Unassociated Document


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

       

       

    

    
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    ICQ
MOBILE DEVELOPER PROGRAM AGREEMENT

    (OMA
IMPS Version)

    


    This
ICQ
mobile development program Agreement (the “Agreement”)
is made as of November __, 2006 (the “Effective
Date”) by and between ICQ,
Inc., a Delaware corporation with its principal offices and place of
business at 22000 AOL Way, Dulles, Virginia 20166 (“ICQ”) 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 ICQ and IXI, a “Party” and
collectively the “Parties”).

    


    Recitals

    


    A.      ICQ
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.      ICQ
has established a program based on the Open Mobile Alliance Instant Messaging
and Presence Services Protocol Specifications (Client-Server Protocol) (“ICQ Mobile
Developer Program”), whereby ICQ 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 ICQ’s
proprietary instant messaging services.

    


    D.      IXI
wishes to participate in the ICQ Mobile Developer Program and ICQ wishes to
allow IXI to participate in the ICQ 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.            Participation
in the ICQ Mobile Developer Program

    

     

    2.1 Provision of Mobile Developer
Kit.  Upon mutual execution of this Agreement by the Parties,
ICQ 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, ICQ may provide supplements or modifications to
the Mobile Developer Kit, including the ICS, as ICQ determines appropriate, at
no charge to IXI.  ICQ shall use commercially reasonable efforts to
make such supplements or modifications available to IXI on the same basis that
ICQ provides such supplements or modifications to other ICQ Mobile Developer
Program participants.

     

    2.2 License to Use Mobile Developer
Kit.

     

    Subject
to the terms and conditions of this Agreement, ICQ 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 ICQ 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 ICQ Service or ICQ
Network, that is not authorized by ICQ pursuant to the terms and conditions of
this Agreement, and that has not otherwise been authorized in writing by ICQ,
shall be considered a material breach of this Agreement. IXI will not develop,
promote or distribute any features or functionality with respect to the ICQ
Service or the ICQ Network  that enable (a) direct communication
between the ICQ Service and any other third party instant messaging service or
community, (b) auto-login between the ICQ community and any other third party
instant messaging community, or (c) co-mingling of an ICQ User’s contact list or
and AOL member's Buddy Lists®, presence information and/or conversations with
the buddy 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 ICQ the first Candidate
Application within 14 days 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 ICQ 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 ICQ. IXI shall direct all technical and development related
inquiries arising under this Agreement through the IXI Liaison to the ICQ
Liaison.

     

    3.3 ICQ Program
Manager.  ICQ shall designate one (1) ICQ representative to
serve as liaison between the Parties on ICQ’s behalf in connection with this
Agreement (the “ICQ
Liaison”).  ICQ will notify IXI of such designation and agrees
to provide current contact information for its ICQ Liaison at all times during
the Term.  ICQ 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 ICQ 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 ICQ for purposes
of soliciting feedback regarding the same. ICQ shall provide such feedback and
development support to IXI as ICQ, 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 ICQ’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 ICQ’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, ICQ 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 ICQ Service are hosted (collectively, the “Test
Server”).  ICQ shall make reasonable efforts to provide a
non-production copy of the ICQ Service that is similar to the production copy of
the ICQ 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 ICQ may specify from time-to-time, and
solely for purposes of testing the Candidate Application(s) under development
using the ICQ number, password, and/or other authentication credentials issued
by ICQ for such purpose (the “Test
Authentication Key”).  IXI acknowledges that ICQ 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.  ICQ 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 ICQ Service or an ICQ 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 ICQ with respect to the
ICQ 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, ICQ 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.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    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 ICQ for review by ICQ, and to access the
ICQ Network, provided that (a) any such Third Party IXI engagement by IXI shall
be subject to ICQ’s prior written approval,  and (b) that either (x)
such Third Party Developer has entered into an MDP Program agreement with ICQ or
AOL or (y) IXI enters into a binding, written agreement with the relevant Third
Party Developer, which agreement is no less protective of ICQ, the Test
Authentication Key, the Test Server, the ICQ Technical Information and the ICQ
Service and the ICQ Network than are the terms of this Agreement and shall only
enable , such Third Party Developer to access to the ICQ 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 90 days prior written notice to ICQ.

     

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

     

    
      4.           Approval
of Applications

    

    
       

    

    4.1 Submission of Candidate
Applications.  Upon completion of any Candidate Application,
IXI may submit the same to ICQ for assessment as a potential Approved Complete
ICQ Application.  Notwithstanding the foregoing, IXI agrees that it
will not submit any such Candidate Application for ICQ 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 ICQ at no cost of
at least five (5) 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
ICQ, provided further that IXI or Third Party Developer must provide access to
such IXI Server or Third Party Developer Server.  ICQ shall at its own
expense return such samples to IXI within fifteen (15) business days following
completion of such testing.

     

    4.2 Assessment of Candidate
Applications.  Upon receipt of a properly submitted Candidate
Application, ICQ 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
ICQ makes no representations or warranties regarding the timeframe within which
any such testing and assessment will be completed; provided, however, ICQ 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 ICQ
may reasonably request in connection with such testing and
assessment.  IXI acknowledges and agrees that ICQ’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 ICQ
determines that a particular Candidate Application meets all requirements for
designation as an Approved Complete ICQ Application, ICQ will so inform IXI in
writing.  Upon receipt of such written notice, the relevant Candidate
Application will be considered an Approved Complete ICQ Application for purposes
of this Agreement.

     

     (b) In the event that ICQ
determines that a particular Candidate Application fails to meet applicable
Approval Criteria, ICQ will so inform IXI in writing, stating ICQ’s reasons for
such determinations.  IXI may, at its option, thereafter elect to
modify the relevant Candidate Application for re-submission to ICQ 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 ICQ.

     

    4.4 Authentication
Keys.  Once the Approved Complete ICQ 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 ICQ
will provide to IXI a client identifier and, where appropriate, an
authentication key(s) unique to IXI for use with such Approved Complete ICQ
Application for a particular Authorized Platform (each, an “Authentication
Key”).  ICQ 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 ICQ 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 ICQ Complete Application for a particular Authorized Platform with the
ICQ Service.  IXI will integrate such Authentication Key into any
Approved Complete ICQ Application for use as part of an Authorized Platform(s)
for the relevant Compliant Devices. ICQ will provide such Authentication Key by
means of such secure protocols as ICQ 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 ICQ
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 ICQ 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 ICQ Application is updated,
improved or otherwise modified in any way other than Minor Changes, it shall
thereafter no longer be considered an Approved Complete ICQ Application unless
and until it has been re-submitted for assessment in accordance with Section 4.1 and, as modified,
has been designated by ICQ as an Approved Complete ICQ
Application.  IXI agrees that it shall provide to ICQ a final version
of the Approved Complete ICQ 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, ICQ may
deny any Approved Complete ICQ Application access to the ICQ Services in the
event of a breach of this Agreement that remains uncured by IXI for thirty (30)
days following written notice and an opportunity to cure the
breach.  Notwithstanding the foregoing, ICQ may also deny any Approved
Complete ICQ Application access to the ICQ Services and ICQ Network immediately
in the event of compromise to the security of an Authentication Key or of an
Approved Complete ICQ 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 ICQ
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 ICQ Services, any other AOL service, the ICQ Network, the AOL IM
Network, the ICQ Namespace, ICQ Users, the Application Branding Elements, any
Authentication Key (including the Test Authentication Key), the ICQ Technical
Information, and/or ICQ owned or licensed intellectual property, and (c) is not
cured following thirty (30) days 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 ICQ herein, upon such breach ICQ may immediately suspend or terminate IXI's
access to the ICQ Network.

     

    
      
        5.           Distribution
and promotion

         

      

    

    5.1 Approved
Complete ICQ Application Distribution.

     

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

     

    (a) ICQ 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 ICQ, the ICQ
Service, the ICQ Network, any other ICQ or AOL service, the AOL IM Network, ICQ
Users, the ICQ Namespace, the Application Branding Elements, any Authentication
Key (including Test Authentication Key), and the ICQ Technical Information as
are the terms and conditions of this Agreement (“IXI- Approved Distributor
Agreement”);

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

    (g) Shall
not contemplate the provision of the ICQ Services for a period of time exceeding
2 years from the later of: execution of an IXI-Approved Distributor Agreement or
the launch of an Approved ICQ Application which shall in no case be longer than
3 months 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 ICQ Marks, of which use shall be subject to Section 9 of this Agreement)
contained in an Approved Complete ICQ Application other than to
allow  for the use of such Application Branding Elements solely as
embodied within an Approved Complete ICQ Application

     

    5.3  Where IXI has
distributed an Approved Complete ICQ Application to an   Approved
Third Party Distributor , and such Approved Third Party
Distributor  improperly uses the Approved Complete ICQ Application or
the Application Branding Elements, IXI shall use commercially reasonable efforts
to assist ICQ 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
ICQ Technical Information,  the ICQ  Service and ICQ
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.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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      6.         
  License to ICQ Service

       

    

    6.1 Subject to the terms
and conditions of this Agreement, ICQ will permit an ICQ User to access and use
the ICQ Services solely on Compliant Devices through an Approved Complete ICQ
Application over a GPRS or any upgraded internet access wireless protocol
approved in writing by ICQ, using their existing ICQ numbers and passwords or by
registering for such through ICQ’s standard registration process.  ICQ
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 ICQ 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 ICQ Users
the ability to access and use the ICQ Services solely on Compliant Devices
through an Approved Complete ICQ Application ; (ii) provide, on behalf of ICQ, a
non-exclusive, limited, non-transferable, non-sublicensable license to Approved
Third Party Distributors to  distribute the ICQ Services to the users
of the Compliant Device through an Approved Complete ICQ Application on
Compliant Devices.

     

    6.2 Access to and use of
the ICQ Services by ICQ Users will be governed by ICQ’s then current Member
Agreements for such ICQ 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 AIM Services. IXI acknowledges and agrees that (x) it  shall
make available to users of Compliant Devices that are also ICQ Users all
features and functionality of the ICQ Services that ICQ makes available to IXI,
subject to technical limitations of the applicable Approved Complete ICQ
Application; (y)  Approved Third Party Distributors or mobile
communication carriers are expressly prohibited from connecting directly to the
ICQ Network; and (z) there shall be only one (1) connection between the IXI
Server and/or the Third Party Developer Server and the ICQ Network and the one
(1) connection shall be utilized for all Approved Complete ICQ Applications,
unless otherwise agreed to in writing by ICQ.

     

    
      
        7.            Final
Acceptance Testing

         

      

    

    7.1 IXI acknowledges and
agrees that, prior to the commercial launch of the ICQ Services on any Approved
Complete ICQ Application on a specific model of Compliant Device, and at ICQ’s
option, ICQ and, IXI, shall jointly conduct end to end acceptance testing of the
Approved Complete ICQ Application on that Compliant Device to determine if the
Approved Complete ICQ 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 ICQ’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 ICQ Application
commercially available until ICQ and IXI jointly determine that such Approved
Complete ICQ Application for any specific Complaint Device has passed such end
to end testing; provided, however, that ICQ in its sole discretion may waive its
right to conduct such end to end testing.

     

    No later than ten (10) business days
following completion of such end to end testing, ICQ shall notify IXI in writing
regarding whether it deems the tested Approved Complete ICQ 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 ICQ Application.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    Connection between the ICQ 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 thirty (30) days 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 ICQ.

     

    IXI acknowledges and agrees that any
Approved Third Party] shall acknowledge and agree, that a user of the ICQ
Service, as a condition to using such ICQ Service, may be required to agree to a
standard end-user agreement, to be provided to such user by ICQ, 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 ICQ Services, a user first will be required to register for the
service, and such registration shall occur through ICQ’s then current
registration process and terms of service. All user information obtained through
such ICQ registration process shall be owned by ICQ and become part of the ICQ
Namespace.  IXI acknowledges that this Agreement confers no rights to
the ICQ Namespace and that IXI is prohibited from accessing the ICQ Namespace in
any manner whatsoever without ICQ’s prior written consent. Except as explicitly
required hereunder, to protect user privacy, IXI also is prohibited from the
collection or solicitation of ICQ User numbers and/or password information
without ICQ’s express written consent.  ICQ shall determine, in its
sole discretion, the terms of use for any ICQ Service, including, but not
limited to, terms of conduct, privacy policies and pricing for the ICQ Service,
if any.  Notwithstanding any of the foregoing, Parties hereby agree
that only ICQ Users who have previously registered to the ICQ Service shall be
able to access the ICQ Service and that the Complete Approved Application shall
not include a registration process without ICQ’s prior written approval. To the
extent that such approval is furnished IXI shall insure that no registration to
the ICQ Service shall be made available without potential ICQ 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 ICQ 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.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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      9.           
Licensing and Use of ICQ Marks

    

     

    9.1 License in ICQ Consumer Mark.
Subject to the terms and conditions of this Agreement, ICQ grants to IXI a
limited, non-exclusive, non-transferable, non-sublicensable, royalty-free
license during the Term to use, display and reproduce the ICQ 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 ICQ’s Mobile Developer Program.

     

    9.2 Intentionally
Omitted.

     

    9.3 License in Application Branding
Elements. Subject to the terms and conditions of this Agreement, ICQ
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 ICQ
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 ICQ to IXI.

     

    9.4 License in ICQ Consumer
Marks.  Subject to the terms and conditions of this Agreement,
ICQ 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 ICQ 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 ICQ may from
time-to-time provide to IXI.

     

    9.5 Intentionally
Omitted

     

    9.6 Usage
Standards.   IXI’s uses of the ICQ Marks pursuant to Sections 9.1, 9.2, 9.3 and 9.4,
must be approved by ICQ in writing prior to use, and IXI acknowledges and
agrees that all use of the ICQ Marks shall at all times remain subject to
such  written trademark usage guidelines as ICQ may from time-to-time
provide to IXI. ICQ agrees to make reasonable commercial efforts to approve the
said use within five (5) business days. \In an event that ICQ disapproves use of
the ICQ Marks, ICQ shall, within the specified five working days, 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 ICQ has not
provided approval, it will be deemed as disapproval. IXI acknowledges the
exclusive ownership right of ICQ in the ICQ Marks and agrees that all use of the
ICQ Marks shall inure to the benefit, and be on behalf, of
ICQ.  Without limiting the foregoing, IXI will not (i) use the ICQ
Marks in any manner that disparages or tarnishes any ICQ Marks or the reputation
of ICQ, or that could reasonably be expected to do so; (ii) modify the ICQ
Marks, except as any such modification is expressly permitted in the Mobile
Developer Kit; (iii) combine in one mark the ICQ Marks with any other marks or
create any composite marks; (iv) register or attempt to register the ICQ Marks
in any jurisdiction or create, use, register or attempt to register any
confusingly similar mark; or (v) challenge ICQ's proprietary rights in and to
the ICQ Marks, or undertake any action which impairs such proprietary rights of
ICQ 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 one (1) year after the
termination or expiration of this Agreement, retain representative copies of all
uses of the ICQ Marks, and IXI shall provide such copies to ICQ upon ICQ's
request at any time prior to the date which is one (1) year after such
termination or expiration.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    9.7 Corrections.  Upon
notice from ICQ of its objection to any improper or incorrect use of the ICQ
Marks, IXI shall correct or change such usage. IXI agrees to promptly notify ICQ
of any unauthorized use of the ICQ Marks of which it has actual
knowledge.  ICQ shall have the sole right and discretion to bring
proceedings alleging infringement of the ICQ Marks or unfair competition related
thereto; provided, however, that IXI shall provide ICQ 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.

     

    9.8 General Standards of
Conduct.  IXI acknowledges and agrees that ICQ derives
substantial value from the goodwill associated with the ICQ Service, other ICQ
services, the ICQ Marks and the ICQ 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 ICQ shall have
the right to terminate this Agreement, pursuant to Section 18.2, in the event
that ICQ reasonably determines that IXI has failed to meet the foregoing
standards.

     

    9.9 License in IXI’s
Marks.  IXI hereby grants to ICQ 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. ICQ’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 ICQ for its ICQ Marks in Sections 9.6 and 9.7
above.

     

    
      
        10.         
Marketing of Approved Complete ICQ Applications

         

      

    

    10.1 Intentionally
Omitted

     

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

     

    10.3 IXI Marketing
Obligations.

     

    (a) IXI agrees that for each Approved
Territory, IXI shall designate  an IXI employee to work on marketing
initiatives related to the ICQ Service and any applicable Approved Complete ICQ
Applications.

     

    (b)  Request that the
Approved Third Party provides links to the Approved Complete ICQ Application and
/ or the ICQ Service among the top three (3) links in the same categories (e.g., New Releases, Instant
Messaging, etc.) where the Approved Third Party Distributor provides links to
similar applications and / or services.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    10.4 Access to ICQ
Services.  Notwithstanding any designation of Candidate
Applications as Approved Complete ICQ 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
ICQ  Service, the AIM Service, or any other AOL Affiliate service nor
shall IXI have any right to authorize third parties to access or use any
ICQ  Service, the AIM Service, or any other AOL Affiliate service, and
any rights for an ICQ User to access and/or use the ICQ Service shall be subject
to a separate agreement between ICQ and the particular user of an Approved
Complete ICQ Application.  ICQ may at any time and in its sole
discretion deny access to the ICQ Service from any device, including Compliant
Devices, or any Approved Complete ICQ 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
ICQ  Service, the ICQ Namespace, or ICQ Network unless such
application is an Approved Complete ICQ Application; (ii) IXI will not attempt
to access or use the ICQ  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 ICQ  Service, the ICQ Namespace, or ICQ Network unless such
application is an Approved Complete ICQ 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 ICQ User are aware that ICQ 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 ICQ Technical Information; and (v)
IXI’s use of the ICQ Technical Information and development of applications for
use with the ICQ  Service shall be in accordance with the ICQ Network
Use Policy.

     

    10.6 Support for Approved Complete ICQ
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 ICQ 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, ICQ 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 ICQ’s rights in the ICQ 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 ICQ 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 ICQ Service (e.g. e-mail. Email
attachments, synchronization etc’).  IXI grants to ICQ and its Parent
company and/or its Affiliates a non-exclusive license (i) to use, install and
operate the Candidate Applications and Approved Complete ICQ 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
ICQ 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 ICQ
Application.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    11.2 ICQ Intellectual Property
Rights.  Subject to the limited licenses expressly granted
herein, as between the Parties, ICQ shall own and hold all right, title and
interest in and to all ICQ Technical Information, the ICQ Marks, the ICQ
Service, the ICQ Network, the Test Server, any Authentication Key (including the
Test Authentication Key), ICQ 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 ICQ 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 ICQ’s
intellectual property rights, in or to the Test Server or any software or
services accessible on or through the Test Server.

     

    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 three (3) years 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 ICQ 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 ICQ a limited,
non-exclusive, royalty-free, non-sublicensable, non-transferable license during
the Term (i) to use, install and operate an Approved Complete ICQ Application on
an Authorized Platform solely for the purpose of providing demonstrations of the
Approved Complete ICQ 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 ICQ Application where reasonably necessary to undertake
such demonstrations.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    ICQ 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 ICQ Application solely for the
purpose of providing demonstrations of the Approved ICQ 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.

     

    
      
        12.         
ICQ User Data

         

      

    

    12.1 Ownership of ICQ User
Data.  As between the Parties, any and all information
collected or otherwise obtained from ICQ Users by either Party in connection
with an ICQ User’s use of, navigation through, and/or registration for the
ICQ  Service or any other ICQ service, including, but not limited to,
user names, passwords, ICQ numbers, email addresses, domain names (including
vanity domain names), credit card information where ICQ is the merchant of
record, user preferences or history or other identifying information, shall be
owned and controlled by ICQ (“ICQ User
Data”).  All ICQ User Data shall be deemed ICQ 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 ICQ 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 ICQ User
Data.  At all times either during or after the Term of this
Agreement, IXI and any Approved Third Party Distributor shall not disclose ICQ
User Data to any third-party without the prior written consent of
ICQ.  Notwithstanding the foregoing, IXI  may disclose ICQ
User Data solely as necessary to comply with applicable laws, rules or
regulations; provided, however, that IXI  provides ICQ 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 ICQ to redact mutually agreed
upon portions of this Agreement to the fullest extent permitted under applicable
laws, rules or regulations.

     

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

     

    
      
        13.         
Economic Terms

         

      

    

    13.1 Fees; Expenses.  IXI
shall not pay ICQ any fees during the Term of this Agreement for access to the
Mobile Developer Kit, testing under the terms of this Agreement, and the
licenses granted in this Agreement to the ICQ Marks and the Authentication
Keys.  IXI shall pay ICQ such fees related to access to the ICQ
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 ICQ 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.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    13.2  Pricing of Approved Complete ICQ
Applications; ICQ 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 ICQ
Applications to third parties; provided, however, that for Approved Complete ICQ
Applications, IXI may not charge a separate fee for the Application Branding
Elements or otherwise charge an additional fee for the Approved Complete ICQ
Application related to the use of the Application Branding Elements; provided
further that for the development, porting, and/or customization of an Approved
Complete ICQ Application, IXI may only charge fees commensurate with IXI’s
standard hourly rates and fees.

     

    (b) ICQ
shall have sole authority to determine the pricing according to which it
provides the ICQ Services or any other ICQ products or
services.   ICQ shall have sole responsibility for the billing
and pricing of ICQ Services to ICQ Users; provided, however, that ICQ 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 ICQ Services, provided,
further, that nothing herein shall prevent ICQ from charging ICQ Users fees that
are charged generally to users of the ICQ 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 ICQ Services via an Approved Complete ICQ 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 ICQ Services on an Approved Complete ICQ Application,
including, but not limited to, Internal community, MSN Messenger and Yahoo!
Messenger. IXI shall notify ICQ if any Approved Third Party Distributor charges
such fee and shall upon ICQ’s request take any necessary steps to ensure that
the Complete Approved ICQ Application shall not be made available to subscribers
of such Approved Third Party Distributor.

    


    13.3  Taxes.  All payments
provided in this Agreement are exclusive of any sales, use, gross receipts,
excise, import or export value added or similar taxes or duties (the “Taxes”).  IXI shall
collect and pay and indemnify, and hold ICQ and its Affiliates harmless from,
any Taxes arising in connection with this Agreement and/or the sale of any
products or services by IXI or its Affiliates and agents, including any
penalties and interest, as well as any costs associated with the collection or
withholding thereof, including reasonable attorney’s fees, except for Taxes
based upon ICQ’s net income or franchise taxes of ICQ.  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. If IXI provides proper
certification of tax exemption, ICQ will honor said exemption.  All
taxes shall be listed separately on invoices from ICQ.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    Notwithstanding
the aforementioned,  if, after a determination by foreign tax
authorities, any taxes are required to be withheld, on payments made by IXI to
ICQ, IXI may deduct such taxes from the amount owed ICQ and pay them to the
appropriate taxing authority; provided however, that IXI shall promptly secure
and deliver to ICQ an official receipt for any such taxes withheld or other
documents necessary to enable ICQ to claim a U.S. (or any other foreign
jurisdiction) Foreign Tax Credit.  IXI 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 ICQ pursuant to this Agreement and IXI shall retain such records for a period
of two (2) years from the date of final payment hereunder.  At the
request of ICQ, ICQ or its representatives may inspect, review and copy IXI’s
books and records that are related to any fees paid by IXI to ICQ 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 two
(2) years thereafter (“Audit”).  IXI
shall provide reasonable assistance to ICQ in conducting the Audit and ICQ. The
cost of such an audit shall be borne by the ICQ 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 five percent (5%) of the amount actually due from IXI in any given
quarterly period. ICQ
has the right to perform an Audit once in each six (6) month 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 ICQ pursuant to this
Agreement, ICQ 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
thirty (30) days of the conclusion of the Audit.

     

    13.5 Reporting.  At  the
request of ICQ, IXI agrees to provide to ICQ 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 ninety (90) day period; (ii)
identify the particular Candidate Platforms for which IXI intends to develop
such Candidate Applications during the forthcoming ninety (90) day period; (iii)
identify the projected volumes of Approved Complete ICQ Applications and
Compliant Devices, if any, to be distributed during the forthcoming ninety (90)
day period; (iv) new Approved Third Party Distributors for the applicable
period, including (a) that Approved Third Party Distributor’s name, country, and
subscriber base, (b) the projected revenue from that Approved Third Party
Distributor, the agreed upon Minimum Fee (as defined in Exhibit E) for that Approved
Third Party Distributor, (c) the Approved Third Party Distributor’s marketing
and promotion plans related to the ICQ Services, including, where IXI is at
liberty to disclose, the Approved Third Party Distributor’s marketing and
promotion budget, and (v) the end user pricing implemented by each Approved
Third Party Distributor in relation to an ICQ Client and access to the ICQ
Service; (vi) the aggregate number of chargeable messages sent via an Approved
Complete ICQ Application by a  users of the Compliant Devices during
the applicable quarter pursuant to a per message fee; (vii) all amounts due ICQ
per country and in total for the applicable period; (viii)the number, per
Approved Third Party Distributor, of successful logins, login attempts, and
re-logins to the ICQ Service through an Approved Complete ICQ Application; (ix)
the number of IM messages sent and received per Approved Complete ICQ
Application version and per Compliant Device; (x) any other information
reasonably requested by ICQ and mutually agreed to by the Parties (the “ICQ
Report”). All such ICQ Reports shall be considered IXI Confidential
Information; provided, however, that all such ICQ Reports shall be non-binding
on IXI and IXI agrees to treat all non-public information of ICQ in such report
as ICQ’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 ICQ with similar information which is in IXI’s
possession.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

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

     

    
      
        15.          Limitations
of Liabilities

         

      

    

    15.1 Exclusion of
Remedies.  EXCEPT WITH RESPECT TO BREACHES OF SECTIONS 2.2, ,
AND 5, THE INDEMNIFICATION PROVISIONS IN SECTION 16, PROPRIETARY RIGHTS IN
SECTION 11, CONFIDENTIALITY PROVISIONS IN SECTION 11.3, AND USER DATA PROVISIONS
IN SECTION 12 HEREIN, 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.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    15.2  Limitation of Liability.
EXCEPT WITH RESPECT TO BREACHES OF SECTIONS 2.2, , AND 5, THE INDEMNIFICATION
PROVISIONS IN SECTION 16, PROPRIETARY RIGHTS IN SECTION 11, CONFIDENTIALITY
PROVISIONS IN SECTION 11.3, AND USER DATA PROVISIONS IN SECTION 12 HEREIN, 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 NOT EXCEED THE [***] OR THE AMOUNTS THAT ICQ
RECEIVED OR IS ENTITLED TO RECEVEF ROM IXI (UP TO THE DATE OF PAYMENT UNDER THIS
SECTION) PURSUANT TO THIS AGREEMENT.  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 ICQ, AOL  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
ICQ, AOL 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 ICQ 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.  ICQ agrees to give IXI prompt written notice of any claim
for which defense and/or indemnity is or may be due hereunder.  ICQ
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 ICQ, AOL and its Affiliates unless such settlement
completely and forever releases ICQ, AOL and its Affiliates with respect thereto
or unless ICQ provides its prior written consent to such
settlement.  Notwithstanding the foregoing, in any action for which
IXI provides defense on behalf of, ICQ, AOL and its Affiliates, ICQ may
participate in such defense at its own expense by counsel of its
choice.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    16.2  By ICQ. ICQ 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
ICQ Technical Information, the ICQ Marks, the ICQ Service, the ICQ Network, the
Test Server, any Authentication Key (including the Test Authentication Key), ICQ
owned intellectual property as identified and contained in the Mobile Developer
Kit.    IXI agrees to give ICQ prompt written notice of any
claim for which defense and/or indemnity is or may be due
hereunder.  IXI agrees to give ICQ: (i) authority to control and
direct the defense and/or settlement of such claim; and (ii) such information
and assistance as ICQ may reasonably request, at ICQ’s expense, in connection
with such defense and/or settlement. Notwithstanding the foregoing, ICQ 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 ICQ 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 two (2) years thereafter, unless terminated
earlier as provided in the Section 18 (the “Initial Term”). The Agreement
shall thereafter automatically renew for two (2) successive one (1)
year terms  (each, a “Renewal
Term”), unless either Party provides written notice of its intent not to
renew at least thirty (30) days 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
thirty (30) days’ written notice.

     

    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 ninety (90) calendar days; or (iv)
makes an assignment for the benefit of creditors.

     

    18.4  Termination for Change of
Control.

     

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


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    IXI may terminate this Agreement by
written notice at any point during the Term upon a Change in Control of ICQ 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 ICQ’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 ICQ 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 ICQ’s
Bankruptcy/Insolvency pursuant to Section 18.3 or ICQ'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 ICQ 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.

     

    
      
        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.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    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 ICQ, such
notice will be provided to the attention of Vice President of Business
Development of ICQ, at fax no. + 972-3-7665566_, at the address of ICQ 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.+972-9-7476600, at the address set forth in the first
paragraph of this Agreement.

     

    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.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    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, ICQ may assign this Agreement to AOL or any AOL 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) ICQ assign the
Agreement to a IXI Competitor or (ii) IXI assign the Agreement to an AOL
Competitor or an ICQ 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.

     

    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. _________________

                	 	
                  ICQ,
      INC. 

                
	 
      	 	 
      
	
                  Signature:
      __________________________

                	 	
                  Signature:
      __________________________

                
	 
      	 	 
      
	
                  Printed
      Name: _______________________

                	 	
                  Printed
      Name: _______________________

                
	 
      	 	 
      
	
                  Title:
      ______________________________

                	 	
                  Title:
      ______________________________

                


        

      

    

     

    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

    
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    EXHIBIT
A

    Definitions


     

      “Active ICQ
User”  shall
mean an ICQ User who according to the ICQ records has been online at least once
in the preceding 30 days.

    


    “AIM
Services” shall mean the AOL Instant MessengerTM services, as made
available and/or modified by AOL 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.

    


    "AOL" shall
mean America Online, Inc.

    


    “AOL
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.

     

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

    


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

     

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

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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     “Approved Complete
ICQ Application” shall mean a particular version of a software
application that: (a) contains Application Branding Elements related to the ICQ
Services, (and for avoidance of doubt, does not include any branding related to
the AIM Service),  (b) provides an ICQ User access only to the ICQ
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 ICQ to meet the applicable Approval Criteria in order to be
considered an “Approved Complete ICQ Application,” (f) resides on the Authorized
Platform, (g) has been approved by ICQ for distribution either as part of a
Compliant Device, and (h) otherwise meets the requirements of this
Agreement.

    


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

    


    “Authorized
Platform” shall mean, with respect to any particular Approved Complete
ICQ Application, the particular model(s) and configuration(s) of mobile
communications device(s) with respect to which such Approved Complete ICQ
Application has been tested and determined by ICQ 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 ICQ
as contemplated in Section
4.2 to determine whether it should be an Approved Complete ICQ
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 ICQ Application, which is an Authorized Platform for that
particular Approved Complete ICQ 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). ICQ’s Confidential Information shall include ICQ Technical
Information and ICQ User Data.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    “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.

     

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


     

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

     

    "ICQ
Competitor".  Shall mean a third party that distributes an
instant messaging, chat, buddy 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

     

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

     

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

     

    “ICQ Marks”
shall mean the, ICQ Consumer Marks and the Application Branding
Elements.

     

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


     

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

     

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

     

    “ICQ Network Use
Policy” shall mean the requirements set forth in Exhibit B.

     

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


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    "ICQ Service” Shall mean the
ICQ® brand instant messaging service, including the  ICQ 2-Way SMS
Service, and any other products or services owned, operated, distributed or
authorized to be distributed by or through ICQ or its Affiliates worldwide, as
designated by ICQ during the Term.

     

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

     

    "ICQ User” Shall mean any user authorized by
ICQ,  , to use any ICQ Service(s).

    


    “ICQ 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 ICQ Application that does not affect
the Approved Complete ICQ 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 ICQ Application; (b) change the
branding of the Approved Complete ICQ Application; or (c) change the
functionality of the Approved Complete ICQ 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 ICQ 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.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    “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.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
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    EXHIBIT
B

    ICQ
Network Use Policy

    


    Overview

    This
document states the ICQ policies with which all ICQ 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.

    


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

    


    IM
Client Compatibility

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

    


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

    


    Network
To Network Connectivity

    No
products developed or distributed by IXI, including any Approved Complete ICQ
Applications shall facilitate a direct or indirect connection for real time
communications between an ICQ User of the ICQ 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 ICQ
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 ICQ 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 ICQ Network.

    


    User
Privacy

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


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    EXHIBIT
C- IXI Marks

    


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
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    EXHIBIT
D

    ICQ
Marks

     

     ICQ
Consumer Marks:

     

    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
E

     

    Fees

     

    
      	
               
      

            	
              A.

            	
              License
      Fee:

            


    

    


    
      	
               
      

            	
              a.

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

            


    

    


    
      	
               
      

            	
              b.

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

            


    

     

    
      	
               
      

            	
              c.

            	
              IXI
      shall pay to ICQ the License Fee for each order no later than thirty (30)
      days following the issuance of an invoice by
  ICQ.

            


    

     

    
      	
               
      

            	
              d.

            	
              IXI
      may [***], provided
      however: (i) IXI has paid to ICQ the Minimum Annual Fee of such said
      Approved Territories prior to [***] and (ii) IXI has
      notified ICQ 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 ICQ 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.

            	
              Minimum
      Annual Fee.

            


    

    


    
      	
               
      

            	
              a.

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

            


    

    


    
      	
               
      

            	
              b.

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

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      	
               
      

            	
              c.

            	
              The
      Minimum Annual 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 the number of licenses actually used
      in the specified Approved Territory during any said [***] period. For the
      avoidance of doubt, in the event that a portion of the Minimum Annual Fee
      was not used as an advanced payment during any specific [***] and with regard to
      any specific Approved Territory, that such Minimum Annual Fee applies to,
      then no portion of the Minimum Annual 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 ICQ’s
      sole discretion and upon prior written approval),  which is not
      an Approved Territory listed in table B of Exhibit F,   the
      Minimum Annual Fee shall be determined according to the following
      schedule:

            


    

     

    
      	
               
      

            	
               
      i.

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

            


    

     

    
      	
               
      

            	
               ii.

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

            


    

     

    
      	
               
      

            	
              iii.

            	
              For
      any Approved Territory with over [***] Active ICQ Users
      Active ICQ Users at the time it became an Approved Territory: [***]  I shall
      pay to ICQ the IXI Difference Fee no later than thirty (30) days following
      the end of the applicable [***], against a valid
      invoice from ICQ.

            


    

     

    
      	
               
      

            	
              C.

            	
              Access
      Fee for Transition Period:

            


    

    
      	
               
      

            	
              a.

            	
              During
      the Transition Period as provided in Section 18.5, IXI shall continue to
      pay ICQ for each Approved Territory in which the Complete Approved ICQ
      Application continues to access the ICQ Network and Services, [20% (twenty
      percent)] of the Minimum Annual Fee of the applicable Approved
      Territory.

            


    

    
      	
               
      

            	
              b.

            	
              Such
      payment shall be made to ICQ within 30 days of termination or expiration
      of the Agreement (i.e. start of Transition Period) , against a valid
      invoice from ICQ.

            


    

    


    
      	
               
      

            	
              D.

            	
              Agreement
      Term Approved Territories
Commitment.

            


    

     

    
      	
               
      

            	
              a.

            	
              During
      the Initial Term, IXI shall resell its Devices with the Complete Approved
      ICQ Application in at least 3  Approved Territories. To the
      extent that by the end of the Initial Term IXI has not sold Compliant
      Devices with the Complete Approved ICQ Application, in the amount of
      Minimum Annual Fee pursuant to Sections B (c) and (d) of this Exhibit E, IXI shall pay
      to [***] (“Approved
      Territories Commitment”).

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              b.

            	
              IXI
      shall pay to ICQ the Approved Territories Commitment no later than ten
      (10) days following the end of the Initial Term, against a valid invoice
      from ICQ.

            


    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
F

     

    Table A-
minimum licenses for ICQ Users per bulk

    


    
      
        
          
            
              
                
                  
                    
                      	
                              Bulk

                            	 
      	
                              Price
      per ICQ USER

                            
	
                              [***]

                            	 
      	
                              [***]

                            
	
                              [***]

                            	 
      	
                              [***]

                            
	
                              [***]

                            	 
      	
                              [***]

                            
	
                              [***]

                            	 
      	
                              [***]

                            


                    

                  

                

              

            

          

        

      

    

     

    Table B-
Minimum Annual Fee per Approved Territory

    


    
      
        
          
            
              
                
                  	
                          Approved
      

                          Territory

                        	 
      	
                          Yearly minimum 

                          commitment (as of first 

                          Bulk order per Approved 

                          Territory)

                        
	
                          [***]

                        	 
      	
                          [***]

                        
	
                          [***]

                        	 
      	
                          [***]

                        
	
                          [***]

                        	 
      	
                          [***]

                        
	
                          [***]

                        	 
      	
                          [***]

                        
	
                          [***]

                        	 
      	
                          [***]

                        
	
                          [***]

                        	 
      	
                          [***]

                        


                

              

            

          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
G

     

    Acceptance
Test Plan


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
H

     

    Technical
Requirements


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
I

     

    Service
Level Agreement


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
J

     

    List of
IXI competitors

     

    [***]

    [***]

    [***]