, when such IXI Server is developed, and/or maintained by a Third Party
      Developer. 

    


    “Transition
      Period”
shall
      have the meaning afforded to it in Section
      18.5
      of the
      Agreement.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      -
        Final Execution Copy - 


    

    EXHIBIT
      B

    [*]
      Network Use Policy

    


    OVERVIEW

     

    This
      document states the [*] policies with which all [*] Mobile Developer Program
      developers must comply. If IXI has negotiated policy terms and conditions within
      the body of the Agreement that vary from what is set forth in this section,
      the
      terms and conditions of the Agreement take precedence.

    


    [*]
      reserves the right to reject any Candidate Application if the Candidate
      Application does not meet any of the policy specifications set forth herein.
      [*]
      also reserves the right to revoke the approval for any Approved Complete [*]
      Application and to revoke the Authentication Key associated with the Approved
      Complete [*] Application if IXI, Third Party Developer, or the Approved Complete
      [*] Applications violate any of the policy specifications set forth
      herein.

    


    IM
      CLIENT
      COMPATIBILITY

     

    Approved
      Complete [*] Applications are precluded from managing [*] Network communications
      or traffic that does not originate from software developed or approved under
      the
      Agreement by [*]. Approved Complete [*] Applications are precluded from managing
      [*] IM Network communications or traffic. 

    


    No
      products or services developed or distributed by IXI, other than Approved
      Complete [*] Applications under the Agreement, may access, connect to, interface
      with or manage communications in any way with the [*] Network. 

    


    NETWORK
      TO
      NETWORK
      CONNECTIVITY

     

    No
      products developed or distributed by IXI, including any Approved Complete [*]
      Applications shall facilitate a direct or indirect connection for real time
      communications between an [*] User of the [*] Network on the one hand and an
      end
      user of any third-party communications or messaging network on the other
      hand.

    


    IM
      MESSAGES

     

    No
      products developed or distributed by IXI, including any Approved Complete [*]
      Applications, shall enable the broadcast of unsolicited instant messages
      (i.e.,
      spam)
      to
      a group of recipients, regardless of whether the message is transmitted via
      individual or group chat conversations.

    


    Approved
      Complete [*] Applications may not modify the original text of instant messages
      under any circumstance. The recipient must receive the original, formatted
      text
      exactly as it was sent by the [*] Network.

    


    USER
      PRIVACY

     

    IXI
      may
      only develop and distribute the Approved Complete [*] Application such that
      IXI
      does not violate the user privacy terms and conditions that apply to the [*]
      Services, or violate applicable laws and regulations pertaining to user privacy
      and user data protection. The privacy policy for the [*] Service can be found
      online at [*]. 

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      -
        Final Execution Copy - 

    

     

    EXHIBIT
      C- IXI Marks

    


    


    

     

    
 

     

    

    
 

     

    


     

    

    


     

    


     

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    
      -
        Final Execution Copy - 

    

     

    EXHIBIT
      D

    [*]
      Marks


    


    [*]
      Consumer Marks:

    


    [*]

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      E 

     

    Fees

     

    
      	 	
              A.

            	
              License
                Fee:

            


    

    


    
      	 	
              a.

            	
              IXI
                shall pay [*] a [*] license fee for [*] Compliant Device connected
                through
                the IXI Server (or Third Party Developer Server) to the [*] Network.
                The
                License Fee shall equal to the [*] multiplied by the [*] as listed
                in
                table A of Exhibit F.

            


    

    


    
      	 	
              b.

            	
              The
                [*] license for any [*] order shall be [*] per Approved Territory
                (“[*]
                Bulk”), unless otherwise approved by [*] in writing. Parties hereby agree
                that the payment for the [*] Bulk (as defined above) may be used
                as an
                [*]. Notwithstanding the foregoing, IXI shall be entitled to purchase
                a
                [*] amount of licenses than the [*] Bulk on the last order of any
                relevant
                [*], to reach the [*] Fee, provided however that the previous orders
                were
                equal or higher than the [*] Bulk and the last order occurs within
                the
                [*].

            


    

     

    
      	 	
              c.

            	
              IXI
                shall pay to [*] the License Fee for each order no later than [*]
                following the issuance of an invoice by [*].


            


    

     

    
      	 	
              d.

            	
              IXI
                may [*], provided however: (i) IXI has paid to [*] the [*] Fee of
                such
                said Approved Territories [*] and (ii) IXI has notified [*] of any
                [*] in
                advance.

            


    

    


    
      	 	
              e.

            	
              Any
                swap or upgrade due to return of defective device shall not be considered
                as an additional use of a license. IXI shall provide [*] with a written
                report detailing swap or upgrades of Compliant Devices according
                to the
                IMEI numbers (International Mobile Equipment Identity unique number)
                of
                said devices. 

            


    

     

    
      	 	
              B.

            	
              [*]
                Fee.

            


    

    


    
      	 	
              a.

            	
              At
                the end of any [*] as of the first bulk order per Approved Territory,
                IXI
                shall pay to [*] a [*] fee (“ IXI
                Difference Payment”).
                

            


    

    


    
      	 	
              b.

            	
              For
                each Approved Territory, the “IXI
                Difference Payment”
                shall equal to the [*] already paid to [*] in the course of the applicable
                [*] with regard to such applicable Approved Territory.
                

            


    

    


    
      	 	
              c.

            	
              The
                [*] Fee for each Approved Territory shall be as listed in table B
                of
                Exhibit F. For the avoidance of doubt, the IXI Difference Payment
                shall be
                paid regardless of [*] in the specified Approved Territory during
                any said
                [*] period. For the avoidance of doubt, in the event that a portion
                of the
                [*] Fee was not used as [*] during any specific [*] and with regard
                to any
                specific Approved Territory, that such [*] Fee applies to, then no
                portion
                of the [*] Fee shall be credited against any amounts due by IXI for
                the
                following [*] or an alternative Approved Territory.
                

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      	 	
              d.

            	
              For
                any additional new Approved Territory (for avoidance of doubt, at
                [*]’s
                sole discretion and upon prior written approval), which is not an
                Approved
                Territory listed in table B of Exhibit F, the [*] Fee shall be determined
                according to the following schedule:


            


    

     

    
      	 	
              i.

            	
              For
                each Approved Territory with up to [*] at the time it became an Approved
                Territory: [*]. 

            


    

     

    
      	 	
              ii.

            	
              For
                each Approved Territory with over [*] and under [*] at the time it
                became
                an Approved Territory: [*]. 

            


    

     

    
      	 	
              iii.

            	
              For
                any Approved Territory with over [*] at the time it became an Approved
                Territory: [*]. 

            


    

     

    
      	 	
              e.

            	
              IXI
                shall pay to [*] the IXI Difference Fee no later than [*] following
                [*] of
                the applicable [*], against a valid invoice from
                [*].

            


    

     

    
      	 	
              C.

            	
              Access
                Fee for Transition Period:

            


    

    
      	 	
              a.

            	
              During
                the Transition Period as provided in Section 18.5, IXI shall continue
                to
                pay [*] for each Approved Territory in which the Complete Approved
                [*]
                Application continues to access the [*] Network and Services, [*]
                of the
                [*] Fee of the applicable Approved Territory.


            


    

    
      	 	
              b.

            	
              Such
                payment shall be made to [*] within [*] of termination or expiration
                of
                the Agreement (i.e. start of Transition Period), against a valid
                invoice
                from [*].

            


    

    


    
      	 	
              D.

            	
              Agreement
                Term Approved Territories
                Commitment.

            


    

     

    
      	 	
              a.

            	
              During
                the Initial Term, IXI shall resell its Devices with the Complete
                Approved
                [*] Application in at least [*] Approved Territories. To the extent
                that
                by the end of the Initial Term IXI has not sold Compliant Devices
                with the
                Complete Approved [*] Application, in the amount of [*] Fee pursuant
                to
                Sections B (c) and (d) of this Exhibit
                E,
                IXI shall pay to [*] a [*] fee of [*], multiplied by the [*] and
                up to [*]
                (“Approved Territories Commitment”).


            


    

    


    
      	 	
              b.

            	
              IXI
                shall pay to [*] the Approved Territories Commitment no later than
                [*]
                following the end of the Initial Term, against a valid invoice from
                [*].
                

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit
      F

     

    Table
      A-
      [*] licenses for [*] 

    

      
        	
                Bulk
                  

              	 	 	
                Price
                  per [*]

              	
              
	
                [*]

              	 	 	
                [*]

              	
              
	
                [*]

              	 	 	
                [*]

              	
                 

              
	
                [*]

              	 	 	
                [*]

              	
                 

              
	
                [*]

              	 	 	
                [*]

              	
                 

              


      

    

     

    Table
      B-
      [*] Fee per Approved Territory 

     

    
      
        	
                Approved
                  Territory

              	 	 	
                [*]
                  commitment (as
                  of [*]

                per
                  Approved Territory)

              	
              
	
                [*]

              	 	 	
                [*]

              	
              
	
                [*]

              	 	 	
                [*]

              	
                 

              
	
                [*]

              	 	 	
                [*]

              	
                 

              
	
                [*]

              	 	 	
                [*]

              	
                 

              
	
                [*]

              	 	 	
                [*]

              	
                 

              
	
                [*]

              	 	 	
                [*]

              	
                 

              


      

    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit
      G

     

    Acceptance
      Test Plan

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Exhibit
      H

     

    Technical
      Requirements

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit
      I

     

    Service
      Level Agreement

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit
      J

     

    List
      of
      IXI competitors


     

    [*]

     

    [*]

     

    [*]