ADDENDUM NO.3 TO THE COOPERATION AGREEMENT BETWEEN
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CERTAIN
INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE
OMITTED PORTIONS.
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ADDENDUM
NO.3
TO
THE COOPERATION
AGREEMENT
BETWEEN
IXI
MOBILE
(R&D) LTD.
AND
[*] DATED
[*]
This
Addendum No.3 to the Cooperation Agreement of [*] (this "Addendum") is
made
and entered into as of [*] (the "Effective
Date"),
by
and between IXI Mobile (R&D) Ltd., an Israeli company (the “Company”)
and
[*], a
[*]
company ("Distributor").
WHEREAS,
the
Company is, amongst other activities, in the business of developing,
manufacturing and selling certain mobile devices, currently known as OGO™ with
embedded software applications and related services (collectively, the
"OGO
Device");
WHEREAS,
the
parties have previously entered into that certain Cooperation Agreement dated
[*] (the "Distribution
Agreement")
pursuant to which the Company granted the Distributor rights, and the
Distributor has undertaken, to distribute and sell the OGO Device to its
customers (each an "End
User"
and
collectively, "End
Users")
pursuant to the terms and conditions of the Distribution Agreement;
WHEREAS,
in
addition to the features already offered by the Company to End Users for use
with the OGO Device, the Distributor now wishes to afford End Users the new
feature of using [*] instant messaging services on the OGO Device;
WHEREAS,
the
Company has entered into that certain [*] Agreement (the "[*]
Agreement")
with
[*], a Delaware corporation ("[*]"),
pursuant to which, among other things, [*] granted the Company certain license
rights to the [*] brand instant messaging service and [*] trademarks, some
of
such license rights may be sublicensed by the Company to the Distributor subject
to certain restrictions and limitations as set forth in the [*] Agreement;
WHEREAS,
the
Company wishes to grant the Distributor, and the Distributor is willing to
accept, a sublicense to the [*] brand instant messaging service and certain
[*]
trademarks subject to the restrictions and limitations set forth in the [*]
Agreement;
NOW,
THEREFORE,
in
consideration of the mutual promises and covenants in this Addendum, the parties
hereto hereby agree as follows:
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1.
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Definitions.
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In
this
Addendum, the following terms shall have the following meanings:
1.1. "Distribution
Agreement"
means
as such term is defined in the Recitals to this Addendum.
1.2. "End
User"
or
"End
Users"
mean as
such terms are defined in the Recitals to this Addendum.
1.3. "[*]"
means
as such term is defined in the Recitals to this Addendum.
1.4. "[*]
Agreement"
means
as such term is defined in the Recitals to this Addendum
1.5. “[*]
Branding Elements”
means
the [*] proprietary trademarks, service marks, logos, trade names, product
names, graphic look-and-feel elements, audio and video files, and other indicia
of [*] origin or ownership required by [*] used by the Company in connection
with the [*] Messaging Application pursuant to the [*] Agreement.
1.6. "[*]
Client" Shall
mean the client software, device or functionality (e.g. browser technology)
developed and distributed by [*] or an Affiliate of [*] that enables end users
to access and use the [*] Service.
1.7. “[*]
Consumer Marks” shall
mean the particular trademark(s) identified in Exhibit
A
attached
hereto as an [*] Consumer ▇▇▇▇.
1.8. "[*]
Messaging Application"
means
the particular version of the software application developed by the Company
pursuant to the [*] Agreement that provides an End User access to the [*]
Services and which has been approved by [*] for distribution as part of the
OGO
Device.
1.9. "[*]
Service” means
the
[*] brand instant messaging service, including the [*] 2-Way SMS Service, and
any other products or services owned, operated, distributed or authorized to
be
distributed by or through [*], as designated by [*] from time to time and
communicated by the Company to the Distributor.
1.10. "[*]
User Data"
means
as such term is defined in Section 4.6 below.
1.11. “IXI
Server” means
the
combination of hardware and software that communicates between [*]'s network
and
the Company's network and that is required to enable access to the [*] Services
by the OGO Device through the [*] Messaging Application.
1.12. "OGO
Device"
means
as such term is defined in the Recitals to this Addendum.
1.13. "Term"
means
as such term is defined in Section 13.1 of this Addendum.
1.14. "Territory"
means
[*].
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2.
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License
Grant.
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Subject
to the terms and conditions of this Addendum and the terms and conditions of
the
Distribution Agreement, the Company hereby grants Distributor a non-exclusive,
limited, non-transferable, non-sublicensable license to distribute the [*]
Services to End Users solely on OGO Devices and solely through the [*] Messaging
Application over a GPRS or any upgraded internet access wireless protocol
approved in writing by [*], using such End Users' existing [*] numbers and
passwords or by registering for the [*] Services through [*]’s standard
registration process.
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3.
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License
Restrictions and Limitations.
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In
addition to any restrictions and limitations set forth in the Distribution
Agreement which shall apply, mutatis mutandis, to the rights granted to
Distributor pursuant to this Addendum, Distributor's rights pursuant to this
Addendum, shall be subject to the following restrictions, limitations and
Distributor's undertakings and acknowledgements:
3.1. The
Distributor shall only distribute and allow mobile use and/or mobile access
of
the [*] Service through the OGO Device and solely in the Territory.
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3.2. Distributor
acknowledges and agrees to fully cooperate with the Company and [*] and take
all
reasonable actions to ensure that access to and use of the [*] Services by
End
Users is governed by [*]’s then current Member Agreement for the [*] Services.
Distributor further acknowledges and agrees that it is expressly prohibited
from
accessing, and from providing any third party
(including End Users) access to, the [*] services, or any other [*] affiliate
service. Distributor acknowledges and agrees that (x) it shall make available
to
End Users all features and functionality of the [*] Services that the Company
makes available to the End Users, subject to technical limitations of the [*]
Messaging Application; and (y) it is expressly prohibited from connecting
directly to the [*] network.
3.3. Notwithstanding
any other provision of this Addendum, (i) Distributor will not attempt to access
or use the [*] Service, or authorize or facilitate access or use thereof by
any
third parties (including End Users), by means of any application or device
other
than the OGO
Device;
and (ii) Distributor shall not represent that any connection or access or use
of
the [*] Service is for a perpetual term and shall ensure that any End User
is
aware that [*] may deny such access at any time and for any reason, and in
any
case shall not be for a term longer than the Term.
3.4. Distributor
acknowledges and agrees that the Company, and not [*], is responsible for
developing the [*] Messaging Application, as well as operating and supporting
the IXI Server.
3.5. Distributor
acknowledges and agrees that [*] is not obligated to provide any technical
support to any third party with respect to the [*] Service and the [*] Messaging
Application.
3.6. Distributor
acknowledges and agrees that [*] shall be free to prohibit or terminate access
to the [*] Service at any time in its sole discretion.
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4.
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Proprietary
Rights; [*] User Data.
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4.1. As
between the Company and Distributor, the Company, or its licensors, will own
all
intellectual property rights or similar rights, title and interest in the [*]
Messaging Application as well as any and all intellectual property rights or
similar rights in the OGO Device and any other service provided as part of
the
OGO Device which is not the [*] Service (e.g. e-mail, email attachments,
synchronization etc.). Except as expressly permitted in this Addendum, no right
or license is granted, under any of the Company's intellectual property rights,
in or to the OGO Device or the [*] Messaging Application.
4.2. Subject
to the limited licenses expressly granted herein, as between the parties, [*]
shall own and hold all right, title and interest in and to all the [*] Consumer
Marks and the [*] Service and all intellectual property rights or similar rights
associated with, embodied in, or practiced by the foregoing.
4.3. The
Company reserves all rights not expressly granted in this Addendum. For sake
of
clarity, except as explicitly permitted in this Addendum, no right or license
is
granted, under any of [*]’s intellectual property rights.
4.4. The
parties existing confidentiality obligations pursuant to the Distribution
Agreement or any other non-disclosure agreement or other agreement of similar
effect, shall apply to any non-public information provided by either party
to
the other party under this Addendum and to the [*] User Data.
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4.5. Except
for the usage rights with respect to the [*] Consumer Marks, which usage rights
shall be subject to the terms, conditions and limitation set forth in
Section 6
of this
Addendum, no right, title, or interest is being granted to the Distributor
herein in or to any [*] Branding Elements or [*] Consumer Marks and as between
the Company, Distributor and [*], [*] shall remain the sole and exclusive owner
of the [*] Branding Elements and the [*] Consumer Marks.
4.6. As
between the Company and the Distributor, any and all information collected
or
otherwise obtained from End Users by either the Company or the Distributor
in
connection with such End User’s use of, navigation through, and/or registration
for the [*] Service, including, but not limited to, user names, passwords,
[*]
numbers, email addresses, domain names (including vanity domain names), credit
card information where [*] is the merchant of record, user preferences or
history or other identifying information, shall be owned and controlled by
[*]
(“[*]
User Data”).
Nothing in this Addendum shall be read to give the Distributor or any third
party a license or any other right in or to the [*] User Data, both during
and
after the Term of this Addendum.
4.7. At
all
times either during or after the Term of this Addendum, Distributor shall not
use or disclose any [*] User Data to any third-party in any manner or for any
purpose without the prior written consent of [*].
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5.
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Service
Level.
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Distributor
acknowledges and agrees that the service level with respect to the [*] Service
offered by the Company shall be pursuant to a service level agreement between
[*] and the Company.
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6.
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License
in [*] Consumer Marks.
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6.1. Subject
to the terms and conditions of this Addendum, the Company hereby grants to
Distributor, a limited, non-exclusive, non-transferable, non-sublicensable,
royalty-free license during the Term to use, display and reproduce the [*]
Consumer Marks solely on OGO Devices and packaging, package inserts, advertising
and marketing materials for the OGO Devices directed towards End Users, and
solely in accordance with the Usage Standards set forth in this Section 6 and
such other [*] trademark usage guidelines as the Company may from time-to-time
provide to Distributor.
6.2. Distributor
acknowledges and agrees that its use of the [*] Consumer Marks pursuant to
Section 6.1 above must
be
approved by the Company in writing prior to use. The Company shall request
[*]'s
approval of such use prior to and as a condition to its approval. Distributor
further acknowledges and agrees that all use of the [*] Consumer Marks shall,
at
all times, remain subject to such [*] written trademark usage guidelines as
the
Company may from time-to-time provide to Distributor. Distributor acknowledges
and agrees that the Company has no control over [*] and that there is no
guaranty that [*] will grant its permission to any use of Distributor of the
[*]
Consumer Marks, although Distributor's strict compliance with the terms of
this
Section 6 will most likely increase the possibility of any such use being
approved by [*]. Distributor acknowledges the exclusive ownership right of
[*]
in the [*] Consumer Marks and agrees that all use of the [*] Consumer Marks
shall inure to the benefit, and be on behalf, of [*]. Without limiting the
foregoing, Distributor will not (i) use the [*] Consumer Marks in any manner
that disparages or tarnishes any [*] Consumer Marks or the reputation of [*],
or
that could reasonably be expected to do so; (ii) modify the [*] Consumer Marks;
(iii) combine in one ▇▇▇▇ the [*] Consumer Marks with any other marks or create
any composite marks; (iv) register or attempt to register the [*] Consumer
Marks
in any jurisdiction or create, use, register or attempt to register any
confusingly similar ▇▇▇▇; or (v) challenge [*]'s proprietary rights in and
to
the [*] Consumer Marks, or undertake any action which impairs such proprietary
rights of [*] or its licensors, or that could reasonably be expected to do
so.
Distributor shall, throughout the Term and for a period of not less than one
(1)
year after the termination or expiration of this Addendum, retain representative
copies of all uses of the [*] Consumer Marks, and shall provide such copies
to
either [*] or the Company upon [*]'s or the Company's request at any time prior
to the date which is one (1) year after such termination or
expiration.
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6.3. Upon
notice from [*] or the Company of [*]'s objection to any improper or incorrect
use by Distributor of the [*] Consumer Marks, Distributor shall immediately
correct or change such usage. Distributor agrees to promptly notify the Company
of any unauthorized use of the [*] Consumer Marks of which it has actual
knowledge and agrees that [*] shall have the sole right and discretion to bring
proceedings alleging infringement of the [*] Consumer Marks or unfair
competition related thereto; provided, however, that Distributor shall provide
[*] and/or the Company with its reasonable cooperation and assistance with
respect to any such infringement proceedings as long as Distributor does not
have to bare any financial expense as a result of such assistance.
7. Commercial
Terms.
7.1. Distributor
shall pay the Company such fees related to access to the [*] Services as
detailed in Exhibit
B
of this
Addendum.
7.2. Distributor
agrees that any fees charged by it to End Users for use of the [*] Services
via
[*] Messaging Application shall [*] than any fees that Distributor charges
its
subscribers for any application that it provides to its subscribers that provide
instant messaging services that are similar to, and have functionality
comparable with, the [*] Services on the [*] Messaging Application, including,
but not limited to, Internal community, [*] and [*].
8. Links
to [*] Messaging Application and Service.
The
Company requests that Distributor provides links to the [*] Messaging
Application and/or the [*] Service among the top [*] links in the same
categories (e.g.,
new
releases, instant messaging, etc.) where the Distributor provides links to
similar applications and/or services.
9. Reporting.
At
the
request of the Company, Distributor agrees to provide to the Company with a
written report, not less frequently than [*], which report shall at a [*],
(i)
identify the projected volumes of [*] Messaging Applications and OGO Devices,
if
any, to be distributed during the forthcoming [*] period; (ii) the projected
fees payable to the Company from the distribution of such projected volumes
of
[*] Messaging Applications and OGO Devices; (iii) the Distributor’s marketing
and promotion plans related to the [*] Services, including, the Approved
Distributor’s marketing and promotion budget and an indication if the Company is
authorized to disclose such marketing and promotion budget to [*], and (iv)
the
End User pricing implemented by the Distributor in relation to an [*] Client
and
access to the [*] Service; [*] (viii) any other information reasonably requested
by the Company and mutually agreed to by the parties.
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10. Disclaimer
of Warranties.
IN
ADDITION TO, AND WITHOUT LIMITING THE GENERALITY OF, ANY DISCLAIMERS OF
WARRANTIES UNDER THE DISTRIBUTION AGREEMENT, THE COMPANY HEREBY DISCLAIMS ANY
AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING
ANY AND ALL [*] SERVICES, OR ANY OTHER SERVICES, INFORMATION OR MATERIALS
PROVIDED OR MADE AVAILABLE BY [*], INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA
ACCURACY, TITLE AND NON-INFRINGEMENT.
11. Limitation
of Liabilities.
ANY
EXCLUSION OF REMEDIES PROVISIONS AND LIMITATION OF LIABILITIES PROVISIONS SET
FORTH IN THE DISTRIBUTION AGREEMENT SHALL APPLY TO THE TRANSACTIONS CONTEMPLATED
BY THIS ADDENDUM, EXCEPT WITH RESPECT TO BREACHES OF SECTIONS 3 (LICENSE
RESTRICTIONS), 4 (PROPRIETARY RIGHTS AND [*] USER DATA), 6.2 AND 6.3 ([*]
CONSUMER MARKS USAGE) AND 12 (INDEMNIFICATION) HEREUNDER.
12. Indemnification.
Distributor
shall indemnify, hold harmless and defend the Company from and against all
losses, expenses (including reasonable attorneys’ fees), damages, and
liabilities resulting from any claim by any third party against the Company
and/or from any claim by any third party against [*], [*] and its affiliates
for
which the Company is required to provide indemnification and arising from or
in
connection with any act or omission by of the Distributor.
13. Term.
13.1. The
term
of this Addendum ("Term")
shall
commence on the Effective Date and shall end on the date [*] from the Effective
Date.
13.2. The
provisions of Sections 3, 4, 10, 11, 12 and 14 shall survive the expiration
or
termination of this Addendum.
14. General
Terms and Conditions.
14.1. The
parties acknowledge that they continue to be bound by the terms of the
Distribution Agreement, as amended and/or supplemented hereby. Except as amended
and/or supplemented hereby, all of the terms of the Distribution Agreement
shall
remain and continue in full force and effect and are hereby confirmed in all
respects. Accordingly, each of the parties acknowledges and agrees that the
[*]
Messaging Application and the [*] Services shall be governed by the terms of
the
Distribution Agreement; provided, however, that in the event of any
discrepancies between the terms and provision of the Distribution Agreement
and
the terms and provisions of this Addendum, the terms and provisions of this
Addendum shall govern and prevail.
14.2. This
Addendum may be executed in counterparts, each of which shall constitute an
original, but all of which together shall constitute one and the same Addendum.
Originally executed counterparts may be delivered by facsimile and any such
delivery shall be valid for all purposes as delivery of a manual signature
and
equally admissible in any legal proceedings to which any of the parties is
a
party.
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14.3. If
any
provision of this Addendum or the application thereof, shall for any reason
and
to any extent be determined by a court of competent jurisdiction to be invalid
or unenforceable under applicable law, the remaining provisions of this Addendum
shall be interpreted so as best to reasonably effect the intent of the parties
hereto.
14.4. This
Addendum, together with the Distribution Agreement and all exhibits hereto
and
thereto, constitute the entire understanding and agreement of the parties with
respect to the transactions contemplated herein and supersede all prior and
contemporaneous understandings and agreements, whether written or oral, with
respect to such transactions.
14.5. This
Addendum shall be governed in all respects by the governing law and choice
of
forum sections of the Distribution Agreement.
[Signature
Page Follows]
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IN
WITNESS
WHEREOF,
the
parties have caused their duly authorized representatives to execute this
Addendum as of the Effective Date.
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IXI
Mobile (R&D) Ltd.
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DISTRIBUTOR
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Signature:
/s/
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Signature:
[*]
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Printed
Name:
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Printed
Name: [*]
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Title:
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Title:
[*]
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EXHIBIT
A
[*]
Consumer Marks
[*]
EXHIBIT
B
Fees
As
per
Section 2.2, Table 1 of the Distribution Agreement.