Unassociated Document


    [***] Portions redacted in
accordance with request for confidential treatment and filed separately with
SEC.

    Commercial Agreement 

    
      

    

     

    concerning
the purchase

    of


     

    commercially
traded

    Products

    
      
        

      

    

     

    
      
        
          
            
              
                
                  
                    	
                            Contract
      no.

                            of

                          	
                            2004-1433

                            24.12.2004

                          
	 	 	 	 	 
	 
      	
                            valid
      from

                          	
                            24.12.2004

                          	 
      	 
      
	 	 	 
	
                            Contract

                            between

                          	
                            Swisscom
      Mobile AG,

                            CH-3050
      Bern / Switzerland    

                          	
                            as
      purchaser

                            hereinafter
      referred to as

                            „Swisscom
      Mobile“

                          
	 	 	 
	
                            and

                          	 
      	
                            as
      Supplier

                          
	 
      	
                            IXI
      MOBILE (EUROPE) LTD

                          	
                            hereinafter
      referred to as

                            „Supplier“

                          
	 
      	
                            37
        Broadhurst   Gardens

                          	 
      
	 	 	 
	 
      	
                            London  NW6
      3WT

                          	 
      
	 	 	 
	 
      	
                            United Kingdom

                          	 
      


                  

                

              

            

          

        

      

    

     

    
      
        
          
            	
                    Swisscom
      Mobile AG

                    Purchasing
      & Handset Management

                    CH-3050
      Berne / Switzerland

                  	 
      	
                    Created in:

                    Printed in:

                    Created by:

                  	 	
                    May
      2004

                    Wednesday,
      23 Jun 2004

                    Handset
      Sourcing Team

                  


          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Commercial
Agreement

    Commercially
traded Products

    Supplier

    Page:
2

    


    Content:

     

    
      
        	
                1

              	
                Subject
      of the Commercial Agreement

              	
                4

              
	 
      	 
      	 
      
	
                2

              	
                Parts
      of the Commercial Agreement

              	
                4

              
	 
      	 
      	 
      
	
                3

              	
                Deliverables
      of Supplier

              	
                5

              
	
                3.1

              	
                Samples,
      Dummies and Accessories

              	
                5

              
	
                3.2

              	
                Product-Information/Documentation

              	
                5

              
	
                3.3

              	
                [***]

              	
                6

              
	
                3.4

              	
                Pre-Configuration

              	
                6

              
	
                3.5

              	
                Training

              	
                6

              
	 
      	 
      	 
      
	
                4

              	
                Economic
      Terms

              	
                6

              
	
                4.1

              	
                Pricelist

              	
                6

              
	
                4.2

              	
                Payment
      Terms and Billing

              	
                6

              
	
                4.3

              	
                Economical
      Objectives and Discounts

              	
                8

              
	 
      	 
      	 
      
	
                5

              	
                Marketing
      and Promotion Activities 2004

              	
                7

              
	 
      	 
      	 
      
	
                6

              	
                Shipping
      and Delivery Terms

              	
                8

              
	
                6.1

              	
                Inspection
      of the Shipments and Acceptance of goods

              	
                8

              
	
                6.2

              	
                Place
      of Performance (Delivery Address)

              	
                8

              
	
                6.3

              	
                Passing
      of the Title

              	 
      
	
                6.4

              	
                Terms
      of Delivery and Shipping

              	
                9

              
	 
      	 
      	 
      
	
                7

              	
                Import
      Details and Shipping Instructions

              	
                9

              
	 
      	 
      	 
      
	
                8

              	
                Guarantee

              	
                9

              
	 
      	 
      	 
      
	
                9

              	
                Term
      and Termination of the Commercial Agreement

              	
                9

              
	
                9.1

              	
                Term
      and Termination of the Commercial Agreement

              	 
      
	
                9.2

              	
                Amendments
      to the Commercial Agreement

              	
                9

              
	
                9.3

              	
                Severability
      Clause

              	
                10

              
	 
      	 
      	 
      
	
                10

              	
                Execution

              	
                11

              


      

    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Commercial
Agreement

    Commercially
traded Products

    Supplier

    Page:
3

    
       

      
        	
                1

              	
                Subject
      of the Commercial Agreement

              


      

      
        
          

        

      

    

     

    Within
the scope of the Frame Agreement concerning the purchase of Handsets and
Accessories Contract no. 2004-1432, dated from 24.12.2004, agreed between
Swisscom Mobile as Operator and IXI Mobile as Supplier, in which this Commercial
Agreement states the economic terms and conditions in connection with the
Delivery for reselling of all commercially traded Products from Supplier. It
shall also include technical specifications, special agreements or
information.

    
       

      
        	
                2

              	
                Parts
      of the Commercial Agreement

              


      

      
        

      

    

     

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

     

    
      
        	
                
                

              	
                i.

              	
                This
      Commercial Agreement document

              


      

    

    


    
      
        	
                
                

              	
                ii.

              	
                The
      respective confirmed Purchase
Order

              


      

    

    


    
      
        	
                
                

              	
                ii. 

              	
                Local
      Annexes

              


      

    

     

    
      
        	
                
                

              	
                ·

              	
                Annex
      A “Pricelist”

              


      

    

    
      
        	
                
                

              	
                ·

              	
                Annex
      B “Process of the Rolling Volume
Forecast”

              


      

    

    
      
        	
                
                

              	
                ·

              	
                Annex
      C “Contacts of the Parties”

              


      

    

    
      
        	
                
                

              	
                ·

              	
                Annex
      D “Handset Term Sheet”  (as a
  template)

              


      

    

     

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

     

    The
above-mentioned list of Commercial Agreement documents is not exhaustive as new
documents (Annexes) may be added from time to time on mutual agreement of the
Parties. Especially technical specifications of certain types of Products can be
added to this Commercial Agreement or as binding description to the relevant
order as agreed by the Parties.

     

    Annex A
is subject to changes from time to time by Supplier. Always the latest pricelist
of Supplier shall constitute the Local Annex A "Pricelist" of this Commercial
Agreement.

     

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

     

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


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Commercial
Agreement

    Commercially
traded Products

    Supplier

    Page:
4

    
       

      
        	
                3

              	
                Deliverables
      of Supplier

              


      

      
        

      

    

    
       

      3.1 
Samples, Dummies and Accessories

      
        

      

      


    

    Marketing
samples: If available, Swisscom Mobile shall receive in minimum 2 marketing
samples free of charge at least 2 months before the Market Launch.

     

    
      	
               
      

            	
              Ø

            	
              Delivery
      Address for marketing samples, Annex C “Contacts of the
      Parties”

            


    

     

    Operator
Samples (Test Handsets): With the Sample Availability Swisscom Mobile shall
receive 5 Operator Samples: for its quality and security audits free of charge
and two samples of the latest related Accessories, if they are not compatible
with the existing ones.

     

    
      	
               
      

            	
              Ø

            	
              Delivery
      Address for Operator Samples, Annex C “Contacts of the
      Parties”

            


    

     

    Sales
Samples: Immediately after Swisscom Mobile has placed the initial order but not
before Sample Availability Swisscom Mobile shall receive 30 Sales Samples free
of charge for the training, information and instructions of Swisscom Mobile’s
sales and support staff.

     

    
      	
               
      

            	
              Ø

            	
              Delivery
      Address for Sales Samples, Annex C “Contacts of the
    Parties”

            


    

     

    Dummies:
With the Market Launch of a new Handset or Handset type Swisscom Mobile shall
receive 300 Dummies for advertising purposes, credited against the marketing
budget.

     

    
      	
               
      

            	
              Ø

            	
              Delivery
      Address for Dummies, Annex C “Contacts of the
  Parties

            


    

     

    With
respect to the obligations above:

     

    “Market
Launch” shall be defined as the point in time when the respective products
become commercially available to any end user or operator in
Europe.

     

    “Initial
Sample Availability” shall be defined as the point in time when the first
samples of the Product become available to any operator in Europe or 2 months
before Market Launch whichever occurs first.

     

    With
respect to the obligations above any major change of the Product’s Software
after the initial order shall be treated as if a new type had been ordered and
Swisscom Mobile shall receive new Samples or a new flash tool for the
Samples.

    
       

      3.2   Product-Information/Documentation

      
        

      

      


    

    Basically
Information & Documentation concerning Products, the Roadmap, the Forecast
Meeting or the Handset Board shall be delivered in German or English to the
following addresses:

     

    
      	
               
      

            	
              Ø

            	
              Delivery
      Address for Basically Information & Documentation, Annex C “Contacts
      of the Parties”

            


    

     

    To inform
Swisscom Mobile’s sales staff in an optimal manner the following information and
documentation about the Products shall be supplied by Supplier four weeks before
the Market Launch:

     

    
      	
               
      

            	
              §

            	
              Weights
      and measures

            


    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Commercial
Agreement

    Commercially
traded Products

    Supplier

    Page:
5


     

    
      	
               
      

            	
              §

            	
              Speaking
      and Standby time

            


    

     

    
      	
               
      

            	
              §

            	
              Scope
      of Delivery (content of the
packages)

            


    

     

    
      	
               
      

            	
              §

            	
              Interoperability
      of Accessory and new Accessory

            


    

     

    
      	
               
      

            	
              §

            	
              official
      promotion slogan or the advertising short
  message

            


    

     

    
      	
               
      

            	
              §

            	
              most
      important features

            


    

     

    
      	
               
      

            	
              §

            	
              Manuals
      in German, French, Italian and English on a media carrier like
      CD-ROM

            


    

     

    
      	
               
      

            	
              Ø

            	
              Delivery
      Address for Product Information & Documentation, Annex C “Contacts of
      the Parties”

            


    

     

    3.3   [***]

    
      
        

      

    

    [***]

    
       

      3.4   Pre-Configuration

      
        

      

    

    All
Handsets shall be pre-configured after the requirements of Swisscom Mobile,
according to the technical possibilities and ad no additional costs. This
includes the configuration of WAP over CSD and/or GPRS as well as the settings
of bookmarks. This enumeration is not exhaustive. Swisscom Mobile shall inform
Supplier in writing and in good times of the detailed requirements.

    
       

      3.5   Training

      
        

      

    

    Supplier
undertakes to instruct Swisscom Mobile’s sales and support staff upon demand of
Swisscom Mobile for new Products (especially of new complex Products). Basic
training for train the trainers shall be free of charge for Swisscom Mobile;
advanced training upon offer of Supplier. The education shall be practical
oriented and shall qualify the trained staffs for consultation, support and
promotion activities.


    
       

      
        	
                4

              	
                Economic
      Terms

              


      

      
        

      

    

    
       

      4.1   Pricelist

      
        

      

    

    The
actual and agreed prices of the present Product portfolio, which Swisscom Mobile
purchases from Supplier, are stated in the Local Annex A “Pricelist” of this
Commercial Agreement. Annex A is subject to changes from time to time by
Supplier. Always the latest pricelist of Supplier shall constitute the Local
Annex A "Pricelist" of this Commercial Agreement.


    
       

      4.2   Payment
Terms, Billing and Place of Performance

      
        

      

    

    All
prices are quoted and invoiced in EURO (EUR), excluding value-added tax
(V.A.T.), for Delivery DDP (Delivered Duty Paid, INCOTERMS 2000) to Emmen,
Switzerland.

     

    Invoices
shall be sent in duplicate, quoting the Contract as well as the order number, to
the following address:


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Commercial
Agreement

    Commercially
traded Products

    Supplier

    Page:
6


     

    
      	
               
      

            	
              Ø

            	
              Invoicing
      Address, Annex C “Contacts of the
Parties”

            


    

     

    The
invoices are payable net within 30 days.

     

    Invoices
that are not paid within net 30 days will be subject to interest of 5% per year
on the amount due until paid in full.

     

    Benefit
and risk shall pass to Swisscom Mobile upon Delivery at the Place of
Performance.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Commercial
Agreement

    Commercially
traded Products

    Supplier

    Page:
7

    
       

      4.3   Economical
Objectives and Discounts

      
        

      

    

     

    
      	
              4.3.1

            	
              Objectives
      of Quantity and Turnover

            


    

     

    Swisscom
Mobile and Supplier may agree to any economical objectives and discounts in the
Handset Term Sheet.

     

    
      	
              4.3.2

            	
              Promotion
      discount

            


    

     

    Swisscom
Mobile and Supplier may agree to any promotional discount in the Handset Term
Sheet.


    
       

      
        	
                5

              	
                Shipping
      and Delivery Terms

              


      

      
        
 

    

    
      5.1   Inspection
of the Shipments and Acceptance of goods

      
        

      

      


    

    The
inspection of the shipments and the acceptance of goods shall be performed after
the following procedure:

     

    
      	
               
      

            	
              1.

            	
              Supplier
      is instructed to advise the Delivery and to inform ALSO ABC (Distributor)
      about the amount of palettes, which will be delivered the next Working
      Day.

            


    

     

    
      	
               
      

            	
              2.

            	
              With
      respect to drop shipments the plumbs (seals) are inspected. Drop shipments
      mean Deliveries, which are directly delivered from Supplier to
      Operator/Distributor (at the Place of Performance 6.2) without
      transhipment via a shipper (clearing ex
  factory).

            


    

     

    
      	
               
      

            	
              3.

            	
              The
      amounts of pallets as well as the boxes are counted. Boxes are either
      single items with box-labels, a cardboard box with several items or a
      pallet.

            


    

     

    
      	
               
      

            	
              4.

            	
              The
      shipments are accepted with reservation. With reservation means, that
      failings and discrepancies can be notified later on. Discrepancies are
      reported to Supplier within an appropriate time (basically within 24
      hours, latest within 5 Working Days).If after 5 days no discrepancies are
      reported in writing to Supplier the reservations shall be deemed to be
      removed and the Products shall be deemed to be accepted. Either Swisscom
      Mobile or ALSO ABC, as the entitled distributor, call and admonish the
      discrepancies at Supplier.

            


    

     

    
      	
               
      

            	
              5.

            	
              Notwithstanding
      above any missing or damaged cartons must be noted on delivering carriers
      documentations.

            


    

     

    
      5.2   Place
of Performance (Delivery Address)

      
        

      

      


    

    Place of
Performance and Delivery address is the following:

     

    
      	
               
      

            	
              Ø

            	
              Place
      of Performance, Annex C ”Contacts of the
  Parties“

            


    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Commercial
Agreement

    Commercially
traded Products

    Supplier

    Page:
8

    
       

      5.3   Terms
of Delivery and Shipping

      
        

      

    

    Supplier
shall pay attention to the following rules at Delivery:

     

    
      	
               
      

            	
              -

            	
              each item shall be marked with a
      single EAN-Code to identify and to control it through the flow of
      goods;

            


    

     

    
      	
               
      

            	
              -

            	
              the Delivery has to take place
      only by using normalised
euro-pallets;

            


    

     

    
      	
               
      

            	
              -

            	
              Delivery shall pass with
      unadulterated palettes or palettes with different Deliverables on it shall
      be marked;

            


    

     

    
      	
               
      

            	
              -

            	
              cardboard boxes shall not contain
      several Products or Product
types;

            


    

     

      
Delivery of print media:

     

    
      	
               
      

            	
              -

            	
              print
      media shall not be delivered on pallets without making packaging
      units

            


    

     

    
      	
               
      

            	
              -

            	
              related
      to packaging units the following rules shall receive
      attention:

            


    

     

    
      
        
          	 	
                  -

                	
                  single
      pieces

                	
                  no
      Delivery

                
	 	 
      	
                  a
      lot/pack

                	
                  100
      pieces

                
	 	 
      	
                  a
      cardboard box

                	
                  1’000
      pieces (10 lots/packs of 100 pieces)

                
	 	 
      	
                  a
      pallet

                	
                  50'000
      pieces (50 cardboard boxes of 1000
pieces)

                


        

      

    

    
       

      
        	
              	
                -

              	
                packaging
      units shall be marked with the item-number (EAN-Code), name of the item;
      pieces of the content and the
order-number

              


      

    

     

    
      
        	
                6

              	
                Import
      Details and Shipping Instructions

              


      

      
        

      

      


    

    If any
import details have to be settled, they shall be done according to the Swisscom
Mobile procedure as defined in the Annex 2 of the Frame Agreement “Shipping
instructions for Suppliers of Swisscom Mobile AG”.

     

    The
forwarding agent of the Supplier is expected to contact and cooperate with the
shipper from Swisscom Mobile regarding import matters.

     

    
      	
               
      

            	
              Ø

            	
              Shipper Address, Annex C
      “Contacts of Parties”

            


    

     

    Swisscom
Mobile hereby requests that Supplier shall instruct his forwarding agent to
clear all imports to be delivered to Swisscom Mobile through:

     

    
      
        
          	
                  VAT
      No:

                	
                  457
      432

                
	
                  ZAZ-Account:

                	
                  7856-5

                


        

      

    

    
      


      
        
          
             


          

          
             


            
              

            

          

          
             


          

        

      

       

      Commercial
Agreement

    

    Commercially
traded Products

    Supplier

    Page:
9

    
       

      
        	
                7

              	
                Commercial
      Agreement Specifications 

              


      

      
        

      

    

    
       

      7.1   Amendments
to the Commercial Agreement

      
        

      

    

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


    
       

      7.2   Severability
Clause

      
        

      

      


    

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

    
       

      
        	
                8

              	
                Term
      and Termination of the Commercial
Agreement

              


      

      
        

      

      


    

    The
Commercial Agreement shall come into effect when signed by both
Parties.

     

    If
Parties agree to continue their business relationship and are involved in
negotiations the provisions of the Commercial Agreement shall be valid until a
new Commercial Agreement will be signed.

     

    Each
Party is authorised to terminate the Commercial Agreement after 31.12.2005 by
giving a [***] notice in writing to the other Party.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Commercial
Agreement

    Commercially
traded Products

    Supplier

    Page:
10

    
       

      
        	
                9

              	
                Execution

              


      

      
        

      

      


    

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


     

    
      Signatures
of the Parties 

      
        

      

    

    
       

      For
Supplier:

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                	
                                        Chief
      Executive Officer

                                      	 
      	
                                         Function

                                      
	
                                        Signature
      and company stamp (Please write the name of the person signing in
      CAPITALS)

                                      	 
      	
                                        Signature
      and company stamp (Please write the name of the person signing in
      CAPITALS)

                                      
	 	 	 
	
                                        Place
      and date: _____________________

                                      	 
      	 
      
	 
      	 
      	 
      
	
                                        For
      Swisscom Mobile AG:

                                      	 
      	 
      
	 
      	 
      	 
      
	
                                        Urs
      Schaeppi

                                      	 
      	
                                        Adrian
      Jungo

                                      
	
                                        Head
      of Commercial Business

                                      	 
      	
                                        Head
      of Purchasing & Logistics

                                      
	 	 	 
	
                                        Place
      and date: