Services Agreement - Netscape Communications Corp. and Intraware Inc.
Netscape Agreement # 004891
This SERVICES AGREEMENT is made and entered into as of the 1st day of October
1998 (the 'Effective Date') between Netscape Communications Corporation
('Netscape'), a Delaware corporation with offices at 501 E. Middlefield Road,
Mountain View, California 94043, and Intraware Inc., a Delaware corporation
('Intraware'), with offices at 25 Orinda Way, Orinda California 94563.
WHEREAS, Netscape is in the business of developing and offering for sale
certain software products and related support services;
WHEREAS, Intraware is in the business of developing and offering for sale
worldwide proactive software update and management services to end users
through its SubscribNet-Registered Trademark- service; and
WHEREAS, Netscape desires to obtain, and Intraware desires to provide,
worldwide subscriptions of Intraware's SubscribNet-Registered Trademark- to
Non-consumer Customers of Netscape (as defined below);
NOW THEREFORE, in consideration of the foregoing recitals, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
For purposes of this Agreement, terms used and not otherwise defined herein
shall have the following meanings:
' Agreement' or 'this Agreement ' shall mean this Services Agreement and
the following attachments:
Attachment A 'Statement of Work'
Attachment B Third Party Products
Attachment C Netcenter General Terms
Attachment D Escrow Agreement
' Channel Distributor ' shall mean any Netscape authorized distributor or
reseller of Netscape Products, or any Netscape authorized distributor or
reseller of Third Party Products on behalf of Netscape, other than Intraware,
who has purchased a license from Netscape to sell such Netscape and Third Party
' Confidential Information ' shall mean this Agreement and all information about
Intraware Products and Netscape Products, as well as Intraware and Netscape
services, customers, strategy, research, development, methods of manufacture,
trade secrets, business plans, finances, personnel data, and other material or
information considered confidential by either party. Confidential Information
also includes any third party confidential information disclosed to either party
under this Agreement.
' End Users ' shall mean all Non-consumer Parties who have a Netscape
maintenance subscription for their license to use Netscape Products which they
acquired from Netscape or a Channel Distributor, as well as all Non-consumer
Parties who obtain a maintenance subscription to Third Party Products for which
they currently own a license through Netscape or a Channel Distributor.
'EVENT OF DEFAULT ' shall have the meaning contained in Section 9.1.
'INTRAWARE CUSTOMER ' shall mean any party who receives any product or service
directly or indirectly from Intraware or its non-Netscape partners or who
becomes an Intraware Customer under Section 2.7.
'INTRAWARE PRODUCTS ' shall mean any Intraware software that Intraware will use
in connection with the Services, including, without limitation, its
SubscribNet-Registered Trademark- products, and any major and minor updates or
functional supersets to any such products.
'NETSCAPE CUSTOMER DATA ' shall have the meaning set forth in Section 2.7.
'NETSCAPE PRODUCTS ' shall mean all current, commercially available Netscape
software products listed on its then-current price list in the Territory. If at
any time during the Term, Netscape sells, assigns or otherwise transfers its
right to distribute directly or through Channel Distributors any such products
listed Netscape's applicable North America price list, such Netscape products
shall cease to be 'Netscape Products' under this Agreement.
'NETSCAPE UPDATES ' shall mean major and minor updates, if any, or any
functional supersets, to the Netscape Products or to Third Party Products.
'Major Updates' involve additions of substantial functionality while 'Minor
Updates' do not. Major Updates are designated by a change in the number to the
left of the decimal point of the number appearing after the product name while
Minor Updates are designated by a change in such number to the right of the
decimal point. Minor Updates shall also include bug patches and bug fixes as
mutually agreed upon. Netscape is the sole determiner of the availability and
designation of an update as a Major or Minor Update. Major Updates exclude
software releases which are reasonably designated by Netscape as new products.
Where used herein, 'Netscape Updates' shall mean Major Updates and Minor Updates
'NETSCAPE'S WEB SITE ' shall mean 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.
'NON-CONSUMER CUSTOMER / NON-CONSUMER PARTY ' shall mean any party or customer
who licenses 10 or more copies and/or seats of a Netscape client product, or a
purchaser of any other Netscape Product.
'SERVICES ' shall mean the services to be provided by Intraware in accordance
with Article 2, Article 4 and the Statement of Work identified on Attachment A.
'SUBSCRIBNET -Registered Trademark- ' shall mean Intraware's software
subscription update service for Non-consumer Customers.
'SUBSCRIBNET -Registered Trademark- UPDATES ' shall mean enhancements to
'SUBSCRIPTION ' shall mean an offering by Netscape of SubscribNet-Registered
Trademark- that entitles End Users, upon entering into a maintenance agreement
with Netscape, to receive Netscape Updates for the number of users for which
each such End User has received a license to a Netscape or Third Party Product.
'TERRITORY ' shall mean worldwide.
'THIRD PARTY PRODUCTS ' shall mean all third party vendor products currently
distributed by Netscape, or by a hannel Distributor from Netscape's worldwide
price list as of the Effective Date and/or September 30, 1998, which products
are listed on Attachment C. If at any time during the Term, Netscape sells,
assigns, ceases selling or otherwise transfers its right to distribute directly
or through Channel Distributors products from any third party vendor
listed on Attachment B, such vendor's products shall cease to be 'Third Party
Products' under this Agreement.
2.1 GENERAL . Intraware shall perform the Services in accordance with the
terms and conditions set forth herein and in the Statement of Work only for
such Netscape Products and, subject to Sections 2.8 and 2.9, Third Party
Products as are set forth on Attachment B to this Agreement. [*]
2.2 EXCLUSIVITY . During the Term, as between other third parties, Intraware
shall have an exclusive right to provide subscription services to Netscape's
non-consumer Customers. However, Netscape reserves the right to provide for
itself services similar to the Service.
2.3 TERMS OF DISTRIBUTION . Netscape and Intraware shall offer the
Subscription to End Users through Netscape's maintenance agreement, and as
soon as practicable after the Effective Date such agreement will clearly
state on behalf of each party and for the benefit of Channel Distributors
that maintenance includes the SubscribNet-Registered Trademark- service. End
Users will be able to access the Services through the co-branded Netscape
SubscribNet site through Netscape's Insight, and/or Netscape's Netcenter at a
URL to be mutually agreed, however, the URL will include the SubscribNet name
and the Netscape.com domain, such as: http://SubscribNet.Netscape.com'. The
Service may also be accessed through other URLs on Netscape's Web Site, URLs
contained in email notifications and/or through such other sites within
Netscape's Web Site as Netscape may specify from time to time. For reporting
purposes, all traffic on the co-branded site shall be considered to be
Netscape traffic, however, Intraware may use aggregated traffic data for the
purposes and in the manner set forth in Attachment C.
2.4 SUBSCRIBNET -Registered Trademark- UPDATES . [*] Such
SubscribNet-Registered Trademark- Updates will be distributed in the same manner
as the Services are distributed under this Agreement.
2.5 PERSONNEL . Each party shall provide adequate resources to assure its
performance under this Agreement. Towards this goal, the parties will designate
the resources set forth in this Section 2.5 and in the statement of work.
(A) Netscape Personnel . Netscape will designate an Operations Program
Manager for the implementation of this Agreement and to insure the success of
the Services. Netscape will further designate a marketing representative to
approve content and other marketing related issues.
(B) Intraware Personnel . Intraware will assign a dedicated Operations
Program Manager for the implementation of this Agreement and to insure the
success of the Services. Intraware will further assign a dedicated marketing
representative to approve content and other marketing related issues.
2.6 Monthly Reviews . During the initial Term, Netscape and Intraware shall
meet to conduct monthly reviews at Intraware's and Netscape's primary business
addresses in alternating order to discuss and adjust metrics and performance as
provided in the Statement of Work and to coordinate management information
systems or other operational processes arising out of this Agreement. Each party
will bear its own travel or other costs associated with attending any such
meetings. In any renewal Term, the parties shall mutually agree upon the
frequency and scope of periodic reviews.
2.7 END USER DATA :
(A) Except as expressly provided in this subparagraph (A), all customer
data, including channel transaction data, added to the
Netscape/SubscribNet-Registered Trademark- Service or existing from Netscape
on the date hereof will be considered Netscape data ('Netscape Customer
Data') and shall be solely owned by Netscape, [*] If a Netscape customer is
also, independently, an Intraware Customer , and requests that it's account
be handled through Intraware, then, [*] such customer data shall be owned
jointly by Intraware and Netscape. All such data shall constitute
'Confidential Information' and shall be subject to the end user and privacy
guidelines set forth in Attachment C-1.
(B) Intraware will implement procedures reasonably acceptable to Netscape,
and use reasonable commercial efforts, to distinguish channel transaction data
files between Netscape Customers and Intraware Customers.
2.8 THIRD PARTIES . Notwithstanding anything in this Agreement to the contrary,
Intraware may perform Services hereunder for Third Party Products only if
and to the extent Netscape is authorized to enable electronic download of
Third Party Products. The parties will mutually agree whether and the terms
upon which additional third party vendor products shall be added to the
definition of 'Third Party Products' under this Agreement.
2.9 CHANNEL DISTRIBUTORS . Notwithstanding anything in this Agreement to the
contrary, Netscape's arrangements with its Channel Distributors may not permit
Intraware to electronically distribute Netscape Products, in which case such
arrangement shall be excluded from the Services. In addition, Netscape shall be
obligated to provide Intraware with information or access to Third Party data or
information hereunder only to the extent authorized by each Channel Distributor.
2.10 END USERS . Should a Non-consumer Party obtain a license to a Third
Party Product through Netscape or a Channel Distributor after the Effective
Date, and should such Non-consumer Party wish to acquire a maintenance
subscription from Netscape or a Channel Distributor to receive the
SubscribNet-Registered Trademark- services, upon approval by Intraware and
receipt by Intraware of [*] (or such other percentage and terms as the parties
may agree) of the 'net Subscription sales price' from Netscape for each such
Party, such additional Non-consumer Party will become an End User. 'Net
Subscription sales price' means the price indicated in an invoice for any sale
of a Netscape Product, i.e., the gross sales price less
applicable discounts, but excluding rebates, if any.
2.11 REPORTING/ACCESS . Netscape will have full access to the systems data
records, and such records will be reasonably compatible with Netscape systems as
specified in the Statement of Work. Intraware will provide Netscape with an
online and flexible direct interface to this data through a reporting tool as
set forth in the Statement of Work. In addition, there will be certain Netcenter
traffic reporting requirements set forth in Attachment
TERM AND TERMINATION
3.1 TERM . Unless sooner terminated in accordance with this Article or
Article 9 (Default), the term of this Agreement (the 'Term') shall commence
on the Effective Date and shall continue for a period of one year thereafter.
This Agreement may be renewed for two additional one year periods upon mutual
agreement of the parties; however:
(A) If the parties fail to mutually agree upon renewal after the initial
Term, then Intraware shall be obligated to continue to perform the Services
for a period of six months after the Effective Date and Netscape will pay
Intraware on a pro-rated basis the payments payable hereunder, excluding the
initial payment set forth in Section 5.2 (i.e., [*] pro-rated over the Term,
payable monthly for six months); and
(B) If the parties agree on a renewal Term, the price for the Services
shall not exceed 10 percent of Netscape's Subscription revenue over the
3.2 TERMINATION .
(A) For Convenience. This Agreement may be terminated by Netscape for
convenience upon ninety (90) calendar days prior written notice to Intraware,
and in such event, Netscape shall pay Intraware for the Services based upon the
pro rata portion of fees earned by Intraware through the effective date of
(B) With Cause. If this Agreement is terminated by Netscape for cause by
reason of an Event of Default, as set forth in Article 9, Intraware will pay
to Netscape on a pro-rated basis the payments payable hereunder, excluding
the initial payment set forth in Section 5.2, (i.e., [*], pro-rated over the
Term, payable monthly for 90 days). Any termination, however, shall not
relieve either party from any obligations hereunder that survive termination
under Section 16.3 hereof.
3.3 TECHNOLOGY ESCROW . Intraware agrees that the entire source code for
SubscribNet and other Intraware Products, together with all related listings
and documentation, as it now exists or hereafter becomes available including,
but not limited to, the then current version(s) of such products being used
by Intraware in the performance of the Services ('Escrow Materials') will be
deposited, maintained and updated at Netscape's expense in escrow pursuant to
the form of Escrow Agreement to be mutually agreed between the parties and
attached hereto as Attachment D. Intraware shall deposit the Escrow Materials
within sixty (60) days of the Effective Date or, in the case of updates to
the Service, within 60 days after commercial release of such updates.
4.1 Co-Branding . A co-branded name using the format 'Netscape [generic name]
by SubscribNet-Registered Trademark-' will be mutually agreed between the
parties for use on the co-branded Netscape/SubcribNet-Registered Trademark- site
and throughout all communications and materials, including but not limited to
marketing materials and price lists, relating to the Services. All use of the
SubscribNet-Registered Trademark- brand by Netscape will be subject to trademark
guidelines provided by Intraware, and all use of the 'Netscape' trademark will
be subject to trademark guidelines provided by Netscape. Intraware shall not
independently use the Netscape name without Netscape's prior written consent
unless such use occurs in connection with Intraware's advertising sales and
promotional efforts on behalf of the Service. The co-branding will be subject to
Netscape's then-current design guidelines as set forth in Attachment C. Each
party's trademarked portion of the co-brand shall remain generally consistent in
terms of relative size in comparison with the marks contained in the mock-up
provided as part of Attachment C.
4.2 Technical Support . Intraware will provide technical support to Netscape to
ensure that content is correctly received and displayed by Netscape. Intraware
shall 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 use reasonable commercial efforts to
promptly remedy any material malfunctioning of the Service. Intraware shall be
solely responsible for the purchase, implementation, maintenance and support of
all software and hardware required to fulfill its obligations under the
4.3 Service Implementation . Intraware shall provide consistent Services on the
co-branded site on Netscape's Web Site. All content supplied by Intraware for
the Service will meet Netscape's specifications with regard to page size,
loading speed and speed of access to database driven content as Netscape may,
from time to time, set forth in Attachment C; provided that such obligations
shall not be materially more restrictive than the current features, unless the
parties otherwise mutually agree. Intraware 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 Intraware uses in its own proprietary SubscribNet service(s), if
any, unless otherwise mutually agreed by the parties. The Service shall not be
disadvantaged or suffer from inferior production, programming or performance
relative to Intraware's similar services, or any similar service that Intraware
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. Intraware's obligation to produce the
Service, including production services, technology deployment and content
programming that meets or exceeds standards established by Intraware on
Intraware's Web Site or services (or any web site or services Intraware manages
for any third party) and general industry standards is a material obligation of
Intraware under this Agreement.
4.4 LICENSE GRANT . During the Term, Intraware grants to Netscape the
non-exclusive, worldwide and royalty-free right to store, display, perform,
and otherwise use the data, information, content or other intellectual
property provided by Intraware for use within the Service or Netcenter.
4.5 NETCENTER GENERAL TERMS . The parties agree and accept the Netcenter
General Terms provided herewith as Attachment C.
5.1 PRICE . In consideration for the Services performed hereunder and
subject to the terms and conditions hereof, Netscape shall pay Intraware
eight million dollars ($8,000,000) for the Services.
5.2 PAYMENT TERMS . Netscape will pay Intraware an initial payment in the
amount of [*] on or before September 30, 1998. Ninety days after the
Effective Date of this Agreement, Netscape will pay Intraware [*]. One
Hundred and Eighty Days after the Effective Date of this Agreement, Netscape
will pay Intraware [*]. Two Hundred and Seventy days after the Effective Date
of this Agreement, Netscape will pay Intraware [*]. All payments made by
Netscape hereunder will be made by wire transfer to the bank specified by
Intraware. A finance charge of one and one-half percent (1.5%) per month, or
the lawful limit if less, shall be assessed on all amounts that are past due,
and Intraware shall be responsible for collection costs if applicable.
Interest shall be calculated from the invoice due date to the date payment is
REPRESENTATIONS AND WARRANTY
6.1 INTRAWARE'S REPRESENTATIONS AND WARRANTY Intraware represents and/or
warrants to Netscape, as appropriate, as follows:
(A) NO RESTRICTIONS. Intraware represents that it is not under any
obligation or restriction which would in any way interfere with or be
inconsistent with its performance obligations under this Agreement.
(B) SERVICES . Intraware warrants that the Services, whether performed by
Intraware or subcontractors, shall be performed in a professional and
workmanlike manner, with all due skill and care, and will meet or exceed the
specifications set forth in the Statement of Work and any documentation provided
(C) INTRAWARE PRODUCTs . Intraware warrants that (i) the media on which
the Intraware Products are delivered will be free of defects in material and
workmanship, (ii) the Intraware Product(s) will function in accordance with the
specifications for the Intraware Product(s) in applicable documentation, and
(iii) any documentation provided with the Intraware Product(s) shall be accurate
in all material respects. In the case of a breach of the warranties in this
subsection (C), Intraware shall repair or replace nonconforming, unsuitable or
inaccurate Intraware Product(s) or documentation within a reasonable period of
time (not to exceed ten (10) days) of receipt of written notice of such
(D) YEAR 2000 . Intraware warrants that the current version of the
Intraware Products, including the SubscribNet software, contain
functionality, including the time-and-date-related code, needed for the
December 31, 1999 to January 1, 2000 date change; provided the underlying
operating system of the host machine, and any non-Intraware-owned software
provided with or in the host machine or Product(s), also contain
functionality, including the time-and-date-related code, needed for the
December 31, 1999 to January 1, 2000 date change. The sole and exclusive
remedy for any breach of this warranty is repair or replacement of the
affected Product(s), excluding any non-Intraware-owned software or underlying
operating system. This warranty is null and void if Netscape alters, modifies
or misuses any portion of the Product(s).
In the case of a breach of the warranty described in this subsection (D),
Intraware shall use reasonable efforts to modify the Intraware Products such
that the Intraware Product(s) is Year 2000 Compliant. [*]
(E) THE WARRANTIES CONTAINED IN THIS ARTICLE 6 AND ATTACHMENT C ARE THE
ONLY WARRANTIES GIVEN TO NETSCAPE IN CONNECTION WITH THIS AGREEMENT AND THE
SERVICES PERFORMED HEREUNDER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED.
6.2 NETSCAPE'S REPRESENTATIONS AND WARRANTY Netscape represents and/or warrants
to Intraware, as appropriate, as follows:
(A) USE OF USER INTERFACE. At no time during the term of the
Agreement, or at any time thereafter, will Netscape copy, modify or
otherwise utilize the SubscribNet-Registered Trademark- user interface.
(B) NO RESTRICTIONS. Netscape represents that, except as provided in
Sections 2.8 and 2.9, it is not under any obligation or restriction that
would in any way interfere with or be inconsistent with its performance
obligations under this Agreement.
7.1 Each party agrees not to use directly or indirectly or reproduce the
Confidential Information of the other for any purpose except for carrying out
the terms of this Agreement and agrees not to disclose the Confidential
Information of the other to any third parties except in accordance with this
7.2 Each party agrees to use its best efforts to protect such Confidential
Information from disclosure to third parties. Disclosures of the Confidential
Information shall be restricted to the parties' employees who are directly
participating in the efforts covered by this Agreement, have a need to know such
Confidential Information and are bound by the provisions of this Article 7.
7.3 The limitations on reproduction, disclosure, and use of the
Confidential Information shall lapse upon the occurrence of one of the
(1) If such Confidential Information is publicly available or later
becomes publicly available other than through a breach of this Agreement;
(2) If the disclosing party generally furnishes its Confidential
Information to a third party without similar confidentiality restrictions
on the third party's rights; or
(3) If disclosure of such Confidential Information is compelled by
court order or judicial or administrative process; or
(4) If such Confidential Information is independently developed by
the receiving party subsequent to such disclosure without use of
Confidential Information disclosed hereunder; or
(5) If such Confidential Information is lawfully obtained by the
receiving party from a third party without obligations of confidentiality.
8.1 Each party (the 'indemnitor') will indemnify and hold harmless the
other party (the 'indemnitee') from and against (a) losses, damages, judgments,
settlements, attorney's fees, costs, and expenses which the indemnitee may
sustain, incur, or be required to pay, arising out of or in connection with
claims for personal injury or damage to real or tangible property resulting from
negligent action or inaction of the indemnitor or a person employed by the
indemnitor in the performance of this Agreement; (b) a breach of any of the
representations and warranties made by either party hereunder; or (c) in the
case of Intraware, any third party claim arising from the Service; and (d) any
material, content, or any content to which a party can link, supplied by either
party in connection with this Agreement.
8.2 Intellectual Property Indemnity:
8.2.1. Intraware Indemnity. Intraware shall defend or settle, at its
option, any action brought against Netscape to the extent it is based on a claim
that use, reproduction or distribution by Netscape of the Intraware portion of
the Intraware Products furnished hereunder within the scope of a license granted
hereunder directly infringes any valid U.S. copyright, U.S. patent or U.S. trade
secret. Intraware shall also defend any action brought against Netscape to the
extent that it is based on a claim that the Intraware trademark(s) Netscape is
licensed to use hereunder directly infringes any valid United States trademark.
Intraware will pay resulting costs, damages and legal fees finally awarded
against Netscape in such action which are attributable to such claim provided
that Netscape: (a) promptly (within twenty (20) days) notifies Intraware in
writing of any such claim and Intraware has sole control of the defense and all
related settlement negotiations; and (b) cooperates with Intraware, at
Intraware's expense, in defending or settling such claim.
Should an Intraware Product become, or be likely to become in
Intraware's opinion, the subject of infringement of such U.S. patent,
copyright, trademark or trade secret, Intraware may procure for Netscape: (i)
the right to continue using the same; or (ii) replace or modify it to make it
non-infringing. In the event that Intraware shall reasonably determine that
neither (i) nor (ii) above is commercially practicable, Intraware may
terminate the license for the infringing Intraware Product and refund
Netscape for the fees that Netscape has paid hereunder (excluding the initial
payment) up to [*]. Intraware shall have no obligation or liability for, and
Netscape shall defend, indemnify and hold Intraware harmless from and against
any claim based upon: (a) use of other than the then current, unaltered
version of the Intraware Product, unless the infringing portion is also in
the then current, unaltered release; (b) use, operation or combination of
Intraware Products with non-Intraware programs, data, equipment or
documentation if such infringement would have been avoided but for such use,
operation or combination; (c) Netscape's or its agent's activities after
Intraware has notified Netscape that Intraware believes such activities may
result in such infringement; (d) compliance with Netscape's designs,
specifications or instructions; (e) any modifications or marking of the
Intraware Products not specifically authorized in writing by Intraware; (f)
Netscape's use of any trademarks other than those set forth hereunder; or (g)
third party software. The foregoing states the entire liability of Intraware
and the exclusive remedy of
Netscape with respect to infringement of any intellectual property rights,
whether under theory of warranty, indemnity or otherwise.
8.2.2. Netscape Indemnity. Netscape shall defend or settle, at its
option, any action brought against Intraware to the extent it is based on a
claim that use, reproduction or distribution by Intraware of the Netscape
portion of the Netscape Products furnished hereunder within the scope of a
license granted hereunder directly infringes any valid U.S. copyright, U.S.
patent or U.S. trade secret. Netscape shall also defend any action brought
against Intraware to the extent that it is based on a claim that the Netscape
trademark(s) Intraware is licensed to use hereunder directly infringes any
valid United States trademark. Netscape will pay resulting costs, damages and
legal fees finally awarded against Intraware in such action which are
attributable to such claim provided that Intraware: (a) promptly (within
twenty (20) days) notifies Netscape in writing of any such claim and Netscape
has sole control of the defense and all related settlement negotiations; and
(b) cooperates with Netscape, at Netscape's expense, in defending or settling
Should a Netscape Product become, or be likely to become in Netscape's
opinion, the subject of infringement of such U.S. patent, copyright,
trademark or trade secret, Netscape may procure for Intraware: (i) the right
to continue using the same; or (ii) replace or modify it to make it
non-infringing. In the event that Netscape shall reasonably determine that
neither (i) nor (ii) above is commercially practicable, Netscape may
terminate the license for the infringing Netscape Product and pay Intraware
an amount representing the fees that Netscape has paid hereunder (excluding
the initial payment) up to [*]. Netscape shall have no obligation or
liability for, and Intraware shall defend, indemnify and hold Netscape
harmless from and against any claim based upon: (a) use of other than the
then current, unaltered version of the Netscape Product, unless the
infringing portion is also in the then current, unaltered release; (b) use,
operation or combination of Netscape Products with non-Netscape programs,
data, equipment or documentation if such infringement would have been avoided
but for such use, operation or combination; (c) Intraware's or its agent's
activities after Netscape has notified Intraware that Netscape believes such
activities may result in such infringement; (d) compliance with Intraware's
designs, specifications or instructions; (e) any modifications or marking of
the Netscape Products not specifically authorized in writing by Netscape; (f)
Intraware's use of any trademarks other than those set forth hereunder; or
(g) third party software. The foregoing states the entire liability of
Netscape and the exclusive remedy of Intraware with respect to infringement
of any intellectual property rights, whether under theory of warranty,
indemnity or otherwise.
8.2.3 Neither party will have any liability to the other for any claim
of infringement in this Section 8.2 based on (i) the other party's continued
use or distribution, as the case may be, of a superseded product after the
indemnifying party has given reasonable notice and a reasonable opportunity
to update its use, or an altered release, except for such alteration(s) or
modification(s) which have been made by the indemnifying party or under the
indemnifying party's direction, if such infringement would have been avoided
by the use of a current, unaltered release of such product, or (ii) the
combination, operation, or use of any Services furnished under this Agreement
with programs or data not created by the indemnifying party if such
infringement would have been avoided by the use of the Services without such
programs or data.
9.1 EVENT OF DEFAULT . An 'Event of Default' shall occur under any of the
(A) Either party fails to perform any material obligation to be
performed by it hereunder within thirty (30) days after written notice from
the other party that time for such performance has passed or, if no such time
is prescribed, within thirty (30) days after written notice from the other
(B) Either party becomes insolvent or unable to pay its debts as they
become due, makes an assignment for the benefit of creditors or files a
petition in any insolvency proceeding or in any bankruptcy, reorganization,
scheme of arrangement or reconstruction, or similar proceeding.
(C) A receiver, manager or liquidator is appointed for any of a
party's assets or a petition is filed in any insolvency, bankruptcy,
reorganization, scheme of arrangement, reconstruction or similar proceeding,
and such receiver, manager or liquidator is not discharged, or such petition
is not withdrawn, within ninety (90) days after such appointment or filing.
9.2 Remedy . If either party causes to occur an Event of Default as specified
in Section 9.1, then the non-defaulting party, at its option, shall have the
right to terminate this Agreement by written notice as provided in Section 3
and pursue any other remedy hereunder or otherwise available to it at law or
in equity. 9.3 Compensation . Intraware hereby expressly agrees and
acknowledges that, except as provided in Section 3 and in this Section 9.3,
termination of this Agreement by either party shall not entitle it to any
termination compensation or to any payment in respect of any goodwill
established by Intraware during the Term or render Netscape liable for
damages on account of any loss of prospective profits or on account of any
expenditure, investment or obligation incurred or made by Intraware, or
LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF SECTIONS 7 (CONFIDENTIALITY), 8 (INDEMNIFICATION) AND 11
(A) EACH PARTY'S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL IN NO
EVENT EXCEED [*]; AND
(B) NEITHER INTRAWARE NOR NETSCAPE WILL BE LIABLE FOR INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST DATA OR
LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR FOR ANY SIMILAR CLAIM AGAINST LICENSEE BY ANY OTHER PARTY.
11.1 NETSCAPE OWNERSHIP . Intraware shall acquire no rights in and to
the Netscape Products or the Netscape Customer Data, and all ownership rights in
and to the Netscape Products, Netscape Customer Data and any marketing or
customer data generated hereunder shall remain with Netscape or its licensors,
as appropriate. Intraware agrees that it shall not (i) sell, transfer or assign
any of same or any rights or interest therein, or (ii) create or suffer to exist
any liens with respect to the Netscape Products or its programs or publications,
except in accordance with this Agreement or the specific instructions of
Netscape or its licensor hereunder or statutory or common law liens resulting
from Netscape's failure to pay Intraware invoices. Intraware acknowledges that
Netscape (or its licensor) is the owner of all intellectual and proprietary
rights in the Netscape Products or its programs and publications, including
source and object code, trademarks, copyrights and patents relating to the
Netscape Products or its programs and publications, and that neither this
Agreement nor performance of the Services hereunder
shall directly or indirectly create in or for Intraware any right, title or
interest therein, other than in accordance with the statutory or common law
liens referenced above.
11.2 Intraware Ownership . Except as expressly stated herein, Netscape
shall acquire no rights in and to the Intraware Products or the Intraware
Customer data, and all ownership rights in and to such Intraware Product shall
remain with Intraware or its licensors, as appropriate. Netscape agrees that it
shall not (i) sell, transfer or assign any of same or any rights or interest
therein, or (ii) create or suffer to exist any liens with respect to the
Intraware Products or its programs or publications, except in accordance with
this Agreement or the specific instructions of Intraware or its licensor
hereunder or statutory or common law liens resulting from Intraware's failure to
pay Intraware invoices. Intraware acknowledges that Intraware (or its licensor)
is the owner of all intellectual and proprietary rights in such Intraware
Product, including source and object code, trademarks, copyrights and patents
relating to the Intraware Products or its programs and publications, and that
neither this Agreement nor performance of the Services hereunder shall directly
or indirectly create in or for Intraware any right, title or interest therein,
other than in accordance with the statutory or common law liens referenced
Should any dispute or differences arise from this Agreement or any performance
thereunder, the parties shall first attempt to arrive at an amicable settlement,
as follows. A party shall identify the existence of a dispute by notifying the
other party in writing. Upon such notice, the matter shall be referred to a
senior executive officer of each party whose responsibilities are not in the
profit center that is the subject of the dispute, for oral presentations (with
minimal written support such as briefing charts or summary sheets). No outside
counsel may appear during this informal process.
If at the completion of such presentation such officers cannot resolve this
dispute, then either party may 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
except punitive 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. either party shall have any remedy to it available at law or in
equity (but not in contradiction of the provisions including limitation of
liability) hereunder. An attempt at settlement shall be deemed to have failed
when one of the parties advises the other party in writing to this effect, in
which event either party shall have any remedy to it available at law or in
equity. Settlement discussions and materials will be confidential and
inadmissible in any subsequent proceeding without both parties' consent.
All prices are in U.S. Dollars and are exclusive of any applicable taxes.
Intraware shall be responsible for filing all appropriate federal, state and
local tax forms related to payment for its Services under this Agreement.
Intraware shall be responsible for sales or use taxes which are due solely by
reason of Intraware's performance of Services hereunder other than taxes
assessed on Intraware's income. Each party shall cooperate with the other in
minimizing any applicable tax. In addition, each party shall reasonably
cooperate with the other in the event of a government audit.
Intraware shall comply fully with all then current applicable laws, rules and
regulations relating to the export of technical data, including, but not limited
to any regulations of the United States Office of Export Administration and
other applicable governmental agencies and Intraware acknowledges that by virtue
of certain security technology embedded in the Netscape Products, that export of
such software may not be legal
MARKETING AND PROMOTION
15.1 MARKETING COLLATERAL . Reasonable amounts of marketing collateral
(i.e., pamphlets, brochures, and the like) associated with the
SubscribNet-Registered Trademark- service will be made available to Netscape.
15.2 OUTBOUND MARKETING . All outbound marketing content including all
electronic communication with End Users who are not Intraware Customers will be
approved by Netscape. The parties will mutually agree upon the guidelines for
marketing materials, as set forth in the Statement of Work.
15.3 NETSCAPE MARKETING EFFORTS. Netscape will use reasonable
commercial efforts to communicate and disseminate the details of the SubscribNet
program to its sales force, customer service representatives, technical support
representatives, Channel Distributors, third party partners and end user
customers upon implementation, launch and on an ongoing basis.
15.4 JOINT PRESS RELEASE. Netscape and Intraware will jointly issue
a press release describing Netscape's usage of Intraware's
SubscribNet-Registered Trademark- service. Such release will be issued within
7 days of execution of this Agreement or as soon thereafter as possible.
Netscape will support the release with timely and reasonably scheduled press
and analyst calls.
15.5 Response Times . Netscape shall respond to Intraware requests for
approval of marketing materials within 24 hours during a business day or as soon
as practicable thereafter, or otherwise in accordance with the Statement of
Work, to ensure timely delivery of such materials to End Users, taking into
consideration the importance of timeliness to the SubscribNet brand.
16.1 Order of Priority . In the event of a conflict between this
Agreement, the Statement of Work and any outstanding agreements between Netscape
and Intraware, the order of priority of this Agreement shall be as follows: (a)
this Agreement, (b) the Statement of Work and (c) other exhibits hereto.
16.2 Force Majeure . Neither party shall be liable for delays in its
performance of this Agreement occasioned by strikes, fires, accidents, or by
other causes beyond its control. In the event of a stoppage or delay suffered by
Intraware resulting from any such cause, Intraware shall perform such parts of
the work as Intraware is capable of performing and shall resume full performance
of the Services as soon as is reasonably practicable.
16.3 Survival . The provisions of Sections 2.7 (A) and (C), 3.2
(Termination), 9.2 and 9.3 (Default), and Articles 10 (Limitation Of Liability),
11 (Ownership), 13 (Taxes), and 16 (Miscellaneous) shall survive termination of
this Agreement. The provisions of Articles 6 (Representations and Warranty) and
8 (Indemnification) shall survive termination for a period of four years
thereafter. The provisions of Article 7 (Confidentiality) shall survive
termination of this Agreement for a period of five years thereafter.
16.4 Assignment . Neither party to this Agreement shall assign any
rights hereunder without the prior written consent of the other party, which
consent shall not be unreasonably withheld. In the event of a merger or
consolidation involving either party in which that party is not the surviving
corporation the Agreement will transfer or be assigned to the resulting
corporation or entity without approval provided that such acquiror agree in
writing to be bound by the terms of this Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors,
executors, administrators, legal representatives and assigns.
16.5 Severance . In the event that any provision of this Agreement
shall be held by a court of law or other governmental agency to be void,
voidable, or unenforceable, the remaining portions hereof shall remain in full
force and effect.
16.6 Relationship . Intraware is an independent contractor and nothing
contained herein shall be construed to create any other relationship
between the parties. Nothing in this Agreement shall be construed to
constitute either party as the agent of the other party for any purpose
whatsoever, and neither party shall bind or attempt to bind the other party
to any contract or the performance of any other obligation, or represent to
any third party that it has the right to enter into any binding obligation
on the other party's behalf.
16.7 Governing Law . All questions concerning the validity and
operation of this Agreement and performance of the obligations imposed upon the
parties hereunder shall be governed by the substantive laws of the State of
California. Jurisdiction and venue shall be in Santa Clara County or the
Northern District of California.
16.8 Headings . The headings and titles to the Articles and Sections
of this Agreement are inserted for convenience only and shall not be deemed a
part hereof or affect the construction or interpretation of any provision
16.9 Remedies . Unless otherwise expressly provided herein, the rights
and remedies hereunder are in addition to, and not in limitation of, other
rights and remedies available to the parties, and exercise of one right or
remedy shall not be deemed a waiver of any other right or remedy.
16.10 No Amendment or Waiver . No amendment, modification, deletion,
addition or other change in this Agreement or any provision hereof, or wavier of
any right or remedy herein provided, shall be effective for any purpose unless
specifically set forth in a writing signed by the party to be bound thereby. No
waiver of any right or remedy in respect of any occurrence or event on one
occasion shall be deemed a waiver of such right or remedy in respect of such
occurrence or event on any other occasion.
16.11 Entire Agreement . This Agreement supersedes all other
agreements, oral or written, heretofore made with respect to the subject matter
hereof and the transactions contemplated hereby and, with the Attachments
hereto, contains the entire agreement of the parties.
16.12 Notices . Notices and communications required or permitted to be
given under this Agreement shall be written in English and shall addressed as
set forth below.
If to Netscape:
Netscape Communications Corporation
501 E. Middlefield Road
Mountain View, CA 94043
Attention: Tony Weber
Title: Finance Manager/Customer Satisfaction
If to Intraware:
25 Orinda Way, Orinda CA 94563
Attention: Cindy Mascheroni
Title: Vice President Business Development
Notice shall be sent by registered mail, postage prepaid, return receipt
requested, by reputable overnight courier, paid by the sender, or by facsimile.
The date of receipt shall be deemed to be the date on which such notice was
actually received. Each party shall promptly give the other party written notice
of any change of address.
16.13 Complying with the Law . Intraware and Netscape agree to comply
fully with all federal, state and local laws.
16.14 Attorneys' Fees . The prevailing party in any dispute shall have
all court costs, expenses, reasonable attorneys' fees, and any other relief a
court orders paid by the other party.
16.15. Insurance . Intraware, at its sole cost and expense, shall secure
and maintain adequate insurance coverage as is necessary, as a reasonable
prudent businessperson, for Intraware to bear all of its obligations under this
Agreement. On Netscape's request, Intraware shall provide Netscape with
satisfactory evidence of such insurance. Before any cancellation or material
change in any coverage, Intraware shall provide Netscape with 30 days' advance
16.16 Counterparts . This Agreement may be executed in counterparts or by
facsimile, each of which shall be an original, and all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, authorized representatives of the parties hereto have
executed this Agreement as of the Effective Date.
NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ Dana Stalder
Print name: Dana Stalder
Print title: Director of Finance & Operation
By: /s/ Donald M. Freed
Print name: Donald M. Freed
Print title: EVP / CFO
STATEMENT OF WORK
See Attached Pages
THIRD PARTY PRODUCTS
Products on the Netscape price list as of September 3, 1998 made by the
vendors listed below.** (Inclusion on this list does not imply permission
from any Third Party to perform some or all of the Services; that will need
to be determined on a case by case basis between the parties.)
** Bull products will be listed as soon as practicable.
NETCENTER GENERAL TERMS
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. Intraware shall repair any malfunctions of the Service within a
reasonable period of time not to exceed (i) 2 days for material malfunctions of
the Service after written notice by any party of such condition, and (ii) 4 days
for any non-material malfunction of the Service after written notice by any
party of such condition or as otherwise agreed to by the parties.
Notwithstanding the provisions below, Netscape may in its discretion require
that the mailto link send certain help requests to Netscape, as the parties
shall agree in the Statement of Work. For purposes of this Agreement, 'Service
Pages' shall refer to the co-branded pages on Netcenter being designated
hereunder for the Service.
NETCENTER GENERAL TERMS
SEE ALSO ADDITIONAL ATTACHMENT TO BE MUTUALLY AGREED AND ATTACHED
AS EXHIBIT C-2, COVERING NETCENTER DESIGN AND SPECIFICATIONS AND
USER REGISTRATION AND PRIVACY
'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, Email
Address, Age and Gender.
II. REGISTRATION PROCESS
To the extent that Intraware desires to offer a registration process, Intraware
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 Intraware. Intraware
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. Intraware shall not launch the Service Registration until
Netscape has notified Intraware in writing that Netscape has accepted
Intraware's implementation. Intraware 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 Intraware. Netscape shall transfer to Intraware
all data necessary to provide site access to registered Netcenter users.
Intraware will make commercially reasonable efforts to implement such changes
within a 30 day period.
III. DATA COLLECTED BY INTRAWARE DURING SERVICE REGISTRATION PROCESS
Netscape will determine the data to be collected in the Service Registration
process considering Intraware's recommendations and technical restrictions.
Netscape reserves the right to change such data requirements from time to time.
Intraware will make BEST efforts [STILL AN ISSUE] to implement these changes
within 5 working days unless mutually agreed to otherwise. If Netscape
implements a Netcenter loyalty program, Intraware shall also offer end user
loyalty selections as part of the Service Registration process at Netscape's
request. Intraware 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
Intraware shall use commercially reasonable efforts to transfer all end user
data collected during the Service Registration process and data collected by
any other means, to Netscape in real time data transfer, unless 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 Intraware collects information
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, Intraware 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
Ownership and use of customer data shall be as set forth in the Agreement.
Intraware: (i) shall have the right to aggregate such data and information
and use such aggregated data only for marketing and reporting pertaining to
the SubscribNet service and specifically not for sales solicitation of
customers), except as required for legal, audit or tax purposes; (ii) shall
not disclose to any third party such end user data and information without
Netscape's prior written approval; and (iii) may use information collected
about the users during registration or from any other means ('End User
Information') only for the purpose of marketing Netcenter programs to the
users. The parties shall treat all data pertaining to the Service, including
without limitation Netscape Customer Data and Intraware Customer Data, as
Confidential Information. Intraware may not disclose any non-Intraware
customer data to any third party such end user data and information without
Netscape's prior written approval. It is a material obligation of this
Agreement that Intraware 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 Intraware's disclosure of aggregate
statistical information concerning Service's demographics and use to
advertisers. Intraware shall not resell or disclose such End User Information
to any third party; provided however, that Intraware may sell or disclose
such End User Information to third parties upon prior notice to and consent
from such end users and written approval from Netscape. If Netscape
determines that Intraware or third party in contract with Intraware is not
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 Intraware if Intraware 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, Intraware will terminate all
Services unless otherwise specified by the user and discontinue any use of
the End User Information associated with the given user. After the
termination or expiration of the Service Period, Intraware will transfer all
non-Intraware customer data, including Netscape Customer Data, to Netscape
and destroy all copies of that data.
-NETCENTER DESIGN AND IMPLEMENTATION SPECIFICATIONS
-NETCENTER REPORTING REQUIREMENTS
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
PREVIOUSLY EXECUTED DOCUMENT MUST BE ATTACHED
SEE ATTACHED PAGES