[NETSCAPE LOGO]
U.S. ENGLISH LANGUAGE
NETCENTER SERVICES AGREEMENT
COVER SHEET
This Netcenter Services Agreement, of which this page is a cover sheet
('COVER SHEET'), is entered into between Netscape Communications Corporation,
a Delaware corporation ('NETSCAPE'), and Intraware, Inc., a Delaware
corporation ('PARTICIPANT'), effective as of the date of Netscape's signature
below ('EFFECTIVE DATE').
BRIEF DESCRIPTION OF SERVICE: A channel called the IT Center within
Netcenter's Computing and Internet channel which will include a range of
interactive services offered by sponsors and content providers. TERRITORY:
North America LAUNCH DATE: The earlier to occur of the date on which the
Service is functional and accessible to end users, or October 14, 1998. LOCAL
LANGUAGE: U.S. English SERVICE PERIOD (EXCEPT FOR THE ADVERTISING PACKAGE
DESCRIBED IN EXHIBIT A): 12 months beginning on the Launch Date ADVERTISING
SERVICE PERIOD: beginning on the Effective Date
ADDRESSES FOR NOTICE:
Intraware, Inc. Netscape Communications Corporation
25 Orinda Way 501 East Middlefield Road, MV-002
Orinda, CA 94563 Mountain View, CA 94043
USA USA
Fax: (925) 253-4599 Fax: (650) 528-4123
Attn: Cindy Maascheroni Attn: General Counsel
INTRAWARE, INC. NETSCAPE COMMUNICATIONS
CORPORATION
By: /s/ Cindy Mascheroni By: /s/ Mike Homer
Name: Cindy Mascheroni Name: Michael J. Homer
Title: VP Business Development Title: EVP & GM of Netcenter
Date: September 3, 1998 Effective Date: 9/3/1998
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U.S. ENGLISH LANGUAGE
NETCENTER SERVICES AGREEMENT
NETCENTER SPECIAL TERMS
IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE
AS FOLLOWS:
1 DEFINITIONS
'AGREEMENT' means this Netcenter Services Agreement, including the Netcenter
Special Terms and General Terms and the following Exhibits:
Exhibit A: The Service/The Advertising Package
Exhibit B: Payment
Exhibit C: User Registration and Privacy
Exhibit D: Mutual Confidential Disclosure Agreement
Exhibit E: Participant's Trademark Guidelines
'CHANNEL' means the link on Netcenter, which provides content (at the top
level), links, community components (i.e., mail, chat, discussion groups, etc.),
e-commerce opportunities or links, and other tools, resources, and applications
pertaining to the Computing and Internet topic.
'CHANNEL INDEX PAGE' means that certain page on Netcenter programmed by Netscape
to serve as a gateway to the Channel or the Service Index Page.
'INDEX PAGES' mean the Channel Index Page and the Service Index Page.
'NETCENTER' means that area of Netscape's Web Site that offers online consumer
and business services and shopping opportunities to end users.
'NET REVENUE' means gross revenue less reasonable expenses, including, without
limitation, sales commissions, agency fees, or other reasonable costs directly
associated in the process of promoting and creating the Service. In no event
will the aggregate of such reasonable expenses exceed 25 percent of gross
revenues.
'NETSCAPE'S WEB SITE' means the collection of Local Language HTML documents
targeted at end users in the Territory and currently accessible by the public
via the Internet at the URL http://home.netscape.com and/or at such other URL or
locations as Netscape may designate. Netscape's Web Site does not include any
future technologies or future uses of existing technologies which might embody a
collection of documents (other than HTML documents) on the Internet.
'PARTICIPANT'S WEB SITE' means Participant's primary Local Language Web site,
which is currently accessible by the public via the Internet at the URL
http://www.intraware.com.
'SERVICE' will have the meaning set forth in Section 2.1 of the Netcenter
Special Terms.
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'SERVICE INDEX PAGE' means that certain page, linked to or accessible from
Netcenter, that serves as the first available point of entry for an end user
accessing the Service from Netcenter or the Channel.
'SERVICE PAGES' mean all pages of the Service.
2 THE SERVICE
2.1 Description of Service. Participant will provide Netscape with Local
Language content and other services (the 'SERVICE') for inclusion in the
Channel and targeting to end users in the Territory. Participant will be the
only content-provider within the Service unless otherwise agreed upon by the
parties. The Service does not include the Channel Index Page. All access to
the Service Pages and Index Pages shall be deemed to be via Netscape's Web
Site and therefore considered to be Netscape traffic. The specifications for
the Service are set forth on Exhibit A.
2.2 Index Pages. Participant will maintain the Service Index Page on
Participant's servers; provided, however, Netscape shall have the option to
maintain the Service Index Page on Netscape's servers at any time. If
Netscape decides to exercise its option to maintain the Service Index Page,
the parties shall cooperate to ensure that the Service will have the same
content and services available to end users at all times. The Channel Index
Pages will be maintained on Netscape's servers. Each Index Page will include
areas for co-branding, advertising, content or sponsorships. Participant will
provide to Netscape the content for use on the Service Index Page.
Additional sections and services may be added to or deleted from Exhibit A
from time to time upon mutual agreement of the parties.
2.3 Service Pages. Participant and Netscape shall mutually agree on the
initial design and look and feel of the Service Pages in accordance with
Exhibit A. Netscape shall provide specifications and production schedule (if
any) for the navigation, templates and architecture of the Service Pages in
accordance with Exhibit A. Netscape may (i) amend Section I(a) of Exhibit A
as mutually agreed upon with Participant; and (ii) amend Section 1(b) of
Exhibit A from time to time upon reasonable notice to Participant. Unless
otherwise agreed, the Service Pages shall not include any link outside of the
Channel. The Service Pages shall:
2.3.1 Be produced and managed by Participant, including but not
limited to hiring and managing creative, technical, customer support, and
general staff as needed;
2.3.2 Be hosted and maintained solely on Participant's servers;
2.3.3 Have a 'Netscape.com' domain name or such other domain name as
Netscape may determine
2.3.3 Include a field providing search functionality; and
2.3.5 Be directly linked, within one click, to Netscape's Web Site.
2.4 Co-Branding. The Service Pages will be co-branded by Netscape and
Participant. The co-branding will be subject to Netscape's then-current design
guidelines and will include Participant's company name and logo; provided,
however, the co-branded web pages shall include Participant's company logo so
that it will be
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(i) immediately visible to an end user accessing the co-branded web page,
without any Netcenter Services Agreement scrolling or navigation by such end
user; and (ii) not less prominent than Netscape's company logo. Service
Implementation. Participant shall provide consistent and continuously updated
content for the Service Pages. For the Service Pages, Netscape and
Participant shall agree upon (i) a schedule for regular updates; (ii) a
quality assurance procedure; and (ii) a bug tracking process. All content
supplied by content providers to Netscape, including content provided by
Participant for the Service, will meet Netscape's specifications with regard
to page size, loading speed and speed of access to database driven content as
set forth in Exhibit A. Participant shall be responsible for the production,
technology deployment, content programming, and creation of graphic user
interfaces of the Service; all in accordance with Netscape's then-current
guidelines. The Service shall use substantially the same technology and
advantages that Participant uses in its own proprietary service(s) unless
otherwise mutually agreed by the parties. The Service shall not be
disadvantaged or suffer from inferior production, programming or performance
relative to Participant's similar services, or any similar service that
Participant might make available to, or operate on behalf of, third parties.
The Service shall perform substantially in accordance with the performance
standards of its own proprietary services, including, but not limited to,
load time, timeliness of content, and quality of programming. Participant's
obligation to produce the Service, including production services, technology
deployment and content programming that meets or exceeds standards
established by Participant on Participant's Web Site or services (or any web
site or services Participant manages for any third party) and general
industry standards is a material obligation of Participant under this
Agreement.
2.6 Service Name. The Service name will be as set forth in Exhibit A or as
otherwise mutually agreed upon by Netscape and Participant. Participant shall
not independently use the Service name without Netscape's prior written
consent unless such use occurs in connection with Participant's advertising
sales and promotional efforts on behalf of the Service provided, however,
Participant shall have the right to use Participant's own brand name. If the
Service name includes a co-branding component that is not generic or
descriptive, Participant may not use the Service name with Netscape's name
expunged; provided, however, Participant shall have the right to use
Participant's own brand name.
2.7 License Grant. During the Term and to the extent necessary for
Netscape to fulfill its obligations under this Agreement, Participant grants
to Netscape to use within the Service or Netcenter the non-exclusive,
worldwide and royalty-free right to store, display, perform, transmit,
re-transmit and otherwise use the data, information, content or other
intellectual property provided by Participant. Netscape's use of
Participant's trademark hereunder shall be subject to (i) Participant's
trademark guidelines as set forth in Exhibit E; and (ii) approval by
Participant, such approval not to be unreasonably withheld.
2.8 Technical Support.
2.8.1 During the Term, Participant will provide technical support to
Netscape to ensure that content is correctly received and displayed by
Netscape. Participant shall
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provide technical support services for the Service to Netscape on a timely
basis, appoint a technical contact to whom Netscape may address all technical
questions relating to the Service, and to promptly remedy any material
malfunctioning of the Service. Participant shall be solely responsible for
the purchase, implementation, maintenance and support of all software and
hardware required to fulfill its obligations under the Agreement.
2.8.2 During the Term, Netscape shall promptly provide technical
support services to Participant for the interaction between the Service Index
Pages and Netscape's Web Site on a timely basis and appoint a technical
contact to whom Participant may address all technical questions relating to
the technical interface between such areas.
2.9 Customer Support Programs. Participant shall provide the
following customer support features in the Service: (i) seventy-two (72) hour
response to customer inquiries; (ii) twenty-four (24) hour notification of
order confirmation and estimated delivery time; and (iii) a secure
transaction environment (supporting at least SSL 3.0, or the then current
industry standard). Participant shall use commercially reasonable efforts to
provide programs including gift search, universal check-out, reminder
programs, and other programs and features as Netscape may determine.
2.10 Quarterly Reviews. Netscape and Participant agree to establish
quarterly reviews of the Service to evaluate the success of the Service and
agree to modifications and improvements to the Service.
2.11 Equal Treatment. Netscape shall ensure that within the
Service, Participant's products and services are accorded a position of
prominence, overall as well as on an element by element basis, at least as
great as the positioning given any competitive resellers.
3 PAYMENT
For the benefits provided to Participant under this Agreement, Participant
shall pay Netscape in the amount and subject to the terms set forth in
Exhibit B.
4 MARKETING AND PROMOTION OF THE SERVICE
The responsibilities for marketing and promotion are as follows:
4.1 Advertising and Sponsorship Responsibilities. Netscape will
sell all advertising and sponsorships for the Index Pages. Netscape and
Participant shall share Net Revenues from selling advertising or sponsorships
for the Index Pages in accordance with Exhibit B.
4.2 Service Promotion. Netscape shall develop and run targeted
advertisements for the Service and look for opportunities for cross-promotion of
the Service within Netcenter. Netscape's Service promotions shall consist of
banner ads, text links, marquee ads, spotlight and button sponsorships. Netscape
shall determine where to place these ads in the Channel or other areas of
Netcenter. Netscape shall deliver a minimum cumulative total of [*]
impressions or page views relating to the promotion of the Service.
5. ADVERTISING PACKAGE
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5.1 Placement of Advertising. Netscape shall provide to
Participant the advertising placement package described in Section II of
Exhibit A.
5.2 Delivery of Impressions/Page Views. For the advertising package
described in Section II of Exhibit A, Participant will allow Netscape to
serve [*] impressions by October 31, 1998, then Netscape will deliver
an additional [*] impressions of advertising based on the
specifications described in Section II of Exhibit A during the Term.
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NETCENTER GENERAL TERMS
1. PROPRIETARY RIGHTS
Copyrighted elements or trademarks contained in, or used in conjunction with,
the Service shall be the property of the copyright or trademark owner. Ownership
of all end user data and information related to the Service shall be as set
forth in Exhibit C.
2. NETCENTER PROGRAM REQUIREMENTS
2.1 User Registration. In order to offer a compelling end user
experience in the Service, Netscape and Participant shall cooperate to
streamline the registration process so that each end user needs to register
only once for the services within Netcenter. The Service's user registration
processes will be integrated with Netscape's 'Universal Registration' system
and be consistent with Netscape's then-current privacy policy, each as set
forth on Exhibit C.
2.2 Community Services/Consistent Environment. Where applicable,
Participant will integrate Netscape's then-current Netcenter core community
services into the Service. Netscape will, from time to time, notify
Participant of changes in the core community services.
3. NETSCAPE PRODUCTS AND TECHNOLOGY
3.1 Optimize for Netscape Technology. In order to optimize the efficiency of
the Service:
3.1.1 Within all aspects of the Service, Participant will use best efforts to
ensure compatibility with the client software used by Netcenter members,
especially the latest version of Netscape Communicator client software;
3.1.2 Participant will consider the use of at least [*] of
Netscape [*] software product to maintain Participant's Web
Sites;
3.1.3 Participant will display the 'Netscape Now' button prominently on the
home page of Participant's Web Site, on the Service Pages, and on any
page on Participant's Web Site which contains a virtual button or other
text or graphic for any third party Internet client or server software,
software provider or online service; and
3.1.4 [*]
3.2 Course of Dealing. In consideration of (i) the use of the
netscape.com domain name for the Service, and (ii) the treatment of the
Service as a fundamental part of the Netcenter service, until such time as
Microsoft Corporation fully publicly documents and makes available its
operating systems' programming interfaces sufficiently to enable Netscape to
make use of all of the facilities and resources of those operating systems on
a basis equal to that Microsoft Corporation, Participant agrees to the
following:
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3.2.1 No Disadvantage. Participant shall not make any content
available solely to users of client software or services other than
Netscape's, or disfavor or disadvantage users of Netscape client software or
services in any way relative to users of other Internet client software or
services; and
3.2.2 [*]
3.3 No Disabling. Participant shall not provide or implement any
means or functionality that would (i) alter, modify or enable end users to alter
or modify, any Netscape client software, standard user interface or
configuration (collectively, the 'Software'), (ii) disable any functionality of
the Software or any other Internet browser software, or (iii) modify the
functioning of pages served from Netscape's Web Site.
3.4 Mailto Link. Participant shall make commercially reasonable
efforts to include on the Service Pages a 'mailto' link that users of
Participant's proprietary service can use to direct questions or help
requests to Participant. Participant will use reasonable efforts to reply
promptly, but in any event within 1 week, to any such question or help request
4 HARMFUL CONTENT
Participant is solely responsible for any liability arising out of or
relating to (i) the Service and/or (ii) any material to which users can link
through the Service. Except for content provided within Participant's
Radarscope, Ask James, Compariscope, Intranet library and SubscribNews
services or such other editorial content and analysis tools services as the
parties shall mutually agree from time to time, if Netscape is aware that the
Service contains any material that Netscape deems likely to cause Netscape
material harm, then Netscape will inform Participant and may (i) not include
the Service on Netscape's Web Site, and/or (ii) terminate this Agreement if
Participant has not revised, to Netscape's satisfaction, the Service or
otherwise altered the Service within 1 business day after receipt of written
notice from Netscape. Netscape reserves the right not to include in the
Netscape's Web Site all or any part of the Service that does not
substantially conform to the terms set forth herein.
5 WARRANTIES
5.1 Participant Warranty. Participant warrants that: (i) it holds
the necessary rights to provide, and permit the use of, the Service, any
content provided by Participant for the Service and any material to which
users can link directly therefrom, and that the license granted to Netscape
hereunder is sufficient to enable Netscape to use the Service; (ii) the
Service does not infringe on any third parties' proprietary or personal
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rights, or otherwise violate applicable laws, rules or regulations or rights
of any third parties (iii) other than as specifically set forth in this
Agreement, Netscape shall not be obligated to pay any fees or royalties for
including the Service in Netcenter; and (iv) the Service and any material to
which users can directly link through the Service will not violate any
criminal laws, rights of any third parties, or any applicable local, state,
national or international laws. Participant further warrants that the Service
will function substantially in accordance with the terms set forth in this
Agreement. In any given twenty-four hour period during the Service Period,
the Service shall have an uptime of at least 98% with industry standard
downtime for maintenance, provided that such downtime not occur at peak
traffic times. Participant shall repair (i) any material malfunctions of the
Service within a reasonable period of time (not to exceed 2 days) after
notice by any party of such condition; and (ii) any non-material malfunctions
of the Service within 4 days after notice by any party of such condition or
as otherwise agreedto by the parties.
5.2 Netscape Warranty. Netscape warrants that (i) it has the right to
perform the services set forth in this Agreement, and (ii) Participant shall
not be obligated to pay any fees or royalties for participating in Netcenter
other than as specifically set forth in this Agreement. Netscape further
warrants that Netcenter will function substantially in accordance with the
terms set forth in this Agreement. In any given twenty-four hour period
during the Service Period, Netcenter shall have an uptime of at least 98%
with industry standard downtime for maintenance, provided that such downtime
not occur at peak traffic times. Netscape shall repair any malfunctions of
Netcenter within a reasonable period of time (not to exceed 2 days) after
notice by any party of such condition.
5.3 Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE ONLY
WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE
PARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SUBJECT MATTER OF THIS AGREEMENT.
6 INDEMNITY
6.1 Participant Indemnity. Participant shall indemnify, hold harmless and
defend Netscape from and against any and all claims, liabilities,
losses, damages, expenses and costs (including attorneys' fees and
costs) arising out of or relating to: (a) a breach of Participant's
representations or warranties under Section 5.1 of the Netcenter General
Terms; (b) the Service, any content provided by Participant for the
Service and any material to which users can directly link through the
Service; (c) other information supplied or managed by Participant for
the Service; or (d) the negligence or intentional wrongdoing of
Participant, except to the extent that Netscape is responsible under
Section 6.2 of the Netcenter General Terms. Participant will pay
resulting costs, damages and legal fees finally awarded in such action
in a court or in a settlement which are attributable to such claim
provided that: (i) Netscape promptly notifies Participant in writing of
any such claim; (ii) Participant has sole control of the defense and all
related settlement negotiations; and (iii) Netscape cooperates with
Participant, at Participant's expense, in defending or settling such
claim.
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6.2 Netscape Indemnity. Netscape shall indemnify, hold harmless and defend
Participant from and against any and all claims, liabilities, losses,
damages, expenses and costs (including attorneys' fees and costs)
arising out of or relating to: (a) a breach of Netscape's
representations or warranties under Section 5.2 of the Netcenter General
Terms; (b) any content provided by Netscape to Participant for use in
the Service in accordance with this Agreement; or (c) the negligence or
intentional wrongdoing of Netscape, except to the extent that
Participant is responsible under Section 6.1 of the Netcenter General
Terms. Netscape will pay resulting costs, damages and legal fees finally
awarded in such action in a court or in a settlement that are
attributable to such claim provided that: (i) Participant promptly
notifies Netscape in writing of any such claim; (ii) Netscape has sole
control of the defense and all related settlement negotiations; and
(iii) Participant cooperates with Netscape, at Netscape's expense, in
defending or settling such claim.
7 LIMITATION OF LIABILITY
EXCEPT FOR A BREACH BY EITHER PARTY IN CONNECTION WITH EACH PARTY'S
INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 OF THESE NETCENTER GENERAL
TERMS (INDEMNITY)OR A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY
OBLIGATIONS AS DESCRIBED IN SECTION 12.2 OF THE NETCENTER GENERAL TERMS, IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY
FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS
AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR
ALLEGED DAMAGES HEREUNDER (EXCEPT FOR DAMAGES OR ALLEGED DAMAGES ARISING
UNDER SECTION 6 OR SECTION 12.2 OF THE NETCENTER GENERAL TERMS) WHETHER IN
CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED
[*].
8 TERM AND TERMINATION
8.1 Term. Unless sooner terminated in accordance with the provisions
hereof, this Agreement shall commence on the Effective Date and end on the
last day of the Service Period (the 'TERM'). Ninety days prior to the
expiration of the initial Term, or any renewal Term, if applicable, the
parties agree to enter into negotiations to determine whether, and the terms
upon which, to renew this Agreement for a renewal period of one year. If, at
the end of such negotiations, no agreement is reached as to the terms of the
renewal period, the parties may mutually agree to extend the Term by 90 days.
8.2 Termination for Cause. Either party shall have the right to terminate
this Agreement upon a material default by the other party of any of its
material obligations under this Agreement, unless within 30 calendar days
after written notice of such breach the breaching party remedies such default.
8.3 Rights Upon Termination or Expiration. Ownership of all end user data and
information related to the Service shall be as set forth in Exhibit C.
[*]
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[*]. In order to continue to offer a successor to the Service within
Netcenter without interruption, Participant shall promptly deliver
Service-related information (excluding (i) Radarscope-related and
Compariscope-related source code, content, data schema, configuration,
information filters and rules; and (ii) third party confidential information
which Participant is under a contractual obligation not to disclose) to
Netscape or its designee in a form and manner to be reasonably designated by
Netscape. Netscape shall not be liable to Participant in the event of
termination, expiration or failure to agree upon an extension of the term of
this Agreement for compensation, reimbursement or damages on account of the
loss of prospective profits, or anticipated sales, or on account of
expenditures, investments, leases or commitments in connection with the
business or goodwill of Participant. In the event of Participant terminates
this Agreement due to a material breach by Netscape prior to the end of the
Term, Netscape shall refund Participant the participation fees paid
byParticipant under Section 1(a) of Exhibit B less the sum of (i) a prorated
amount of such fees based on the number of impressions or page views
delivered by Netscape pursuant to Section II of Exhibit A; and (ii) a
prorated amount of such fees based on the number of months Netscape has
provided services during the Term.
8.4 Extension of Term. Notwithstanding anything to the contrary herein, if
the cumulative number of impressions or page views promoting the Service
delivered by Netscape under Section 4.2 of the Netcenter Special Terms is
less than [*] at the end of the Term, the parties agree to extend the
Term to the earlier of (i) the time it takes to reach the [*]
impressions or page view mark; or (ii) 6 months.
9 INSURANCE
Participant, at its sole cost and expense, shall secure and maintain adequate
insurance coverage as is necessary, as a reasonable prudent businessperson,
for Participant to bear all of its obligations under this Agreement. Such
coverage shall include Worker's Compensation Insurance (or self insurance, if
applicable law permits), Employers Liability Insurance, Comprehensive
Automobile Liability Insurance, Umbrella Liability Insurance, Professional
Liability Insurance, and Commercial General Liability Insurance, and include
a waiver of subrogation in Netscape's favor. Maintenance of the foregoing
insurance shall in no way be interpreted as relieving Participant of any
responsibility or obligation whatsoever and Participant may acquire, at its
own expense, such additional insurance as Participant deems necessary.
Participant assumes full and complete liability for all injuries to, or death
of, any person, or for any damages to property arising from the acts or
omissions of Participant. Participant shall add Netscape as an additional
insured under such coverage and provide copies thereof and waivers of
subrogation to Netscape within 30 days of the Effective Date. Before any
cancellation or material change in any coverage, Participant shall provide
Netscape with 30 days' advance written notice. Participant's insurance shall
be primary to any other insurance Netscape may have. All insurance shall be
written by companies with a current A.M. Best rating of A-, VI or better.
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10 DISPUTE RESOLUTION
Any dispute hereunder will be negotiated between the parties commencing upon
written notice from one party to the other. Settlement discussions and
materials will be confidential and inadmissible in any subsequent proceeding
without both parties' consent. If the dispute is not resolved by negotiation
within 45 days following such notice, the parties will refer the dispute to
non-binding mediation conducted by JAMS/EndDispute in Santa Clara County,
California (the 'Venue'). The parties will share the costs of mediation. If
the dispute is not resolved after 45 days of mediation, the parties will
refer the dispute to binding arbitration by JAMS/EndDispute in the Venue. The
results of any arbitration will be final and non-appeallable, except that
either party may petition any court of competent jurisdiction in the Venue to
review any decision relating to intellectual property matters (including the
scope of license rights), vacating or modifying erroneous conclusions of law
or findings of fact not supported by substantial evidence. The arbitrator may
fashion any legal or equitable remedy exceptpunitive or exemplary damages,
which both parties waive. The arbitrator will render a written decision,
which may be entered in and enforced by any court of competent jurisdiction,
but which will have no preclusive effect in other matters involving third
parties. The losing party will pay the costs of the arbitration and the
reasonable legal fees and expenses of the prevailing party, as determined by
the arbitrator. The parties will jointly pay arbitration costs pending a
final allocation by the arbitrator. At any point in the dispute resolution
process, either party may seek injunctive relief preserving the status quo
pending the outcome of that process. Except as noted, the parties waive any
right to judicial process. The U.S. Arbitration Act and JAMS/EndDispute rules
will govern the arbitration process. Absent fraudulent concealment, neither
party may raise a claim more than 3 years after it arises or any shorter
period provided by applicable statutes of limitations. California law,
without regard to its conflict-of-law provisions, will govern this Agreement.
11 REPORTS AND AUDIT
11.1 Participant Reports to Netscape. In addition to the reporting
requirement set forth in Exhibit B, Participant shall provide reports to
Netscape as follows:
(a) Weekly Log Reports. On a weekly basis, Participant shall provide
Netscape with the daily user access logs for the Service in common log
format, including information on the total number of hits and page
impressions for Service Page and such other tracking information as the
parties shall mutually agree. The information contained in the report shall
be Netscape's and Participant's Confidential Information, provided, however
that (i) Netscape shall have the right to use the information contained in
such reports in Netscape's private and public reporting of access to the
Service and Netscape's Web Site; and (ii) Participant shall have the right to
use aggregated information about end users for marketing and financial
reporting purposes. All end user related data shall be collected in
accordance with Exhibit C.
(b) Monthly Reports. Within 15 days of the end of each month during
the term, Participant shall provide Netscape with (a) subscription
registration reports, (b) reports of results from advertising and sponsorship
sales and inventory and (c) reports of Gross revenue and Net Revenue in
accordance with Exhibit B.
(c) Search Field. A field providing search functionality will be included on
pages within the Service as the parties shall mutually determine. The search
executed from
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the search field will initially only cover content within the Service itself.
If an end user is given the option of expanding the scope of the search to
encompass the World Wide Web, the search engines driving such query shall be
one or more of Netscape's Local Language Net Search Program search engines,
as Netscape shall determine. Netscape reserves the right to review the
financial effect of the search field in the Service as such search
functionality may impact Netscape's own Net Search Program and require that
the Internet-wide search functionality in the Service be minimized or
deleted. Within 15 days of the end of each month during the Term, Participant
shall provide Netscape with monthly reports detailing the following
information for each day during the month covered in the report: (i) the
number of times the Service's internal search field as well as each of
Netscape's Local Language Search Program search engines were selected and
'clicked' on by end users; and (ii) any information about users and user
client software Participant may collect whether such information is
user-given or technology-provided. Netscape shall determine the format and
the date of submission for this monthly report. The information contained in
each report shall be Netscape's and Participant's Confidential Information;
however, Netscape reserves the right to provide the information contained in
the report to the Net Search Program companies in a format mutually agreed
upon by the parties.
(d) Audit Rights. Either party shall have the right, upon no less than 30
days prior written notice, to cause an independent Certified Public
Accountant to inspect and audit, during the other party's normal business
hours, all relevant records upon which such reports are based, including,
without limitation, the access logs. The costs of such audit shall be paid by
the auditing party, provided, however, that if such inspection shall reveal
an underpayment in excess of 5 percent of monies due, the party being audited
shall pay for the audit. These audit rights as described herein shall
continue for 2 years after the expiration or termination of this Agreement.
No such audit may occur more than once a year during the Term.
11.2 Netscape Reports to Participant. Netscape shall provide Participant
with the reports described in Exhibit B, and if Netscape elects to exercise
the option to maintain the Services Index Pages on the Netscape servers
pursuant to Section 2.2 of the Netcenter Special Terms, then Netscape shall
provide Participants the reports as set forth in subsection (a) below:
(a) Netscape shall provide Participant with reports on the traffic to
the Service, including information describing the number of redirects of
traffic to the Service from Netscape's Web Site and such other tracking
information as the parties shall mutually agree. On a monthly basis, Netscape
shall provide Participant with a report to verify the traffic to the Service
Index Page.
12 GENERAL
12.1 Notices. All notices required or permitted hereunder shall be given in
writing addressed to the respective parties as first set forth above on the
Cover Sheet and shall either be (i) personally delivered or (ii) transmitted
by internationally-recognized private express courier, and shall be deemed to
have been given on the date of receipt if delivered personally, or the day on
which such notice is delivered to the recipient as evidenced by the delivery
records of such courier, but in no case later than 5 days after
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deposit with such courier. Either party may change its address for purposes
hereof by written notice to the other in accordance with the provisions of
this subsection.
12.2 Confidentiality. All disclosures of proprietary and/or confidential
information in connection with this Agreement and the contents of this
Agreement shall be governed by the terms of the Mutual Confidential
Disclosure Agreement either entered into previously by the parties or entered
into concurrently with this Agreement, a copy of which is attached hereto as
Exhibit D. The information contained in the Usage Reports provided by each
party hereunder shall be deemed the Confidential Information of the
disclosing party. Notwithstanding the foregoing, Netscape may, in its sole
discretion, make publicly available client software market share information
contained in the Usage Reports submitted by Participant as such information
may be aggregated with data provided by other content providers.
12.3 Excuse. Either party shall be excused from any delay or failure in
performance hereunder, except the payment of monies by Participant to
Netscape, caused by reason of any occurrence or contingency beyond its
reasonable control, including but not limited to, acts of nature. The
obligations and rights of the party so excused shall be extended on a
day-to-day basis for the period of time equal to that of the underlying cause
of the delay.
12.4 Assignment. Participant may not assign this Agreement or any part
hereof without the prior written consent of Netscape, such consent not to be
unreasonably withheld. Any attempt by Participant to assign (by operation of
law or otherwise) this Agreement or any part thereof without such consent
shall be null and void.
12.5 Publicity. Neither party shall make any statement to the press or
issue any press release about the subject matter of this Agreement without
the prior written consent of the other party, which consent shall not be
unreasonably withheld.
12.6 Waiver. The waiver, express or implied, by either party of any breach
of this Agreement by the other party will not waive any subsequent breach by
such party of the same or a different kind.
12.7 Amendment. This Agreement may be amended only by a writing signed by
duly authorized representatives of Netscape and Participant.
12.8 Entire Agreement. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior and contemporaneous agreements and communications, whether oral or
written, between the parties relating to the subject matter hereof, and all
past courses of dealing or industry custom. The terms and conditions hereof
shall prevail exclusively over any written instrument submitted by
Participant, including any report, invoice or purchase order, and Participant
hereby disclaims any terms therein, except for terms required under Section
11.1 of the General Terms.
12.9 Independent Contractors. The parties acknowledge and agree that they
are dealing with each other hereunder as independent contractors. Nothing
contained in this Agreement shall be interpreted as constituting either party
the joint venturer, employee or partner of the other party or as conferring
upon either party the power of authority to bind the other party in any
transaction with third parties.
12.10 Survival. The following provisions of shall survive the expiration or
termination of this Agreement for any reason: Section 3 of the Netcenter
Special Terms ('Payment') and the following provisions of the Netcenter
General Terms: Section 1 ('Proprietary
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Rights'), Section 4 ('Harmful Content'), Section 5 ('Warranties'), Section 6
('Indemnity'), Section 7 ('Limitation of Liability'), Section 8.3 ('Rights
Upon Termination or Expiration'), Section 10 ('Dispute Resolution'), Section
11.1(d) ('Audit Rights') and Section 12 ('General), Section VII of Exhibit C
('Use of Personal Data'). In addition, provisions of this Agreement which, by
their nature, are intended to remain in effect beyond the termination or
expiration of this Agreement, shall survive the termination or expiration of
this Agreement.
12.11 Severability. In the event any provision of this Agreement is held by
a court or other tribunal of competent jurisdiction to be unenforceable, such
provision shall be reformed only to the extent necessary to make it
enforceable, and the other provisions of this Agreement will remain in full
force and effect.
12.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. For purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto, shall
be deemed to be an original.
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EXHIBIT A
I. THE SERVICE
A. The Service will be positioned as the 'IT Knowledge Center'. The
Service will be a channel within Netcenter's Computing and Internet Channel.
Netscape and Participant will develop a co-branded portion of the Service to
make use of the following services from Participant:
- Radarscope
- Ask James
- Compariscope
- Intranet Library
- SubscribNews
B. The URL for Co-branding specifications is
http://proto.mcom.com:888/nc20/html/
II. THE ADVERTISING PACKAGE
PLACEMENT OF ADVERTISEMENT
Netscape shall provide the following advertising package to Participant:
IMPRESSIONS
Banner Advertising Commitment to Sponsorship over [*] months
- Home Page [*]
- Business [*]
- Small Business [*]
- Computing & Internet [*]
- Netscape Channel [*]
- Dev Edge [*]
- Professional Conn [*]
Premier Sponsorship Commitment over [*] months
- Business [*]
- Small Business [*]
- Computing & Internet [*]
- Netscape Channel [*]
- Professional Conn [*]
Text Link Sponsorship Commitment over [*] months
- Business [*]
- Small Business [*]
- Computing & Internet [*]
- Netscape Channel [*]
- Dev Edge [*]
- Professional Conn [*]
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Spotlight Sponsorship Commitment over [*] months
- Business [*]
- Small Business [*]
- Computing & Internet [*]
- Netscape Channel [*]
- Dev Edge [*]
- Professional Conn [*]
Button Sponsorship Commitment over [*] months
- Business [*]
- Small Business [*]
- Computing & Internet [*]
- Netscape Channel [*]
- Dev Edge [*]
- Professional Conn [*]
SPECIFICATIONS ON EACH SPONSORSHIP POSITIONS
Banner Advertising (except for banner ads on the Netcenter home page)
- 468 x 60 (except for banner ads on the Netcenter Home
Page, which will be 230 x 33, 2k with no animation
- 10 k
- 4 sec animation
Banner Advertising on the Netcenter Home Page
- 230 x 33
- 2 k
- no animation
Premier Position
- 140 x 90
- 4 k
- sec animation
- 100 characters
What's New / What's Cool Premier
- 295 x 37
- 4 k
- 4 sec.
- 100 characters
Small Business Source Premier
- 51 x 145
- 4 k
- 4 sec animation
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Text Position
- 29 characters
Button Positions
- 88 x 31
- 1 k
- no animation
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EXHIBIT B
PAYMENT
1. Payments. All payments hereunder shall be made in US Dollars.
(a) Payment to Netscape. Participant will pay Netscape a participation
fee on or before September 30, 1998 as follows: (i) $1,000,000 for the
services set forth in Section I of Exhibit A; and (ii) $4,000,000 for the
advertising package set forth in Section II of Exhibit A. In addition,
pursuant to the schedule set forth in Section 2 below, Participant shall pay
Netscape [*] of Net Revenues derived from the Service, including, without
limitation, revenues from Compariscope.
(b) Payment to Participant. Netscape will pay Participant [*] of Net
Revenues from advertisements placed in accordance with Section 4.1 of the
Netcenter Special Terms.
2. Reporting; Timing of Payment. Within 30 days after the end of each
Netscape fiscal quarter during the Term of this Agreement, each party shall
deliver to the other party a report describing in detail the calculation of
gross revenue and Net Revenue for such fiscal quarter, and shall pay to the
other party that portion of such Net Revenue earned by it during the
preceding Netscape fiscal quarter, pursuant to Section 1 above.
3. Post-Term Payments of Bad Debt. After termination or expiration of
this Agreement, Participant shall pay to Netscape all amounts received by
Participant previously charged by Participant as 'bad debt' ('Bad Debt
Payments') and deducted from gross revenue under Section 1 above to the
extent such deducted amounts have not already been paid to Netscape. Such
payment shall be made to Netscape by Participant within 30 days of the
receipt of such Bad Debt Payments by Participant. This Section shall survive
expiration or termination of this Agreement for 18 months.
4. Taxes and Interest. Any portion of any payment due which has not been
paid during the applicable time set forth herein shall bear interest at the
lesser of (i) 1% per month or (ii) the maximum rate allowed by law. All
payments due hereunder are exclusive of any applicable taxes. The collecting
party shall be responsible for all applicable national, state and local
taxes, value added or sales taxes, exchange, interest, banking, collection
and other charges and levies and assessments pertaining to payments other
than U.S. taxes based on Netscape's net income. If the collecting party is
required by law to make any deduction or to withhold from any sum payable to
the other party hereunder, the collecting party shall effect such deduction
or withholding, remit such amounts to the appropriate taxing authorities and
promptly furnish the other party with tax receipts evidencing the payments of
such amounts. For every dollar for revenue sharing under this Agreement,
'collecting party' means the first of Netscape or Participant to collect such
dollar. This Exhibit shall survive termination or expiration of this
Agreement.
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EXHIBIT C
USER REGISTRATION AND PRIVACY
I. DEFINITION
'Netcenter Registration' means the portion of the registration that is
maintained, hosted, and controlled by Netscape and applies to multiple
services across Netcenter. Netcenter Registration includes the assignment of
a user name, password, and the collection of core Netcenter user profile data
including but not limited to: First name, Last name, Address, City, State,
Country, Zip Code, Email Address, Age and Gender. Netscape Registration
means any registration that is maintained, hosted, and controlled by Netscape
and applies to Netscape's Web Site. Netscape Registration includes the
assignment of a user name, password, and the collection of core user profile
data including but not limited to: First name, Last name, Address, City,
State, Country, Zip Code, E-mail Address, Age and Gender.
II. REGISTRATION PROCESS
To the extent that Participant desires to offer a registration process,
Participant will be responsible for the implementation of the Service
Registration and the integration of the Service with Netcenter Registration.
The functionality, design, and, integration of the Service Registration
process and Netcenter Registration will be subject to Netscape's approval,
terms and conditions as defined this Agreement. Such specifications, terms
and conditions may be revised by Netscape from time to time upon 30 days
prior notice to Participant. Participant will implement changes within a 30
day period unless the parties mutually agreed otherwise. The point of entry
to the registration area from the Service shall be hosted and controlled by
Netscape unless otherwise determined by Netscape.
III. REGISTRATION FEATURES
The Service Registration area shall be co-branded and have a look and feel
which is consistent with the implementation of the registration process in
other sections of Netcenter. Participant shall not launch the Service
Registration until Netscape has notified Participant in writing that Netscape
has accepted Participant's implementation. Participant shall manage site
access using Netcenter site access models, as such site access models shall
be determined by Netscape from time to time upon notice to Participant.
Netscape shall transfer to Participant all data necessary to provide site
access to registered Netcenter users. Participant will make commercially
reasonable efforts to implement such changes within a 30 day period.
IV. DATA COLLECTED BY PARTICIPANT DURING SERVICE REGISTRATION PROCESS
Netscape will determine the data to be collected in the Service Registration
process. Netscape will approve Participant's recommendations and technical
restrictions in such Service Registration process, such approval not to be
unreasonably withheld. Netscape reserves the right to change such data
requirements from time to time. Participant will make best efforts to
implement these changes within 5 working days unless mutually
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agreed to otherwise. If Netscape implements a Netcenter loyalty program,
Participant shall also offer end user loyalty selections as part of the
Service Registration process at Netscape's request. Participant shall deliver
to Netscape data collected pursuant to such loyalty programs in a format and
timeframe as mutually agreed to by the parties.
V. DATA TRANSFER
Participant shall use commercially reasonable efforts to transfer all end
user data collected during the Service Registration process and data
collected by any other means relating to the Service, to Netscape in real
time data transfer, excluding individual credit and purchase information
(such as credit card number, purchase order numbers, corporate accounting
codes) and data as otherwise agreed to by the parties. Netscape reserves the
right to request any information collected during the Service Registration to
be supplied in a Netscape specified format and timeframe. If Participant
collects information about users accessing the Service in addition to
information supplied by the users during the registration process, such
information shall be made available to Netscape in a format and timeframe as
the parties shall mutually agree.
VI. NETCENTER CONSIDERATIONS
All third party programs participating in the Service within Netcenter shall
register users with Netcenter when the user completes an order, if such user
is not already registered with Netcenter. If a user is a registered Netcenter
member, Participant shall pre-populate relevant customer data fields in the
customer order form based on information in the Netcenter database or
seamlessly pass this information to the third party provider.
VII. USE OF PERSONAL DATA
Netscape and Participant shall jointly own all end user data and information
obtained in connection with registering for the Service. Neither party shall
disclose to any third party such end user data and information; provided,
however, either party may use and disclose end user data and information for
purposes relating to its respective web sites. It is a material obligation of
this Agreement that Participant shall adhere to Netscape's then-current privacy
policy, set forth at http://home.netscape.com/legal_notices/privacy.html or
at such other URL as Netscape may designate from time to time. The parties
will cooperate to create guidelines for Participant's disclosure of aggregate
statistical information concerning Service's demographics and use to
advertisers. Except as otherwise provided in this Agreement, neither party
shall resell or disclose information collected about the users during
registration or from any other means ('End User Information') to any third
party; provided however, that either party may sell or disclose such End User
Information to third parties upon prior notice to and consent from such end
users. If Participant or third party in contract with Participant is not
complying with the terms of use of personal data published on Netscape's Web
Site at http://home.netscape.com/netcenter/index.html, or such other URL as
Netscape may determine from time to time, Netscape may terminate this
Agreement upon written notice to Participant if Participant is not in
compliance within 5 days of written notice from Netscape. After a given end
user has requested to be 'unsubscribed' from the Service, Participant will
terminate all Services unless otherwise specified by the user and discontinue
any use of the End User Information associated with the given user.
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EXHIBIT D
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
WHEREAS, Netscape Communications Corporation ('Netscape') has developed unique
and proprietary computer programs; and WHEREAS, ______________________________.
('Company') and Netscape are entering into a business relationship.
NOW, THEREFORE:
Each party (the 'Receiving Party') understands that the other party (the
'Disclosing Party') has disclosed or may disclose information (including,
without limitation, computer programs, code, algorithms, names and expertise
of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts, strategies and
information), which to the extent previously, presently, or subsequently
disclosed to the Receiving Party is hereinafter referred to as 'Proprietary
Information' of the Disclosing Party whether disclosed orally, in writing, or
otherwise. All Proprietary Information disclosed in tangible form by the
Disclosing Party shall be marked 'confidential' or 'proprietary', and all
Proprietary Information disclosed orally or otherwise in intangible form by
the Disclosing Party shall be designated as confidential or proprietary at
the time of disclosure and shall be reduced to writing and delivered to the
Receiving Party within thirty (30) days following the date of disclosure.
In consideration of the parties' discussions and any access the Receiving
Party may have to Proprietary Information of the Disclosing Party, the
Receiving Party hereby agrees as follows:
1. The Receiving Party agrees (i) to hold the Disclosing Party's
Proprietary Information in confidence and to take all reasonably necessary
precautions to protect such Proprietary Information (including, without
limitation, all precautions the Receiving Party employs with respect to its
own confidential materials), (ii) not to divulge any such Proprietary
Information or any information derived therefrom to any third person, (iii)
not to make any use whatsoever at any time of such Proprietary Information
except as provided in the Net Search and Net Directory Program (Distinguished
Provider) Agreement ('Distinguished Agreement') between Netscape and Company
dated as of _______________ to which this Agreement is attached as an
Exhibit, (iv) not to remove or export any such Proprietary Information from
the country of the Receiving Party, and (v) not to copy or reverse engineer,
reverse compile or attempt to derive the composition or underlying
information of any such Proprietary Information. The Receiving Party shall
limit the use of and access to the Disclosing Party's Proprietary Information
to those of the Receiving Party's employees who need to know such Proprietary
Information for the purpose of such internal evaluation and shall cause such
employees to comply with the obligations set forth herein. The Receiving
Party shall treat the Proprietary Information with at least the same degree
of care and protection as it would use with respect to its own proprietary
information. The foregoing obligations shall survive for a period of three
(3) years from the date of disclosure of the Proprietary Information. Without
granting any right or license, the Disclosing Party agrees that the foregoing
shall not apply with respect to information that (i) is in the public domain
and is available at the time of disclosure or which thereafter enters the
public domain and is available, through no improper action or inaction by the
Receiving Party or any affiliate, agent or employee, or (ii) was in the
Receiving Party's possession or known by it prior to receipt from the
Disclosing Party, or (iii) was rightfully disclosed to the Receiving Party by
another person without restriction, or (iv) is independently developed by the
Receiving Party without access to such Proprietary Information, or (v) is
required to be disclosed pursuant to any statutory or regulatory authority,
provided the Disclosing Party is given prompt notice of such requirement and
the scope of such disclosure is limited to the extent possible, or is
required to be disclosed by a court order, provided the Disclosing Party is
given prompt notice of such order and provided the opportunity to contest it.
2. Immediately upon a request by the Disclosing Party at any
time, the Receiving Party will turn over to the Disclosing Party all
Proprietary Information of the Disclosing Party and all documents or media
containing any such Proprietary Information
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and any and all copies or extracts thereof. The Receiving Party understands
that nothing herein requires the disclosure of any Proprietary Information of
the Disclosing Party, which shall be disclosed, if at all, as required under
the Distinguished Agreement or at the option of the Disclosing Party.
3. Except to the extent required by law, as set forth in this
Agreement or as otherwise mutually agreed to by the parties, neither party
shall disclose the existence or subject matter of the negotiations or
business relationship contemplated by this Agreement, or the content and
terms of the Distinguished Agreement.
4. The Receiving Party acknowledges and agrees that due to the
unique nature of the Disclosing Party's Proprietary Information, there can be
no adequate remedy at law for any breach of its obligations hereunder, that
any such breach may allow the Receiving Party or third parties to unfairly
compete with the Disclosing Party resulting in irreparable harm to the
Disclosing Party, and therefore, that upon any such breach or any threat
thereof, the Disclosing Party shall be entitled to seek appropriate equitable
relief in addition to whatever remedies it might have at law. The Receiving
Party will notify the Disclosing Party in writing immediately upon the
occurrence of any such unauthorized release or other breach. In the event
that any of the provisions of this Agreement shall be held by a court or
other tribunal of competent jurisdiction to be unenforceable, the remaining
portions hereof shall remain in full force and effect.
5. Neither party acquires any intellectual property rights under
this Agreement or any disclosure hereunder, except the limited right to use
such Proprietary Information in accordance with this Agreement. No warranties
of any kind are given with respect to the Proprietary Information disclosed
under this Agreement or any use thereof, except as may be otherwise agreed to
in writing.
6. This Agreement together with the Distinguished Agreement
supersede all prior discussions and writings with respect to the subject
matter hereof and thereof, and constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof. No waiver or
modification of this Agreement will be binding upon either party unless made
in writing and signed by a duly authorized representative of such party and
no failure or delay in enforcing any right will be deemed a waiver.
COMPANY: NETSCAPE:
NETSCAPE COMMUNICATIONS
CORPORATION
By: /s/ Cindy Mascheroni By: /s/ Mike Homer
Print Name: Cindy Mascheroni Print Name: Michael J. Homer
Title: VP Business Development Title: EVP of Netcenter
Date: September 3, 1998 Date: 9/3/1998
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Netcenter Services Agreement - Netscape Communications Corp. and Intraware Inc.
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