Unassociated Document


    
      	*	
              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.

            


    

     

    
      ADDENDUM
        NO.3
        TO
        THE COOPERATION
        AGREEMENT
        BETWEEN

      IXI
        MOBILE
        (R&D) LTD.
        AND
        [*] DATED
        [*]

       

    

    This
      Addendum No.3 to the Cooperation Agreement of [*] (this "Addendum") is
      made
      and entered into as of [*] (the "Effective
      Date"),
      by
      and between IXI Mobile (R&D) Ltd., an Israeli company (the “Company”)
      and
      [*], a
      [*]
      company ("Distributor").

    


    WHEREAS,
      the
      Company 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 (collectively, the
      "OGO
      Device");

    


    WHEREAS,
      the
      parties have previously entered into that certain Cooperation Agreement dated
      [*] (the "Distribution
      Agreement")
      pursuant to which the Company granted the Distributor rights, and the
      Distributor has undertaken, to distribute and sell the OGO Device to its
      customers (each an "End
      User"
      and
      collectively, "End
      Users")
      pursuant to the terms and conditions of the Distribution Agreement;

    


    WHEREAS,
      in
      addition to the features already offered by the Company to End Users for use
      with the OGO Device, the Distributor now wishes to afford End Users the new
      feature of using [*] instant messaging services on the OGO Device;

    


    WHEREAS,
      the
      Company has entered into that certain [*] Agreement (the "[*]
      Agreement")
      with
      [*], a Delaware corporation ("[*]"),
      pursuant to which, among other things, [*] granted the Company certain license
      rights to the [*] brand instant messaging service and [*] trademarks, some
      of
      such license rights may be sublicensed by the Company to the Distributor subject
      to certain restrictions and limitations as set forth in the [*] Agreement;
      

    


    WHEREAS,
      the
      Company wishes to grant the Distributor, and the Distributor is willing to
      accept, a sublicense to the [*] brand instant messaging service and certain
      [*]
      trademarks subject to the restrictions and limitations set forth in the [*]
      Agreement;

    


    NOW,
      THEREFORE,
      in
      consideration of the mutual promises and covenants in this Addendum, the parties
      hereto hereby agree as follows:

    


    
      	
              1.

            	
              Definitions.
                

            


    

    


    In
      this
      Addendum, the following terms shall have the following meanings:

    


    1.1. "Distribution
      Agreement"
      means
      as such term is defined in the Recitals to this Addendum.

    


    1.2. "End
      User"
      or
      "End
      Users"
      mean as
      such terms are defined in the Recitals to this Addendum.

    


    1.3. "[*]"
      means
      as such term is defined in the Recitals to this Addendum.

    


    1.4. "[*]
      Agreement"
      means
      as such term is defined in the Recitals to this Addendum

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    1.5. “[*]
      Branding Elements”
means
      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 by [*] used by the Company in connection
      with the [*] Messaging Application pursuant to the [*] Agreement.

    


    1.6. "[*]
      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.

    


    1.7. “[*]
      Consumer Marks” shall
      mean the particular trademark(s) identified in Exhibit
      A
      attached
      hereto as an [*] Consumer Mark.

    


    1.8. "[*]
      Messaging Application"
      means
      the particular version of the software application developed by the Company
      pursuant to the [*] Agreement that provides an End User access to the [*]
      Services and which has been approved by [*] for distribution as part of the
      OGO
      Device. 

    


    1.9. "[*]
      Service” means
      the
      [*] brand instant messaging service, including the [*] 2-Way SMS Service, and
      any other products or services owned, operated, distributed or authorized to
      be
      distributed by or through [*], as designated by [*] from time to time and
      communicated by the Company to the Distributor.

    


    1.10. "[*]
      User Data"
      means
      as such term is defined in Section 4.6 below.

    


    1.11. “IXI
      Server” means
      the
      combination of hardware and software that communicates between [*]'s network
      and
      the Company's network and that is required to enable access to the [*] Services
      by the OGO Device through the [*] Messaging Application.

    


    1.12. "OGO
      Device"
      means
      as such term is defined in the Recitals to this Addendum.

    


    1.13. "Term"
      means
      as such term is defined in Section 13.1 of this Addendum.

    


    1.14. "Territory"
      means
      [*]. 

    


    
      	
              2.

            	
              License
                Grant.

            


    

    


    Subject
      to the terms and conditions of this Addendum and the terms and conditions of
      the
      Distribution Agreement, the Company hereby grants Distributor a non-exclusive,
      limited, non-transferable, non-sublicensable license to distribute the [*]
      Services to End Users solely on OGO Devices and solely through the [*] Messaging
      Application over a GPRS or any upgraded internet access wireless protocol
      approved in writing by [*], using such End Users' existing [*] numbers and
      passwords or by registering for the [*] Services through [*]’s standard
      registration process. 

    


    
      	
              3.

            	
              License
                Restrictions and Limitations.

            


    

    


    In
      addition to any restrictions and limitations set forth in the Distribution
      Agreement which shall apply, mutatis mutandis, to the rights granted to
      Distributor pursuant to this Addendum, Distributor's rights pursuant to this
      Addendum, shall be subject to the following restrictions, limitations and
      Distributor's undertakings and acknowledgements:

     

    
      3.1. The
        Distributor shall only distribute and allow mobile use and/or mobile access
        of
        the [*] Service through the OGO Device and solely in the Territory.


    

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    3.2. Distributor
      acknowledges and agrees to fully cooperate with the Company and [*] and take
      all
      reasonable actions to ensure that access to and use of the [*] Services by
      End
      Users is governed by [*]’s then current Member Agreement for the [*] Services.
      Distributor further acknowledges and agrees that it is expressly prohibited
      from
      accessing, and from providing any third party
      (including End Users) access to, the [*] services, or any other [*] affiliate
      service. Distributor acknowledges and agrees that (x) it shall make available
      to
      End Users all features and functionality of the [*] Services that the Company
      makes available to the End Users, subject to technical limitations of the [*]
      Messaging Application; and (y) it is expressly prohibited from connecting
      directly to the [*] network.

    


    3.3. Notwithstanding
      any other provision of this Addendum, (i) Distributor will not attempt to access
      or use the [*] Service, or authorize or facilitate access or use thereof by
      any
      third parties (including End Users), by means of any application or device
      other
      than the OGO 
      Device;
      and (ii) Distributor shall not represent that any connection or access or use
      of
      the [*] Service is for a perpetual term and shall ensure that any End User
      is
      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.

    


    3.4. Distributor
      acknowledges and agrees that the Company, and not [*], is responsible for
      developing the [*] Messaging Application, as well as operating and supporting
      the IXI Server.

    


    3.5. Distributor
      acknowledges and agrees that [*] is not obligated to provide any technical
      support to any third party with respect to the [*] Service and the [*] Messaging
      Application.

    


    3.6. Distributor
      acknowledges and agrees that [*] shall be free to prohibit or terminate access
      to the [*] Service at any time in its sole discretion. 

    


    
      	
              4.

            	
              Proprietary
                Rights; [*] User Data.

            


    

    


    4.1. As
      between the Company and Distributor, the Company, or its licensors, will own
      all
      intellectual property rights or similar rights, title and interest in the [*]
      Messaging Application as well as any and all intellectual property rights or
      similar rights in the OGO Device and any other service provided as part of
      the
      OGO Device which is not the [*] Service (e.g. e-mail, email attachments,
      synchronization etc.). Except as expressly permitted in this Addendum, no right
      or license is granted, under any of the Company's intellectual property rights,
      in or to the OGO Device or the [*] Messaging Application. 

    


    4.2. 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 the [*] Consumer
      Marks and the [*] Service and all intellectual property rights or similar rights
      associated with, embodied in, or practiced by the foregoing. 

    


    4.3. The
      Company reserves all rights not expressly granted in this Addendum. For sake
      of
      clarity, except as explicitly permitted in this Addendum, no right or license
      is
      granted, under any of [*]’s intellectual property rights.

    


    4.4. The
      parties existing confidentiality obligations pursuant to the Distribution
      Agreement or any other non-disclosure agreement or other agreement of similar
      effect, shall apply to any non-public information provided by either party
      to
      the other party under this Addendum and to the [*] User Data. 

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    4.5. Except
      for the usage rights with respect to the [*] Consumer Marks, which usage rights
      shall be subject to the terms, conditions and limitation set forth in
      Section 6
      of this
      Addendum, no right, title, or interest is being granted to the Distributor
      herein in or to any [*] Branding Elements or [*] Consumer Marks and as between
      the Company, Distributor and [*], [*] shall remain the sole and exclusive owner
      of the [*] Branding Elements and the [*] Consumer Marks.

    


    4.6. As
      between the Company and the Distributor, any and all information collected
      or
      otherwise obtained from End Users by either the Company or the Distributor
      in
      connection with such End User’s use of, navigation through, and/or registration
      for the [*] 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”).
      Nothing in this Addendum shall be read to give the Distributor or any third
      party a license or any other right in or to the [*] User Data, both during
      and
      after the Term of this Addendum.

    


    4.7. At
      all
      times either during or after the Term of this Addendum, Distributor shall not
      use or disclose any [*] User Data to any third-party in any manner or for any
      purpose without the prior written consent of [*].

    


    
      	
              5.

            	
              Service
                Level.

            


    

    


    Distributor
      acknowledges and agrees that the service level with respect to the [*] Service
      offered by the Company shall be pursuant to a service level agreement between
      [*] and the Company. 

    


    
      	
              6.

            	
              License
                in [*] Consumer Marks.

            


    

    


    6.1. Subject
      to the terms and conditions of this Addendum, the Company hereby grants to
      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 OGO Devices and packaging, package inserts, advertising
      and marketing materials for the OGO Devices directed towards End Users, and
      solely in accordance with the Usage Standards set forth in this Section 6 and
      such other [*] trademark usage guidelines as the Company may from time-to-time
      provide to Distributor. 

    


    6.2. Distributor
      acknowledges and agrees that its use of the [*] Consumer Marks pursuant to
      Section 6.1 above must
      be
      approved by the Company in writing prior to use. The Company shall request
      [*]'s
      approval of such use prior to and as a condition to its approval. Distributor
      further acknowledges and agrees that all use of the [*] Consumer Marks shall,
      at
      all times, remain subject to such [*] written trademark usage guidelines as
      the
      Company may from time-to-time provide to Distributor. Distributor acknowledges
      and agrees that the Company has no control over [*] and that there is no
      guaranty that [*] will grant its permission to any use of Distributor of the
      [*]
      Consumer Marks, although Distributor's strict compliance with the terms of
      this
      Section 6 will most likely increase the possibility of any such use being
      approved by [*]. Distributor acknowledges the exclusive ownership right of
      [*]
      in the [*] Consumer Marks and agrees that all use of the [*] Consumer Marks
      shall inure to the benefit, and be on behalf, of [*]. Without limiting the
      foregoing, Distributor will not (i) use the [*] Consumer Marks in any manner
      that disparages or tarnishes any [*] Consumer Marks or the reputation of [*],
      or
      that could reasonably be expected to do so; (ii) modify the [*] Consumer Marks;
      (iii) combine in one mark the [*] Consumer Marks with any other marks or create
      any composite marks; (iv) register or attempt to register the [*] Consumer
      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 [*] Consumer Marks, or undertake any action which impairs such proprietary
      rights of [*] or its licensors, or that could reasonably be expected to do
      so.
      Distributor shall, throughout the Term and for a period of not less than one
      (1)
      year after the termination or expiration of this Addendum, retain representative
      copies of all uses of the [*] Consumer Marks, and shall provide such copies
      to
      either [*] or the Company upon [*]'s or the Company's request at any time prior
      to the date which is one (1) year after such termination or
      expiration.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

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

    


    7. Commercial
      Terms.

    


    7.1. Distributor
      shall pay the Company such fees related to access to the [*] Services as
      detailed in Exhibit
      B
      of this
      Addendum. 

    


    7.2. Distributor
      agrees that any fees charged by it to End Users for use of the [*] Services
      via
      [*] Messaging Application shall [*] than any fees that 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 the [*] Messaging Application, including,
      but not limited to, Internal community, [*] and [*]. 

    


    8. Links
      to [*] Messaging Application and Service.

    


    The
      Company requests that Distributor provides links to the [*] Messaging
      Application and/or the [*] Service among the top [*] links in the same
      categories (e.g.,
      new
      releases, instant messaging, etc.) where the Distributor provides links to
      similar applications and/or services.

    


    9. Reporting.

    


    At
      the
      request of the Company, Distributor agrees to provide to the Company with a
      written report, not less frequently than [*], which report shall at a [*],
      (i)
      identify the projected volumes of [*] Messaging Applications and OGO Devices,
      if
      any, to be distributed during the forthcoming [*] period; (ii) the projected
      fees payable to the Company from the distribution of such projected volumes
      of
      [*] Messaging Applications and OGO Devices; (iii) the Distributor’s marketing
      and promotion plans related to the [*] Services, including, the Approved
      Distributor’s marketing and promotion budget and an indication if the Company is
      authorized to disclose such marketing and promotion budget to [*], and (iv)
      the
      End User pricing implemented by the Distributor in relation to an [*] Client
      and
      access to the [*] Service; [*] (viii) any other information reasonably requested
      by the Company and mutually agreed to by the parties. 

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    10. Disclaimer
      of Warranties.

    


    IN
      ADDITION TO, AND WITHOUT LIMITING THE GENERALITY OF, ANY DISCLAIMERS OF
      WARRANTIES UNDER THE DISTRIBUTION AGREEMENT, THE COMPANY HEREBY DISCLAIMS ANY
      AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING
      ANY AND ALL [*] SERVICES, 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.

    


    11. Limitation
      of Liabilities.

    


    ANY
      EXCLUSION OF REMEDIES PROVISIONS AND LIMITATION OF LIABILITIES PROVISIONS SET
      FORTH IN THE DISTRIBUTION AGREEMENT SHALL APPLY TO THE TRANSACTIONS CONTEMPLATED
      BY THIS ADDENDUM, EXCEPT WITH RESPECT TO BREACHES OF SECTIONS 3 (LICENSE
      RESTRICTIONS), 4 (PROPRIETARY RIGHTS AND [*] USER DATA), 6.2 AND 6.3 ([*]
      CONSUMER MARKS USAGE) AND 12 (INDEMNIFICATION) HEREUNDER.

    


    12. Indemnification.
      

    


    Distributor
      shall indemnify, hold harmless and defend the Company from and against all
      losses, expenses (including reasonable attorneys’ fees), damages, and
      liabilities resulting from any claim by any third party against the Company
      and/or from any claim by any third party against [*], [*] and its affiliates
      for
      which the Company is required to provide indemnification and arising from or
      in
      connection with any act or omission by of the Distributor. 

    


    13. Term.
      

    


    13.1. The
      term
      of this Addendum ("Term")
      shall
      commence on the Effective Date and shall end on the date [*] from the Effective
      Date.

    


    13.2. The
      provisions of Sections 3, 4, 10, 11, 12 and 14 shall survive the expiration
      or
      termination of this Addendum.

    


    14. General
      Terms and Conditions.

    


    14.1. The
      parties acknowledge that they continue to be bound by the terms of the
      Distribution Agreement, as amended and/or supplemented hereby. Except as amended
      and/or supplemented hereby, all of the terms of the Distribution Agreement
      shall
      remain and continue in full force and effect and are hereby confirmed in all
      respects. Accordingly, each of the parties acknowledges and agrees that the
      [*]
      Messaging Application and the [*] Services shall be governed by the terms of
      the
      Distribution Agreement; provided, however, that in the event of any
      discrepancies between the terms and provision of the Distribution Agreement
      and
      the terms and provisions of this Addendum, the terms and provisions of this
      Addendum shall govern and prevail. 

    


    14.2. This
      Addendum may be executed in counterparts, each of which shall constitute an
      original, but all of which together shall constitute one and the same Addendum.
      Originally executed counterparts may be delivered by facsimile and any such
      delivery shall be valid for all purposes as delivery of a manual signature
      and
      equally admissible in any legal proceedings to which any of the parties is
      a
      party.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    14.3. If
      any
      provision of this Addendum or the application thereof, shall for any reason
      and
      to any extent be determined by a court of competent jurisdiction to be invalid
      or unenforceable under applicable law, the remaining provisions of this Addendum
      shall be interpreted so as best to reasonably effect the intent of the parties
      hereto.

    


    14.4. This
      Addendum, together with the Distribution Agreement and all exhibits hereto
      and
      thereto, constitute the entire understanding and agreement of the parties with
      respect to the transactions contemplated herein and supersede all prior and
      contemporaneous understandings and agreements, whether written or oral, with
      respect to such transactions.

    


    14.5. This
      Addendum shall be governed in all respects by the governing law and choice
      of
      forum sections of the Distribution Agreement.

    


    [Signature
      Page Follows]

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

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

    

      
        	
                IXI
                  Mobile (R&D) Ltd.

              	
                DISTRIBUTOR

              
	 	 
	
                Signature:
                  /s/ 

                
                  

                

                
                

                 

                
                

              	
                Signature:
                  [*]

              
	
                Printed
                  Name: 

                
                  

                

                
                

              	
                Printed
                  Name: [*]

              
	 	 
	
                Title:
                  

                
                  

                

              	
                Title:
                  [*]

              


      

    

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    

      EXHIBIT
        A

      


      [*]
        Consumer Marks


      


      [*]

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      EXHIBIT
        B

      


      Fees


      


      As
        per
        Section 2.2, Table 1 of the Distribution Agreement.