MOBILE DEVELOPER PROGRAM AGREEMENT (OMA IMPS Version)
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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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[*]
MOBILE DEVELOPER PROGRAM AGREEMENT
(OMA
IMPS Version)
THIS[*]
MOBILE
DEVELOPMENT
PROGRAM
AGREEMENT
(the
“Agreement”)
is
made as of [*] (the “Effective
Date”)
by and
between [*],
a
Delaware corporation with its principal offices and place of business at [*]
(“[*]”)
and
IXI Mobile (R&D) Ltd., an Israeli corporation, with its principal office and
place of business at 17 Ha’Tidhar St. Ra’anana, Israel, (“IXI
”)
(each
of [*] and IXI, a “Party”
and
collectively the “Parties”).
RECITALS
A. [*]
is a
provider of online services to consumers, including, without limitation,
services that enable and facilitate instant messaging on mobile communications
devices.
B. IXI
is,
amongst other activities, in the business of developing, manufacturing and
selling certain mobile devices, currently known as OGO™ with embedded software
applications and related services.
C. [*]
has
established a program based on the Open Mobile Alliance Instant Messaging and
Presence Services Protocol Specifications (Client-Server Protocol)
(“[*]
Mobile Developer Program”),
whereby [*] provides certain branding rights and proprietary information to
software developers and mobile communications device manufacturers to enable
them to produce mobile communication software that works with mobile
communications devices that are capable of accessing and using [*]’s proprietary
instant messaging services.
D.
IXI
wishes to participate in the [*] Mobile Developer Program and [*] wishes to
allow IXI to participate in the [*] Mobile Developer Program pursuant to the
agreements and terms of this Agreement.
AGREEMENT
In
consideration of the mutual promises and covenants in this Agreement, the
Parties agree as follows:
1. DEFINITIONS.
Certain capitalized terms, not otherwise defined, shall have the meanings set
forth in Exhibit
A.
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2.
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PARTICIPATIONIN
THE [*] MOBILE
DEVELOPER
PROGRAM
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2.1 Provision
of Mobile Developer Kit.
Upon
mutual execution of this Agreement by the Parties, [*] will make available
to
IXI, at no charge to IXI, a complete copy of the then-current Mobile Developer
Kit, which shall include the then-current Open Mobile Alliance Implementation
Conformance Statement (“ICS”).
From
time-to-time during the Term, [*] may provide supplements or modifications
to
the Mobile Developer Kit, including the ICS, as [*] determines appropriate,
at
no charge to IXI. [*] shall use commercially reasonable efforts to make such
supplements or modifications available to IXI on the same basis that [*]
provides such supplements or modifications to other [*] Mobile Developer Program
participants.
2.2 License
to Use Mobile Developer Kit.
Subject
to the terms and conditions of this Agreement, [*] grants to IXI a
non-exclusive, non-transferable, non-sublicensable (except to the extent
specifically provided for in Section
3.7),
royalty-free license to use the Mobile Developer Kit solely for the purpose
of
developing Candidate Applications intended to be submitted to [*] for testing
as
contemplated in this Agreement. IXI agrees that the development and/or
distribution or commercial use by IXI of any software application, other than
a
Candidate Application, that provides access to the [*] Service or [*] Network,
that is not authorized by [*] pursuant to the terms and conditions of this
Agreement, and that has not otherwise been authorized in writing by [*], shall
be considered a material breach of this Agreement. IXI will not develop, promote
or distribute any features or functionality with respect to the [*] Service
or
the [*] Network that enable (a) direct communication between the [*] Service
and
any other third party instant messaging service or community, (b) auto-login
between the [*] community and any other third party instant messaging community,
or (c) co-mingling of an [*] User’s contact list or and [*] member's [*],
presence information and/or conversations with the [*] or contact lists,
presence information and/or conversations of any other instant message service
provider.
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3.
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DEVELOPMENT
OF
APPLICATIONS
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3.1 Development
Responsibility.
IXI
shall submit to [*] the first Candidate Application within [*] of Effective
Date. IXI shall be solely responsible for such development, including, without
limitation, all associated costs and expenses.
3.2 Developer
Program Manager.
IXI
shall designate one (1) IXI representative to serve as a liaison between the
Parties on IXI’s behalf in connection with this Agreement (the “IXI
Liaison”).
IXI
will notify [*] of such designation and agrees to provide current contact
information for its IXI Liaison at all times during the Term. IXI may change
such designation from time-to-time by written notice to [*]. IXI shall direct
all technical and development related inquiries arising under this Agreement
through the IXI Liaison to the [*] Liaison.
3.3 [*]
Program Manager.
[*]
shall designate one (1) [*] representative to serve as liaison between the
Parties on [*]’s behalf in connection with this Agreement (the “[*]
Liaison”).
[*]
will notify IXI of such designation and agrees to provide current contact
information for its [*] Liaison at all times during the Term. [*] may change
such designation from time-to-time by written notice to Developer.
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3.4 Technical
Consultation.
The
Parties desire to facilitate the efficient development and distribution of
Approved Complete [*] Applications, and therefore desire to consult with one
another during the process of designing and planning Developer’s Candidate
Applications. Accordingly, upon development of initial designs and
specifications for any particular Candidate Application, IXI may, at its
election, submit such designs and specifications to [*] for purposes of
soliciting feedback regarding the same. [*] shall provide such feedback and
development support to IXI as [*], in its sole discretion, shall determine.
Such
feedback that is (a) specific to Developer’s design or user interface related to
its Candidate Application; (b) in writing; and (c) labeled as “Technical
Feedback” shall be considered “Technical
Feedback.”
Subject to the provisions of Section
11.3
(to the
extent the Technical Feedback contains or makes reference to [*]’s Confidential
Information), IXI shall be free to use, disclose, reproduce, license or
otherwise distribute and exploit the Technical Feedback provided to it as it
sees fit, entirely without obligation or restriction of any kind on account
of
intellectual property rights or otherwise. Subject to Section
19.13,
IXI
agrees that it will not, without [*]’s prior written consent, use the Technical
Feedback in advertising, publicity, or otherwise, or refer to such Technical
Feedback in press releases, advertising, or materials distributed to prospective
customers.
3.5 Testing
by IXI on Program Testing Server.
During
the Term, [*] agrees to maintain and make available for remote access using
the
applicable Test Authentication Key (as that term is defined below) one (1)
or
more computer servers from which non-production copies of the [*] Service are
hosted (collectively, the “Test
Server”).
[*]
shall make reasonable efforts to provide a non-production copy of the [*]
Service that is similar to the production copy of the [*] Service. During the
process of developing any Candidate Application, IXI or its Third Party
Developer may remotely access the Test Server, solely according to the protocols
[*] may specify from time-to-time, and solely for purposes of testing the
Candidate Application(s) under development using the [*] number, password,
and/or other authentication credentials issued by [*] for such purpose (the
“Test
Authentication Key”).
IXI
acknowledges that [*] makes no representations or warranties with respect to
the
Test Server or with respect to the software or services accessible on the Test
Server, including, without limitation, any representations or warranties
regarding system availability. [*] may provide technical support with respect
to
the Test Server solely as it determines in its discretion. For sake of clarity,
IXI acknowledges that no right or authorization is granted by this Agreement
to
access or use (and IXI shall not access or use directly or through its Third
Party Developer) the actual [*] Service or an [*] Affiliate service in
connection with development and/or testing of Candidate Applications. In
addition, IXI will keep and cause any Third Party Developer to keep the Test
Authentication Key confidential.
3.6 Feedback.
IXI may
from time-to-time provide suggestions, comments, ideas or other feedback
(“Feedback”)
to [*]
with respect to the [*] Technical Information. Subject to the provisions of
Section
11.3
(to the
extent the Feedback contains or makes reference to IXI’s Confidential
Information) and subject to the provisions of Section
19.13,
[*]
shall be free to use, disclose, reproduce, license or otherwise distribute
and
exploit the Feedback provided to it as it sees fit, entirely without obligation
or restriction of any kind on account of intellectual property rights or
otherwise.
3.7 Utilization
of Third-Party Developers.
IXI
shall have the right to engage one (1) or more third parties (each a
“Third
Party Developer”)
to act
on IXI’s behalf to use the Mobile Developer Kit, develop Candidate Applications,
utilize the Test Server pursuant to Section
3.5,
to
submit such Candidate Applications to [*] for review by [*], and to access
the
[*] Network, provided that (a) any such Third Party IXI engagement by IXI shall
be subject to [*]’s prior written approval, and (b) that either (x) such Third
Party Developer has entered into an MDP Program agreement with [*] or [*] or
(y)
IXI enters into a binding, written agreement with the relevant Third Party
Developer, which agreement is no less protective of [*], the Test Authentication
Key, the Test Server, the [*] Technical Information and the [*] Service and
the
[*] Network than are the terms of this Agreement and shall only enable , such
Third Party Developer to access to the [*] Network for the use and benefit
of
IXI, and (c) IXI shall remain responsible for the acts and omissions of such
Third Party Developers as if such acts or omissions were undertaken by IXI.
For
purposes of clarification, employees and independent contractors employed by
IXI
shall not be considered Third Party Developers; provided, however, that IXI
shall remain liable for any act or omission undertaken by such employees and
independent contractors. Subject to this Section 3.7,
the
aforementioned shall not restrict IXI in changing its IM gateway provider from
time to time
provided
however that such change will no occur more than twice during the Term and
upon
a [*] prior written notice to [*].
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Where
IXI
has used a Third party Developer, and such Third Party Developer improperly
uses
the [*] Application, Test Authentication Key, the Test Server, the [*] Technical
Information, Application Branding Elements and the [*] Service and the [*]
Network, IXI shall use commercially reasonable efforts to assist [*] in pursuing
any claim against such Third Party Developer related to that Third Party
Developer’s resulting improper use of the [*] Application, Test Authentication
Key, the Test Server, the [*] Technical Information, Application Branding
Elements and the [*] Service and the [*] Network.
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4.
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APPROVAL
OF
APPLICATIONS
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4.1 Submission
of Candidate Applications.
Upon
completion of any Candidate Application, IXI may submit the same to [*] for
assessment as a potential Approved Complete [*] Application. Notwithstanding
the
foregoing, IXI agrees that it will not submit any such Candidate Application
for
[*] assessment unless and until IXI (i) has successfully tested the Candidate
Application by means of remote access to the Test Server and (ii) has made
a
good faith determination that the relevant Candidate Application complies in
all
material respects with the Mobile Developer Kit and other Approval Criteria.
Each submission of a Candidate Application must be made in accordance with
the
requirements set forth in the Mobile Developer Kit, including the provision
to
[*] at no cost of at least [*] samples of the Candidate Platform on which the
Candidate Application is to be tested; provided, however, that where the
Candidate Platform includes an IXI Server or a Third Party Developer Server
,
IXI shall not be required to provide such IXI Server or Third Party Developer
Server to [*], provided further that IXI or Third Party Developer must provide
access to such IXI Server or Third Party Developer Server. [*] shall at its
own
expense return such samples to IXI within [*] following completion of such
testing.
4.2 Assessment
of Candidate Applications.
Upon
receipt of a properly submitted Candidate Application, [*] agrees to conduct
testing and assessment of such Candidate Application for the purpose of
determining whether the Candidate Application complies with the applicable
Approval Criteria. IXI acknowledges that [*] makes no representations or
warranties regarding the timeframe within which any such testing and assessment
will be completed; provided, however, [*] agrees to make good faith efforts
to
complete such testing and assessment in accordance with a milestone schedule
that shall be mutually agreed upon in writing by the Parties. IXI agrees to
provide such information and assistance as [*] may reasonably request in
connection with such testing and assessment. IXI acknowledges and agrees that
[*]’s determination of acceptance or failure with respect to the Candidate
Application and the Mobile Developer Kit and other Approval Criteria is final
and binding upon the Parties.
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4.3 Notice
of Approval.
(a)
In
the event that [*] determines that a particular Candidate Application meets
all
requirements for designation as an Approved Complete [*] Application, [*] will
so inform IXI in writing. Upon receipt of such written notice, the relevant
Candidate Application will be considered an Approved Complete [*] Application
for purposes of this Agreement.
(b)
In
the event that [*] determines that a particular Candidate Application fails
to
meet applicable Approval Criteria, [*] will so inform IXI in writing, stating
[*]’s reasons for such determinations. IXI may, at its option, thereafter elect
to modify the relevant Candidate Application for re-submission to [*] for
evaluation pursuant to Section
4.2,
provided that any such re-submission shall comply with the requirements of
Section
4.1
and,
prior to any such re-submission, IXI shall have (i) successfully tested the
modified Candidate Application by means of remote access to the Test Server;
(ii) made good faith determinations that the relevant Candidate Application
complies in all material respects with the Approval Criteria; and (iii) made
a
good faith determination that the modified Candidate Application corrects the
failures previously identified by [*].
4.4 Authentication
Keys. Once
the
Approved Complete [*] Application is approved for distribution as part of a
Compliant Device by IXI or Approved Third Party Distributors (as defined below
in Section 5.1) for the use of users of a Compliant Device in an Approved
Territory, in accordance with Sections
4.2 and 4.3,
then
[*] will provide to IXI a client identifier and, where appropriate, an
authentication key(s) unique to IXI for use with such Approved Complete [*]
Application for a particular Authorized Platform (each, an “Authentication
Key”).
[*]
grants to IXI a non-exclusive, non-transferable, non-sublicensable, royalty-free
license to integrate, in accordance with the requirements of the Mobile
Developer Kit, such Authentication Key into any Approved Complete [*]
Application for use as part of Authorized Platform(s) for the relevant Compliant
Devices. Pursuant to this license, IXI may use such Authentication Key, either
directly or through Third Party Developer, solely for the purpose of enabling
use of the Compliant Devices and/or specific Approved [*] Complete Application
for a particular Authorized Platform with the [*] Service. IXI will integrate
such Authentication Key into any Approved Complete [*] Application for use
as
part of an Authorized Platform(s) for the relevant Compliant Devices. [*] will
provide such Authentication Key by means of such secure protocols as [*] may
specify from time-to-time. Under no circumstances may IXI use such
Authentication Key in connection with any application or device other than
the
particular Approved Complete [*] Application and the relevant Authorized
Platform(s) for which it is issued. IXI shall keep all such Authentication
Keys
strictly confidential and shall undertake all precautions specified in the
Mobile Developer Kit and all other commercially reasonable precautions to
prevent such Authentication Keys from unauthorized disclosure. IXI shall
immediately inform [*] if the confidentiality of any Authentication Key has
been
compromised.
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4.5 Re-Approval
of Modified Applications. In
the
event that any Approved Complete [*] Application is updated, improved or
otherwise modified in any way other than Minor Changes, it shall thereafter
no
longer be considered an Approved Complete [*] Application unless and until
it
has been re-submitted for assessment in accordance with Section
4.1
and, as
modified, has been designated by [*] as an Approved Complete [*] Application.
IXI agrees that it shall provide to [*] a final version of the Approved Complete
[*] Application, complete with all Minor Changes, if any, prior to any public
distribution.
4.6 Revocation
of Approval.
IXI
acknowledges and agrees that, notwithstanding Section
18.5,
[*] may
deny any Approved Complete [*] Application access to the [*] Services in the
event of a breach of this Agreement that remains uncured by IXI for [*]
following written notice and an opportunity to cure the breach. Notwithstanding
the foregoing, [*] may also deny any Approved Complete [*] Application access
to
the [*] Services and [*] Network immediately in the event of compromise to
the
security of an Authentication Key or of an Approved Complete [*] Application
(whether due to a breach of this Agreement or not), in which case the Parties
shall work together in good faith to mitigate the effects of any such
revocation. IXI further acknowledges and undertakes to prohibit and/or deny
any
Third Party Developer access to the [*] Services upon (i) any acts or omissions
of a Third Party Developer that (a) would be considered a breach of this
Agreement if such acts or omissions were undertaken by IXI; (b) are related
to
the protection or prohibitions against the misuse of the [*] Services, any
other
[*] service, the [*] Network, the [*] IM Network, the [*] Namespace, [*] Users,
the Application Branding Elements, any Authentication Key (including the Test
Authentication Key), the [*] Technical Information, and/or [*] owned or licensed
intellectual property, and (c) is not cured following [*] notice to IXI of
such
act or omission. For avoidance of doubt, non compliance with Section by IXI
shall be deemed a material breach of this agreement and not withstanding any
other remedy provided to [*] herein, upon such breach [*] may immediately
suspend or terminate IXI's access to the [*] Network.
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5.
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DISTRIBUTION
AND
PROMOTION
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5.1 Approved
Complete [*] Application Distribution.
IXI
acknowledges and agrees it shall not sell, license, distribute, an Approved
[*]
Application to any third party unless the following terms have been met (when
all terms have been met “Approved Third Party Distributor”):
(a)
[*]
has provided prior written approval of that specific third party
distributor;
(b)
The
third party distributor shall only distribute and allow use and /or access
to
the Approved Complete Application through the Authorized Platform and Compliant
Device in the Approved Territories.
(c
) IXI
have entered into an agreement with the third party distributor that is no
less
protective of [*], the [*] Service, the [*] Network, any other [*] or [*]
service, the [*] IM Network, [*] Users, the [*] Namespace, the Application
Branding Elements, any Authentication Key (including Test Authentication Key),
and the [*] Technical Information as are the terms and conditions of this
Agreement (“IXI- Approved Distributor Agreement”);
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(d)
expressly state that [*] is not obligated to provide any technical support
to
any third party with respect to the applicable Approved Complete [*] Application
and/or the [*] Service;
(e)
expressly state that IXI, and not [*], shall be responsible for developing
the
applicable Approved Complete [*] Application, as well as operating and
supporting the IXI Server (or a Third Party Developer Server);
(f)
Expressly state that [*] shall be free to prohibit access to the [*] Service
pursuant to the term and conditions of this Agreement at any time;
(g)
Shall
not contemplate the provision of the [*] Services for a period of time exceeding
[*] from the later of: execution of an IXI-Approved Distributor Agreement or
the
launch of an Approved [*] Application which shall in no case be longer than
[*]
from the execution of the IXI- Approved Distributor Agreement.
5.2
IXI
acknowledges and agrees that it shall not convey any right, title, or interest
in or to the Application Branding Elements (other than [*] Marks, of which
use
shall be subject to Section
9
of this
Agreement) contained in an Approved Complete [*] Application other than to
allow
for the use of such Application Branding Elements solely as embodied within
an
Approved Complete [*] Application
5.3
Where
IXI has distributed an Approved Complete [*] Application to an Approved Third
Party Distributor , and such Approved Third Party Distributor improperly uses
the Approved Complete [*] Application or the Application Branding Elements,
IXI
shall use commercially reasonable efforts to assist [*] in pursuing any claim
against such Approved Third Party Distributor related to that Approved Third
Party Distributor’s resulting improper use of the Application Branding Elements,
the Authentication Key, the [*] Technical Information, the [*] Service and
[*]
Network. For purposes of clarification, the foregoing shall not impose on IXI
any additional indemnification obligations not explicitly stated in Section
16
of this
Agreement.
5.4
IXI
acknowledges and agrees that it shall remain liable for any acts or omissions
of
any Approved Third Party Distributor as if such acts or omissions were taken
by
IXI.
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6.
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LICENSE
TO
[*] SERVICE
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6.1 Subject
to the terms and conditions of this Agreement, [*] will permit an [*] User
to
access and use the [*] Services solely on Compliant Devices through an Approved
Complete [*] Application over a GPRS or any upgraded internet access wireless
protocol approved in writing by [*], using their existing [*] numbers and
passwords or by registering for such through [*]’s standard registration
process. [*] hereby provides to IXI a non-exclusive, limited, non-transferable,
non-sublicensable (except as explicitly provided herein) license solely to
(i)
connect the IXI Server or the Third Party Developer Server to the [*] Network
solely in accordance with the terms and conditions of this Agreement and solely
for the purpose of providing users of Compliant Devices that are also [*] Users
the ability to access and use the [*] Services solely on Compliant Devices
through an Approved Complete [*] Application ; (ii) provide, on behalf of [*],
a
non-exclusive, limited, non-transferable, non-sublicensable license to Approved
Third Party Distributors to distribute the [*] Services to the users of the
Compliant Device through an Approved Complete [*] Application on Compliant
Devices.
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6.2 Access
to
and use of the [*] Services by [*] Users will be governed by [*]’s then current
Member Agreements for such [*] Services. IXI acknowledges and agrees that it
is
expressly prohibited from providing any Third Party Approved Distributor or
any
other third party
access to the [*] Services. IXI acknowledges and agrees that (x) it shall make
available to users of Compliant Devices that are also [*] Users all features
and
functionality of the [*] Services that [*] makes available to IXI, subject
to
technical limitations of the applicable Approved Complete [*] Application;
(y)
Approved Third Party Distributors or mobile communication carriers are expressly
prohibited from connecting directly to the [*] Network; and (z) [*].
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7.
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Final
Acceptance Testing
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7.1 IXI
acknowledges and agrees that, prior to the commercial launch of the [*] Services
on any Approved Complete [*] Application on a specific model of Compliant
Device, and at [*]’s option, [*] and, IXI, shall jointly conduct end to end
acceptance testing of the Approved Complete [*] Application on that Compliant
Device to determine if the Approved Complete [*] Application on that Compliant
Device conforms in all material respects with an acceptance test plan that
shall
be mutually agreed upon by the Parties and attached to this Agreement as
Exhibit
G
(each,
an “Acceptance
Test Plan”).
IXI
acknowledges and agrees that, at [*]’s option, (i) such end to end testing shall
include testing of the IXI Server or the Third Party Developer Server and (ii)
IXI shall be required to provide access to the IXI Server or the Third Party
Developer Server for such end to end testing. For purposes of clarification,
IXI
acknowledges and agrees that IXI shall not make an Approved Complete [*]
Application commercially available until [*] and IXI jointly determine that
such
Approved Complete [*] Application for any specific Complaint Device has passed
such end to end testing; provided, however, that [*] in its sole discretion
may
waive its right to conduct such end to end testing.
No
later
than [*] following completion of such end to end testing, [*] shall notify
IXI
in writing regarding whether it deems the tested Approved Complete [*]
Application to have passed or failed such end to end testing, and a description
of any defects (“Acceptance
Testing Notice”).
IXI
shall correct any deficiencies identified by either Party in the Acceptance
Testing Notice related to the tested Approved Complete [*]
Application.
Connection
between the [*] Network and the Approved Complete Application (which, for
purposes of this Section shall run via the IXI Server or the Third Party
Developer Server) shall be subject to a technical requirements document that
shall be mutually agreed to by the Parties within [*] from the Effective Date
and which shall be amended by the mutual agreement of the Parties (“Technical
Requirements Document”).
The
Technical Requirements Document and any amendments thereto shall be attached
as
Exhibit
H
to this
Agreement. Each Party will bear its own costs associated with the connection.
IXI shall ensure that, where applicable, all data transmitted between the IXI
Server or the Third Party Developer Server and access points on a mobile
communication network are transmitted via a secure or encrypted channel in
a
manner reasonably satisfactory to [*].
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IXI
acknowledges and agrees that any Approved Third Party] shall acknowledge and
agree, that a user of the [*] Service, as a condition to using such [*] Service,
may be required to agree to a standard end-user agreement, to be provided to
such user by [*], and nothing in this Agreement shall affect or otherwise modify
the terms and conditions of such standard end-user agreement. Without limiting
the foregoing, in order to use certain [*] Services, a user first will be
required to register for the service, and such registration shall occur through
[*]’s then current registration process and terms of service. All user
information obtained through such [*] registration process shall be owned by
[*]
and become part of the [*] Namespace. IXI acknowledges that this Agreement
confers no rights to the [*] Namespace and that IXI is prohibited from accessing
the [*] Namespace in any manner whatsoever without [*]’s prior written consent.
Except as explicitly required hereunder, to protect user privacy, IXI also
is
prohibited from the collection or solicitation of [*] User numbers and/or
password information without [*]’s express written consent. [*] shall determine,
in its sole discretion, the terms of use for any [*] Service, including, but
not
limited to, terms of conduct, privacy policies and pricing for the [*] Service,
if any. Notwithstanding any of the foregoing, Parties hereby agree that only
[*]
Users who have previously registered to the [*] Service shall be able to access
the [*] Service and that the Complete Approved Application shall not include
a
registration process without [*]’s prior written approval. To the extent that
such approval is furnished IXI shall insure that no registration to the [*]
Service shall be made available without potential [*] User going through and
accepting the standard end-user agreement.
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8.
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Service
Levels.
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The
Parties shall mutually agree upon a service level agreement that sets forth
the
service levels with respect to the [*] Service, any service offered by IXI,
and
the IXI Server or Third Party Developer Server. The Parties will use
commercially reasonable efforts to comply with such service level agreement,
attached as Exhibit
I to
this
Agreement.
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9.
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Licensing
and Use of [*] Marks
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9.1 License
in [*] Consumer ▇▇▇▇.
Subject
to the terms and conditions of this Agreement, [*] grants to IXI a limited,
non-exclusive, non-transferable, non-sublicensable, royalty-free license during
the Term to use, display and reproduce the [*] Consumer ▇▇▇▇ in connection
with
IXI’s general marketing activities (other than activities directed primarily
towards consumers), solely for purposes of identifying IXI as a participant
in
[*]’s Mobile Developer Program.
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9.2 Intentionally
Omitted.
9.3 License
in Application Branding Elements. Subject
to the terms and conditions of this Agreement, [*] grants to IXI a limited,
non-exclusive, non-transferable, non-sublicensable (except to the extent
explicitly permitted in Sections
3.7, and 5.1),
royalty-free license during the Term to use, display and reproduce the
Application Branding Elements solely as embodied within an Approved Complete
[*]
Application, and solely in accordance with the branding requirements and style
guides set forth in the most recent version of the Mobile Developer Kit provided
by [*] to IXI.
9.4 License
in [*] Consumer Marks. Subject
to the terms and conditions of this Agreement, [*] grants to IXI and any
Approved Third Party Distributor, a limited, non-exclusive, non-transferable,
non-sublicensable, royalty-free license during the Term to use, display and
reproduce the [*] Consumer Marks solely on Compliant Devices and packaging,
package inserts, advertising and marketing materials for Compliant Devices
directed towards consumers, and solely in accordance with such written trademark
usage guidelines as [*] may from time-to-time provide to IXI.
9.5 Intentionally
Omitted
9.6 Usage
Standards.
IXI’s
uses of the [*] Marks pursuant to Sections
9.1, 9.2, 9.3 and 9.4, must
be
approved by [*] in writing prior to use, and IXI acknowledges and agrees that
all use of the [*] Marks shall at all times remain subject to such written
trademark usage guidelines as [*] may from time-to-time provide to IXI. [*]
agrees to make reasonable commercial efforts to approve the said use within
[*].
In an event that [*] disapproves use of the [*] Marks, [*] shall, within the
specified [*], provide IXI with a written lest of its objections to allow IXI
to
resubmit any usage request. For avoidance of doubt, if within the said time
frame [*] has not provided approval, it will be deemed as disapproval. IXI
acknowledges the exclusive ownership right of [*] in the [*] Marks and agrees
that all use of the [*] Marks shall inure to the benefit, and be on behalf,
of
[*]. Without limiting the foregoing, IXI will not (i) use the [*] Marks in
any
manner that disparages or tarnishes any [*] Marks or the reputation of [*],
or
that could reasonably be expected to do so; (ii) modify the [*] Marks, except
as
any such modification is expressly permitted in the Mobile Developer Kit; (iii)
combine in one ▇▇▇▇ the [*] Marks with any other marks or create any composite
marks; (iv) register or attempt to register the [*] Marks in any jurisdiction
or
create, use, register or attempt to register any confusingly similar ▇▇▇▇;
or
(v) challenge [*]'s proprietary rights in and to the [*] Marks, or undertake
any
action which impairs such proprietary rights of [*] or its licensors, or that
could reasonably be expected to do so. IXI shall, throughout the Term and for
a
period of not less than [*] after the termination or expiration of this
Agreement, retain representative copies of all uses of the [*] Marks, and IXI
shall provide such copies to [*] upon [*]'s request at any time prior to the
date which is [*] after such termination or expiration.
9.7 Corrections.
Upon
notice from [*] of its objection to any improper or incorrect use of the [*]
Marks, IXI shall correct or change such usage. IXI agrees to promptly notify
[*]
of any unauthorized use of the [*] Marks of which it has actual knowledge.
[*]
shall have the sole right and discretion to bring proceedings alleging
infringement of the [*] Marks or unfair competition related thereto; provided,
however, that IXI shall provide [*] with its reasonable cooperation and
assistance with respect to any such infringement proceedings as long as IXI
does
not have to bare any financial expense as a result of such
assistance.
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9.8 General
Standards of Conduct.
IXI
acknowledges and agrees that [*] derives substantial value from the goodwill
associated with the [*] Service, other [*] services, the [*] Marks and the
[*]
Mobile Developer Program. IXI shall undertake all commercially reasonable
measures necessary to ensure that its marketing and promotional activities
hereunder conform to industry standards of professionalism and fair practices,
and IXI understands that [*] shall have the right to terminate this Agreement,
pursuant to Section
18.2,
in the
event that [*] reasonably determines that IXI has failed to meet the foregoing
standards.
9.9 License
in IXI’s Marks. IXI
hereby grants to [*] a non-exclusive, non-sublicensable, royalty-free license
during the Term to use, display and reproduce such trademarks of IXI as provided
in Exhibit
C
of this
Agreement. [*]’s use of all such marks shall be subject to IXI’s prior written
approval, which shall not be unreasonably withheld, and any license of such
marks shall incorporate rights and remedies for IXI that are similar to those
rights and remedies reserved by [*] for its [*] Marks in Sections
9.6 and 9.7
above.
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10.
|
MARKETING
OF
APPROVED
COMPLETE
[*] APPLICATIONS
|
10.1 Intentionally
Omitted
10.2 [*]
Marketing Obligations
[*] may,
at its sole discretion, promote an Approved Complete [*] Application by using
[*]'s existing properties and marketing channels.
10.3 IXI
Marketing Obligations.
(a)
[*]
(b)
[*]
10.4 Access
to [*] Services.
Notwithstanding any designation of Candidate Applications as Approved Complete
[*] Applications, and notwithstanding any rights expressly granted to IXI under
this Agreement, IXI acknowledges that no right is granted in this Agreement
for
IXI to access or use any [*] Service, the [*] Service, or any other [*]
Affiliate service nor shall IXI have any right to authorize third parties to
access or use any [*] Service, the [*] Service, or any other [*] Affiliate
service, and any rights for an [*] User to access and/or use the [*] Service
shall be subject to a separate agreement between [*] and the particular user
of
an Approved Complete [*] Application. [*] may at any time and in its sole
discretion deny access to the [*] Service from any device, including Compliant
Devices, or any Approved Complete [*] Applications.
10.5 General
Restrictions on Marketing and Distribution.
Notwithstanding any other provision of this Agreement, (i) IXI will not
represent to third parties that any software application is compatible with,
or
otherwise capable of accessing or using, the [*] Service, the [*] Namespace,
or
[*] Network unless such application is an Approved Complete [*] Application;
(ii) IXI will not attempt to access or use the [*] Service, or authorize or
facilitate access or use thereof by third parties, by means of any application
or device other than a Compliant Device (and shall cause any Third Party
Developer to comply with the same); (iii) IXI shall not represent that any
connection or access or use of the [*] Service, the [*] Namespace, or [*]
Network unless such application is an Approved Complete [*] Application is
for a
perpetual term and shall ensure that any Approved Third Party Distributor or
any
user of a Compliant Device who is also an [*] User are aware that [*] may deny
such access at any time and for any reason, and in any case shall not be for
a
term longer than the Term of this Agreement and any Transition Period. (iv)
except as expressly provided herein, IXI will not reproduce, modify or
distribute any of the [*] Technical Information; and (v) IXI’s use of the [*]
Technical Information and development of applications for use with the [*]
Service shall be in accordance with the [*] Network Use Policy.
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10.6 Support
for Approved Complete [*] Applications. As
between the Parties, IXI shall bear sole responsibility for the provision of
technical support or software maintenance services to users of Approved Complete
[*] Applications and any applicable mobile communication carriers or Approved
Third Party Distributor, and throughout the Term, IXI agrees to offer user
of
the Compliant Device, and to the extent applicable to applicable mobile
communication carriers or Approved Third Party Distributors, its standard terms
for maintenance and support. IXI acknowledges that, as between the Parties,
[*]
will have no obligation to provide any such support or services to IXI or to
any
third party.
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11.
|
PROPRIETARY
RIGHTS
|
11.1
IXI Intellectual Property Rights.
Subject
to [*]’s rights in the [*] Technical Information and Application Branding
Elements, as between the Parties, IXI will own all intellectual property rights
or similar rights, title and interest in the Candidate Applications and the
Approved Complete [*] Applications as well as any and all intellectual property
rights or similar rights in the Authorized Platform, Compliant Device and any
other service provided as part of the Compliant Device which is not related
to
the [*] Service (e.g. e-mail. Email attachments, synchronization etc’). IXI
grants to [*] and its Parent company and/or its Affiliates a non-exclusive
license (i) to use, install and operate the Candidate Applications and Approved
Complete [*] Applications for purposes of testing and assessing the same as
contemplated in this Agreement; and (ii) to make copies of the Candidate
Applications and the Approved Complete [*] Applications as reasonably necessary
to undertake such testing and assessment. For sake of clarity, except as
explicitly permitted in this Agreement, no right or license is granted, under
any of IXI’s intellectual property rights, in or to a Candidate Application or
Approved Complete [*] Application.
11.2 [*]
Intellectual Property Rights.
Subject
to the limited licenses expressly granted herein, as between the Parties, [*]
shall own and hold all right, title and interest in and to all [*] Technical
Information, the [*] Marks, the [*] Service, the [*] Network, the Test Server,
any Authentication Key (including the Test Authentication Key), [*] owned
intellectual property as identified and contained in the Mobile Developer Kit,
software or services accessible on or through such Test Server (except for
a
Candidate Application or Approved Complete [*] Application), and all
intellectual property rights or similar rights associated with, embodied in,
or
practiced by the foregoing. Each Party reserves all rights not expressly granted
in this Agreement. For sake of clarity, except as explicitly permitted in this
Agreement, no right or license is granted, under any of [*]’s intellectual
property rights, in or to the Test Server or any software or services accessible
on or through the Test Server.
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11.3 Confidential
Treatment.
Each
Party acknowledges that Confidential Information may be disclosed to the other
Party during the course of this Agreement. Each Party agrees that it will take
reasonable steps, at least substantially equivalent to the steps it takes to
protect its own proprietary information, during the Term of this Agreement
and
thereafter as provided herein, to prevent use of the other Party’s Confidential
Information for any purpose other than to carry out the rights and obligations
hereunder and to prevent the disclosure of Confidential Information of the
other
Party, other than to its employees, or to its other agents or contractors who
must have access to such Confidential Information for such Party to exercise
its
rights and perform its obligations hereunder, who will each agree to be bound
by
agreements with a duty of confidentiality no less protective of Confidential
Information than provided herein. All Confidential Information disclosed under
this Agreement shall not be used or disclosed by the receiving Party during
the
Term and for a period of [*] thereafter, except in the manner provided herein;
provided, however, that technical information provided hereunder, shall not
be
used or disclosed by the receiving Party for so long as such information remains
a protectable trade secret under applicable law; provided further that IXI
shall
keep all [*] User Data confidential in perpetuity. This
Agreement imposes no obligation upon either Party with respect to information
that: (i) was in a Party’s possession before receipt from the other Party; (ii)
is or becomes a matter of public knowledge through no fault of a Party; (iii)
is
rightfully received by a Party from a third party without a duty of
confidentiality; (iv) is independently developed by a Party; (v) is disclosed
under operation of law, except that a Party will disclose only such information
as is legally required and will use reasonable efforts to obtain confidential
treatment for any Confidential Information that is so disclosed; or (vi) is
disclosed by a Party with the other Party’s prior written approval.
11.4 Demonstrations
License.
IXI
grants to [*] a limited, non-exclusive, royalty-free, non-sublicensable,
non-transferable license during the Term (i) to use, install and operate an
Approved Complete [*] Application on an Authorized Platform solely for the
purpose of providing demonstrations of the Approved Complete [*] Application
to
prospective customers and at industry trade shows and similar public events,
and
(ii) to make a reasonable number of copies of the Approved Complete [*]
Application where reasonably necessary to undertake such demonstrations.
[*]
grants to IXI a limited, non-exclusive, royalty-free, non-sublicensable,
non-transferable license during the Term (i) to use, display, and reproduce
the
Application Branding Elements solely as embodied within an Approved Complete
[*]
Application solely for the purpose of providing demonstrations of the Approved
[*] Complete Application to prospective customers and at industry trade shows
and similar public events, and (ii) to make a reasonable number of copies of
the
Application Branding Elements where reasonably necessary to undertake such
demonstrations.
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12.
|
[*]
USER
DATA
|
12.1 Ownership
of [*] User Data.
As
between the Parties, any and all information collected or otherwise obtained
from [*] Users by either Party in connection with an [*] User’s use of,
navigation through, and/or registration for the [*] Service or any other [*]
service, including, but not limited to, user names, passwords, [*] numbers,
email addresses, domain names (including vanity domain names), credit card
information where [*] is the merchant of record, user preferences or history
or
other identifying information, shall be owned and controlled by [*]
(“[*]
User Data”).
All
[*] User Data shall be deemed [*] Confidential Information and nothing in this
Agreement shall be read to give IXI or any third party a license or any other
right in or to the [*] User Data, both during and after the Term of this
Agreement, except and solely to the extent necessary to perform its obligations
under this Agreement.
12.2 Disclosure
of [*] User Data.
At all
times either during or after the Term of this Agreement, IXI and any Approved
Third Party Distributor shall not disclose [*] User Data to any third-party
without the prior written consent of [*]. Notwithstanding the foregoing, IXI
may
disclose [*] User Data solely as necessary to comply with applicable laws,
rules
or regulations; provided, however, that IXI provides [*] with as much advance
written notice of IXI’s intended use or disclosure as is practicable, the
content of the disclosure, the reasons that such disclosure is required by
law
and the time and place that the disclosure will be made and further provided
that IXI works with [*] to redact mutually agreed upon portions of this
Agreement to the fullest extent permitted under applicable laws, rules or
regulations.
12.3 Use
of [*] User Data. IXI
acknowledges and agrees that IXI, any Third Party Developer and any Approved
Third Party Distributor shall not use the [*] User Data either during or after
the Term of the Agreement in any manner or for any purpose without [*]’s express
written consent. In the event that IXI is merged with, or acquired by, an [*]
Competitor or an [*] Competitor, IXI shall immediately return all [*] User
Data
to [*].
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13.
|
ECONOMIC
TERMS
|
13.1 Fees;
Expenses.
IXI
shall not pay [*]. IXI shall pay [*] such fees related to access to the [*]
Services as detailed in Exhibit
E
to this
Agreement. Each Party shall bear its own expenses under this Agreement. Without
limiting the generality of the foregoing, IXI acknowledges that [*] shall have
no obligation to reimburse IXI for, or pay on IXI’s behalf, any expenses or
payment obligations of IXI incurred in the exercise of IXI’s rights or
performance of IXI’s obligations hereunder.
13.2 Pricing
of Approved Complete [*] Applications; [*] Services.
(a)
IXI
shall have sole authority to determine the pricing according to which it sells,
licenses or otherwise distributes Compliant Devices and Approved Complete [*]
Applications to third parties; provided, however, that for Approved Complete
[*]
Applications, IXI may not charge a separate fee for the Application Branding
Elements or otherwise charge an additional fee for the Approved Complete [*]
Application related to the use of the Application Branding Elements; provided
further that for the development, porting, and/or customization of an Approved
Complete [*] Application, IXI may only charge fees commensurate with IXI’s
standard hourly rates and fees.
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(b)
[*]
shall have sole authority to determine the pricing according to which it
provides the [*] Services or any other [*] products or services. [*] shall
have
sole responsibility for the billing and pricing of [*] Services to [*] Users;
provided, however, that [*] shall not charge a users of a Compliant Device
any
unique fees solely due to the fact that the individual is using an Approved
Application through a Compliant Device for use of the [*] Services, provided,
further, that nothing herein shall prevent [*] from charging [*] Users fees
that
are charged generally to users of the [*] Service, including but not limited
to,
any monthly access fees, premium service fees or fees charged for sending
messages to mobile devices.
(c
) IXI
shall have sole responsibility for the billing, pricing, collection and
resolution of billing disputes related to the use of the Complete Approved
Application.
(d)
IXI
agrees that it shall make reasonable commercial efforts to ensure that any
fees
charged by an Approved Third Party Distributor to users of a Compliant Device
for use of the [*] Services via an Approved Complete [*] Application shall
not
be greater than any fees that such Approved Third Party Distributor charges
its
subscribers for any application that it provides to its subscribers that provide
instant messaging services that are similar to, and have functionality
comparable with, the [*] Services on an Approved Complete [*] Application,
including, but not limited to, Internal community, [*] and [*]. [*]
13.3 Taxes.
[*] The
Parties shall, where possible, cooperate with respect to the transactions
contemplated in the Agreement to structure any arrangements in an effort to
minimize taxes for both Parties. Except as expressly stated in this Agreement,
each Party will be responsible for its own costs and expenses incurred in
connection with this Agreement. [*]
Notwithstanding
the aforementioned, if, after a determination by foreign tax authorities, any
taxes are required to be withheld, on payments made by [*] to [*], [*] may
deduct such taxes from the amount owed [*] and pay them to the appropriate
taxing authority; provided however, that [*] shall promptly secure and deliver
to [*] an official receipt for any such taxes withheld or other documents
necessary to enable [*] to claim a [*] (or any other foreign jurisdiction)
Foreign Tax Credit. [*] will make certain that any taxes withheld are minimized
to the extent possible under applicable law.
13.4 Audit.
IXI
shall maintain complete and accurate accounting records, in a form in accordance
with generally accepted accounting principles, to substantiate any fees paid
by
IXI to [*] pursuant to this Agreement and IXI shall retain such records for
a
period of [*] from the date of final payment hereunder. At the request of [*],
[*] or its representatives may inspect, review and copy IXI’s books and records
that are related to any fees paid by IXI to [*] pursuant to this Agreement
at
reasonable times during normal business hours upon reasonable advance notice
to
IXI during the term of this Agreement and for a period of [*] thereafter
(“Audit”).
IXI
shall provide reasonable assistance to [*] in conducting the Audit and [*].
The
cost of such an audit shall be borne by the [*] unless a material discrepancy
is
found, in which case the cost of the audit shall be borne by IXI. A discrepancy
shall be deemed material if it involves a payment or adjustment of more than
[*]
percent ([*]) of the amount actually due from IXI in any given quarterly
period. [*]
has
the right to perform an Audit once in each [*] period during the Term, provided,
however that in the event that an Audit identifies discrepancies with fees
charged related to any fees paid by IXI to [*] pursuant to this Agreement,
[*]
will retain the right to perform an Audit monthly until such discrepancies
are
resolved. At the conclusion of any Audit, any amounts found due and owing to
the
other Party must be paid in full within [*] of the conclusion of the
Audit.
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13.5 Reporting.
At the
request of [*], IXI agrees to provide to [*] a written report, not less
frequently than once per calendar quarter, which report shall at a minimum,
(i)
describe in reasonable detail IXI’s then-current plans for development of
Candidate Applications during the forthcoming [*] period; (ii) identify the
particular Candidate Platforms for which IXI intends to develop such Candidate
Applications during the forthcoming [*] period; (iii) identify the projected
volumes of Approved Complete [*] Applications and Compliant Devices, if any,
to
be distributed during the forthcoming [*] period; (iv) [*], and (v) [*]; (vi)
[*]; (vii) [*]; (viii) [*]; (ix) [*]; (x) any other information reasonably
requested by [*] and mutually agreed to by the Parties (the “[*]
Report”).
All
such [*] Reports shall be considered IXI Confidential Information; provided,
however, that all such [*] Reports shall be non-binding on IXI and IXI agrees
to
treat all non-public information of [*] in such report as [*]’s Confidential
Information. It is agreed that with respect to sub-Sections 13.5 (vi), (viii)
and (ix) the only reason for not providing such information shall be the refusal
of a Third Party Developer to provide IXI with said information. In such an
event, IXI shall make reasonable commercial efforts to provide [*] with similar
information which is in IXI’s possession.
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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 [*] Warranties.
IXI
understands and acknowledges that the [*] Service or other services made
available or provided by or on behalf of [*] to any users of Compliant Devices
or to any other persons are subject to terms and conditions of applicable
agreements between [*] and such users or other persons, and accordingly, [*]
bears no responsibility or liability under this Agreement with respect to the
provision or non-provision of any such [*] Service or other services, or with
respect to any complaints or allegations by any such users or third parties
made
to or against IXI. WITHOUT LIMITING THE FOREGOING, [*] DISCLAIMS ANY AND ALL
REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY
AND
ALL [*] SERVICES, [*] TECHNICAL INFORMATION, OR ANY OTHER SERVICES, INFORMATION
OR MATERIALS PROVIDED OR MADE AVAILABLE BY [*], INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM
INTEGRATION, DATA ACCURACY, TITLE AND NON-INFRINGEMENT.
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15.
|
LIMITATIONS
OF
LIABILITIES
|
15.1 Exclusion
of Remedies.
EXCEPT
WITH RESPECT TO BREACHES OF [*], NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR
ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS
OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS
OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR
DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM
ANY
SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD
TO
WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN
INEFFECTIVE.
15.2 Limitation
of Liability.
EXCEPT
WITH RESPECT TO BREACHES OF [*], THE CUMULATIVE LIABILITY OF EACH PARTY TO
THE
OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT
LIABILITY, SHALL [*]. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT
REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR
HAVE
PROVEN INEFFECTIVE.
15.3 Essential
Basis.
The
disclaimers, exclusions and limitations of liability set forth in this Agreement
form an essential basis of the bargain between the Parties, and, absent any
of
such disclaimers, exclusions or limitations of liability, the provisions of
this
Agreement, including, without limitation, the economic terms, would be
substantially different.
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16.
|
INDEMNIFICATION
|
16.1 By
IXI.
IXI
shall indemnify, hold harmless and defend [*], [*] and its Affiliates from
and
against all losses, expenses (including reasonable attorneys’ fees), damages,
and liabilities resulting from any claim by any third party against [*], [*]
and
its Affiliates arising from or in connection with (i) infringement or alleged
infringement, or misappropriation, as applicable, of such third party’s
intellectual property rights, including without limitation, patent, copyright,
trademark and trade secret rights, by any Candidate Application or Approved
Complete [*] Application, as well as any and all intellectual property rights
or
similar rights in the Authorized Platform and Compliant Device. and (ii) any
act
or omission by a mobile communication carrier, Approved Third Party Distributor,
or a Third Party Developer as if such acts or omissions were taken by IXI with
respect to this Agreement. [*] agrees to give IXI prompt written notice of
any
claim for which defense and/or indemnity is or may be due hereunder. [*] agrees
to give IXI (i) authority to control and direct the defense and/or settlement
of
such claim; and (ii) such information and assistance as IXI may reasonably
request, at IXI’s expense, in connection with such defense and/or settlement.
Notwithstanding the foregoing, IXI shall not settle any third-party claim
against [*], [*] and its Affiliates unless such settlement completely and
forever releases [*], [*] and its Affiliates with respect thereto or unless
[*]
provides its prior written consent to such settlement. Notwithstanding the
foregoing, in any action for which IXI provides defense on behalf of, [*],
[*]
and its Affiliates, [*] may participate in such defense at its own expense
by
counsel of its choice.
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16.2 By
[*].
[*]
shall indemnify, hold harmless and defend IXI and its Affiliates from and
against all losses, expenses (including reasonable attorneys’ fees), damages,
and liabilities resulting from any claim by any third party against IXI arising
from or in connection with infringement or alleged infringement, or
misappropriation, as applicable, of such third party’s intellectual property
rights, including without limitation, patent, copyright, trademark and trade
secret rights, by any [*] Technical Information, the [*] Marks, the [*] Service,
the [*] Network, the Test Server, any Authentication Key (including the Test
Authentication Key), [*] owned intellectual property as identified and contained
in the Mobile Developer Kit. IXI agrees to give [*] prompt written notice of
any
claim for which defense and/or indemnity is or may be due hereunder. IXI agrees
to give [*]: (i) authority to control and direct the defense and/or settlement
of such claim; and (ii) such information and assistance as [*] may reasonably
request, at [*]’s expense, in connection with such defense and/or settlement.
Notwithstanding the foregoing, [*] shall not settle any third-party claim
against IXI unless such settlement completely and forever releases IXI with
respect thereto or unless IXI provides its prior written consent to such
settlement. Notwithstanding the foregoing, in any action for which [*] provides
defense on behalf of IXI, IXI may participate in such defense at its own expense
by counsel of its choice.
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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.
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18.
|
TERM
AND
TERMINATION
|
18.1 Term.
This
Agreement shall commence on the Effective Date and shall continue in full force
and effect for a period of [*] thereafter, unless terminated earlier as provided
in this Section
18
(the
“Initial
Term”).
The
Agreement shall thereafter automatically renew for [*] successive [*] terms
(each, a “Renewal
Term”),
unless either Party provides written notice of its intent not to renew at least
[*] prior to the end of the then current Initial Term or Renewal Term, or unless
terminated earlier as provided herein (the period during which this Agreement
remains in effect, the “Term”).
18.2 Termination
for Breach.
Either
Party may terminate this Agreement at any time in the event of a material breach
by the other Party that remains uncured after [*] written notice.
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18.3 Termination
for Bankruptcy/Insolvency.
Subject
to applicable law, either Party may terminate this Agreement immediately
following written notice to the other Party if the other Party (i) ceases to
do
business in the normal course; (ii) becomes or is declared insolvent or
bankrupt; (iii) is the subject of any proceeding related to its liquidation
or
insolvency (whether voluntary or involuntary) which is not dismissed within
[*];
or (iv) makes an assignment for the benefit of creditors.
18.4 Termination
for Change of Control.
[*]
may
terminate this Agreement by written notice at any point during the Term upon
a
Change in Control of the IXI to an [*] Competitor or an [*] Competitor, as
reasonably determined by [*].
IXI
may
terminate this Agreement by written notice at any point during the Term upon
a
Change in Control of [*] to an IXI Competitor, as reasonably determined by
IXI.
18.5 Effect
of Termination and Expiration.
Subject
to Section
4.6
of this
Agreement and to IXI’s payment of the Access Fee as provided in Section C of
Exhibit E, upon the expiration of the Term of this Agreement pursuant to Section
18.1 above Parties
and the applicable Approved Third Party Distributor shall continue to provide
the Complete Approved Application following such expiration, until such time
as
the all then effective IXI - Distributor Agreements expire or are terminated,
subject to the same terms and conditions under which such Accepted Version
of
the Complete Approved Application are offered under this Agreement and/or the
applicable IXI - Approved Third Party Distributor Agreement (the "Transition
Period").
At
[*]’s option upon the termination of this Agreement due to IXI’s
Bankruptcy/Insolvency pursuant to Section 18.3 or IXI’s Change of Control
pursuant to Section 18.4, IXI, and the applicable Approved Third Party
Distributor shall continue to provide the Accepted Version of the Complete
Approved Application following such expiration until such time as all then
effective IXI - Approved Third Party Distributor Agreements expire or are
terminated subject to the same terms and conditions under which the [*] Services
are offered under this Agreement and/or the applicable IXI - Approved Third
Party Distributor Agreement. At IXI’s option upon the termination of this
Agreement due to [*]’s Bankruptcy/Insolvency pursuant to Section 18.3 or [*]'s
Change of Control pursuant to Section 18.4, IXI, and the applicable Approved
Third Party Distributor shall continue to provide Accepted Version of the
Complete Approved Application following such expiration until such time as
all
then effective IXI - Approved Third Party Distributor Agreements expire or
are
terminated subject to the same terms and conditions under which the [*] Services
are offered under this Agreement and/or the applicable IXI - Approved Third
Party Distributor Agreement; Provided however, that during the Transition Period
IXI will not be entitled to enter into any new IXI - Approved Third Party
Distributor Agreements with any distributor.
18.6 Survival.
The
provisions of Sections 2.2, 5.2- 5.4., 9.6, 9.7, 9.8, 10.4, 10.5, 11.1, 11.2,
11.3, 12, 14, 15, 16, 18.5, 18.6, and 19 shall survive the expiration or
termination of this Agreement.
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Final Execution Copy -
|
19.
|
GENERAL
TERMS
AND
CONDITIONS
|
19.1 Independent
Contractor; No Agency.
The
Parties are independent contractors. Neither Party shall have any right, power
or authority to enter into any agreement for or on behalf of, or incur any
obligation or liability on behalf of, or to otherwise bind, the other Party.
This Agreement shall not be interpreted or construed to create an employment
relationship, an association, agency, joint venture or partnership between
the
Parties or to impose any liability attributable to such a relationship upon
either Party.
19.2 Excuse.
Neither
Party shall be liable for, or be considered in breach of or default under this
Agreement on account of, any delay or failure to perform as required by this
Agreement as a result of any causes or conditions which are beyond such Party's
reasonable control and which such Party is unable to overcome by the exercise
of
reasonable diligence. Provided that the non-performing Party gives reasonably
prompt notice under the circumstances of such condition(s) to the other Party.
19.3 Injunctive
Relief.
The
Parties acknowledge that breach or threatened breach of this Agreement may
give
rise to irreparable injury to the other Party, inadequately compensable in
damages. Accordingly, the aggrieved Party may seek injunctive relief against
the
breach or threatened breach of the foregoing undertakings, in addition to any
other legal remedies which may be available. The Parties acknowledge and agree
that the covenants contained herein are necessary for the protection of
legitimate business interests of the Parties and are reasonable in scope and
content.
19.4 Remedies.
Except
where otherwise specified, the rights and remedies granted to a Party under
this
Agreement are cumulative and in addition to, and not in lieu of, any other
rights or remedies which the Party may possess at law or in equity.
19.5 No
Waiver.
The
failure of either Party to insist upon or enforce strict performance by the
other Party of any provision of this Agreement or to exercise any right under
this Agreement shall not be construed as a waiver or relinquishment to any
extent of such Party's right to assert or rely upon any such provision or right
in that or any other instance; rather, the same shall be and remain in full
force and effect.
19.6 Notice.
Any
notice, approval, request, authorization, direction or other communication
under
this Agreement will be given in writing and will be deemed to have been
delivered and given for all purposes (i) on the delivery date if delivered
by
confirmed facsimile; (ii) on the delivery date if delivered personally to the
Party to whom the same is directed; (iii) one business day after deposit with
or
by a commercial overnight carrier, with written verification of receipt; or
(iv)
five business days after the mailing date, whether or not actually received,
if
sent by mail, return receipt requested, postage and charges prepaid and if
confirmed by the receiving party by return receipt, or any other means of rapid
mail delivery for which a receipt is available. In the case of [*], such notice
will be provided to the attention of Vice President of Business Development
of
[*], at fax no. [*], at the address of [*] set forth in the first paragraph
of
this Agreement. In the case of IXI, except as otherwise specified herein, the
notice will be provided to the attention of the General Counsel at fax no.
[*],
at the address set forth in the first paragraph of this Agreement.
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19.7 Entire
Agreement.
This
Agreement sets forth the entire agreement and supersedes any and all prior
agreements of the Parties with respect to the transactions set forth herein.
Neither Party shall be bound by, and each Party specifically objects to, any
term, condition or other provision which is different from or in addition to
the
provisions of this Agreement (whether or not it would materially alter this
Agreement) and which is proffered by the other Party in any correspondence
or
other document, unless the Party to be bound thereby specifically agrees to
such
provision in writing.
19.8 Amendment.
No
change, amendment or modification of any provision of this Agreement shall
be
valid unless set forth in a written instrument signed by the Party subject
to
enforcement of such amendment.
19.9 Assignment.
Neither
Party shall assign this Agreement or any right, interest or benefit under the
Agreement without prior written consent of the other Party. Notwithstanding
the
foregoing, [*] may assign this Agreement to [*] or any [*] Affiliate. Subject
to
the foregoing, the Agreement will be fully binding upon, inure to the benefit
of
and be enforceable by the Parties hereto and their respective successors and
assigns; provided, however, that in no instance shall (i) [*] assign the
Agreement to a IXI Competitor or (ii) IXI assign the Agreement to an [*]
Competitor or an [*] Competitor.
19.10 Construction;
Severability.
In the
event that any provision of this Agreement conflicts with the law under which
this Agreement is to be construed or if any such provision is held invalid
by a
court with jurisdiction over the Parties to this Agreement, (i) such provision
shall be deemed to be restated to reflect as nearly as possible the original
intentions of the Parties in accordance with applicable law, and (ii) the
remaining terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect.
19.11 Applicable
Law; Jurisdiction.
This
Agreement shall be interpreted, construed and enforced in all respects in
accordance with the laws of the Commonwealth of Virginia except for its
conflicts of laws principles. Each Party irrevocably consents to the exclusive
jurisdiction of the courts of the Commonwealth of Virginia and the federal
courts situated therein, in connection with any action to enforce the provisions
of this Agreement, to recover damages or other relief for breach or default
under this Agreement, or otherwise arising under or by reason of this
Agreement.
19.12 Export
Controls. Both
Parties shall adhere to all applicable laws, regulations and rules relating
to
the export of technical data and shall not export or re-export any technical
data, any products received from the other Party or the direct product of such
technical data to any proscribed country listed in such applicable laws,
regulations and rules unless properly authorized.
19.13 Publicity.
Each
Party agrees that it will not, without prior written consent of the other,
use
in advertising, publicity, or otherwise the name of the other, or refer to
the
existence of this Agreement in press releases, advertising, or materials
distributed to prospective customers.
19.14 Headings.
The
captions and headings used in this Agreement are inserted for convenience only
and shall not affect the meaning or interpretation of this
Agreement.
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19.15 Counterparts;
Facsimile.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same document.
Delivery of an executed signature page to this Agreement by facsimile shall
be
effective to the same extent as if such Party had delivered a manually executed
counterpart.
19.16 Further
Assurances.
Each
Party will take such action (including but not limited to, the execution
acknowledgment and delivery of documents) as may reasonably be requested by
the
other Party for the implementation or continuing performance of the Agreement.
19.17 Return
of Information.
Upon
the expiration or termination of this Agreement, each Party will, upon written
request of the other Party, return or destroy (at the option of the Party
receiving the request) all confidential information, documents, manuals and
other materials provided by the other Party.
Signature
Page to Follow
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Final Execution Copy -
IN
WITNESS WHEREOF,
the
Parties have caused their duly authorized representatives to execute this
document as of the Effective Date.
|
IXI
Mobile (R&D) Ltd.
|
[*]
|
|
Signature:
/s/
|
Signature:
[*]
|
|
Printed
Name:
|
Printed
Name: [*]
|
|
Title:
|
Title:
[*]
|
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Final Execution Copy -
EXHIBIT
A
Definitions
“Active
[*] User” shall
mean an [*] User who according to the [*] records has been online at least
[*]
in the preceding [*].
“[*]
Services”
shall
mean the [*] services, as made available and/or modified by [*] from
time-to-time.
"Affiliate"
shall
mean any distributor or franchisee of an entity, or an entity that, directly
or
indirectly, controls, is controlled by, or is under common control with such
entity, including any entity in which such entity holds, directly or indirectly,
at least a fifty percent (50%) of the voting power of the shares or other
securities for election of directors (or other managing authority) of the
controlled or commonly controlled entity.
"[*]"
shall
mean [*]
“[*]
Competitor”
shall
mean an entity primarily engaged in the business offering one or more of the
following: (i) online or Internet connectivity services to the public for
consumer use (e.g.,
an
online service or Internet service provider); or (ii) an interactive site or
service featuring a broad selection of aggregated third party interactive
content (or navigation thereto) covering a broad range of subjects and targeted
at broad audience (e.g.,
an
online mall or multiple category e-commerce site) or (iii) communications
services capable of serving as the principal means through which a user creates,
sends or receives electronic mail or real time online messages.
“[*]
IM Network”
shall
mean the network and facilities operated by or for [*] (or its affiliates)
in
connection with offering presence, messaging, and other real-time communications
services, including without limitation the [*] instant messaging, [*], and
[*]
branded services.
“Application
Branding Elements”
shall
mean the [*] proprietary trademarks, service marks, logos, trade names, product
names, graphic look-and-feel elements, audio and video files, and other indicia
of [*] origin or ownership required to be used in connection with Approved
Complete [*] Applications by the branding requirements set forth in the Mobile
Developer Kit.
“Approval
Criteria”
shall
mean the technical, objective criteria applied by [*] in assessing whether
to
designate any particular Candidate Application as an Approved Complete [*]
Application, including, without limitation, assessment of the level of
compliance of such Candidate Application with the Mobile Developer Kit, the
[*]
Network Use Policy, and such other technical criteria as [*] may specify from
time-to-time and furnish directly to the IXI.
“Approved
Complete [*] Application”
shall
mean a particular version of a software application that: (a) contains
Application Branding Elements related to the [*] Services, (and for avoidance
of
doubt, does not include any branding related to the [*] Service), (b) provides
an [*] User access only to the [*] Services, (c) contains a complete user
interface that complies with the branding requirements and style guides of
the
Mobile Developer Kit, (d) conforms to the other requirements of the Mobile
Developer Kit, (e) has been determined by [*] to meet the applicable Approval
Criteria in order to be considered an “Approved Complete [*] Application,” (f)
resides on the Authorized Platform, (g) has been approved by [*] for
distribution either as part of a Compliant Device, and (h) otherwise meets
the
requirements of this Agreement.
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Final Execution Copy -
“Approved
Territory”
The
territories listed in Exhibit F or any other territory approved by [*] in
writing.
“Authorized
Platform”
shall
mean, with respect to any particular Approved Complete [*] Application, the
particular model(s) and configuration(s) of mobile communications device(s)
with
respect to which such Approved Complete [*] Application has been tested and
determined by [*] to meet the applicable Approval Criteria.
“Candidate
Application”
shall
mean a software application developed by IXI for use on a Candidate Platform
and
submitted by IXI for purposes of assessment by [*] as contemplated in
Section
4.2
to
determine whether it should be an Approved Complete [*]
Application.
“Candidate
Platform”
shall
mean, with respect to any particular Candidate Application, the particular
model(s) and configuration(s) of mobile communications device(s) with respect
to
which such Candidate Application is developed hereunder in accordance with
the
Mobile Developer Kit.
“Change
in Control”
shall
mean the acquisition of a Party by a third party (or group acting in concert),
such that, as a result thereof, such third party obtains more than thirty
percent (30%) of the outstanding voting securities of such Party or obtains
the
contractual power to designate more than thirty percent (30%) of the board
of
directors of such Party.
“Compliant
Device”
shall
mean a mobile communications device upon which is installed an Approved Complete
[*] Application, which is an Authorized Platform for that particular Approved
Complete [*] Application, which has been authorized for distribution under
Section
4.4,
and
which otherwise meets the requirements of this Agreement.
“Confidential
Information”
shall
mean
any
information that is disclosed during the Term and that is or should be
reasonably understood to be confidential or proprietary (which such information
may include without limitation information concerning a Party’s or its vendors’
business, products, services, content, finances, subscribers, users, tools,
source code, product designs and plans, customer lists and other marketing
and
technical information and other unpublished information). [*]’s Confidential
Information shall include [*] Technical Information and [*] User
Data.
“IXI
Competitor”
shall
mean a manufacturer of mobile data centric devices listed in Exhibit
J attached
hereto. Exhibit J may be amended by IXI from time to time only upon mutual
agreement of the Parties.
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Final Execution Copy -
“IXI
Server” shall
mean the combination of hardware and software that communicates between the
[*]
Network and the IXI network and that is required to enable access to the [*]
Services through an Approved Complete [*] Application.
“IXI
Liaison”
shall
have the meaning afforded to it in Section
3.2
of the
Agreement.
“Feedback”
shall
have the meaning afforded to it in Section
3.6
of the
Agreement.
“ICS”
shall
have the meaning afforded to it in Section
2.1
of the
Agreement.
"[*]
Client"
Shall
mean the client software, device or functionality (e.g. browser technology)
developed and distributed by [*] or an Affiliate of [*] that enables end users
to access and use the [*] Service.
"[*]
Competitor".
Shall
mean a third party that distributes an instant messaging, chat, [*] list
tracking or similar online, real time messaging product; provided, that such
product line constitutes a significant portion of such third party’s business or
such third party is a major participant in the business of instant messaging
or
similar online, real-time messaging products
“[*]
Consumer Marks”
shall
mean the particular trademark(s) identified in Exhibit
D
as an
[*] Consumer ▇▇▇▇.
“[*]
Liaison”
shall
have the meaning afforded to it in Section
3.3
of the
Agreement.
“[*]
Marks”
shall
mean the, [*] Consumer Marks and the Application Branding Elements.
“[*]
Mobile Developer Program”
shall
have the meaning afforded to it in Section
C
of the
Recitals.
"[*]
Namespace”
Shall
mean the
[*] database of users of the [*] Service, as well as any algorithms, and the
server complex used by [*] to implement and support the [*]
Service.
"[*]
Network"
Shall
mean (i) the [*] Service and (ii) any other network, product or service owned,
operated, distributed or authorized to be distributed by or through [*] or
its
Affiliates worldwide (which may include, without limitation, Internet sites
promoting [*] products and services and any “offline” information browsing
products of [*] or its Affiliates).
“[*]
Network Use Policy”
shall
mean the requirements set forth in Exhibit
B.
“[*]
Report”
shall
have the meaning afforded to it in Section
13.5
of the
Agreement.
"[*]
Service” Shall
mean the
[*] brand instant messaging service, including the [*] Service, and any other
products or services owned, operated, distributed or authorized to be
distributed by or through [*] or its Affiliates worldwide, as designated by
[*]
during the Term.
“[*]
Technical Information”
shall
mean the Mobile Developer Kit, all Authentication Keys (including the Test
Authentication Key), and other non-public information provided by [*] or its
Affiliates to IXI under this Agreement, including, without limitation,
information regarding the [*] Services and protocols regarding access to the
Test Server and/or the [*] Services.
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Final Execution Copy -
"[*]
User” Shall
mean any
user
authorized by [*] to use any [*] Service(s).
“[*]
User Data”
shall
have the meaning afforded to it in Section
12.1
of the
Agreement.
“Initial
Term”
shall
have the meaning afforded to it in Section
18.1
of the
Agreement.
“IXI
▇▇▇▇”
shall
mean the particular trademark(s) identified in Exhibit C as IXI ▇▇▇▇.
“Minor
Change”
shall
mean the correction of any programming error in the software portion of an
Approved Complete [*] Application that does not affect the Approved Complete
[*]
Application’s conformance with the relevant portions of the Mobile Developer Kit
and that does not: (a) affect the look and feel of the user interface of the
Approved Complete [*] Application; (b) change the branding of the Approved
Complete [*] Application; or (c) change the functionality of the Approved
Complete [*] Application.
“Mobile
Developer Kit”
shall
mean, collectively, the general functional requirements, the client
certification overview, the UI style guide, the authentication guide, the
branding guide, the customer acceptance test guide and the functional
requirements checklist, as updated by [*] or its Affiliates from time-to-time.
“Renewal
Term”
shall
have the meaning afforded to it in Section
18.1
of the
Agreement.
“Taxes”
shall
have the meaning afforded to it in Section
13.3
of the
Agreement.
“Technical
Feedback”
shall
have the meaning afforded to it in Section
3.4
of the
Agreement.
“Technical
Requirements Document”
shall
have the meaning afforded to it in Section
7.1(d)
of the
Agreement.
“Term”
shall
have the meaning afforded to it in Section
18.1
of the
Agreement.
“Test
Authentication Key”
shall
have the meaning afforded to it in Section
3.5
of the
Agreement.
“Test
Server”
has
the
meaning afforded to it in Section
3.5 of
the
Agreement.
“Third
Party Developer”
shall
have the meaning afforded to it in Section
3.7
of the
Agreement.
“Third
Party Developer Server”
An
IXI
Server, when such IXI Server is developed, and/or maintained by a Third Party
Developer.
“Transition
Period”
shall
have the meaning afforded to it in Section
18.5
of the
Agreement.
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Final Execution Copy -
EXHIBIT
B
[*]
Network Use Policy
OVERVIEW
This
document states the [*] policies with which all [*] Mobile Developer Program
developers must comply. If IXI has negotiated policy terms and conditions within
the body of the Agreement that vary from what is set forth in this section,
the
terms and conditions of the Agreement take precedence.
[*]
reserves the right to reject any Candidate Application if the Candidate
Application does not meet any of the policy specifications set forth herein.
[*]
also reserves the right to revoke the approval for any Approved Complete [*]
Application and to revoke the Authentication Key associated with the Approved
Complete [*] Application if IXI, Third Party Developer, or the Approved Complete
[*] Applications violate any of the policy specifications set forth
herein.
IM
CLIENT
COMPATIBILITY
Approved
Complete [*] Applications are precluded from managing [*] Network communications
or traffic that does not originate from software developed or approved under
the
Agreement by [*]. Approved Complete [*] Applications are precluded from managing
[*] IM Network communications or traffic.
No
products or services developed or distributed by IXI, other than Approved
Complete [*] Applications under the Agreement, may access, connect to, interface
with or manage communications in any way with the [*] Network.
NETWORK
TO
NETWORK
CONNECTIVITY
No
products developed or distributed by IXI, including any Approved Complete [*]
Applications shall facilitate a direct or indirect connection for real time
communications between an [*] User of the [*] Network on the one hand and an
end
user of any third-party communications or messaging network on the other
hand.
IM
MESSAGES
No
products developed or distributed by IXI, including any Approved Complete [*]
Applications, shall enable the broadcast of unsolicited instant messages
(i.e.,
spam)
to
a group of recipients, regardless of whether the message is transmitted via
individual or group chat conversations.
Approved
Complete [*] Applications may not modify the original text of instant messages
under any circumstance. The recipient must receive the original, formatted
text
exactly as it was sent by the [*] Network.
USER
PRIVACY
IXI
may
only develop and distribute the Approved Complete [*] Application such that
IXI
does not violate the user privacy terms and conditions that apply to the [*]
Services, or violate applicable laws and regulations pertaining to user privacy
and user data protection. The privacy policy for the [*] Service can be found
online at [*].
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EXHIBIT
C- IXI Marks
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EXHIBIT
D
[*]
Marks
[*]
Consumer Marks:
[*]
EXHIBIT
E
Fees
|
A.
|
License
Fee:
|
|
a.
|
IXI
shall pay [*] a [*] license fee for [*] Compliant Device connected
through
the IXI Server (or Third Party Developer Server) to the [*] Network.
The
License Fee shall equal to the [*] multiplied by the [*] as listed
in
table A of Exhibit F.
|
|
b.
|
The
[*] license for any [*] order shall be [*] per Approved Territory
(“[*]
Bulk”), unless otherwise approved by [*] in writing. Parties hereby agree
that the payment for the [*] Bulk (as defined above) may be used
as an
[*]. Notwithstanding the foregoing, IXI shall be entitled to purchase
a
[*] amount of licenses than the [*] Bulk on the last order of any
relevant
[*], to reach the [*] Fee, provided however that the previous orders
were
equal or higher than the [*] Bulk and the last order occurs within
the
[*].
|
|
c.
|
IXI
shall pay to [*] the License Fee for each order no later than [*]
following the issuance of an invoice by [*].
|
|
d.
|
IXI
may [*], provided however: (i) IXI has paid to [*] the [*] Fee of
such
said Approved Territories [*] and (ii) IXI has notified [*] of any
[*] in
advance.
|
|
e.
|
Any
swap or upgrade due to return of defective device shall not be considered
as an additional use of a license. IXI shall provide [*] with a written
report detailing swap or upgrades of Compliant Devices according
to the
IMEI numbers (International Mobile Equipment Identity unique number)
of
said devices.
|
|
B.
|
[*]
Fee.
|
|
a.
|
At
the end of any [*] as of the first bulk order per Approved Territory,
IXI
shall pay to [*] a [*] fee (“ IXI
Difference Payment”).
|
|
b.
|
For
each Approved Territory, the “IXI
Difference Payment”
shall equal to the [*] already paid to [*] in the course of the applicable
[*] with regard to such applicable Approved Territory.
|
|
c.
|
The
[*] Fee for each Approved Territory shall be as listed in table B
of
Exhibit F. For the avoidance of doubt, the IXI Difference Payment
shall be
paid regardless of [*] in the specified Approved Territory during
any said
[*] period. For the avoidance of doubt, in the event that a portion
of the
[*] Fee was not used as [*] during any specific [*] and with regard
to any
specific Approved Territory, that such [*] Fee applies to, then no
portion
of the [*] Fee shall be credited against any amounts due by IXI for
the
following [*] or an alternative Approved Territory.
|
|
d.
|
For
any additional new Approved Territory (for avoidance of doubt, at
[*]’s
sole discretion and upon prior written approval), which is not an
Approved
Territory listed in table B of Exhibit F, the [*] Fee shall be determined
according to the following schedule:
|
|
i.
|
For
each Approved Territory with up to [*] at the time it became an Approved
Territory: [*].
|
|
ii.
|
For
each Approved Territory with over [*] and under [*] at the time it
became
an Approved Territory: [*].
|
|
iii.
|
For
any Approved Territory with over [*] at the time it became an Approved
Territory: [*].
|
|
e.
|
IXI
shall pay to [*] the IXI Difference Fee no later than [*] following
[*] of
the applicable [*], against a valid invoice from
[*].
|
|
C.
|
Access
Fee for Transition Period:
|
|
a.
|
During
the Transition Period as provided in Section 18.5, IXI shall continue
to
pay [*] for each Approved Territory in which the Complete Approved
[*]
Application continues to access the [*] Network and Services, [*]
of the
[*] Fee of the applicable Approved Territory.
|
|
b.
|
Such
payment shall be made to [*] within [*] of termination or expiration
of
the Agreement (i.e. start of Transition Period), against a valid
invoice
from [*].
|
|
D.
|
Agreement
Term Approved Territories
Commitment.
|
|
a.
|
During
the Initial Term, IXI shall resell its Devices with the Complete
Approved
[*] Application in at least [*] Approved Territories. To the extent
that
by the end of the Initial Term IXI has not sold Compliant Devices
with the
Complete Approved [*] Application, in the amount of [*] Fee pursuant
to
Sections B (c) and (d) of this Exhibit
E,
IXI shall pay to [*] a [*] fee of [*], multiplied by the [*] and
up to [*]
(“Approved Territories Commitment”).
|
|
b.
|
IXI
shall pay to [*] the Approved Territories Commitment no later than
[*]
following the end of the Initial Term, against a valid invoice from
[*].
|
Exhibit
F
Table
A-
[*] licenses for [*]
|
Bulk
|
Price
per [*]
|
|||
|
[*]
|
[*]
|
|||
|
[*]
|
[*]
|
|
||
|
[*]
|
[*]
|
|
||
|
[*]
|
[*]
|
|
Table
B-
[*] Fee per Approved Territory
|
Approved
Territory
|
[*]
commitment (as
of [*]
per
Approved Territory)
|
|||
|
[*]
|
[*]
|
|||
|
[*]
|
[*]
|
|
||
|
[*]
|
[*]
|
|
||
|
[*]
|
[*]
|
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[*]
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[*]
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[*]
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[*]
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Exhibit
G
Acceptance
Test Plan
Exhibit
H
Technical
Requirements
Exhibit
I
Service
Level Agreement
Exhibit
J
List
of
IXI competitors
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[*]
[*]