HOSTED SERVICESAGREEMENT

IXI hereby appoints Provider to provide the Services with respect to the IXI Customers set forth in Exhibit F below and Provider agrees to provide the Services on the terms and conditions set forth herein. In providing the Services, the parties agree that Provider shall host, operate and maintain the Systems and IXI will allow Provider to connect said Systems to such IXI Customers’ network and/or Portal network if and as required to provide the Services as determined by IXI in accordance with this Agreement.

Provider hereby grants to IXI a non-exclusive right and license to make the Services available to Subscribers in the Territory and to promote and market the Services pursuant to the terms and conditions of this Agreement.

IXI shall only provide the Services to IXI Customers.

2.4

The parties intend the Services to be to be rolled out for the [*] Portal in accordance with the timetable set out in Exhibit D. After [*] the parties shall discuss the roll out of the Service for other Portals. Provided that both parties agree (in writing) and there is sufficient lead-time (which in any event shall be no less than [*]) the Service shall be rolled out to other specified Portals.

2.4.1

Provider and IXI will work together collaboratively in good faith to achieve commercial launch of [*] IM and email and [*] IM and email by [*]. Provider will make best, commercially reasonable efforts to achieve an implementation of the functionality listed Exhibit E in as far as is directly under their control. IXI will assist with regard to gaining access to certification with [*] and [*] and will pay all [*] associated with certification of Provider's Services with the OGO provided that these do not include the development costs for the Provider to develop working interfaces and implementations. The Parties agree to generate in good faith shared implementation milestones and delivery dates 

2.5

IXI and Provider shall in good faith jointly prepare the initial forecast of Subscribers and a rolling forecast of Subscribers, the forecast being revised on a [*] basis and the forecast for the proceeding [*] to be used by Provider in order to perform capacity planning and to build out the infrastructure to implement the Services. For the sake of clarity, Provider shall prepare capacity in advance according to the [*] window in the jointly prepared rolling forecast. In the case where the capacity set forth in the [*] window of the rolling forecast is not utilized [*].

2.6

Provider will provide IXI, free of charge, with access to the Services for up to [*] Subscribers across a variety of IP addresses for the purpose of demonstration, engineering and/or testing; provided that no additional system will be needed to be setup by Provider.

2.7

IXI shall provide to Provider, no later than [*], either an acceptance statement of the Services or a written report of any deficiencies in the Services, based on the SOW (“Punchlist”). Upon fixing the deficiencies as detailed in the Punchlist, IXI shall send to Provider an acceptance statement. If IXI shall not send an acceptance statement or Punchlist within [*] or notice that the deficiencies in the Punchlist have been fixed, the Services will be deemed to have been accepted. The parties agree and acknowledge that this Section 2.7 is not intended to limit in any way IXI’s rights under Section 2.1 above.

5.1

Provider warrants that the Services will be provided in a professional manner in accordance with the terms of this Agreement (including all Exhibits hereto).

Provider shall (in addition to the Services) provide Service Support throughout the Term in accordance with the SLA attached hereto as Exhibit B.

THE FOREGOING WARRANTIES SET FORTH IN SECTIONS 5.1 AND 5.2 ARE THE SOLE WARRANTIES GRANTED BY PROVIDER IN CONNECTION WITH THE SERVICES. The parties exclude all other warranties implied by statute, common law or otherwise to the maximum extent permitted by applicable law.

Provider and IXI each hereby represent and warrant that:

(i)

it has all right, power and authority to enter into this Agreement and to fully perform its obligations hereunder; and

(ii)

the execution of this Agreement does not and will not violate any other agreement by which it is bound or its charter or bylaws.

IXI represents and warrants that:

(i)

it will not use the Services in conjunction with an IXI Customer without a written agreement between IXI and such IXI Customer and without a right to enable the Services between such IXI Customer and Portal.

Provider shall indemnify, defend and hold harmless IXI and its Affiliates, directors, officers and employees (“Indemnitees”) against all actions, claims, demands, suits, losses and damages (including reasonable costs, expenses and reasonable attorneys’ fees) (collectively, “IPR Losses”) insofar as such IPR Losses arise out of or relate to: claims that use of the Services, even if running without an OGO would constitute an infringement of a patent, trademark, copyright or other intellectual property right in the Territory. Provider will reimburse each Indemnitee for [*].

Provider shall indemnify, defend and hold harmless Indemnitees against all actions, claims, demands, suits, losses and damages (including reasonable costs, expenses and reasonable attorneys’ fees) (collectively, “Service Losses”) insofar as such Service Losses arise out of or relate to actions taken or omissions by or on behalf of Provider in providing the Services that are not required by the SOW. Provider will reimburse each Indemnitee for [*].

IXI shall indemnify Provider and its directors, officers and employees against all actions, claims, demands, suits, losses and damages (including reasonable costs, expenses and reasonable attorneys’ fees) (collectively, “IXI Losses”) relating to this Agreement which arise out of:

(i)

any unauthorized alteration or modification of the Services; or

(ii)

any unlawful use of the Services by IXI.

The obligations of each party under this Section 7 shall be subject to the requirements that (i) the indemnified party notify the indemnifying party in writing within [*] after the indemnified party is notified of a claim; (ii) the indemnifying party have sole control of the defense of the claim (except that the indemnified may participate in the defense at its own expense) and all related monetary settlement negotiations (any non-monetary terms that bind the indemnified party shall require the prior written approval of the indemnified party, not to be unreasonably withheld or delayed); (iii) the indemnified party not making any written offer of settlement to the third party claimant without the prior written consent of the indemnifying party (such consent not to be unreasonably withheld or delayed); and (iv) the indemnified party shall, at the indemnifying party’s request and expense, provide the indemnifying party with assistance reasonably necessary for the indemnifying party to perform its obligations under this Section 7; provided that the indemnified party shall not be required to admit liability under any circumstances.  

Notwithstanding any other clause in this Agreement (including, without limitation, IXI's obligation to pay the fees in accordance with Clause 3), in no event will either party’s total aggregate liability for any Service Losses, IXI Losses or other damages arising from or in connection with this Agreement whether in actions based on contract, tort or any other legal theory, [*].

7.6

Notwithstanding any other clause in this Agreement (including, without limitation, IXI's obligation to pay the fees in accordance with Clause 3), in no event will either party’s total aggregate liability for any IPR Losses arising from or in connection with this Agreement whether in actions based on contract, tort or any other legal theory, [*].

7.7

Neither party shall under any circumstance or under any legal theory be responsible for any loss of profits, loss of business, loss of revenues, or interruption of business, or loss of anticipated saving, or damage to goodwill, or for any indirect, special, incidental, consequential, or punitive damages of any kind arising from or relating to this Agreement or the subject matter hereof, even if such party has been informed of the possibility of such damage or loss by the other party.

7.8

Nothing in this Agreement shall exclude or limit either party's liability:

Term: Termination; Effects of Termination; Survival 

8.1

Term. The term of this Agreement shall commence on [*] and shall end [*] thereafter the Commercial Launch (the “Term”). This Agreement shall automatically renew for additional periods of [*] each unless terminated by written notice by either of the parties [*] prior to its expiration (including the end of any renewal period) or unless sooner terminated under the terms of this Agreement. “Term” as used in this Agreement shall include any such renewal periods.

Termination.

Either party may terminate this Agreement:

(a)

upon a material breach by the other party of any of its representations, warranties, agreements or obligations hereunder (including without limitation each SOW and SLA), which breach is not cured to the reasonable satisfaction of the non-breaching party within [*] from the date of receipt of written notice of such breach (such [*] period, the “Cure Period”). For clarification purposes, any termination of this Agreement under this Section 8.2(i)(a) by IXI for Provider’s breach of an SLA will not relieve Provider of any amounts owed to IXI resulting from such breach.

(b)

if the other party ceases its operations, or those operations applicable to the rights granted hereunder or becomes insolvent.

IXI may terminate this Agreement for convenience upon [*] written notice to Provider. Such termination will not relieve the terminating Party from paying other Party any amounts due prior to such termination under this Agreement.

Effects of Termination. Upon termination of the Agreement, each party, to the extent applicable, shall return to the other party (or at the other party’s sole election, destroy) all of the Confidential Information of the other party then in such party’s possession or control. Upon written request, each party shall provide to the other party a written certificate of an authorized officer that it has complied with its termination obligations.

Surviving Provisions. In the event of expiration or termination of this Agreement for any reason, those Sections under this Agreement that by their nature would continue beyond the expiration or termination, shall survive expiration or termination. 

Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Israel, without regard to its conflict of laws principles. 

Jurisdiction. Each party hereby irrevocably submits to the jurisdiction of any court sitting in Tel Aviv, Israel over any action or proceeding arising out of this Agreement.

Public Announcements. The parties hereto agree that they will issue a joint press release as mutually agreed to between the parties following execution of this Agreement. In addition, each party has the right to make a public announcement on the signature of this agreement. Furthermore, Provider has the right to make a public announcement about the Provider powering the Services of IXI Customers using the Provider product upon commercial launch at the IXI Customer; provided any such announcement does not include the identity of any IXI Customer that has not been made public.  

Independent Contractor. Nothing herein shall make either party the agent of the other for any purpose whatsoever. Neither party shall bind or attempt to bind the other to any agreement or performance of any obligation, nor represent that it has any right to enter into any undertaking on behalf of the other. The relationship of the parties shall be of independent contractors.

Notices. All notices and other communications provided for hereunder shall be in writing and deemed delivered (i) upon receipt if by hand, overnight courier or telecopy (provided a copy is mailed by certified mail, return receipt requested, postage prepaid) and (ii) three days after mailing by certified mail, return receipt requested, postage prepaid to the addresses set forth in the first page hereof, and if to Provider, to the attention of [*] with a copy to [*] (VP Business Development) and [*] (CFO) and if to IXI, to the attention of Shai Farkash (VP Engineering) with a copy to Amit Haller (CEO) and Gadi Meroz (GC), or to such other address or title by giving proper notice thereof.

Waiver; Severability. Any failure or delay by either party in exercising any right or remedy shall not be deemed a waiver of any further, prior, or future right or remedy hereunder. If any provision is declared invalid or unenforceable, the other provisions shall remain in full force and effect, and this Agreement shall be deemed amended to replace, to the extent legally permitted, the rights and obligations contained in the invalid or unenforceable provision. The invalidity or unenforceability of any provision shall not constitute a failure of consideration hereunder.

Amendment. No modification of or amendment to this Agreement shall be effective unless made by mutual agreement of the parties in writing; provided, however, that the parties may modify Exhibits as permitted in the Agreement. The parties agree that the project timetable and Dependencies can be amended in writing by the respective party's project managers, and if by email then only if approved by an officer of each party..

Entire Agreement. This Agreement and its Annexes and Exhibits together, and the Nondisclosure Agreement, constitute the entire agreement between Provider and IXI, and supersede all prior agreements and understandings, whether oral or written, relating to the subject matter hereof. To the extent of any conflict between the terms of this Agreement and any Exhibit, except Exhibit C, the terms of the Agreement shall govern. Each party acknowledges that it has entered into this Agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, each party shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement.

Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument.

No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction (or similar concept) will be applied against any party hereto.

Force Majeure. Neither party shall be liable hereunder for any delay or failure to perform due to causes beyond its reasonable control.

Headings. Section headings are for convenience only and shall not affect their interpretation. Unless otherwise indicated, references to a “Section” shall be to a Section of this Agreement

Dependencies. IXI acknowledges that the provision of the Services is dependent upon IXI promptly providing the Dependencies as described in Exhibit D below. The parties agree that any delay by IXI in providing the Dependencies to Provider shall automatically result in an adjustment of the Key Milestone Dates by [*].

Escalation. If any dispute arises between the parties with respect to this Agreement, either party may call a meeting of the parties for the purpose of resolving such dispute (by service of a meeting notice giving the other party not less than [*]advance warning) and each party agrees to procure that [*] for IXI and [*] for the Provider (or an appropriate designate) shall attend all such meetings. If the representatives fail to resolve the dispute within [*] of service of such notice or such longer period as may be agreed, then this dispute resolution procedure shall be deemed to have been exhausted. This Clause 10.15 is without prejudice to either party's other rights or remedies including the right to seek injunctive relief or otherwise commence legal proceedings at any time.

1.

IXI shall pay Provider [*]. Provider may invoice IXI for this fee any time after [*]. This fee is payable upon [*].

IXI shall make [*]. This fee is [*].

(a)

Subject to the [*] above, IXI shall pay Provider [*].

(1)

As an example, if [*].

(2)

IXI shall make said Payments [*] (commencing at the end of the [*], and continuing on a [*] basis throughout the Term (each such [*], a “[*]”)). IXI will pay within [*] of the end of each [*].

(a)

During the first [*] of the term of this Agreement, IXI’s [*] Fees, in the aggregate, excluding any [*], payable by IXI to Provider will be [*] as follows based on the [*] of the execution of this Agreement:

4.

Any such [*] payment shall be made by IXI to the Provider within [*] of termination.

Unless indicated otherwise, all payments made hereunder shall be made in US Dollars.

(b)

[*]

 All fees due under this Agreement shall be paid by IXI within [*] of receipt of an invoice from Provider, by bank wire transfer in immediately available funds to an account or accounts designated by Provider

(d)

Any amounts overdue shall be subject to interest equal to [*].

(e)

[*]

(f)

IXI shall issue a Purchase Order to [*] no later than [*] from execution of this Agreement, [*] subject to the conditions of section 3 of this Annex. Purchase Order shall state the SLA package required.