{"id":42781,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/services-agreement-netscape-communications-corp-and-intraware.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"services-agreement-netscape-communications-corp-and-intraware","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/services-agreement-netscape-communications-corp-and-intraware.html","title":{"rendered":"Services Agreement &#8211; Netscape Communications Corp. and Intraware Inc."},"content":{"rendered":"<pre>                                                     Netscape Agreement # 004891\n                               SERVICES AGREEMENT\n\nThis SERVICES AGREEMENT is made and entered into as of the 1st day of October \n1998 (the 'Effective Date') between Netscape Communications Corporation \n('Netscape'), a Delaware corporation with offices at 501 E. Middlefield Road, \nMountain View, California 94043, and Intraware Inc., a Delaware corporation \n('Intraware'), with offices at 25 Orinda Way, Orinda California 94563.\n\nWHEREAS, Netscape is in the business of developing and offering for sale \ncertain software products and related support services;\n\nWHEREAS, Intraware is in the business of developing and offering for sale \nworldwide proactive software update and management services to end users \nthrough its SubscribNet-Registered Trademark- service; and\n\nWHEREAS, Netscape desires to obtain, and Intraware desires to provide, \nworldwide subscriptions of Intraware's SubscribNet-Registered Trademark- to \nNon-consumer Customers of Netscape (as defined below);\n\nNOW THEREFORE, in consideration of the foregoing recitals, and for other good \nand valuable consideration, the receipt and sufficiency of which is hereby \nacknowledged, the parties hereto agree as follows:\n \n                                  ARTICLE 1\n                                 DEFINITIONS\n\nFor purposes of this Agreement, terms used and not otherwise defined herein\nshall have the following meanings:\n\n     ' Agreement' or 'this Agreement ' shall mean this Services Agreement and\nthe following attachments:\n\n          Attachment A 'Statement of Work'\n          Attachment B Third Party Products\n          Attachment C Netcenter General Terms\n          Attachment D Escrow Agreement\n          \n' Channel Distributor ' shall mean any Netscape authorized distributor or\nreseller of Netscape Products, or any Netscape authorized distributor or\nreseller of Third Party Products on behalf of Netscape, other than Intraware,\nwho has purchased a license from Netscape to sell such Netscape and Third Party\nProducts.\n\n' Confidential Information ' shall mean this Agreement and all information about\nIntraware Products and Netscape Products, as well as Intraware and Netscape\nservices, customers, strategy, research, development, methods of manufacture,\ntrade secrets, business plans, finances, personnel data, and other material or\ninformation considered confidential by either party. Confidential Information\nalso includes any third party confidential information disclosed to either party\nunder this Agreement.\n\n' End Users ' shall mean all Non-consumer Parties who have a Netscape\nmaintenance subscription for their license to use Netscape Products which they\nacquired from Netscape or a Channel Distributor, as well as all Non-consumer\nParties who obtain a maintenance subscription to Third Party Products for which\nthey currently own a license through Netscape or a Channel Distributor.\n\n\n                                      1\n\n\n'EVENT OF DEFAULT ' shall have the meaning contained in Section 9.1.\n\n'INTRAWARE CUSTOMER ' shall mean any party who receives any product or service\ndirectly or indirectly from Intraware or its non-Netscape partners or who\nbecomes an Intraware Customer under Section 2.7.\n\n'INTRAWARE PRODUCTS ' shall mean any Intraware software that Intraware will use\nin connection with the Services, including, without limitation, its\nSubscribNet-Registered Trademark- products, and any major and minor updates or\nfunctional supersets to any such products.\n\n'NETSCAPE CUSTOMER DATA ' shall have the meaning set forth in Section 2.7.\n\n'NETSCAPE PRODUCTS ' shall mean all current, commercially available Netscape\nsoftware products listed on its then-current price list in the Territory. If at\nany time during the Term, Netscape sells, assigns or otherwise transfers its\nright to distribute directly or through Channel Distributors any such products\nlisted Netscape's applicable North America price list, such Netscape products\nshall cease to be 'Netscape Products' under this Agreement.\n\n'NETSCAPE UPDATES ' shall mean major and minor updates, if any, or any\nfunctional supersets, to the Netscape Products or to Third Party Products.\n'Major Updates' involve additions of substantial functionality while 'Minor\nUpdates' do not. Major Updates are designated by a change in the number to the\nleft of the decimal point of the number appearing after the product name while\nMinor Updates are designated by a change in such number to the right of the\ndecimal point. Minor Updates shall also include bug patches and bug fixes as\nmutually agreed upon. Netscape is the sole determiner of the availability and\ndesignation of an update as a Major or Minor Update. Major Updates exclude\nsoftware releases which are reasonably designated by Netscape as new products.\nWhere used herein, 'Netscape Updates' shall mean Major Updates and Minor Updates\ninterchangeably.\n\n'NETSCAPE'S WEB SITE ' shall mean the collection of Local Language HTML\ndocuments targeted at end users in the Territory and currently accessible by the\npublic via the Internet at the URL http:\/\/home.netscape.com and\/or at such other\nURL or locations as Netscape may designate. Netscape's Web Site does not include\nany future technologies or future uses of existing technologies which might\nembody a collection of documents (other than HTML documents) on the Internet.\n\n'NON-CONSUMER CUSTOMER \/ NON-CONSUMER PARTY ' shall mean any party or customer\nwho licenses 10 or more copies and\/or seats of a Netscape client product, or a\npurchaser of any other Netscape Product.\n\n'SERVICES ' shall mean the services to be provided by Intraware in accordance\nwith Article 2, Article 4 and the Statement of Work identified on Attachment A.\n\n'SUBSCRIBNET -Registered Trademark- ' shall mean Intraware's software\nsubscription update service for Non-consumer Customers.\n\n'SUBSCRIBNET -Registered Trademark- UPDATES ' shall mean enhancements to\nSubscribNet-Registered Trademark-.\n\n'SUBSCRIPTION ' shall mean an offering by Netscape of SubscribNet-Registered\nTrademark- that entitles End Users, upon entering into a maintenance agreement\nwith Netscape, to receive Netscape Updates for the number of users for which\neach such End User has received a license to a Netscape or Third Party Product.\n\n\n\n                                      2\n\n\n\n'TERRITORY ' shall mean worldwide.\n\n'THIRD PARTY PRODUCTS ' shall mean all third party vendor products currently\ndistributed by Netscape, or by a hannel Distributor from Netscape's worldwide\nprice list as of the Effective Date and\/or September 30, 1998, which products\nare listed on Attachment C. If at any time during the Term, Netscape sells,\nassigns, ceases selling or otherwise transfers its right to distribute directly\nor through Channel Distributors products from any third party vendor\nlisted on Attachment B, such vendor's products shall cease to be 'Third Party\nProducts' under this Agreement.\n\n                                ARTICLE 2\n                                SERVICES\n\n2.1  GENERAL . Intraware shall perform the Services in accordance with the \nterms and conditions set forth herein and in the Statement of Work only for \nsuch Netscape Products and, subject to Sections 2.8 and 2.9, Third Party \nProducts as are set forth on Attachment B to this Agreement. [*]\n\n2.2  EXCLUSIVITY . During the Term, as between other third parties, Intraware\nshall have an exclusive right to provide subscription services to Netscape's\nnon-consumer Customers.  However, Netscape reserves the right to provide for\nitself services similar to the Service.\n\n2.3  TERMS OF DISTRIBUTION . Netscape and Intraware shall offer the \nSubscription to End Users through Netscape's maintenance agreement, and as \nsoon as practicable after the Effective Date such agreement will clearly \nstate on behalf of each party and for the benefit of Channel Distributors \nthat maintenance includes the SubscribNet-Registered Trademark- service. End \nUsers will be able to access the Services through the co-branded Netscape \nSubscribNet site through Netscape's Insight, and\/or Netscape's Netcenter at a \nURL to be mutually agreed, however, the URL will include the SubscribNet name \nand the Netscape.com domain, such as:  http:\/\/SubscribNet.Netscape.com'. The \nService may also be accessed through other URLs on Netscape's Web Site, URLs \ncontained in email notifications and\/or through such other sites within \nNetscape's Web Site as Netscape may specify from time to time. For reporting \npurposes, all traffic on the co-branded site shall be considered to be \nNetscape traffic, however, Intraware may use aggregated traffic data for the \npurposes and in the manner set forth in Attachment C.\n\n2.4  SUBSCRIBNET -Registered Trademark- UPDATES . [*] Such\nSubscribNet-Registered Trademark- Updates will be distributed in the same manner\nas the Services are distributed under this Agreement.\n\n2.5  PERSONNEL . Each party shall provide adequate resources to assure its\nperformance under this Agreement. Towards this goal, the parties will designate\nthe resources set forth in this Section 2.5 and in the statement of work.\n\n\n                                      3\n\n\n\n     (A) Netscape Personnel . Netscape will designate an Operations Program\nManager for the implementation of this Agreement and to insure the success of\nthe Services.  Netscape will further designate a marketing representative to\napprove content and other marketing related issues.\n\n     (B) Intraware Personnel . Intraware will assign a dedicated Operations\nProgram Manager for the implementation of this Agreement and to insure the\nsuccess of the Services. Intraware will further assign a dedicated marketing\nrepresentative to approve content and other marketing related issues.\n\n2.6  Monthly Reviews . During the initial Term, Netscape and Intraware shall\nmeet to conduct monthly reviews at Intraware's and Netscape's primary business\naddresses in alternating order to discuss and adjust metrics and performance as\nprovided in the Statement of Work and to coordinate management information\nsystems or other operational processes arising out of this Agreement. Each party\nwill bear its own travel or other costs associated with attending any such\nmeetings. In any renewal Term, the parties shall mutually agree upon the\nfrequency and scope of periodic reviews.\n     \n2.7  END USER DATA :\n\n     (A) Except as expressly provided in this subparagraph (A), all customer \ndata, including channel transaction data, added to the \nNetscape\/SubscribNet-Registered Trademark- Service or existing from Netscape \non the date hereof will be considered Netscape data ('Netscape Customer \nData') and shall be solely owned by Netscape,  [*] If a Netscape customer is \nalso, independently, an Intraware Customer , and requests that it's account \nbe handled through Intraware, then, [*] such customer data shall be owned \njointly by Intraware and Netscape.  All such data shall constitute \n'Confidential Information' and shall be subject to the end user and privacy \nguidelines set forth in Attachment C-1.\n\n     (B) Intraware will implement procedures reasonably acceptable to Netscape,\nand use reasonable commercial efforts, to distinguish channel transaction data\nfiles between Netscape Customers and Intraware Customers. \n\n     (C)  [*]\n\n2.8  THIRD PARTIES . Notwithstanding anything in this Agreement to the contrary,\n     Intraware may perform Services hereunder for Third Party Products only if\n     and to the extent Netscape is authorized to enable electronic download of\n     Third Party Products. The parties will mutually agree whether and the terms\n     upon which additional third party vendor products shall be added to the\n     definition of 'Third Party Products' under this Agreement.  \n2.9  CHANNEL DISTRIBUTORS . Notwithstanding anything in this Agreement to the\ncontrary, Netscape's arrangements with its Channel Distributors may not permit\nIntraware to electronically distribute Netscape Products, in which case such\narrangement shall be excluded from the Services. In addition, Netscape shall be\nobligated to provide Intraware with information or access to Third Party data or\ninformation hereunder only to the extent authorized by each Channel Distributor.\n\n2.10      END USERS . Should a Non-consumer Party obtain a license to a Third\nParty Product through Netscape or a Channel Distributor after the Effective\nDate, and should such Non-consumer Party wish to acquire a maintenance\nsubscription from Netscape or a Channel Distributor to receive the\nSubscribNet-Registered Trademark- services, upon approval by Intraware and\nreceipt by Intraware of [*] (or such other percentage and terms as the parties\nmay agree) of the 'net Subscription sales price' from Netscape for each such\nNon-consumer \n\n\n                                      4\n\n\n\nParty, such additional Non-consumer Party will become an End User. 'Net\nSubscription sales price' means the price indicated in an invoice for any sale\nof a Netscape Product, i.e., the gross sales price less\napplicable discounts, but excluding rebates, if any.\n\n2.11      REPORTING\/ACCESS . Netscape will have full access to the systems data\nrecords, and such records will be reasonably compatible with Netscape systems as\nspecified in the Statement of Work. Intraware will provide Netscape with an\nonline and flexible direct interface to this data through a reporting tool as\nset forth in the Statement of Work. In addition, there will be certain Netcenter\ntraffic reporting requirements set forth in Attachment\n\n                                 ARTICLE 3\n                           TERM AND TERMINATION\n\n3.1  TERM . Unless sooner terminated in accordance with this Article or \nArticle 9 (Default), the term of this Agreement (the 'Term') shall commence \non the Effective Date and shall continue for a period of one year thereafter. \nThis Agreement may be renewed for two additional one year periods upon mutual \nagreement of the parties; however:\n\n     (A) If the parties fail to mutually agree upon renewal after the initial \nTerm, then Intraware shall be obligated to continue to perform the Services \nfor a period of six months after the Effective Date and Netscape will pay \nIntraware on a pro-rated basis the payments payable hereunder, excluding the \ninitial payment set forth in Section 5.2 (i.e.,  [*] pro-rated over the Term, \npayable monthly for six months); and\n\n     (B) If the parties agree on a renewal Term, the price for the Services\nshall not exceed 10 percent of Netscape's Subscription revenue over the\npreceding Term.\n\n3.2  TERMINATION .\n\n(A) For Convenience. This Agreement may be terminated by Netscape for\nconvenience upon ninety (90) calendar days prior written notice to Intraware,\nand in such event, Netscape shall pay Intraware for the Services based upon the\npro rata portion of fees earned by Intraware through the effective date of\ntermination.\n\n(B) With Cause. If this Agreement is terminated by Netscape for cause by \nreason of an Event of Default, as set forth in Article 9, Intraware will pay \nto Netscape on a pro-rated basis the payments payable hereunder, excluding \nthe initial payment set forth in Section 5.2, (i.e.,  [*], pro-rated over the \nTerm, payable monthly for 90 days). Any termination, however, shall not \nrelieve either party from any obligations hereunder that survive termination \nunder Section 16.3 hereof.\n\n3.3  TECHNOLOGY ESCROW . Intraware agrees that the entire source code for \nSubscribNet and other Intraware Products, together with all related listings \nand documentation, as it now exists or hereafter becomes available including, \nbut not limited to, the then current version(s) of such products being used \nby Intraware in the performance of the Services ('Escrow Materials') will be \ndeposited, maintained and updated at Netscape's expense in escrow pursuant to \nthe form of Escrow Agreement to be mutually agreed between the parties and \nattached hereto as Attachment D. Intraware shall deposit the Escrow Materials \nwithin sixty (60) days of the Effective Date or, in the case of updates to \nthe Service, within 60 days after commercial release of such updates.\n\n\n\n\n                                      5\n\n\n\n                                     ARTICLE 4\n                             NETCENTER RESPONSIBILITIES\n\n4.1  Co-Branding . A co-branded name using the format 'Netscape [generic name]\nby SubscribNet-Registered Trademark-' will be mutually agreed between the\nparties for use on the co-branded Netscape\/SubcribNet-Registered Trademark- site\nand throughout all communications and materials, including but not limited to\nmarketing materials and price lists, relating to the Services. All use of the\nSubscribNet-Registered Trademark- brand by Netscape will be subject to trademark\nguidelines provided by Intraware, and all use of the 'Netscape' trademark will\nbe subject to trademark guidelines provided by Netscape. Intraware shall not\nindependently use the Netscape name without Netscape's prior written consent\nunless such use occurs in connection with Intraware's advertising sales and\npromotional efforts on behalf of the Service. The co-branding will be subject to\nNetscape's then-current design guidelines as set forth in Attachment C. Each\nparty's trademarked portion of the co-brand shall remain generally consistent in\nterms of relative size in comparison with the marks contained in the mock-up\nprovided as part of Attachment C.\n\n4.2  Technical Support . Intraware will provide technical support to Netscape to\nensure that content is correctly received and displayed by Netscape. Intraware\nshall provide 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 use reasonable commercial efforts to\npromptly remedy any material malfunctioning of the Service.  Intraware shall be\nsolely responsible for the purchase, implementation, maintenance and support of\nall software and hardware required to fulfill its obligations under the\nAgreement.\n\n4.3  Service Implementation . Intraware shall provide consistent Services on the\nco-branded site on Netscape's Web Site. All content supplied by Intraware for\nthe Service will meet Netscape's specifications with regard to page size,\nloading speed and speed of access to database driven content as Netscape may,\nfrom time to time, set forth in Attachment C; provided that such obligations\nshall not be materially more restrictive than the current features, unless the\nparties otherwise mutually agree. Intraware shall be responsible for the\nproduction, technology deployment, content programming, and creation of graphic\nuser interfaces of the Service; all in accordance with Netscape's then-current\nguidelines. The Service shall use substantially the same technology and\nadvantages that Intraware uses in its own proprietary SubscribNet service(s), if\nany, unless otherwise mutually agreed by the parties. The Service shall not be\ndisadvantaged or suffer from inferior production, programming or performance\nrelative to Intraware's similar services, or any similar service that Intraware\nmight make available to, or operate on behalf of, third parties. The Service\nshall perform substantially in accordance with the performance standards of its\nown proprietary services, including, but not limited to, load time, timeliness\nof content, and quality of programming. Intraware's obligation to produce the\nService, including production services, technology deployment and content\nprogramming that meets or exceeds standards established by Intraware on\nIntraware's Web Site or services (or any web site or services Intraware manages\nfor any third party) and general industry standards is a material obligation of\nIntraware under this Agreement.\n\n4.4  LICENSE GRANT . During the Term, Intraware grants to Netscape the \nnon-exclusive, worldwide and royalty-free right to store, display, perform, \nand otherwise use the data, information, content or other intellectual \nproperty provided by Intraware for use within the Service or Netcenter.\n\n4.5  NETCENTER GENERAL TERMS . The parties agree and accept the Netcenter\nGeneral Terms provided herewith as Attachment C.\n\n\n                                      6\n\n\n\n                                     ARTICLE 5\n                                   PAYMENT TERMS\n                                          \n   \n5.1  PRICE . In consideration for the Services performed hereunder and \nsubject to the terms and conditions hereof, Netscape shall pay Intraware  \neight million dollars ($8,000,000) for the Services.\n    \n\n5.2  PAYMENT TERMS . Netscape will pay Intraware an initial payment in the \namount of [*] on or before September 30, 1998. Ninety days after the \nEffective Date of this Agreement, Netscape will pay Intraware [*]. One \nHundred and Eighty Days after the Effective Date of this Agreement, Netscape \nwill pay Intraware [*]. Two Hundred and Seventy days after the Effective Date \nof this Agreement, Netscape will pay Intraware [*]. All payments made by \nNetscape hereunder will be made by wire transfer to the bank specified by \nIntraware. A finance charge of one and one-half percent (1.5%) per month, or \nthe lawful limit if less, shall be assessed on all amounts that are past due, \nand Intraware shall be responsible for collection costs if applicable. \nInterest shall be calculated from the invoice due date to the date payment is \nreceived.\n\n                                     ARTICLE 6\n                            REPRESENTATIONS AND WARRANTY\n\n6.1  INTRAWARE'S REPRESENTATIONS AND WARRANTY Intraware represents and\/or\nwarrants to Netscape, as appropriate, as follows:\n\n     (A)  NO RESTRICTIONS. Intraware represents that it is not under any\nobligation or restriction which would in any way interfere with or be\ninconsistent with its performance obligations under this Agreement.\n\n     (B)  SERVICES . Intraware warrants that the Services, whether performed by\nIntraware or subcontractors, shall be performed in a professional and\nworkmanlike manner, with all due skill and care, and will meet or exceed the\nspecifications set forth in the Statement of Work and any documentation provided\nby Intraware.\n\n     (C)  INTRAWARE PRODUCTs . Intraware warrants that (i) the media on which\nthe Intraware Products are delivered will be free of defects in material and\nworkmanship, (ii) the Intraware Product(s) will function in accordance with the\nspecifications for the Intraware Product(s) in applicable documentation, and\n(iii) any documentation provided with the Intraware Product(s) shall be accurate\nin all material respects. In the case of a breach of the warranties in this\nsubsection (C), Intraware shall repair or replace nonconforming, unsuitable or\ninaccurate Intraware Product(s) or documentation within a reasonable period of\ntime (not to exceed ten (10) days) of receipt of written notice of such\ncondition.\n\n     (D)  YEAR 2000 . Intraware warrants that the current version of the \nIntraware Products, including the SubscribNet software, contain \nfunctionality, including the time-and-date-related code, needed for the \nDecember 31, 1999 to January 1, 2000 date change; provided the underlying \noperating system of the host machine, and any non-Intraware-owned software \nprovided with or in the host machine or Product(s), also contain \nfunctionality, including the time-and-date-related code, needed for the \nDecember 31, 1999 to January 1, 2000 date change. The sole and exclusive \nremedy for any breach of this warranty is repair or replacement of the \naffected Product(s), excluding any non-Intraware-owned software or underlying \noperating system. This warranty is null and void if Netscape alters, modifies \nor misuses any portion of the Product(s).\n\n\n\n                                      7\n\n\n\n\n     In the case of a breach of the warranty described in this subsection (D),\nIntraware shall use reasonable efforts to modify the Intraware Products such\nthat the Intraware Product(s) is Year 2000 Compliant. [*]\n\n     (E)   THE WARRANTIES CONTAINED IN THIS ARTICLE 6 AND ATTACHMENT C ARE THE\nONLY WARRANTIES GIVEN TO NETSCAPE IN CONNECTION WITH THIS AGREEMENT AND THE\nSERVICES PERFORMED HEREUNDER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,\nINCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND\nFITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED.\n\n6.2  NETSCAPE'S REPRESENTATIONS AND WARRANTY Netscape represents and\/or warrants\nto Intraware, as appropriate, as follows:\n     \n          (A) USE OF USER INTERFACE. At no time during the term of the\n     Agreement, or at any time thereafter, will Netscape copy, modify or\n     otherwise utilize the SubscribNet-Registered Trademark- user interface.\n\n          (B) NO RESTRICTIONS. Netscape represents that, except as provided in\n     Sections 2.8 and 2.9, it is not under any obligation or restriction that\n     would in any way interfere with or be inconsistent with its performance\n     obligations under this Agreement.\n\n                                     ARTICLE 7\n                              CONFIDENTIAL INFORMATION\n\n     7.1  Each party agrees not to use directly or indirectly or reproduce the\nConfidential Information of the other for any purpose except for carrying out\nthe terms of this Agreement and agrees not to disclose the Confidential\nInformation of the other to any third parties except in accordance with this\nAgreement.\n\n     7.2  Each party agrees to use its best efforts to protect such Confidential\nInformation from disclosure to third parties. Disclosures of the Confidential\nInformation shall be restricted to the parties' employees who are directly\nparticipating in the efforts covered by this Agreement, have a need to know such\nConfidential Information and are bound by the provisions of this Article 7.\n\n     7.3  The limitations on reproduction, disclosure, and use of the\nConfidential Information shall lapse upon the occurrence of one of the\nfollowing:\n\n          (1)  If such Confidential Information is publicly available or later\n     becomes publicly available other than through a breach of this Agreement;\n     or\n\n          (2)  If the disclosing party generally furnishes its Confidential\n     Information to a third party without similar confidentiality restrictions\n     on the third party's rights; or\n\n          (3)  If disclosure of such Confidential Information is compelled by\n     court order or judicial or administrative process; or\n\n\n\n                                      8\n\n\n\n\n          (4)  If such Confidential Information is independently developed by\n     the receiving party subsequent to such disclosure without use of\n     Confidential Information disclosed hereunder; or\n\n          (5)  If such Confidential Information is lawfully obtained by the\n     receiving party from a third party without obligations of confidentiality.\n\n\n                                     ARTICLE 8\n                                  INDEMNIFICATION\n\n     8.1  Each party (the 'indemnitor') will indemnify and hold harmless the\nother party (the 'indemnitee') from and against (a) losses, damages, judgments,\nsettlements, attorney's fees, costs, and expenses which the indemnitee may\nsustain, incur, or be required to pay, arising out of or in connection with\nclaims for personal injury or damage to real or tangible property resulting from\nnegligent action or inaction of the indemnitor or a person employed by the\nindemnitor in the performance of this Agreement; (b) a breach of any of the\nrepresentations and warranties made by either party hereunder; or (c) in the\ncase of Intraware, any third party claim arising from the Service; and (d) any\nmaterial, content, or any content to which a party can link, supplied by either\nparty in connection with this Agreement.\n\n8.2 Intellectual Property Indemnity:\n\n     8.2.1.    Intraware Indemnity. Intraware shall defend or settle, at its\noption, any action brought against Netscape to the extent it is based on a claim\nthat use, reproduction or distribution by Netscape of the Intraware portion of\nthe Intraware Products furnished hereunder within the scope of a license granted\nhereunder directly infringes any valid U.S. copyright, U.S. patent or U.S. trade\nsecret. Intraware shall also defend any action brought against Netscape to the\nextent that it is based on a claim that the Intraware trademark(s) Netscape is\nlicensed to use hereunder directly infringes any valid United States trademark.\nIntraware will pay resulting costs, damages and legal fees finally awarded\nagainst Netscape in such action which are attributable to such claim provided\nthat Netscape: (a) promptly (within twenty (20) days) notifies Intraware in\nwriting of any such claim and Intraware has sole control of the defense and all\nrelated settlement negotiations; and (b) cooperates with Intraware, at\nIntraware's expense, in defending or settling such claim.\n\n     Should an Intraware Product become, or be likely to become in \nIntraware's opinion, the subject of infringement of such U.S. patent, \ncopyright, trademark or trade secret, Intraware may procure for Netscape: (i) \nthe right to continue using the same; or (ii) replace or modify it to make it \nnon-infringing. In the event that Intraware shall reasonably determine that \nneither (i) nor (ii) above is commercially practicable, Intraware may \nterminate the license for the infringing Intraware Product and refund \nNetscape for the fees that Netscape has paid hereunder (excluding the initial \npayment) up to [*]. Intraware shall have no obligation or liability for, and \nNetscape shall defend, indemnify and hold Intraware harmless from and against \nany claim based upon: (a) use of other than the then current, unaltered \nversion of the Intraware Product, unless the infringing portion is also in \nthe then current, unaltered release; (b) use, operation or combination of \nIntraware Products with non-Intraware programs, data, equipment or \ndocumentation if such infringement would have been avoided but for such use, \noperation or combination; (c) Netscape's or its agent's activities after \nIntraware has notified Netscape that Intraware believes such activities may \nresult in such infringement; (d) compliance with Netscape's designs, \nspecifications or instructions; (e) any modifications or marking of the \nIntraware Products not specifically authorized in writing by Intraware; (f) \nNetscape's use of any trademarks other than those set forth hereunder; or (g) \nthird party software. The foregoing states the entire liability of Intraware \nand the exclusive remedy of\n\n                                      9\n\n\n\nNetscape with respect to infringement of any intellectual property rights,\nwhether under theory of warranty, indemnity or otherwise.\n\n     8.2.2.    Netscape Indemnity. Netscape shall defend or settle, at its \noption, any action brought against Intraware to the extent it is based on a \nclaim that use, reproduction or distribution by Intraware of the Netscape \nportion of the Netscape Products furnished hereunder within the scope of a \nlicense granted hereunder directly infringes any valid U.S. copyright, U.S. \npatent or U.S. trade secret. Netscape shall also defend any action brought \nagainst Intraware to the extent that it is based on a claim that the Netscape \ntrademark(s) Intraware is licensed to use hereunder directly infringes any \nvalid United States trademark. Netscape will pay resulting costs, damages and \nlegal fees finally awarded against Intraware in such action which are \nattributable to such claim provided that Intraware: (a) promptly (within \ntwenty (20) days) notifies Netscape in writing of any such claim and Netscape \nhas sole control of the defense and all related settlement negotiations; and \n(b) cooperates with Netscape, at Netscape's expense, in defending or settling \nsuch claim.\n\n     Should a Netscape Product become, or be likely to become in Netscape's \nopinion, the subject of infringement of such U.S. patent, copyright, \ntrademark or trade secret, Netscape may procure for Intraware: (i) the right \nto continue using the same; or (ii) replace or modify it to make it \nnon-infringing. In the event that Netscape shall reasonably determine that \nneither (i) nor (ii) above is commercially practicable, Netscape may \nterminate the license for the infringing Netscape Product and pay Intraware \nan amount representing the fees that Netscape has paid hereunder (excluding \nthe initial payment) up to [*]. Netscape shall have no obligation or \nliability for, and Intraware shall defend, indemnify and hold Netscape \nharmless from and against any claim based upon: (a) use of other than the \nthen current, unaltered version of the Netscape Product, unless the \ninfringing portion is also in the then current, unaltered release; (b) use, \noperation or combination of Netscape Products with non-Netscape programs, \ndata, equipment or documentation if such infringement would have been avoided \nbut for such use, operation or combination; (c) Intraware's or its agent's \nactivities after Netscape has notified Intraware that Netscape believes such \nactivities may result in such infringement; (d) compliance with Intraware's \ndesigns, specifications or instructions; (e) any modifications or marking of \nthe Netscape Products not specifically authorized in writing by Netscape; (f) \nIntraware's use of any trademarks other than those set forth hereunder; or \n(g) third party software. The foregoing states the entire liability of \nNetscape and the exclusive remedy of Intraware with respect to infringement \nof any intellectual property rights, whether under theory of warranty, \nindemnity or otherwise.\n\n     8.2.3 Neither party will have any liability to the other for any claim \nof infringement in this Section 8.2 based on (i) the other party's continued \nuse or distribution, as the case may be, of a superseded product after the \nindemnifying party has given reasonable notice and a reasonable opportunity \nto update its use, or an altered release, except for such alteration(s) or \nmodification(s) which have been made by the indemnifying party or under the \nindemnifying party's direction, if such infringement would have been avoided \nby the use of a current, unaltered release of such product, or (ii) the \ncombination, operation, or use of any Services furnished under this Agreement \nwith programs or data not created by the indemnifying party if such \ninfringement would have been avoided by the use of the Services without such \nprograms or data.\n\n                                     ARTICLE 9\n                                      DEFAULT\n\n     9.1  EVENT OF DEFAULT . An 'Event of Default' shall occur under any of the\nfollowing conditions:\n\n\n\n\n                                       10\n\n\n     (A)  Either party fails to perform any material obligation to be \nperformed by it hereunder within thirty (30) days after written notice from \nthe other party that time for such performance has passed or, if no such time \nis prescribed, within thirty (30) days after written notice from the other \nparty.\n\n     (B)   Either party becomes insolvent or unable to pay its debts as they \nbecome due, makes an assignment for the benefit of creditors or files a \npetition in any insolvency proceeding or in any bankruptcy, reorganization, \nscheme of arrangement or reconstruction, or similar proceeding.\n     \n     (C)   A receiver, manager or liquidator is appointed for any of a \nparty's assets or a petition is filed in any insolvency, bankruptcy, \nreorganization, scheme of arrangement, reconstruction or similar proceeding, \nand such receiver, manager or liquidator is not discharged, or such petition \nis not withdrawn, within ninety (90) days after such appointment or filing.  \n9.2 Remedy . If either party causes to occur an Event of Default as specified \nin Section 9.1, then the non-defaulting party, at its option, shall have the \nright to terminate this Agreement by written notice as provided in Section 3 \nand pursue any other remedy hereunder or otherwise available to it at law or \nin equity.  9.3 Compensation . Intraware hereby expressly agrees and \nacknowledges that, except as provided in Section 3 and in this Section 9.3, \ntermination of this Agreement by either party shall not entitle it to any \ntermination compensation or to any payment in respect of any goodwill \nestablished by Intraware during the Term or render Netscape liable for \ndamages on account of any loss of prospective profits or on account of any \nexpenditure, investment or obligation incurred or made by Intraware, or \notherwise.\n\n                                 ARTICLE 10\n                           LIMITATION OF LIABILITY\n\nEXCEPT FOR A BREACH OF SECTIONS 7 (CONFIDENTIALITY), 8 (INDEMNIFICATION) AND 11\n(OWNERSHIP):\n\n(A) EACH PARTY'S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL IN NO\nEVENT EXCEED [*]; AND\n\n(B) NEITHER INTRAWARE NOR NETSCAPE WILL BE LIABLE FOR INDIRECT, INCIDENTAL,\nSPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST DATA OR\nLOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF\nSUCH DAMAGES OR FOR ANY SIMILAR CLAIM AGAINST LICENSEE BY ANY OTHER PARTY.\n                                          \n                                 ARTICLE 11\n                                 OWNERSHIP\n\n     11.1      NETSCAPE OWNERSHIP . Intraware shall acquire no rights in and to\nthe Netscape Products or the Netscape Customer Data, and all ownership rights in\nand to the Netscape Products, Netscape Customer Data and any marketing or\ncustomer data generated hereunder shall remain with Netscape or its licensors,\nas appropriate. Intraware agrees that it shall not (i) sell, transfer or assign\nany of same or any rights or interest therein, or (ii) create or suffer to exist\nany liens with respect to the Netscape Products or its programs or publications,\nexcept in accordance with this Agreement or the specific instructions of\nNetscape or its licensor hereunder or statutory or common law liens resulting\nfrom Netscape's failure to pay Intraware invoices.  Intraware acknowledges that\nNetscape (or its licensor) is the owner of all intellectual and proprietary\nrights in the Netscape Products or its programs and publications, including\nsource and object code, trademarks, copyrights and patents relating to the\nNetscape Products or its programs and publications, and that neither this\nAgreement nor performance of the Services hereunder \n\n                                       11\n\n\n\n     shall directly or indirectly create in or for Intraware any right, title or\ninterest therein, other than in accordance with the statutory or common law\nliens referenced above.\n\n     11.2      Intraware Ownership . Except as expressly stated herein, Netscape\nshall acquire no rights in and to the Intraware Products or the Intraware\nCustomer data, and all ownership rights in and to such Intraware Product shall\nremain with Intraware or its licensors, as appropriate. Netscape agrees that it\nshall not (i) sell, transfer or assign any of same or any rights or interest\ntherein, or (ii) create or suffer to exist any liens with respect to the\nIntraware Products or its programs or publications, except in accordance with\nthis Agreement or the specific instructions of Intraware or its licensor\nhereunder or statutory or common law liens resulting from Intraware's failure to\npay Intraware invoices. Intraware acknowledges that Intraware (or its licensor)\nis the owner of all intellectual and proprietary rights in such  Intraware\nProduct, including source and object code, trademarks, copyrights and patents\nrelating to the Intraware Products or its programs and publications, and that\nneither this Agreement nor performance of the Services hereunder shall directly\nor indirectly create in or for Intraware any right, title or interest therein,\nother than in accordance with the statutory or common law liens referenced\nabove. \n\n                               ARTICLE 12\n                                DISPUTES\n\nShould any dispute or differences arise from this Agreement or any performance\nthereunder, the parties shall first attempt to arrive at an amicable settlement,\nas follows. A party shall identify the existence of a dispute by notifying the\nother party in writing. Upon such notice, the matter shall be referred to a\nsenior executive officer of each party whose responsibilities are not in the\nprofit center that is the subject of the dispute, for oral presentations (with\nminimal written support such as briefing charts or summary sheets). No outside\ncounsel may appear during this informal process.\n\nIf at the completion of such presentation such officers cannot resolve this\ndispute, then either party may refer the dispute to non-binding mediation\nconducted by JAMS\/EndDispute in Santa Clara County, California (the 'Venue').\nThe parties will share the costs of mediation. If the dispute is not resolved\nafter 45 days of mediation, the parties will refer the dispute to binding\narbitration by JAMS\/EndDispute in the Venue. The results of any arbitration will\nbe final and non-appeallable, except that either party may petition any court of\ncompetent jurisdiction in the Venue to review any decision relating to\nintellectual property matters (including the scope of license rights), vacating\nor modifying erroneous conclusions of law or findings of fact not supported by\nsubstantial evidence. The arbitrator may fashion any legal or equitable remedy\nexcept punitive or exemplary damages, which both parties waive. The arbitrator\nwill render a written decision, which may be entered in and enforced by any\ncourt of competent jurisdiction, but which will have no preclusive effect in\nother matters involving third parties. The losing party will pay the costs of\nthe arbitration and the reasonable legal fees and expenses of the prevailing\nparty, as determined by the arbitrator. The parties will jointly pay arbitration\ncosts pending a final allocation by the arbitrator. At any point in the dispute\nresolution process, either party may seek injunctive relief preserving the\nstatus quo pending the outcome of that process. Except as noted, the parties\nwaive any right to judicial process. The U.S. Arbitration Act and\nJAMS\/EndDispute rules will govern the arbitration process. Absent\n\n\n                                       12\n\n\nfraudulent concealment, neither party may raise a claim more than 3 years after\nit arises or any shorter period provided by applicable statutes of limitations.\nCalifornia law, without regard to its conflict-of-law provisions, will govern\nthis Agreement. either party shall have any remedy to it available at law or in\nequity (but not in contradiction of the provisions including limitation of\nliability) hereunder. An attempt at settlement shall be deemed to have failed\nwhen one of the parties advises the other party in writing to this effect, in\nwhich event either party shall have any remedy to it available at law or in\nequity. Settlement discussions and materials will be confidential and\ninadmissible in any subsequent proceeding without both parties' consent.\n\n                                  ARTICLE 13\n                                    TAXES\n\nAll prices are in U.S. Dollars and are exclusive of any applicable taxes.\nIntraware shall be responsible for filing all appropriate federal, state and\nlocal tax forms related to payment for its Services under this Agreement.\nIntraware shall be responsible for sales or use taxes which are due solely by\nreason of Intraware's performance of Services hereunder other than taxes\nassessed on Intraware's income. Each party shall cooperate with the other in\nminimizing any applicable tax. In addition, each party shall reasonably\ncooperate with the other in the event of a government audit.\n\n                                  ARTICLE 14\n                                    EXPORT\n\nIntraware shall comply fully with all then current applicable laws, rules and\nregulations relating to the export of technical data, including, but not limited\nto any regulations of the United States Office of Export Administration and\nother applicable governmental agencies and Intraware acknowledges that by virtue\nof certain security technology embedded in the Netscape Products, that export of\nsuch software may not be legal\n\n                                  ARTICLE 15\n                           MARKETING AND PROMOTION\n\n     15.1      MARKETING COLLATERAL . Reasonable amounts of marketing collateral\n(i.e., pamphlets, brochures, and the like) associated with the\nSubscribNet-Registered Trademark- service will be made available to Netscape.\n\n     15.2      OUTBOUND MARKETING . All outbound marketing content including all\nelectronic  communication with End Users who are not Intraware Customers will be\napproved by Netscape. The parties will mutually agree upon the guidelines for\nmarketing materials, as set forth in the Statement of Work.\n\n     15.3      NETSCAPE MARKETING EFFORTS. Netscape will use reasonable\ncommercial efforts to communicate and disseminate the details of the SubscribNet\nprogram to its sales force, customer service representatives, technical support\nrepresentatives, Channel Distributors, third party partners and end user\ncustomers upon implementation, launch and on an ongoing basis.\n\n     15.4      JOINT PRESS RELEASE. Netscape and Intraware will jointly issue \na press release describing Netscape's usage of Intraware's \nSubscribNet-Registered Trademark- service. Such release will be issued within \n7 days of execution of this Agreement or as soon thereafter as possible. \nNetscape will support the release with timely and reasonably scheduled press \nand analyst calls.\n\n\n                                       13\n\n\n     15.5      Response Times . Netscape shall respond to Intraware requests for\napproval of marketing materials within 24 hours during a business day or as soon\nas practicable thereafter, or otherwise in accordance with the Statement of\nWork, to ensure timely delivery of such materials to End Users, taking into\nconsideration the importance of timeliness to the SubscribNet brand.  \n\n                                     ARTICLE 16\n                                   MISCELLANEOUS\n\n     16.1  Order of Priority . In the event of a conflict between this\nAgreement, the Statement of Work and any outstanding agreements between Netscape\nand Intraware, the order of priority of this Agreement shall be as follows: (a)\nthis Agreement, (b) the Statement of Work and (c) other exhibits hereto.\n\n     16.2      Force Majeure . Neither party shall be liable for delays in its\nperformance of this Agreement occasioned by strikes, fires, accidents, or by\nother causes beyond its control. In the event of a stoppage or delay suffered by\nIntraware resulting from any such cause, Intraware shall perform such parts of\nthe work as Intraware is capable of performing and shall resume full performance\nof the Services as soon as is reasonably practicable.\n\n     16.3      Survival . The provisions of Sections 2.7 (A) and (C), 3.2\n(Termination), 9.2 and 9.3 (Default), and Articles 10 (Limitation Of Liability),\n11 (Ownership), 13 (Taxes), and 16 (Miscellaneous) shall survive termination of\nthis Agreement. The provisions of Articles 6 (Representations and Warranty) and\n8 (Indemnification) shall survive termination for a period of four years\nthereafter. The provisions of Article 7 (Confidentiality) shall survive\ntermination of this Agreement for a period of five years thereafter.\n\n     16.4      Assignment . Neither party to this Agreement shall assign any\nrights hereunder without the prior written consent of the other party, which\nconsent shall not be unreasonably withheld. In the event of a merger or\nconsolidation involving either party in which that party is not the surviving\ncorporation the Agreement will transfer or be assigned to the resulting\ncorporation or entity without approval provided that such acquiror agree in\nwriting to be bound by the terms of this Agreement. This Agreement shall be\nbinding upon and inure to the benefit of the parties and their successors,\nexecutors, administrators, legal representatives and assigns.\n\n     16.5      Severance . In the event that any provision of this Agreement\nshall be held by a court of law or other governmental agency to be void,\nvoidable, or unenforceable, the remaining portions hereof shall remain in full\nforce and effect.\n     \n     16.6      Relationship . Intraware is an independent contractor and nothing\n     contained herein shall be construed to create any other relationship\n     between the parties. Nothing in this Agreement shall be construed to\n     constitute either party as the agent of the other party for any purpose\n     whatsoever, and neither party shall bind or attempt to bind the other party\n     to any contract or the performance of any other obligation, or represent to\n     any third party that it has the right to enter into any binding obligation\n     on the other party's behalf.\n\n     16.7      Governing Law . All questions concerning the validity and\noperation of this Agreement and performance of the obligations imposed upon the\nparties hereunder shall be governed by the substantive laws of the State of\nCalifornia. Jurisdiction and venue shall be in Santa Clara County or the\nNorthern District of California.\n\n\n                                       14\n\n\n     16.8      Headings . The headings and titles to the Articles and Sections\nof this Agreement are inserted for convenience only and shall not be deemed a\npart hereof or affect the construction or interpretation of any provision\nhereof.\n\n     16.9      Remedies . Unless otherwise expressly provided herein, the rights\nand remedies hereunder are in addition to, and not in limitation of, other\nrights and remedies available to the parties, and exercise of one right or\nremedy shall not be deemed a waiver of any other right or remedy.\n\n     16.10     No Amendment or Waiver . No amendment, modification, deletion,\naddition or other change in this Agreement or any provision hereof, or wavier of\nany right or remedy herein provided, shall be effective for any purpose unless\nspecifically set forth in a writing signed by the party to be bound thereby. No\nwaiver of any right or remedy in respect of any occurrence or event on one\noccasion shall be deemed a waiver of such right or remedy in respect of such\noccurrence or event on any other occasion.\n\n     16.11     Entire Agreement . This Agreement supersedes all other\nagreements, oral or written, heretofore made with respect to the subject matter\nhereof and the transactions contemplated hereby and, with the Attachments\nhereto, contains the entire agreement of the parties.\n\n\n                                       15\n\n\n     16.12     Notices . Notices and communications required or permitted to be\ngiven under this Agreement shall be written in English and shall addressed as\nset forth below.\n\nIf to Netscape:\n     Netscape Communications Corporation\n     501 E. Middlefield Road\n     Mountain View, CA 94043\n     Attention: Tony Weber\n     Title: Finance Manager\/Customer Satisfaction\n     Telephone: 650\/937-3095\n     Fax: 650.937-5441\n\nIf to Intraware:\n     Intraware, Inc.\n     25 Orinda Way, Orinda CA 94563\n     Attention: Cindy Mascheroni\n     Title: Vice President Business Development\n     Telephone: 925\/254-4506\n     Fax: 925\/253-4599\n     \nNotice shall be sent by registered mail, postage prepaid, return receipt\nrequested, by reputable overnight courier, paid by the sender, or by facsimile.\nThe date of receipt shall be deemed to be the date on which such notice was\nactually received. Each party shall promptly give the other party written notice\nof any change of address.\n\n     16.13      Complying with the Law . Intraware and Netscape agree to comply\nfully with all federal, state and local laws.\n\n     16.14     Attorneys' Fees . The prevailing party in any dispute shall have\nall court costs, expenses, reasonable attorneys' fees, and any other relief a\ncourt orders paid by the other party. \n\n     16.15.    Insurance . Intraware, at its sole cost and expense, shall secure\nand maintain adequate insurance coverage as is necessary, as a reasonable\nprudent businessperson, for Intraware to bear all of its obligations under this\nAgreement. On Netscape's request, Intraware shall provide Netscape with\nsatisfactory evidence of such insurance. Before any cancellation or material\nchange in any coverage, Intraware shall provide Netscape with 30 days' advance\nwritten notice.\n\n\n                                       16\n\n\n\n     16.16 Counterparts . This Agreement may be executed in counterparts or by\nfacsimile, each of which shall be an original, and all of which together shall\nconstitute one and the same agreement.\n\n\nIN WITNESS WHEREOF, authorized representatives of the parties hereto have\nexecuted this Agreement as of the Effective Date.\n\n\nNETSCAPE COMMUNICATIONS CORPORATION\n\nBy:   \/s\/ Dana Stalder\n    ----------------------------------------------\nPrint name:  Dana Stalder\n             -------------------------------------\nPrint title:  Director of Finance &amp; Operation\n                Enterprise Sales\n             -------------------------------------\n\n\nINTRAWARE INC.\n\n\nBy:   \/s\/ Donald M. Freed\n    ----------------------------------------------\nPrint name:  Donald M. Freed\n             -------------------------------------\nPrint title:  EVP \/ CFO\n             -------------------------------------\n\n\n                                       17\n\n\n\n                                    ATTACHMENT A\n                                 STATEMENT OF WORK\n\nSee Attached Pages\n\n                                       18\n\n\n\n                                    ATTACHMENT B\n                                THIRD PARTY PRODUCTS\n\n\nProducts on the Netscape price list as of September 3, 1998 made by the \nvendors listed below.** (Inclusion on this list does not imply permission \nfrom any Third Party to perform some or all of the Services; that will need \nto be determined on a case by case basis between the parties.)\n\nOracle\nLegato\nMarimba\nCS&amp;T\nBull**\nGrapevine\nNovell\nDiffusion\nActuate\nEnwisen\n\n\n** Bull products will be listed as soon as practicable.\n\n\n\n\n\n\n\n                                       19\n\n\n\n\n                                    ATTACHMENT C\n                              NETCENTER GENERAL TERMS\n\nUPTIME\n\nThe Service will function substantially in accordance with the terms set forth\nin this Agreement. In any given twenty-four hour period during the Service\nPeriod, the Service shall have an uptime of at least 98% with industry standard\ndowntime for maintenance, provided that such downtime not occur at peak traffic\ntimes. Intraware shall repair any malfunctions of the Service within a\nreasonable period of time not to exceed (i) 2 days for material malfunctions of\nthe Service after written notice by any party of such condition, and (ii) 4 days\nfor any non-material malfunction of the Service after written notice by any\nparty of such condition or as otherwise agreed to by the parties.\n\nMAILTO LINK\n\nNotwithstanding the provisions below, Netscape may in its discretion require\nthat the mailto link send certain help requests to Netscape, as the parties\nshall agree in the Statement of Work.  For purposes of this Agreement, 'Service\nPages' shall refer to the co-branded pages on Netcenter being designated\nhereunder for the Service.\n\nNETCENTER GENERAL TERMS\n\n\n\n\nSEE ATTACHMENT\nSEE ALSO ADDITIONAL ATTACHMENT TO BE MUTUALLY AGREED AND ATTACHED\nAS EXHIBIT C-2, COVERING NETCENTER DESIGN AND SPECIFICATIONS AND\nREPORTING REQUIREMENTS\n\n\n\n\n\n                                       20\n\n\n\n                                   ATTACHMENT C-1\n                           USER REGISTRATION AND PRIVACY\n\nI. DEFINITIONS\n\n'Netcenter Registration' means the portion of the registration that is\nmaintained, hosted, and controlled by Netscape and applies to multiple services\nacross Netcenter. Netcenter Registration includes the assignment of a user name,\npassword, and the collection of core Netcenter user profile data including but\nnot limited to: First name, Last name, Address, City, State, Country, Zip Code,\nEmail Address, Age and Gender.  Netscape Registration means any registration\nthat is maintained, hosted, and controlled by Netscape and applies to Netscape's\nWeb Site. Netscape Registration includes the assignment of a user name,\npassword, and the collection of core user profile data including but not limited\nto: First name, Last name, Address, City, State, Country, Zip Code, Email\nAddress, Age and Gender.\n\nII. REGISTRATION PROCESS\n\nTo the extent that Intraware desires to offer a registration process, Intraware\nwill be responsible for the implementation of the Service Registration and the\nintegration of the Service with Netcenter Registration. The functionality,\ndesign, and, integration of the Service Registration process and Netcenter\nRegistration will be subject to Netscape's approval, terms and conditions as\ndefined this Agreement. Such specifications, terms and conditions may be revised\nby Netscape from time to time upon 30 days prior notice to Intraware. Intraware\nwill implement changes within a 30 day period unless the parties mutually agreed\notherwise. The point of entry to the registration area from the Service shall be\nhosted and controlled by Netscape unless otherwise determined by Netscape.\n\nIII. REGISTRATION FEATURES\n\nThe Service Registration area shall be co-branded and have a look and feel which\nis consistent with the implementation of the registration process in other\nsections of Netcenter. Intraware shall not launch the Service Registration until\nNetscape has notified Intraware in writing that Netscape has accepted\nIntraware's implementation. Intraware shall manage site access using Netcenter\nsite access models, as such site access models shall be determined by Netscape\nfrom time to time upon notice to Intraware. Netscape shall transfer to Intraware\nall data necessary to provide site access to registered Netcenter users.\nIntraware will make commercially reasonable efforts to implement such changes\nwithin a 30 day period.\n\nIII.  DATA COLLECTED BY INTRAWARE DURING SERVICE REGISTRATION PROCESS\n\nNetscape will determine the data to be collected in the Service Registration\nprocess considering Intraware's recommendations and technical restrictions.\nNetscape reserves the right to change  such data requirements from time to time.\nIntraware will make BEST efforts [STILL AN ISSUE] to implement these changes\nwithin 5 working days unless mutually agreed to otherwise. If Netscape\nimplements a Netcenter loyalty program, Intraware shall also offer end user\nloyalty selections as part of the Service Registration process at Netscape's\nrequest. Intraware shall deliver to Netscape data collected pursuant to such\nloyalty programs in a format and timeframe as mutually agreed to by the parties.\n\nV.   DATA TRANSFER \n\nIntraware shall use commercially reasonable efforts to transfer all end user \ndata collected during the Service Registration process and data collected by \nany other means, to Netscape in real time data transfer, unless otherwise \nagreed to by the parties. Netscape reserves the right to request any \ninformation collected during the Service Registration to be supplied in a \nNetscape specified format and timeframe. If Intraware collects information \nabout users \n\n\n                                     21\n\n\naccessing the Service in addition to information supplied by the users during \nthe registration process, such information shall be made available to \nNetscape in a format and timeframe as the 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, Intraware 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\nOwnership and use of customer data shall be as set forth in the Agreement. \nIntraware: (i) shall have the right to aggregate such data and information \nand use such aggregated data only for marketing and reporting pertaining to \nthe SubscribNet service and specifically not for sales solicitation of \ncustomers), except as required for legal, audit or tax purposes; (ii) shall \nnot disclose to any third party such end user data and information without \nNetscape's prior written approval; and (iii) may use information collected \nabout the users during registration or from any other means ('End User \nInformation') only for the purpose of marketing Netcenter programs to the \nusers. The parties shall treat all data pertaining to the Service, including \nwithout limitation Netscape Customer Data and Intraware Customer Data, as \nConfidential Information. Intraware may not disclose any non-Intraware \ncustomer data to any third party such end user data and information without \nNetscape's prior written approval. It is a material obligation of this \nAgreement that Intraware 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 Intraware's disclosure of aggregate \nstatistical information concerning Service's demographics and use to \nadvertisers. Intraware shall not resell or disclose such End User Information \nto any third party; provided however, that Intraware may sell or disclose \nsuch End User Information to third parties upon prior notice to and consent \nfrom such end users and written approval from Netscape. If Netscape \ndetermines that Intraware or third party in contract with Intraware 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 Intraware if Intraware is not in compliance \nwithin 5 days of written notice from Netscape. After a given end user has \nrequested to be 'unsubscribed' from the Service, Intraware will terminate all \nServices unless otherwise specified by the user and discontinue any use of \nthe End User Information associated with the given user. After the \ntermination or expiration of the Service Period, Intraware will transfer all \nnon-Intraware customer data, including Netscape Customer Data, to Netscape \nand destroy all copies of that data.\n\n\n                                      22\n\n\n\n                                 ATTACHMENT C-2\n\n\n-NETCENTER DESIGN AND IMPLEMENTATION SPECIFICATIONS\n-NETCENTER REPORTING REQUIREMENTS\n\n\n\n\n                                      23\n\n\n\n                                 ATTACHMENT D\n                   MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\n\n\nPREVIOUSLY EXECUTED DOCUMENT MUST BE ATTACHED\n\n\n\n\n                                      24\n\n\n\n                                 ATTACHMENT D\n                               ESCROW AGREEMENT\n\nSEE ATTACHED PAGES\n\n\n\n\n                                      25\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-42781","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\/42781","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=42781"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42781"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42781"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42781"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}