Addendum No.3 to the cooperation agreement between
Addendum
No.3 to the cooperation agreement between
ixi mobile
(r&D) ltd. and 1&1 internet ag dated december 15,
2005
This
Addendum No.3 to the Cooperation Agreement of December 15, 2005 (this "Addendum") is made and entered into
as of November 20, 2006 (the "Effective Date"), by and
between IXI Mobile (R&D) Ltd., an Israeli company (the “Company”) and 1&1 Internet AG, a German
company ("Distributor").
WHEREAS, the Company is,
amongst other activities, in the business of developing, manufacturing and
selling certain mobile devices, currently known as OGO™ with embedded software
applications and related services (collectively, the "OGO Device");
WHEREAS, the parties have
previously entered into that certain Cooperation Agreement dated December 15,
2005 (the "Distribution Agreement")
pursuant to which the Company granted the Distributor rights, and the
Distributor has undertaken, to distribute and sell the OGO Device to its
customers (each an "End
User" and collectively, "End Users") pursuant to the
terms and conditions of the Distribution Agreement;
WHEREAS, in addition to the
features already offered by the Company to End Users for use with the OGO
Device, the Distributor now wishes to afford End Users the new feature of using
ICQ instant messaging services on the OGO Device;
WHEREAS, the Company has
entered into that certain ICQ Mobile Development Program Agreement (the "ICQ Agreement") with ICQ,
Inc., a Delaware corporation ("ICQ"), pursuant to which,
among other things, ICQ granted the Company certain license rights to the ICQ®
brand instant messaging service and ICQ trademarks, some of such license rights
may be sublicensed by the Company to the Distributor subject to certain
restrictions and limitations as set forth in the ICQ Agreement;
WHEREAS, the Company wishes to
grant the Distributor, and the Distributor is willing to accept, a sublicense to
the ICQ® brand instant messaging service and certain ICQ trademarks subject to
the restrictions and limitations set forth in the ICQ Agreement;
NOW, THEREFORE, in
consideration of the mutual promises and covenants in this Addendum, the parties
hereto hereby agree as follows:
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1.
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Definitions.
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In this
Addendum, the following terms shall have the following meanings:
1.1. "Distribution Agreement" means
as such term is defined in the Recitals to this Addendum.
1.2. "End User" or "End Users" mean as such terms
are defined in the Recitals to this Addendum.
1.3. "ICQ" means as such term is
defined in the Recitals to this Addendum.
1.4. "ICQ Agreement" means as such
term is defined in the Recitals to this Addendum
1.5. “ICQ Branding Elements” means
the ICQ proprietary trademarks, service marks, logos, trade names, product
names, graphic look-and-feel elements, audio and video files, and other indicia
of ICQ origin or ownership required by ICQ used by the Company in connection
with the ICQ Messaging Application pursuant to the ICQ
Agreement.
1.6. "ICQ Client" Shall mean the client
software, device or functionality (e.g. browser technology) developed and
distributed by ICQ or an Affiliate of ICQ that enables end users to access and
use the ICQ Service.
1.7. “ICQ Consumer Marks” shall mean the
particular trademark(s) identified in Exhibit
A attached hereto as an ICQ Consumer ▇▇▇▇.
1.8. "ICQ Messaging Application"
means the particular version of the software application developed by the
Company pursuant to the ICQ Agreement that provides an End User access to the
ICQ Services and which has been approved by ICQ for distribution as part of the
OGO Device.
1.9. "ICQ Service” means the ICQ®
brand instant messaging service, including the ICQ 2-Way SMS Service, and any
other products or services owned, operated, distributed or authorized to be
distributed by or through ICQ, as designated by ICQ from time to time and
communicated by the Company to the Distributor.
1.10. "ICQ User Data" means as such
term is defined in Section 4.6 below.
1.11. “IXI Server” means the combination of
hardware and software that communicates between ICQ's network and the Company's
network and that is required to enable access to the ICQ Services by the OGO
Device through the ICQ Messaging Application.
1.12. "OGO Device" means as such term
is defined in the Recitals to this Addendum.
1.13. "Term" means as such term is
defined in Section 13.1 of this Addendum.
1.14. "Territory" means
Germany.
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2.
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License
Grant.
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Subject
to the terms and conditions of this Addendum and the terms and conditions of the
Distribution Agreement, the Company hereby grants Distributor a non-exclusive,
limited, non-transferable, non-sublicensable license to distribute the ICQ
Services to End Users solely on OGO Devices and solely through the ICQ Messaging
Application over a GPRS or any upgraded internet access wireless protocol
approved in writing by ICQ, using such End Users' existing ICQ numbers and
passwords or by registering for the ICQ Services through ICQ’s standard
registration process.
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3.
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License
Restrictions and
Limitations.
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In
addition to any restrictions and limitations set forth in the Distribution
Agreement which shall apply, mutatis mutandis, to the rights granted to
Distributor pursuant to this Addendum, Distributor's rights pursuant to this
Addendum, shall be subject to the following restrictions, limitations and
Distributor's undertakings and acknowledgements:
3.1. The
Distributor shall only distribute and allow mobile use and/or mobile access of
the ICQ Service through the OGO Device and solely in the
Territory.
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3.2. Distributor
acknowledges and agrees to fully cooperate with the Company and ICQ and take all
reasonable actions to ensure that access to and use of the ICQ Services by End
Users is governed by ICQ’s then current Member Agreement for the ICQ Services.
Distributor further acknowledges and agrees that it is expressly prohibited from
accessing, and from providing any third party
(including End Users) access to, the AOL Instant Messenger™ services, or any
other AOL affiliate service. Distributor acknowledges and agrees that (x)
it shall make available to End Users all features and functionality
of the ICQ Services that the Company makes available to the End Users, subject
to technical limitations of the ICQ Messaging Application; and (y) it
is expressly prohibited from connecting directly to the ICQ
network.
3.3. Notwithstanding
any other provision of this Addendum, (i) Distributor will not attempt to access
or use the ICQ Service, or authorize or facilitate access or use
thereof by any third parties (including End Users), by means of any application
or device other than the OGO Device; and (ii) Distributor shall not represent
that any connection or access or use of the ICQ Service is for a perpetual term
and shall ensure that any End User is aware that ICQ may deny such access at any
time and for any reason, and in any case shall not be for a term longer than the
Term.
3.4. Distributor
acknowledges and agrees that the Company, and not ICQ, is responsible for
developing the ICQ Messaging Application, as well as operating and supporting
the IXI Server.
3.5. Distributor
acknowledges and agrees that ICQ is not obligated to provide any technical
support to any third party with respect to the ICQ Service and the ICQ Messaging
Application.
3.6. Distributor
acknowledges and agrees that ICQ shall be free to prohibit or terminate access
to the ICQ Service at any time in its sole discretion.
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4.
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Proprietary
Rights; ICQ User Data.
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4.1. As
between the Company and Distributor, the Company, or its licensors, will own all
intellectual property rights or similar rights, title and interest in the ICQ
Messaging Application as well as any and all intellectual property rights or
similar rights in the OGO Device and any other service provided as part of the
OGO Device which is not the ICQ Service (e.g. e-mail, email attachments,
synchronization etc.). Except as expressly permitted in this
Addendum, no right or license is granted, under any of the Company's
intellectual property rights, in or to the OGO Device or the ICQ Messaging
Application.
4.2. Subject
to the limited licenses expressly granted herein, as between the parties, ICQ
shall own and hold all right, title and interest in and to all the ICQ Consumer
Marks and the ICQ Service and all intellectual property rights or similar rights
associated with, embodied in, or practiced by the foregoing.
4.3. The
Company reserves all rights not expressly granted in this
Addendum. For sake of clarity, except as explicitly permitted in this
Addendum, no right or license is granted, under any of ICQ’s intellectual
property rights.
4.4. The
parties existing confidentiality obligations pursuant to the Distribution
Agreement or any other non-disclosure agreement or other agreement of similar
effect, shall apply to any non-public information provided by either party to
the other party under this Addendum and to the ICQ User Data.
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4.5. Except
for the usage rights with respect to the ICQ Consumer Marks, which usage rights
shall be subject to the terms, conditions and limitation set forth in
Section 6 of this
Addendum, no right, title, or interest is being granted to the Distributor
herein in or to any ICQ Branding Elements or ICQ Consumer Marks and as between
the Company, Distributor and ICQ, ICQ shall remain the sole and exclusive owner
of the ICQ Branding Elements and the ICQ Consumer Marks.
4.6. As
between the Company and the Distributor, any and all information collected or
otherwise obtained from End Users by either the Company or the Distributor in
connection with such End User’s use of, navigation through, and/or registration
for the ICQ Service, including, but not limited to, user names,
passwords, ICQ numbers, email addresses, domain names (including vanity domain
names), credit card information where ICQ is the merchant of record, user
preferences or history or other identifying information, shall be owned and
controlled by ICQ (“ICQ User
Data”). Nothing in this Addendum shall be read to give the
Distributor or any third party a license or any other right in or to the ICQ
User Data, both during and after the Term of this Addendum.
4.7. At
all times either during or after the Term of this Addendum, Distributor shall
not use or disclose any ICQ User Data to any third-party in any manner or for
any purpose without the prior written consent of ICQ.
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5.
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Service
Level.
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Distributor
acknowledges and agrees that the service level with respect to the ICQ Service
offered by the Company shall be pursuant to a service level agreement between
ICQ and the Company.
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6.
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License
in ICQ Consumer Marks.
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6.1. Subject
to the terms and conditions of this Addendum, the Company hereby grants to
Distributor, a limited, non-exclusive, non-transferable, non-sublicensable,
royalty-free license during the Term to use, display and reproduce the ICQ
Consumer Marks solely on OGO Devices and packaging, package inserts, advertising
and marketing materials for the OGO Devices directed towards End Users, and
solely in accordance with the Usage Standards set forth in this Section 6 and
such other ICQ trademark usage guidelines as the Company may from time-to-time
provide to Distributor.
6.2. Distributor
acknowledges and agrees that its use of the ICQ Consumer Marks pursuant to
Section 6.1 above must be approved by the
Company in writing prior to use. The Company shall request ICQ's approval of
such use prior to and as a condition to its approval. Distributor further
acknowledges and agrees that all use of the ICQ Consumer Marks shall, at all
times, remain subject to such ICQ written trademark usage guidelines as the
Company may from time-to-time provide to Distributor. Distributor acknowledges
and agrees that the Company has no control over ICQ and that there is no
guaranty that ICQ will grant its permission to any use of Distributor of the ICQ
Consumer Marks, although Distributor's strict compliance with the terms of this
Section 6 will most likely increase the possibility of any such use being
approved by ICQ. Distributor acknowledges the exclusive ownership right of ICQ
in the ICQ Consumer Marks and agrees that all use of the ICQ Consumer Marks
shall inure to the benefit, and be on behalf, of ICQ. Without
limiting the foregoing, Distributor will not (i) use the ICQ Consumer Marks in
any manner that disparages or tarnishes any ICQ Consumer Marks or the reputation
of ICQ, or that could reasonably be expected to do so; (ii) modify the ICQ
Consumer Marks; (iii) combine in one ▇▇▇▇ the ICQ Consumer Marks with any other
marks or create any composite marks; (iv) register or attempt to register the
ICQ Consumer Marks in any jurisdiction or create, use, register or attempt to
register any confusingly similar ▇▇▇▇; or (v) challenge ICQ's proprietary rights
in and to the ICQ Consumer Marks, or undertake any action which impairs such
proprietary rights of ICQ or its licensors, or that could reasonably be expected
to do so. Distributor shall, throughout the Term and for a period of not less
than one (1) year after the termination or expiration of this Addendum, retain
representative copies of all uses of the ICQ Consumer Marks, and shall provide
such copies to either ICQ or the Company upon ICQ's or the Company's request at
any time prior to the date which is one (1) year after such termination or
expiration.
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6.3. Upon
notice from ICQ or the Company of ICQ's objection to any improper or incorrect
use by Distributor of the ICQ Consumer Marks, Distributor shall immediately
correct or change such usage. Distributor agrees to promptly notify the Company
of any unauthorized use of the ICQ Consumer Marks of which it has actual
knowledge and agrees that ICQ shall have the sole right and discretion to bring
proceedings alleging infringement of the ICQ Consumer Marks or unfair
competition related thereto; provided, however, that Distributor shall provide
ICQ and/or the Company with its reasonable cooperation and assistance with
respect to any such infringement proceedings as long as Distributor does not
have to bare any financial expense as a result of such assistance.
7. Commercial
Terms.
7.1. Distributor
shall pay the Company such fees related to access to the ICQ Services as
detailed in Exhibit
B of this Addendum.
7.2. Distributor
agrees that any fees charged by it to End Users for use of the ICQ Services via
ICQ Messaging Application shall not be greater than any fees that Distributor
charges its subscribers for any application that it provides to its subscribers
that provide instant messaging services that are similar to, and have
functionality comparable with, the ICQ Services on the ICQ Messaging
Application, including, but not limited to, Internal community, MSN Messenger
and Yahoo! Messenger.
8. Links to
ICQ Messaging Application and Service.
The
Company requests that Distributor provides links to the ICQ Messaging
Application and/or the ICQ Service among the top three (3) links in the same
categories (e.g., new
releases, instant messaging, etc.) where the Distributor provides links to
similar applications and/or services.
9. Reporting.
At the
request of the Company, Distributor agrees to provide to the Company with a
written report, not less frequently than once per calendar quarter, which report
shall at a minimum, (i) identify the projected volumes of ICQ Messaging
Applications and OGO Devices, if any, to be distributed during the forthcoming
ninety (90) day period; (ii) the projected fees payable to the Company from the
distribution of such projected volumes of ICQ Messaging Applications and OGO
Devices; (iii) the Distributor’s marketing and promotion plans related to the
ICQ Services, including, the Approved Distributor’s marketing and promotion
budget and an indication if the Company is authorized to disclose such marketing
and promotion budget to ICQ, and (iv) the End User pricing implemented by the
Distributor in relation to an ICQ Client and access to the ICQ Service; (v) the
aggregate number of chargeable messages sent via an Approved Complete ICQ
Application by a users of the Compliant Devices during the applicable
quarter pursuant to a per message fee; (vi) the number of successful logins,
login attempts, and re-logins of End Users to the ICQ Service through the ICQ
Messaging Application; (vii) the number of IM messages sent and received per ICQ
Messaging Application version and per OGO Device; (viii) any other information
reasonably requested by the Company and mutually agreed to by the
parties.
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10. Disclaimer
of Warranties.
IN
ADDITION TO, AND WITHOUT LIMITING THE GENERALITY OF, ANY DISCLAIMERS OF
WARRANTIES UNDER THE DISTRIBUTION AGREEMENT, THE COMPANY HEREBY DISCLAIMS ANY
AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING
ANY AND ALL ICQ SERVICES, OR ANY OTHER SERVICES, INFORMATION OR MATERIALS
PROVIDED OR MADE AVAILABLE BY ICQ, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA
ACCURACY, TITLE AND NON-INFRINGEMENT.
11. Limitation
of Liabilities.
ANY
EXCLUSION OF REMEDIES PROVISIONS AND LIMITATION OF LIABILITIES PROVISIONS SET
FORTH IN THE DISTRIBUTION AGREEMENT SHALL APPLY TO THE TRANSACTIONS CONTEMPLATED
BY THIS ADDENDUM, EXCEPT WITH RESPECT TO BREACHES OF SECTIONS 3 (LICENSE
RESTRICTIONS), 4 (PROPRIETARY RIGHTS AND ICQ USER DATA), 6.2 AND 6.3 (ICQ
CONSUMER MARKS USAGE) AND 12 (INDEMNIFICATION) HEREUNDER.
12. Indemnification.
Distributor
shall indemnify, hold harmless and defend the Company from and against all
losses, expenses (including reasonable attorneys’ fees), damages, and
liabilities resulting from any claim by any third party against the Company
and/or from any claim by any third party against ICQ, America Online, Inc. and
its affiliates for which the Company is required to provide indemnification and
arising from or in connection with any act or omission by of the
Distributor.
13. Term.
13.1. The
term of this Addendum ("Term") shall commence on the
Effective Date and shall end on the date two years from the Effective
Date.
13.2. The
provisions of Sections 3, 4, 10, 11, 12 and 14 shall survive the expiration or
termination of this Addendum.
14. General
Terms and Conditions.
14.1. The
parties acknowledge that they continue to be bound by the terms of the
Distribution Agreement, as amended and/or supplemented hereby. Except
as amended and/or supplemented hereby, all of the terms of the Distribution
Agreement shall remain and continue in full force and effect and are hereby
confirmed in all respects. Accordingly, each of the parties acknowledges and
agrees that the ICQ Messaging Application and the ICQ Services shall be governed
by the terms of the Distribution Agreement; provided, however, that in the event
of any discrepancies between the terms and provision of the Distribution
Agreement and the terms and provisions of this Addendum, the terms and
provisions of this Addendum shall govern and prevail.
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14.2. This
Addendum may be executed in counterparts, each of which shall constitute an
original, but all of which together shall constitute one and the same
Addendum. Originally executed counterparts may be delivered by
facsimile and any such delivery shall be valid for all purposes as delivery of a
manual signature and equally admissible in any legal proceedings to which any of
the parties is a party.
14.3. If
any provision of this Addendum or the application thereof, shall for any reason
and to any extent be determined by a court of competent jurisdiction to be
invalid or unenforceable under applicable law, the remaining provisions of this
Addendum shall be interpreted so as best to reasonably effect the intent of the
parties hereto.
14.4. This
Addendum, together with the Distribution Agreement and all exhibits hereto and
thereto, constitute the entire understanding and agreement of the parties with
respect to the transactions contemplated herein and supersede all prior and
contemporaneous understandings and agreements, whether written or oral, with
respect to such transactions.
14.5. This
Addendum shall be governed in all respects by the governing law and choice of
forum sections of the Distribution Agreement.
[Signature
Page Follows]
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In Witness
Whereof, the parties have caused their duly authorized representatives to
execute this Addendum as of the Effective Date.
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IXI
Mobile (R&D) Ltd.
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DISTRIBUTOR
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Signature:
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Signature:
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Printed Name:
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Printed Name:
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Title:
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Title:
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EXHIBIT
A
ICQ Consumer
Marks
EXHIBIT
B
Fees
As per
Section 2.2, Table 1 of the Distribution Agreement.