{"id":42596,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/netcenter-services-agreement-netscape-communications-corp-and2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"netcenter-services-agreement-netscape-communications-corp-and2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/netcenter-services-agreement-netscape-communications-corp-and2.html","title":{"rendered":"Netcenter Services Agreement &#8211; Netscape Communications Corp. and Intraware Inc."},"content":{"rendered":"<pre>[NETSCAPE LOGO]\n\n                                U.S. ENGLISH LANGUAGE\n                             NETCENTER SERVICES AGREEMENT\n                                     COVER SHEET\n\nThis Netcenter Services Agreement, of which this page is a cover sheet \n('COVER SHEET'), is entered into between Netscape Communications Corporation, \na Delaware corporation ('NETSCAPE'), and Intraware, Inc., a Delaware \ncorporation ('PARTICIPANT'), effective as of the date of Netscape's signature \nbelow ('EFFECTIVE DATE').\n\nBRIEF DESCRIPTION OF SERVICE: A channel called the IT Center within \nNetcenter's Computing and Internet channel which will include a range of \ninteractive services offered by sponsors and content providers. TERRITORY: \nNorth America LAUNCH DATE: The earlier to occur of the date on which the \nService is functional and accessible to end users, or October 14, 1998. LOCAL \nLANGUAGE: U.S. English SERVICE PERIOD (EXCEPT FOR THE ADVERTISING PACKAGE \nDESCRIBED IN EXHIBIT A): 12 months beginning on the Launch Date ADVERTISING \nSERVICE PERIOD: beginning on the Effective Date\n\nADDRESSES FOR NOTICE:\nIntraware, Inc.                    Netscape Communications Corporation\n25 Orinda Way                      501 East Middlefield Road, MV-002\nOrinda, CA 94563                   Mountain View, CA 94043\nUSA                                USA\nFax: (925) 253-4599                Fax: (650) 528-4123\nAttn: Cindy Maascheroni            Attn: General Counsel\n\nINTRAWARE, INC.                    NETSCAPE COMMUNICATIONS\n                                         CORPORATION\nBy:  \/s\/ Cindy Mascheroni          By:  \/s\/ Mike Homer\nName: Cindy Mascheroni             Name:  Michael J. Homer\nTitle: VP Business Development     Title: EVP &amp; GM of Netcenter \nDate: September 3, 1998            Effective Date:  9\/3\/1998\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           1                   Rev. 082598\n\n\n\n                                       \n                             U.S. ENGLISH LANGUAGE\n                          NETCENTER SERVICES AGREEMENT\n                                          \n                            NETCENTER SPECIAL TERMS\n\nIN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE \nAS FOLLOWS:\n\n1      DEFINITIONS\n\n'AGREEMENT' means this Netcenter Services Agreement, including the Netcenter\nSpecial Terms and General Terms and the following Exhibits:\nExhibit A: The Service\/The Advertising Package\nExhibit B: Payment\nExhibit C: User Registration and Privacy\nExhibit D: Mutual Confidential Disclosure Agreement\nExhibit E: Participant's Trademark Guidelines\n\n'CHANNEL' means the link on Netcenter, which provides content (at the top\nlevel), links, community components (i.e., mail, chat, discussion groups, etc.),\ne-commerce opportunities or links, and other tools, resources, and applications\npertaining to the Computing and Internet topic.\n\n'CHANNEL INDEX PAGE' means that certain page on Netcenter programmed by Netscape\nto serve as a gateway to the Channel or the Service Index Page.\n\n'INDEX PAGES' mean the Channel Index Page and the Service Index Page.\n\n'NETCENTER' means that area of Netscape's Web Site that offers online consumer\nand business services and shopping opportunities to end users.\n\n'NET REVENUE' means gross revenue less reasonable expenses, including, without\nlimitation, sales commissions, agency fees, or other reasonable costs directly\nassociated in the process of promoting and creating the Service. In no event\nwill the aggregate of such reasonable expenses exceed 25 percent of gross\nrevenues.\n\n'NETSCAPE'S WEB SITE' means the collection of Local Language HTML documents\ntargeted at end users in the Territory and currently accessible by the public\nvia the Internet at the URL http:\/\/home.netscape.com and\/or at such other URL or\nlocations as Netscape may designate. Netscape's Web Site does not include any\nfuture technologies or future uses of existing technologies which might embody a\ncollection of documents (other than HTML documents) on the Internet.\n\n'PARTICIPANT'S WEB SITE' means Participant's primary Local Language Web site,\nwhich is currently accessible by the public via the Internet at the URL\nhttp:\/\/www.intraware.com.\n\n'SERVICE' will have the meaning set forth in Section 2.1 of the Netcenter\nSpecial Terms.\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           2                   Rev. 082598\n\n\n\n\n'SERVICE INDEX PAGE' means that certain page, linked to or accessible from \nNetcenter, that serves as the first available point of entry for an end user \naccessing the Service from Netcenter or the Channel.\n\n'SERVICE PAGES' mean all pages of the Service.\n\n2      THE SERVICE\n\n2.1    Description of Service. Participant will provide Netscape with Local \nLanguage content and other services (the 'SERVICE') for inclusion in the \nChannel and targeting to end users in the Territory. Participant will be the \nonly content-provider within the Service unless otherwise agreed upon by the \nparties. The Service does not include the Channel Index Page. All access to \nthe Service Pages and Index Pages shall be deemed to be via Netscape's Web \nSite and therefore considered to be Netscape traffic. The specifications for \nthe Service are set forth on Exhibit A.\n\n2.2    Index Pages. Participant will maintain the Service Index Page on \nParticipant's servers; provided, however, Netscape shall have the option to \nmaintain the Service Index Page on Netscape's servers at any time. If \nNetscape decides to exercise its option to maintain the Service Index Page, \nthe parties shall cooperate to ensure that the Service will have the same \ncontent and services available to end users at all times.  The Channel Index \nPages will be maintained on Netscape's servers. Each Index Page will include \nareas for co-branding, advertising, content or sponsorships. Participant will \nprovide to Netscape the content for use on the Service Index Page.\n\nAdditional sections and services may be added to or deleted from Exhibit A \nfrom time to time upon mutual agreement of the parties.\n\n2.3    Service Pages. Participant and Netscape shall mutually agree on the \ninitial design and look and feel of the Service Pages in accordance with \nExhibit A. Netscape shall provide specifications and production schedule (if \nany) for the navigation, templates and architecture of the Service Pages in \naccordance with Exhibit A.  Netscape may (i) amend Section I(a) of Exhibit A \nas mutually agreed upon with Participant; and (ii) amend Section 1(b) of \nExhibit A from time to time upon reasonable notice to Participant. Unless \notherwise agreed, the Service Pages shall not include any link outside of the \nChannel. The Service Pages shall:\n\n       2.3.1   Be produced and managed by Participant, including but not \nlimited to hiring and managing creative, technical, customer support, and \ngeneral staff as needed;\n\n       2.3.2   Be hosted and maintained solely on Participant's servers;\n\n       2.3.3   Have a 'Netscape.com' domain name or such other domain name as \nNetscape may determine\n\n       2.3.3   Include a field providing search functionality; and\n\n       2.3.5   Be directly linked, within one click, to Netscape's Web Site.\n\n       2.4     Co-Branding. The Service Pages will be co-branded by Netscape and\nParticipant. The co-branding will be subject to Netscape's then-current design\nguidelines and will include Participant's company name and logo; provided,\nhowever, the co-branded web pages shall include Participant's company logo so\nthat it will be \n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           3                   Rev. 082598\n\n\n\n(i) immediately visible to an end user accessing the co-branded web page, \nwithout any Netcenter Services Agreement scrolling or navigation by such end \nuser; and (ii) not less prominent than Netscape's company logo. Service \nImplementation. Participant shall provide consistent and continuously updated \ncontent for the Service Pages. For the Service Pages, Netscape and \nParticipant shall agree upon (i) a schedule for regular updates; (ii) a \nquality assurance procedure; and (ii) a bug tracking process. All content \nsupplied by content providers to Netscape, including content provided by \nParticipant for the Service, will meet Netscape's specifications with regard \nto page size, loading speed and speed of access to database driven content as \nset forth in Exhibit A. Participant shall be responsible for the production, \ntechnology deployment, content programming, and creation of graphic user \ninterfaces of the Service; all in accordance with Netscape's then-current \nguidelines. The Service shall use substantially the same technology and \nadvantages that Participant uses in its own proprietary service(s) unless \notherwise mutually agreed by the parties. The Service shall not be \ndisadvantaged or suffer from inferior production, programming or performance \nrelative to Participant's similar services, or any similar service that \nParticipant might make available to, or operate on behalf of, third parties. \nThe Service shall perform substantially in accordance with the performance \nstandards of its own proprietary services, including, but not limited to, \nload time, timeliness of content, and quality of programming. Participant's \nobligation to produce the Service, including production services, technology \ndeployment and content programming that meets or exceeds standards \nestablished by Participant on Participant's Web Site or services (or any web \nsite or services Participant manages for any third party) and general \nindustry standards is a material obligation of Participant under this \nAgreement.\n\n2.6    Service Name. The Service name will be as set forth in Exhibit A or as \notherwise mutually agreed upon by Netscape and Participant. Participant shall \nnot independently use the Service name without Netscape's prior written \nconsent unless such use occurs in connection with Participant's advertising \nsales and promotional efforts on behalf of the Service provided, however, \nParticipant shall have the right to use Participant's own brand name. If the \nService name includes a co-branding component that is not generic or \ndescriptive, Participant may not use the Service name with Netscape's name \nexpunged; provided, however, Participant shall have the right to use \nParticipant's own brand name. \n\n2.7    License Grant. During the Term and to the extent necessary for \nNetscape to fulfill its obligations under this Agreement, Participant grants \nto Netscape to use within the Service or Netcenter the non-exclusive, \nworldwide and royalty-free right to store, display, perform, transmit, \nre-transmit and otherwise use the data, information, content or other \nintellectual property provided by Participant. Netscape's use of \nParticipant's trademark hereunder shall be subject to (i) Participant's \ntrademark guidelines as set forth in Exhibit E; and (ii) approval by \nParticipant, such approval not to be unreasonably withheld.\n\n2.8    Technical Support.\n\n       2.8.1   During the Term, Participant will provide technical support to \nNetscape to ensure that content is correctly received and displayed by \nNetscape. Participant shall \n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           4                   Rev. 082598\n\n\n\nprovide technical support services for the Service to Netscape on a timely \nbasis, appoint a technical contact to whom Netscape may address all technical \nquestions relating to the Service, and to promptly remedy any material \nmalfunctioning of the Service. Participant shall be solely responsible for \nthe purchase, implementation, maintenance and support of all software and \nhardware required to fulfill its obligations under the Agreement.\n       \n       2.8.2    During the Term, Netscape shall promptly provide technical \nsupport services to Participant for the interaction between the Service Index \nPages and Netscape's Web Site on a timely basis and appoint a technical \ncontact to whom Participant may address all technical questions relating to \nthe technical interface between such areas.\n\n       2.9     Customer Support Programs. Participant shall provide the \nfollowing customer support features in the Service: (i) seventy-two (72) hour \nresponse to customer inquiries; (ii) twenty-four (24) hour notification of \norder confirmation and estimated delivery time; and (iii) a secure \ntransaction environment (supporting at least SSL 3.0, or the then current \nindustry standard). Participant shall use commercially reasonable efforts to \nprovide programs including gift search, universal check-out, reminder \nprograms, and other programs and features as Netscape may determine. \n\n       2.10    Quarterly Reviews. Netscape and Participant agree to establish \nquarterly reviews of the Service to evaluate the success of the Service and \nagree to modifications and improvements to the Service.\n\n       2.11    Equal Treatment. Netscape shall ensure that within the \nService, Participant's products and services are accorded a position of \nprominence, overall as well as on an element by element basis, at least as \ngreat as the positioning given any competitive resellers.\n\n3      PAYMENT\n\nFor the benefits provided to Participant under this Agreement, Participant \nshall pay Netscape in the amount and subject to the terms set forth in \nExhibit B.\n\n4      MARKETING AND PROMOTION OF THE SERVICE\n\nThe responsibilities for marketing and promotion are as follows:\n\n       4.1     Advertising and Sponsorship Responsibilities. Netscape will \nsell all advertising and sponsorships for the Index Pages. Netscape and \nParticipant shall share Net Revenues from selling advertising or sponsorships \nfor the Index Pages in accordance with Exhibit B.\n\n       4.2     Service Promotion. Netscape shall develop and run targeted\nadvertisements for the Service and look for opportunities for cross-promotion of\nthe Service within Netcenter. Netscape's Service promotions shall consist of\nbanner ads, text links, marquee ads, spotlight and button sponsorships. Netscape\nshall determine where to place these ads in the Channel or other areas of\nNetcenter. Netscape shall deliver a minimum cumulative total of [*]\nimpressions or page views relating to the promotion of the Service.\n\n5.     ADVERTISING PACKAGE\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           5                   Rev. 082598\n\n\n\n       5.1     Placement of Advertising. Netscape shall provide to \nParticipant the advertising placement package described in Section II of \nExhibit A.\n\n       5.2 Delivery of Impressions\/Page Views. For the advertising package \ndescribed in Section II of Exhibit A, Participant will allow Netscape to \nserve [*] impressions by October 31, 1998, then Netscape will deliver \nan additional [*] impressions of advertising based on the \nspecifications described in Section II of Exhibit A during the Term.\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           6                   Rev. 082598\n\n\n\n                            NETCENTER GENERAL TERMS\n\n\n       1.    PROPRIETARY RIGHTS\n\nCopyrighted elements or trademarks contained in, or used in conjunction with,\nthe Service shall be the property of the copyright or trademark owner. Ownership\nof all end user data and information related to the Service shall be as set\nforth in Exhibit C.\n\n       2.    NETCENTER PROGRAM REQUIREMENTS\n\n       2.1   User Registration. In order to offer a compelling end user \nexperience in the Service, Netscape and Participant shall cooperate to \nstreamline the registration process so that each end user needs to register \nonly once for the services within Netcenter. The Service's user registration \nprocesses will be integrated with Netscape's 'Universal Registration' system \nand be consistent with Netscape's then-current privacy policy, each as set \nforth on Exhibit C.\n\n       2.2   Community Services\/Consistent Environment. Where applicable, \nParticipant will integrate Netscape's then-current Netcenter core community \nservices into the Service. Netscape will, from time to time, notify \nParticipant of changes in the core community services.\n\n       3.    NETSCAPE PRODUCTS AND TECHNOLOGY\n\n3.1    Optimize for Netscape Technology. In order to optimize the efficiency of\n       the Service:\n\n3.1.1  Within all aspects of the Service, Participant will use best efforts to\n       ensure compatibility with the client software used by Netcenter members,\n       especially the latest version of Netscape Communicator client software;\n\n3.1.2  Participant will consider the use of at least [*] of\n       Netscape [*] software product to maintain Participant's Web\n       Sites;\n\n3.1.3  Participant will display the 'Netscape Now' button prominently on the\n       home page of Participant's Web Site, on the Service Pages, and on any\n       page on Participant's Web Site which contains a virtual button or other\n       text or graphic for any third party Internet client or server software,\n       software provider or online service; and\n\n3.1.4  [*]\n\n       3.2     Course of Dealing. In consideration of (i) the use of the \nnetscape.com domain name for the Service, and (ii) the treatment of the \nService as a fundamental part of the Netcenter service, until such time as \nMicrosoft Corporation fully publicly documents and makes available its \noperating systems' programming interfaces sufficiently to enable Netscape to \nmake use of all of the facilities and resources of those operating systems on \na basis equal to that Microsoft Corporation, Participant agrees to the \nfollowing:\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           7                   Rev. 082598\n\n\n\n       3.2.1   No Disadvantage. Participant shall not make any content \navailable solely to users of client software or services other than \nNetscape's, or disfavor or disadvantage users of Netscape client software or \nservices in any way relative to users of other Internet client software or \nservices; and\n\n       3.2.2   [*]\n       \n       3.3     No Disabling. Participant shall not provide or implement any\nmeans or functionality that would (i) alter, modify or enable end users to alter\nor modify, any Netscape client software, standard user interface or\nconfiguration (collectively, the 'Software'), (ii) disable any functionality of\nthe Software or any other Internet browser software, or (iii) modify the\nfunctioning of pages served from Netscape's Web Site.\n\n       3.4     Mailto Link. Participant shall make commercially reasonable \nefforts to include on the Service Pages a 'mailto' link that users of \nParticipant's proprietary service can use to direct questions or help \nrequests to Participant. Participant will use reasonable efforts to reply \npromptly, but in any event within 1 week, to any such question or help request\n\n4      HARMFUL CONTENT\n\nParticipant is solely responsible for any liability arising out of or \nrelating to (i) the Service and\/or (ii) any material to which users can link \nthrough the Service. Except for content provided within Participant's \nRadarscope, Ask James, Compariscope, Intranet library and SubscribNews \nservices or such other editorial content and analysis tools services as the \nparties shall mutually agree from time to time, if Netscape is aware that the \nService contains any material that Netscape deems likely to cause Netscape \nmaterial harm, then Netscape will inform Participant and may (i) not include \nthe Service on Netscape's Web Site, and\/or (ii) terminate this Agreement if \nParticipant has not revised, to Netscape's satisfaction, the Service or \notherwise altered the Service within 1 business day after receipt of written \nnotice from Netscape. Netscape reserves the right not to include in the \nNetscape's Web Site all or any part of the Service that does not \nsubstantially conform to the terms set forth herein.\n\n5      WARRANTIES\n\n       5.1     Participant Warranty. Participant warrants that: (i) it holds \nthe necessary rights to provide, and permit the use of, the Service, any \ncontent provided by Participant for the Service and any material to which \nusers can link directly therefrom, and that the license granted to Netscape \nhereunder is sufficient to enable Netscape to use the Service; (ii) the \nService does not infringe on any third parties' proprietary or personal \n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           8                   Rev. 082598\n\n\n\nrights, or otherwise violate applicable laws, rules or regulations or rights \nof any third parties (iii) other than as specifically set forth in this \nAgreement, Netscape shall not be obligated to pay any fees or royalties for \nincluding the Service in Netcenter; and (iv) the Service and any material to \nwhich users can directly link through the Service will not violate any \ncriminal laws, rights of any third parties, or any applicable local, state, \nnational or international laws. Participant further warrants that the Service \nwill function substantially in accordance with the terms set forth in this \nAgreement. In any given twenty-four hour period during the Service Period, \nthe Service shall have an uptime of at least 98% with industry standard \ndowntime for maintenance, provided that such downtime not occur at peak \ntraffic times. Participant shall repair (i) any material malfunctions of the \nService within a reasonable period of time (not to exceed 2 days) after \nnotice by any party of such condition; and (ii) any non-material malfunctions \nof the Service within 4 days after notice by any party of such condition or \nas otherwise agreedto by the parties.\n\n5.2     Netscape Warranty. Netscape warrants that (i) it has the right to \nperform the services set forth in this Agreement, and (ii) Participant shall \nnot be obligated to pay any fees or royalties for participating in Netcenter \nother than as specifically set forth in this Agreement. Netscape further \nwarrants that Netcenter will function substantially in accordance with the \nterms set forth in this Agreement. In any given twenty-four hour period \nduring the Service Period, Netcenter shall have an uptime of at least 98% \nwith industry standard downtime for maintenance, provided that such downtime \nnot occur at peak traffic times. Netscape shall repair any malfunctions of \nNetcenter within a reasonable period of time (not to exceed 2 days) after \nnotice by any party of such condition.\n\n5.3    Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE ONLY \nWARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS \nAGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE \nPARTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF \nMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE \nSUBJECT MATTER OF THIS AGREEMENT.\n\n6      INDEMNITY\n\n6.1    Participant Indemnity. Participant shall indemnify, hold harmless and\n       defend Netscape from and against any and all claims, liabilities,\n       losses, damages, expenses and costs (including attorneys' fees and\n       costs) arising out of or relating to: (a) a breach of Participant's\n       representations or warranties under Section 5.1 of the Netcenter General\n       Terms; (b) the Service, any content provided by Participant for the\n       Service and any material to which users can directly link through the\n       Service; (c) other information supplied or managed by Participant for\n       the Service; or (d) the negligence or intentional wrongdoing of\n       Participant, except to the extent that Netscape is responsible under\n       Section 6.2 of the Netcenter General Terms. Participant will pay\n       resulting costs, damages and legal fees finally awarded in such action\n       in a court or in a settlement which are attributable to such claim\n       provided that: (i) Netscape promptly notifies Participant in writing of\n       any such claim; (ii) Participant has sole control of the defense and all\n       related settlement negotiations; and (iii) Netscape cooperates with\n       Participant, at Participant's expense, in defending or settling such\n       claim.\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           9                   Rev. 082598\n\n\n\n\n6.2    Netscape Indemnity. Netscape shall indemnify, hold harmless and defend\n       Participant from and against any and all claims, liabilities, losses,\n       damages, expenses and costs (including attorneys' fees and costs)\n       arising out of or relating to: (a) a breach of Netscape's\n       representations or warranties under Section 5.2 of the Netcenter General\n       Terms; (b) any content provided by Netscape to Participant for use in\n       the Service in accordance with this Agreement; or (c) the negligence or\n       intentional wrongdoing of Netscape, except to the extent that\n       Participant is responsible under Section 6.1 of the Netcenter General\n       Terms. Netscape will pay resulting costs, damages and legal fees finally\n       awarded in such action in a court or in a settlement that are\n       attributable to such claim provided that: (i) Participant promptly\n       notifies Netscape in writing of any such claim; (ii) Netscape has sole\n       control of the defense and all related settlement negotiations; and\n       (iii) Participant cooperates with Netscape, at Netscape's expense, in\n       defending or settling such claim.\n\n7      LIMITATION OF LIABILITY\nEXCEPT FOR A BREACH BY EITHER PARTY IN CONNECTION WITH EACH PARTY'S \nINDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 OF THESE NETCENTER GENERAL \nTERMS (INDEMNITY)OR A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY \nOBLIGATIONS AS DESCRIBED IN SECTION 12.2 OF THE NETCENTER GENERAL TERMS, IN \nNO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY \nFORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY \nCHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS \nAGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), \nOR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE \nPOSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR \nALLEGED DAMAGES HEREUNDER (EXCEPT FOR DAMAGES OR ALLEGED DAMAGES ARISING \nUNDER SECTION 6 OR SECTION 12.2 OF THE NETCENTER GENERAL TERMS) WHETHER IN \nCONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED \n[*].\n\n8      TERM AND TERMINATION\n\n8.1    Term. Unless sooner terminated in accordance with the provisions \nhereof, this Agreement shall commence on the Effective Date and end on the \nlast day of the Service Period (the 'TERM'). Ninety days prior to the \nexpiration of the initial Term, or any renewal Term, if applicable, the \nparties agree to enter into negotiations to determine whether, and the terms \nupon which, to renew this Agreement for a renewal period of one year. If, at \nthe end of such negotiations, no agreement is reached as to the terms of the \nrenewal period, the parties may mutually agree to extend the Term by 90 days.\n\n8.2 Termination for Cause. Either party shall have the right to terminate \nthis Agreement upon a material default by the other party of any of its \nmaterial obligations under this Agreement, unless within 30 calendar days \nafter written notice of such breach the breaching party remedies such default.\n\n8.3 Rights Upon Termination or Expiration. Ownership of all end user data and \ninformation related to the Service shall be as set forth in Exhibit C. \n[*]\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                           10                  Rev. 082598\n\n\n\n\n[*]. In order to continue to offer a successor to the Service within \nNetcenter without interruption, Participant shall promptly deliver \nService-related information (excluding (i) Radarscope-related and \nCompariscope-related source code, content, data schema, configuration, \ninformation filters and rules; and (ii) third party confidential information \nwhich Participant is under a contractual obligation not to disclose) to \nNetscape or its designee in a form and manner to be reasonably designated by \nNetscape. Netscape shall not be liable to Participant in the event of \ntermination, expiration or failure to agree upon an extension of the term of \nthis Agreement for compensation, reimbursement or damages on account of the \nloss of prospective profits, or anticipated sales, or on account of \nexpenditures, investments, leases or commitments in connection with the \nbusiness or goodwill of Participant. In the event of Participant terminates \nthis Agreement due to a material breach by Netscape prior to the  end of the \nTerm, Netscape shall refund Participant the participation fees paid \nbyParticipant under Section 1(a) of Exhibit B less the sum of (i) a prorated \namount of such fees based on the number of impressions or page views \ndelivered by Netscape pursuant to Section II of Exhibit A; and (ii) a \nprorated amount of such fees based on the number of months Netscape has \nprovided services during the Term.\n\n8.4    Extension of Term. Notwithstanding anything to the contrary herein, if \nthe cumulative number of impressions or page views promoting the Service \ndelivered by Netscape under Section 4.2 of the Netcenter Special Terms is \nless than [*] at the end of the Term, the parties agree to extend the \nTerm to the earlier of (i) the time it takes to reach the [*]\nimpressions or page view mark; or (ii) 6 months.\n\n9      INSURANCE\n\nParticipant, at its sole cost and expense, shall secure and maintain adequate \ninsurance coverage as is necessary, as a reasonable prudent businessperson, \nfor Participant to bear all of its obligations under this Agreement. Such \ncoverage shall include Worker's Compensation Insurance (or self insurance, if \napplicable law permits), Employers Liability Insurance, Comprehensive \nAutomobile Liability Insurance, Umbrella Liability Insurance, Professional \nLiability Insurance, and Commercial General Liability Insurance, and include \na waiver of subrogation in Netscape's favor. Maintenance of the foregoing \ninsurance shall in no way be interpreted as relieving Participant of any \nresponsibility or obligation whatsoever and Participant may acquire, at its \nown expense, such additional insurance as Participant deems necessary. \nParticipant assumes full and complete liability for all injuries to, or death \nof, any person, or for any damages to property arising from the acts or \nomissions of Participant. Participant shall add Netscape as an additional \ninsured under such coverage and provide copies thereof and waivers of \nsubrogation to Netscape within 30 days of the Effective Date. Before any \ncancellation or material change in any coverage, Participant shall provide \nNetscape with 30 days' advance written notice. Participant's insurance shall \nbe primary to any other insurance Netscape may have. All insurance shall be \nwritten by companies with a current A.M. Best rating of A-, VI or better.\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          11                   Rev. 082598\n\n\n\n\n10     DISPUTE RESOLUTION\n\nAny dispute hereunder will be negotiated between the parties commencing upon \nwritten notice from one party to the other. Settlement discussions and \nmaterials will be confidential and inadmissible in any subsequent proceeding \nwithout both parties' consent. If the dispute is not resolved by negotiation \nwithin 45 days following such notice, the parties will refer the dispute to \nnon-binding mediation conducted by JAMS\/EndDispute in Santa Clara County, \nCalifornia (the 'Venue'). The parties will share the costs of mediation. If \nthe dispute is not resolved after 45 days of mediation, the parties will \nrefer the dispute to binding arbitration by JAMS\/EndDispute in the Venue. The \nresults of any arbitration will be final and non-appeallable, except that \neither party may petition any court of competent jurisdiction in the Venue to \nreview any decision relating to intellectual property matters (including the \nscope of license rights), vacating or modifying erroneous conclusions of law \nor findings of fact not supported by substantial evidence. The arbitrator may \nfashion any legal or equitable remedy exceptpunitive or exemplary damages, \nwhich both parties waive. The arbitrator will render a written decision, \nwhich may be entered in and enforced by any court of competent jurisdiction, \nbut which will have no preclusive effect in other matters involving third \nparties. The losing party will pay the costs of the arbitration and the \nreasonable legal fees and expenses of the prevailing party, as determined by \nthe arbitrator. The parties will jointly pay arbitration costs pending a \nfinal allocation by the arbitrator. At any point in the dispute resolution \nprocess, either party may seek injunctive relief preserving the status quo \npending the outcome of that process. Except as noted, the parties waive any \nright to judicial process. The U.S. Arbitration Act and JAMS\/EndDispute rules \nwill govern the arbitration process. Absent fraudulent concealment, neither \nparty may raise a claim more than 3 years after it arises or any shorter \nperiod provided by applicable statutes of limitations. California law, \nwithout regard to its conflict-of-law provisions, will govern this Agreement.\n\n11     REPORTS AND AUDIT\n\n11.1   Participant Reports to Netscape. In addition to the reporting \nrequirement set forth in Exhibit B, Participant shall provide reports to \nNetscape as follows:\n\n       (a) Weekly Log Reports. On a weekly basis, Participant shall provide \nNetscape with the daily user access logs for the Service in common log \nformat, including information on the total number of hits and page \nimpressions for Service Page and such other tracking information as the \nparties shall mutually agree. The information contained in the report shall \nbe Netscape's and Participant's Confidential Information, provided, however \nthat (i) Netscape shall have the right to use the information contained in \nsuch reports in Netscape's private and public reporting of access to the \nService and Netscape's Web Site; and (ii) Participant shall have the right to \nuse aggregated information about end users for marketing and financial \nreporting purposes. All end user related data shall be collected in \naccordance with Exhibit C.\n\n       (b) Monthly Reports. Within 15 days of the end of each month during \nthe term, Participant shall provide Netscape with (a) subscription \nregistration reports, (b) reports of results from advertising and sponsorship \nsales and inventory and (c) reports of Gross revenue and Net Revenue in \naccordance with Exhibit B.\n\n(c) Search Field. A field providing search functionality will be included on \npages within the Service as the parties shall mutually determine. The search \nexecuted from \n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          12                   Rev. 082598\n\n\n\nthe search field will initially only cover content within the Service itself. \nIf an end user is given the option of expanding the scope of the search to \nencompass the World Wide Web, the search engines driving such query shall be \none or more of Netscape's Local Language Net Search Program search engines, \nas Netscape shall determine.  Netscape reserves the right to review the \nfinancial effect of the search field in the Service as such search \nfunctionality may impact Netscape's own Net Search Program and require that \nthe Internet-wide search functionality in the Service be minimized or  \ndeleted. Within 15 days of the end of each month during the Term, Participant \nshall provide Netscape with monthly reports detailing the following \ninformation for each day during the month covered in the report: (i) the \nnumber of times the Service's internal search field as well as each of \nNetscape's Local Language Search Program search engines were selected and \n'clicked' on by end users; and (ii) any information about users and user \nclient software Participant may collect whether such information is \nuser-given or technology-provided. Netscape shall determine the format and \nthe date of submission for this monthly report. The information contained in \neach report shall be Netscape's and Participant's Confidential Information; \nhowever, Netscape reserves the right to provide the information contained in \nthe report to the Net Search Program companies in a format mutually agreed \nupon by the parties.\n\n(d) Audit Rights. Either party shall have the right, upon no less than 30 \ndays prior written notice, to cause an independent Certified Public \nAccountant to inspect and audit, during the other party's normal business \nhours, all relevant records upon which such reports are based, including, \nwithout limitation, the access logs. The costs of such audit shall be paid by \nthe auditing party, provided, however, that if such inspection shall reveal \nan underpayment in excess of 5 percent of monies due, the party being audited \nshall pay for the audit. These audit rights as described herein shall \ncontinue for 2 years after the expiration or termination of this Agreement. \nNo such audit may occur more than once a year during the Term.\n\n11.2   Netscape Reports to Participant. Netscape shall provide Participant \nwith the reports described in Exhibit B, and if Netscape elects to exercise \nthe option to maintain the Services Index Pages on the Netscape servers \npursuant to Section 2.2 of the Netcenter Special Terms, then Netscape shall \nprovide Participants the reports as set forth in subsection (a) below:\n\n       (a) Netscape shall provide Participant with reports on the traffic to \nthe Service, including information describing the number of redirects of \ntraffic to the Service from Netscape's Web Site and such other tracking \ninformation as the parties shall mutually agree. On a monthly basis, Netscape \nshall provide Participant with a report to verify the traffic to the Service \nIndex Page.\n\n12     GENERAL\n\n12.1   Notices. All notices required or permitted hereunder shall be given in \nwriting addressed to the respective parties as first set forth above on the \nCover Sheet and shall either be (i) personally delivered or (ii) transmitted \nby internationally-recognized private express courier, and shall be deemed to \nhave been given on the date of receipt if delivered personally, or the day on \nwhich such notice is delivered to the recipient as evidenced by the delivery \nrecords of such courier, but in no case later than 5 days after \n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          13                   Rev. 082598\n\n\n\ndeposit with such courier. Either party may change its address for purposes \nhereof by written notice to the other in accordance with the provisions of \nthis subsection.\n\n12.2   Confidentiality. All disclosures of proprietary and\/or confidential \ninformation in connection with this Agreement and the contents of this \nAgreement shall be governed by the terms of the Mutual Confidential \nDisclosure Agreement either entered into previously by the parties or entered \ninto concurrently with this Agreement, a copy of which is attached hereto as \nExhibit D. The information contained in the Usage Reports provided by each \nparty hereunder shall be deemed the Confidential Information of the \ndisclosing party. Notwithstanding the foregoing, Netscape may, in its sole \ndiscretion, make publicly available client software market share information \ncontained in the Usage Reports submitted by Participant as such information \nmay be aggregated with data provided by other content providers.\n\n12.3   Excuse. Either party shall be excused from any delay or failure in \nperformance hereunder, except the payment of monies by Participant to \nNetscape, caused by reason of any occurrence or contingency beyond its \nreasonable control, including but not limited to, acts of nature. The \nobligations and rights of the party so excused shall be extended on a \nday-to-day basis for the period of time equal to that of the underlying cause \nof the delay.\n\n12.4   Assignment. Participant may not assign this Agreement or any part \nhereof without the prior written consent of Netscape, such consent not to be \nunreasonably withheld. Any attempt by Participant to assign (by operation of \nlaw or otherwise) this Agreement or any part thereof without such consent \nshall be null and void.\n\n12.5   Publicity. Neither party shall make any statement to the press or \nissue any press release about the subject matter of this Agreement without \nthe prior written consent of the other party, which consent shall not be \nunreasonably withheld.\n\n12.6   Waiver. The waiver, express or implied, by either party of any breach \nof this Agreement by the other party will not waive any subsequent breach by \nsuch party of the same or a different kind.\n\n12.7   Amendment. This Agreement may be amended only by a writing signed by \nduly authorized representatives of Netscape and Participant.\n\n12.8   Entire Agreement. This Agreement constitutes the entire agreement \nbetween the parties concerning the subject matter hereof and supersedes all \nprior and contemporaneous agreements and communications, whether oral or \nwritten, between the parties relating to the subject matter hereof, and all \npast courses of dealing or industry custom. The terms and conditions hereof \nshall prevail exclusively over any written instrument submitted by \nParticipant, including any report, invoice or purchase order, and Participant \nhereby disclaims any terms therein, except for terms required under Section \n11.1 of the General Terms.\n\n12.9   Independent Contractors. The parties acknowledge and agree that they \nare dealing with each other hereunder as independent contractors. Nothing \ncontained in this Agreement shall be interpreted as constituting either party \nthe joint venturer, employee or partner of the other party or as conferring \nupon either party the power of authority to bind the other party in any \ntransaction with third parties.\n\n12.10  Survival. The following provisions of shall survive the expiration or \ntermination of this Agreement for any reason: Section 3 of the Netcenter \nSpecial Terms ('Payment') and the following provisions of the Netcenter \nGeneral Terms: Section 1 ('Proprietary \n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          14                   Rev. 082598\n\n\n\nRights'), Section 4 ('Harmful Content'), Section 5 ('Warranties'), Section 6 \n('Indemnity'), Section 7 ('Limitation of Liability'), Section 8.3 ('Rights \nUpon Termination or Expiration'), Section 10 ('Dispute Resolution'), Section \n11.1(d) ('Audit Rights') and Section 12 ('General), Section VII of Exhibit C \n('Use of Personal Data'). In addition, provisions of this Agreement which, by \ntheir nature, are intended to remain in effect beyond the termination or \nexpiration of this Agreement, shall survive the termination or expiration of \nthis Agreement.\n\n12.11  Severability. In the event any provision of this Agreement is held by \na court or other tribunal of competent jurisdiction to be unenforceable, such \nprovision shall be reformed only to the extent necessary to make it \nenforceable, and the other provisions of this Agreement will remain in full \nforce and effect.\n\n12.12  Counterparts. This Agreement may be executed in two or more \ncounterparts, each of which shall be deemed an original, but all of which \ntogether shall constitute one and the same instrument. For purposes hereof, a \nfacsimile copy of this Agreement, including the signature pages hereto, shall \nbe deemed to be an original.\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          15                   Rev. 082598\n\n\n\n\n                                   EXHIBIT A\nI. THE SERVICE\n\nA.     The Service will be positioned as the 'IT Knowledge Center'. The \nService will be a channel within Netcenter's Computing and Internet Channel. \nNetscape and Participant will develop a co-branded portion of the Service to \nmake use of the following services from Participant:\n       -  Radarscope\n       -  Ask James\n       -  Compariscope\n       -  Intranet Library\n       -  SubscribNews\n\nB.     The URL for Co-branding specifications is \nhttp:\/\/proto.mcom.com:888\/nc20\/html\/\n\nII. THE ADVERTISING PACKAGE\n\nPLACEMENT OF ADVERTISEMENT\n\nNetscape shall provide the following advertising package to Participant:\n\nIMPRESSIONS\n\nBanner Advertising Commitment to Sponsorship over [*] months\n       -  Home Page [*]\n       -  Business [*]\n       -  Small Business [*]\n       -  Computing &amp; Internet [*]\n       -  Netscape Channel [*]\n       -  Dev Edge [*]\n       -  Professional Conn [*]\nPremier Sponsorship Commitment over [*] months\n       -  Business [*]\n       -  Small Business [*]\n       -  Computing &amp; Internet [*]\n       -  Netscape Channel [*]\n       -  Professional Conn [*]\nText Link Sponsorship Commitment over [*] months\n       -  Business [*]\n       -  Small Business [*]\n       -  Computing &amp; Internet [*]\n       -  Netscape Channel [*]\n       -  Dev Edge [*]\n       -  Professional Conn [*]\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          16                   Rev. 082598\n\n\n\n\nSpotlight Sponsorship Commitment over [*] months\n       -  Business [*]\n       -  Small Business [*]\n       -  Computing &amp; Internet [*]\n       -  Netscape Channel [*]\n       -  Dev Edge [*]\n       -  Professional Conn [*]\nButton Sponsorship Commitment over [*] months\n       -  Business [*]\n       -  Small Business [*]\n       -  Computing &amp; Internet [*]\n       -  Netscape Channel [*]\n       -  Dev Edge [*]\n       -  Professional Conn [*]\n\nSPECIFICATIONS ON EACH SPONSORSHIP POSITIONS\n\nBanner Advertising (except for banner ads on the Netcenter home page)\n       -  468 x 60 (except for banner ads on the Netcenter Home\n       Page, which will be 230 x 33, 2k with no animation\n       -  10 k \n       -  4 sec animation\n\nBanner Advertising on the Netcenter Home Page\n       -  230 x 33\n       -  2 k\n       -  no animation\n\nPremier Position\n       -  140 x 90\n       -  4 k \n       -  sec animation \n       -  100 characters\n\nWhat's New \/ What's Cool Premier\n       -  295 x 37 \n       -  4 k \n       -  4 sec.\n       -  100 characters\n\nSmall Business Source Premier\n       -  51 x 145 \n       -  4 k \n       -  4 sec animation\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          17                   Rev. 082598\n\n\n\n\nText Position\n       -  29 characters\n\nButton Positions\n       -  88 x 31 \n       -  1 k \n       -  no animation\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          18                   Rev. 082598\n\n\n\n                                       \n                                   EXHIBIT B\nPAYMENT\n\n1.     Payments. All payments hereunder shall be made in US Dollars.\n\n   \n       (a) Payment to Netscape. Participant will pay Netscape a participation \nfee on or before September 30, 1998 as follows: (i) $1,000,000 for the \nservices set forth in Section I of Exhibit A; and (ii) $4,000,000 for the \nadvertising package set forth in Section II of Exhibit A. In addition, \npursuant to the schedule set forth in Section 2 below, Participant shall pay \nNetscape [*] of Net Revenues derived from the Service, including, without \nlimitation, revenues from Compariscope.\n       (b) Payment to Participant. Netscape will pay Participant [*] of Net \nRevenues from advertisements placed in accordance with Section 4.1 of the \nNetcenter Special Terms.\n    \n\n2.      Reporting; Timing of Payment. Within 30 days after the end of each \nNetscape fiscal quarter during the Term of this Agreement, each party shall \ndeliver to the other party a report describing in detail the calculation of \ngross revenue and Net Revenue for such fiscal quarter, and shall pay to the \nother party that portion of such Net Revenue earned by it during the \npreceding Netscape fiscal quarter, pursuant to Section 1 above.\n\n3.     Post-Term Payments of Bad Debt. After termination or expiration of \nthis Agreement, Participant shall pay to Netscape all amounts received by \nParticipant previously charged by Participant as 'bad debt' ('Bad Debt \nPayments') and deducted from gross revenue under Section 1 above to the \nextent such deducted amounts have not already been paid to Netscape. Such \npayment shall be made to Netscape by Participant within 30 days of the \nreceipt of such Bad Debt Payments by Participant.  This Section shall survive \nexpiration or termination of this Agreement for 18 months.\n\n4.     Taxes and Interest. Any portion of any payment due which has not been \npaid during the applicable time set forth herein shall bear interest at the \nlesser of (i) 1% per month or (ii) the maximum rate allowed by law. All \npayments due hereunder are exclusive of any applicable taxes. The collecting \nparty shall be responsible for all applicable national, state and local \ntaxes, value added or sales taxes, exchange, interest, banking, collection \nand other charges and levies and assessments pertaining to payments other \nthan U.S. taxes based on Netscape's net income. If the collecting party is \nrequired by law to make any deduction or to withhold from any sum payable to \nthe other party hereunder, the collecting party shall effect such deduction \nor withholding, remit such amounts to the appropriate taxing authorities and \npromptly furnish the other party with tax receipts evidencing the payments of \nsuch amounts. For every dollar for revenue sharing under this Agreement, \n'collecting party' means the first of Netscape or Participant to collect such \ndollar. This Exhibit shall survive termination or expiration of this \nAgreement.\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          19                   Rev. 082598\n\n\n                                       \n                                   EXHIBIT C\nUSER REGISTRATION AND PRIVACY\n\nI.     DEFINITION\n\n'Netcenter Registration' means the portion of the registration that is \nmaintained, hosted, and controlled by Netscape and applies to multiple \nservices across Netcenter. Netcenter Registration includes the assignment of \na user name, password, and the collection of core Netcenter user profile data \nincluding but not limited to: First name, Last name, Address, City, State, \nCountry, Zip Code, Email Address, Age and Gender.  Netscape Registration \nmeans any registration that is maintained, hosted, and controlled by Netscape \nand applies to Netscape's Web Site. Netscape Registration includes the \nassignment of a user name, password, and the collection of core user profile \ndata including but not limited to: First name, Last name, Address, City, \nState, Country, Zip Code, E-mail Address, Age and Gender.\n\nII.    REGISTRATION PROCESS\n\nTo the extent that Participant desires to offer a registration process, \nParticipant will be responsible for the implementation of the Service \nRegistration and the integration of the Service with Netcenter Registration. \nThe functionality, design, and, integration of the Service Registration \nprocess and Netcenter Registration will be subject to Netscape's approval, \nterms and conditions as defined this Agreement. Such specifications, terms \nand conditions may be revised by Netscape from time to time upon 30 days \nprior notice to Participant. Participant will implement changes within a 30 \nday period unless the parties mutually agreed otherwise. The point of entry \nto the registration area from the Service shall be hosted and controlled by \nNetscape unless otherwise determined by Netscape.\n\nIII.   REGISTRATION FEATURES\n\nThe Service Registration area shall be co-branded and have a look and feel \nwhich is consistent with the implementation of the registration process in \nother sections of Netcenter. Participant shall not launch the Service \nRegistration until Netscape has notified Participant in writing that Netscape \nhas accepted Participant's implementation. Participant shall manage site \naccess using Netcenter site access models, as such site access models shall \nbe determined by Netscape from time to time upon notice to Participant. \nNetscape shall transfer to Participant all data necessary to provide site \naccess to registered Netcenter users. Participant will make commercially \nreasonable efforts to implement such changes within a 30 day period.\n\nIV.    DATA COLLECTED BY PARTICIPANT DURING SERVICE REGISTRATION PROCESS\n\nNetscape will determine the data to be collected in the Service Registration \nprocess.  Netscape will approve Participant's recommendations and technical \nrestrictions in such Service Registration process, such approval not to be \nunreasonably withheld. Netscape reserves the right to change such data \nrequirements from time to time. Participant will make best efforts to \nimplement these changes within 5 working days unless mutually \n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          20                   Rev. 082598\n\n\n\nagreed to otherwise. If Netscape implements a Netcenter loyalty program, \nParticipant shall also offer end user loyalty selections as part of the \nService Registration process at Netscape's request. Participant shall deliver \nto Netscape data collected pursuant to such loyalty programs in a format and \ntimeframe as mutually agreed to by the parties.\n\nV.     DATA TRANSFER\n\nParticipant shall use commercially reasonable efforts to transfer all end \nuser data collected during the Service Registration process and data \ncollected by any other means relating to the Service, to Netscape in real \ntime data transfer, excluding individual credit and purchase information \n(such as credit card number, purchase order numbers, corporate accounting \ncodes) and data as otherwise agreed to by the parties.  Netscape reserves the \nright to request any information collected during the Service Registration to \nbe supplied in a Netscape specified format and timeframe. If Participant \ncollects information about users accessing the Service in addition to \ninformation supplied by the users during the registration process, such \ninformation shall be made available to Netscape in a format and timeframe as \nthe parties shall mutually agree.\n\nVI.    NETCENTER CONSIDERATIONS\n\nAll third party programs participating in the Service within Netcenter shall \nregister users with Netcenter when the user completes an order, if such user \nis not already registered with Netcenter. If a user is a registered Netcenter \nmember, Participant shall pre-populate relevant customer data fields in the \ncustomer order form based on information in the Netcenter database or \nseamlessly pass this information to the third party provider.\n\nVII.   USE OF PERSONAL DATA\n\nNetscape and Participant shall jointly own all end user data and information \nobtained in connection with registering for the Service. Neither party shall \ndisclose to any third party such end user data and information; provided, \nhowever, either party may use and disclose end user data and information for \npurposes relating to its respective web sites. It is a material obligation of \nthis Agreement that Participant shall adhere to Netscape's then-current privacy\npolicy, set forth at http:\/\/home.netscape.com\/legal_notices\/privacy.html or \nat such other URL as Netscape may designate from time to time. The parties \nwill cooperate to create guidelines for Participant's disclosure of aggregate \nstatistical information concerning Service's demographics and use to \nadvertisers. Except as otherwise provided in this Agreement, neither party \nshall resell or disclose information collected about the users during \nregistration or from any other means ('End User Information') to any third \nparty; provided however, that either party may sell or disclose such End User \nInformation to third parties upon prior notice to and consent from such end \nusers. If Participant or third party in contract with Participant is not \ncomplying with the terms of use of personal data published on Netscape's Web \nSite at http:\/\/home.netscape.com\/netcenter\/index.html, or such other URL as \nNetscape may determine from time to time, Netscape may terminate this \nAgreement upon written notice to Participant if Participant is not in \ncompliance within 5 days of written notice from Netscape. After a given end \nuser has requested to be 'unsubscribed' from the Service, Participant will \nterminate all Services unless otherwise specified by the user and discontinue \nany use of the End User Information associated with the given user.\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          21                   Rev. 082598\n\n\n\n                                       \n                                   EXHIBIT D\n                    MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\n\nWHEREAS, Netscape Communications Corporation ('Netscape') has developed unique \nand proprietary computer programs; and WHEREAS, ______________________________. \n('Company') and Netscape are entering into a business relationship.\n\nNOW, THEREFORE:\n\nEach party (the 'Receiving Party') understands that the other party (the \n'Disclosing Party') has disclosed or may disclose information (including, \nwithout limitation, computer programs, code, algorithms, names and expertise \nof employees and consultants, know-how, formulas, processes, ideas, \ninventions (whether patentable or not), schematics and other technical, \nbusiness, financial and product development plans, forecasts, strategies and \ninformation), which to the extent previously, presently, or subsequently \ndisclosed to the Receiving Party is hereinafter referred to as 'Proprietary \nInformation' of the Disclosing Party whether disclosed orally, in writing, or \notherwise. All Proprietary Information disclosed in tangible form by the \nDisclosing Party shall be marked 'confidential' or 'proprietary', and all \nProprietary Information disclosed orally or otherwise in intangible form by \nthe Disclosing Party shall be designated as confidential or proprietary at \nthe time of disclosure and shall be reduced to writing and delivered to the \nReceiving Party within thirty (30) days following the date of disclosure. \n\nIn consideration of the parties' discussions and any access the Receiving \nParty may have to Proprietary Information of the Disclosing Party, the \nReceiving Party hereby agrees as follows:\n\n       1. The Receiving Party agrees (i) to hold the Disclosing Party's \nProprietary Information in confidence and to take all reasonably necessary \nprecautions to protect such Proprietary Information (including, without \nlimitation, all precautions the Receiving Party employs with respect to its \nown confidential materials), (ii) not to divulge any such Proprietary \nInformation or any information derived therefrom to any third person, (iii) \nnot to make any use whatsoever at any time of such Proprietary Information \nexcept as provided in the Net Search and Net Directory Program (Distinguished \nProvider) Agreement ('Distinguished Agreement') between Netscape and Company \ndated as of _______________ to which this Agreement is attached as an \nExhibit, (iv) not to remove or export any such Proprietary Information from \nthe country of the Receiving Party, and (v) not to copy or reverse engineer, \nreverse compile or attempt to derive the composition or underlying \ninformation of any such Proprietary Information. The Receiving Party shall \nlimit the use of and access to the Disclosing Party's Proprietary Information \nto those of the Receiving Party's employees who need to know such Proprietary \nInformation for the purpose of such internal evaluation and shall cause such \nemployees to comply with the obligations set forth herein. The Receiving \nParty shall treat the Proprietary Information with at least the same degree \nof care and protection as it would use with respect to its own proprietary \ninformation. The foregoing obligations shall survive for a period of three \n(3) years from the date of disclosure of the Proprietary Information. Without \ngranting any right or license, the Disclosing Party agrees that the foregoing \nshall not apply with respect to information that (i) is in the public domain \nand is available at the time of disclosure or which thereafter enters the \npublic domain and is available, through no improper action or inaction by the \nReceiving Party or any affiliate, agent or employee, or (ii) was in the \nReceiving Party's possession or known by it prior to receipt from the \nDisclosing Party, or (iii) was rightfully disclosed to the Receiving Party by \nanother person without restriction, or (iv) is independently developed by the \nReceiving Party without access to such Proprietary Information, or (v) is \nrequired to be disclosed pursuant to any statutory or regulatory authority, \nprovided the Disclosing Party is given prompt notice of such requirement and \nthe scope of such disclosure is limited to the extent possible, or is \nrequired to be disclosed by a court order, provided the Disclosing Party is \ngiven prompt notice of such order and provided the opportunity to contest it.\n\n       2.      Immediately upon a request by the Disclosing Party at any \ntime, the Receiving Party will turn over to the Disclosing Party all \nProprietary Information of the Disclosing Party and all documents or media \ncontaining any such Proprietary Information \n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          22                   Rev. 082598\n\n\n\n\nand any and all copies or extracts thereof. The Receiving Party understands \nthat nothing herein requires the disclosure of any Proprietary Information of \nthe Disclosing Party, which shall be disclosed, if at all, as required under \nthe Distinguished Agreement or at the option of the Disclosing Party.\n\n       3.      Except to the extent required by law, as set forth in this \nAgreement or as otherwise mutually agreed to by the parties, neither party \nshall disclose the existence or subject matter of the negotiations or \nbusiness relationship contemplated by this Agreement, or the content and \nterms of the Distinguished Agreement.\n\n       4.      The Receiving Party acknowledges and agrees that due to the \nunique nature of the Disclosing Party's Proprietary Information, there can be \nno adequate remedy at law for any breach of its obligations hereunder, that \nany such breach may allow the Receiving Party or third parties to unfairly \ncompete with the Disclosing Party resulting in irreparable harm to the \nDisclosing Party, and therefore, that upon any such breach or any threat \nthereof, the Disclosing Party shall be entitled to seek appropriate equitable \nrelief in addition to whatever remedies it might have at law. The Receiving \nParty will notify the Disclosing Party in writing immediately upon the \noccurrence of any such unauthorized release or other breach. In the event \nthat any of the provisions of this Agreement shall be held by a court or \nother tribunal of competent jurisdiction to be unenforceable, the remaining \nportions hereof shall remain in full force and effect.\n\n       5.      Neither party acquires any intellectual property rights under \nthis Agreement or any disclosure hereunder, except the limited right to use \nsuch Proprietary Information in accordance with this Agreement. No warranties \nof any kind are given with respect to the Proprietary Information disclosed \nunder this Agreement or any use thereof, except as may be otherwise agreed to \nin writing.\n\n       6.      This Agreement together with the Distinguished Agreement \nsupersede all prior discussions and writings with respect to the subject \nmatter hereof and thereof, and constitute the entire agreement between the \nparties with respect to the subject matter hereof and thereof. No waiver or \nmodification of this Agreement will be binding upon either party unless made \nin writing and signed by a duly authorized representative of such party and \nno failure or delay in enforcing any right will be deemed a waiver.\n\nCOMPANY:                                NETSCAPE:\n                                        NETSCAPE COMMUNICATIONS\n                                        CORPORATION\nBy:  \/s\/ Cindy Mascheroni               By:  \/s\/ Mike Homer\nPrint Name: Cindy Mascheroni            Print Name:  Michael J. Homer\nTitle: VP Business Development          Title: EVP of Netcenter \nDate: September 3, 1998                 Date:  9\/3\/1998\n\nIntraware, Inc.\nNetcenter Services Agreement                                 090398ttk\nCONFIDENTIAL                          23                   Rev. 082598\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7907,8328],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42596","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-intraware-inc","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42596","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42596"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42596"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42596"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42596"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}