Incredimail 2013 Annual Report Download - page 247

EXECUTION VERSION
3.5 Section 4.1.4 . Section 4.1.4 of the Agreement ( [***] ) is deleted in its entirety.
3.6 Section 4.2.1. The words “Exhibit I” in Section 4.2.1 are deleted and replaced with “Section 2.6.”
3.7 Disputed Amounts . Section 4.3 of the Agreement is amended and restated in its entirety as follows:
“4.3 Disputed Amounts: Breac h of Payment and Reporting Obligations .
4.3.1 Disputed Amounts . Delivery or payment of an invoice without asserting a dispute is not a waiver of any
claim or right by either Party to dispute such amount. In the event of a Dispute (as defined in Section 12.1), Microsoft may not
under any circumstances, and regardless of the existence or outcome of any ] [***] (as defined in
Section 4.3.3), withhold more than an absolute maximum of [***] of any invoiced amounts pending the resolution of such
Dispute, provided that such invoiced amounts are submitted in material compliance with and contain all material information
required by this Agreement.
4.3.2 Failures to Report . In the event that Microsoft fails to provide a timely and materially complete and
accurate [***] report in accordance with Section 4.2.1, then without limiting Conduit’s other rights and remedies
and on a provisional basis until such report is provided, Conduit may invoice Microsoft and Microsoft shall pay the average of
the invoiced amounts for the immediately preceding three calendar months. When such report is provided it shall be reconciled
against such provisional payment and Microsoft shall promptly pay Conduit the amount of any underpayment or deduct the
amount of any overpayment against subsequent payments under the Agreement.
4.3.3 Disputes Regarding Payment Obligations . All Disputes involving nonpayment of invoices under this
Agreement (“Nonpayment Disputes,” which term, for the avoidance of doubt, includes any nonpayment of an invoice in
connection with a “ [***] ” as defined in Section 4.3.4 and any nonpayment of an invoice issued
under Section 4.3.2) will, following written notice by the Party raising the Dispute to the other Party setting forth the details of
the Dispute and any proposed solution or compromise, be resolved exclusively through the good faith negotiation of the Parties
or in binding arbitration. The governing arbitration procedures shall be those described in this Section 4.3.3 and the
Commercial Arbitration Rules of the American Arbitration Association (AAA), including, if invoked as described below,
those provisions for interim relief provided in Rule 34 and Optional Rules O thereof (the “Expedited Relief Process”) in San
Francisco, California. To the extent not inconsistent with the previous sentence or with effectuation of the Expedited Relief
Process contemplated therein, the parties, AAA and arbitrator(s) will apply the provisions of Section 12.2, using the AAA
equivalent rules in lieu of JAMS rules. Notwithstanding Section 12.1 and 12.2, neither Party will have any remedy in court
with respect to Nonpayment Disputes except those sought in aid of arbitration (e.g., an order compelling arbitration). In the
event of a Nonpayment Dispute, regardless of whether the Expedited Relief Process is invoked at the commencement thereof:
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