{"id":42784,"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-sun-microsystems-inc-and-intraware-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"services-agreement-sun-microsystems-inc-and-intraware-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/services-agreement-sun-microsystems-inc-and-intraware-inc.html","title":{"rendered":"Services Agreement &#8211; Sun Microsystems Inc. and Intraware Inc."},"content":{"rendered":"<pre>                          INTRAWARE SERVICES AGREEMENT\n\n\n         This SERVICES AGREEMENT is made and entered into to be effective as \nof July 1, 1999 (the 'Effective Date') between Sun Microsystems, Inc. \n('Sun'), a Delaware corporation with offices at 901 San Antonio Road, Palo \nAlto, CA 94303, and Intraware Inc., a Delaware corporation ('Intraware'), \nwith offices at 25 Orinda Way, Orinda California 94563.\n\n         WHEREAS, Sun is in the business of developing and offering for sale \ncertain software products and related support services;\n\n         WHEREAS, Intraware is in the business of developing and offering for \nsale worldwide proactive software update and management services to and users \nthrough its SubscribNet-Registered Trademark- service; and\n\n         WHEREAS, Sun desires to obtain, and Intraware desires to provide, \nworldwide subscriptions of Intraware's SubscribNet-Registered Trademark- to \nNon-consumer Customers of Sun (as defined below):\n\n         NOW THEREFORE, in consideration of the foregoing recitals, and for \nother good and valuable consideration, the receipt and sufficiency of which \nis hereby acknowledged, the parties hereto agree as follows:\n\n                                    ARTICLE 1\n                                   DEFINITIONS\n\n         For purposes of this Agreement terms used and not otherwise defined\nherein shall have the following meanings:\n\n         'AGREEMENT' OR 'THIS AGREEMENT' shall mean this Services Agreement and\nthe following attachments:\n\n\n\n         Attachment A               Web Site General Terms\n\n         Attachment B               User Registration and Privacy\n\n         Attachment C               Escrow Agreement\n\n         Attachment D               Trademark Guidelines\n\n         'CHANNEL DISTRIBUTOR' shall mean any Sun authorized distributor or\nreseller of Sun Products, or any Sun authorized distributor or reseller of Third\nParty Products on behalf of Sun, other than Intraware, who has purchased a\nlicense from Sun to sell such Sun and Third Party Products.\n\n         'CONFIDENTIAL INFORMATION' shall mean this Agreement and all\ninformation about Intraware Products and Sun Products, as well as Intraware and\nSun services, customers, strategy, research. \n\n\n\ndevelopment, methods of manufacture, trade secrets, business plans, finances, \npersonnel data, and other material or Information considered confidential by \neither party. Confidential information also includes any third party \nconfidential information disclosed to either party under this Agreement.\n\n         'END USERS' shall mean all Non-consumer Parties who have a Sun\nmaintenance subscription for their license to use Sun Products which they\nacquired from Sun or a Channel Distributor, as well as all Non-consumer Parties\nwho obtain a maintenance subscription to Third Party Products for which they\ncurrently own a license through Sun or a Channel Distributor.\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\nservice directly or indirectly from Intraware or its non-Sun partners or who\nbecomes an Intraware Customer under Section 2.7.\n\n         'INTRAWARE PRODUCTS' shall mean any Intraware software that \nIntraware will use in connection with the Services, including, without \nlimitation, its SubscribNet-Registered Trademark- products, and any major and \nminor updates or functional supersets to any such products to the extent such \nproducts do not incorporate data received by Intraware in providing the \nservices, as defined below.\n\n         'SUN CUSTOMER DATA' shall have the meaning set forth in Section 2.7.\n\n         'SUN PRODUCTS' shall mean all current, commercially available software\nproducts provided by Sun to Intraware and listed in the then-current\nSun-Netscape Alliance price books for the Territory (Price Books) excluding\nThird Party Products as defined below. If at any time during the Term, Sun\nsells, assigns or otherwise transfers its right to distribute directly or\nthrough Channel Distributors any such products listed on the applicable Price\nBooks, such Sun products shall cease to be 'Sun Products' under this Agreement.\n\n         'SUN UPDATES' shall mean major and minor updates, if any, or any\nfunctional supersets, to the Sun Products or to Third Party Products. 'Major\nUpdates' involve additions of substantial functionality while 'Minor Updates' do\nnot. Major Updates are designated by a change in the number to the left of the\ndecimal point of the number appearing after the product name while Minor Updates\nare designated by a change in such number to the right of the decimal point.\nMinor Updates shall also include bug patches and bug fixes as mutually agreed\nupon. Sun is the sole determiner of the availability and designation of an\nupdate as a Major or Minor Update. Major Updates exclude software releases which\nare reasonably designated by Sun as new products. Where used herein, 'Sun\nUpdates' shall mean Major Updates and Minor Updates interchangeably.\n\n         'SUN 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 for the Sun-Netscape Alliance and\/or at such\nother URL or locations as Sun may designate. Sun'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\n                                       -2-\n\n\n         'NON-CONSUMER CUSTOMER \/ NON-CONSUMER PARTY' shall mean any party or\ncustomer who licenses 10 or more copies and\/or seats of a Sun client product, or\na purchaser of any other Sun Product.\n\n         'SERVICES' shall mean the services to be provided by Intraware in\naccordance with Article 2, Article 4.\n\n         'SUBSCRIBNET' shall mean Intraware's software subscription update\nservice for Non-consumer Customers.\n\n         'SUBSCRIBNET UPDATES' shall mean enhancements to SubscribNet.\n\n         'SUBSCRIPTION' shall mean an offering by Sun of SubscribNet that\nentitles End Users, upon entering into a maintenance agreement with Sun, to\nreceive Sun Updates for the number of users for which each such End User has\nreceived a license to a Sun or Third Party Product.\n\n         'TERRITORY' shall mean worldwide.\n\n         'THIRD PARTY PRODUCTS' shall mean all third party vendor products\ncurrently distributed by Sun, or by a Channel Distributor from the worldwide\nprice book for the Sun-Netscape Alliance, as of the Effective Date, which is\nprovided by Sun to Intraware under this Agreement. If at any time during the\nTerm, Sun sells, assigns, ceases selling or otherwise transfers its right to\ndistribute directly or through Channel Distributors products form any third\nparty vendor in the Price Books for the Sun-Netscape Alliance such vendor's\nproducts shall cease to be 'Third Party Products' under this Agreement.\n\n                                    ARTICLE 2\n                                    SERVICES\n\n         2.1 GENERAL. Intraware shall perform the Services in accordance with\nthe terms and conditions set forth herein only for such Sun Products. Sun\nreserves the right from time to time to exclude from the Services any particular\nSun Product, in each case upon consideration of such factors as the ease and\nquality of electronic download or customer preferences. The Service will not be\ndisadvantaged, in terms of features, functionality and programming, as the\nprivate label SubscribNet services that Intraware makes available to other\ncustomers.\n\n         2.2 [*] However, Sun reserves the right to for Sun or its strategic \nthird party working through the Sun-Netscape Alliance provide for itself \nservices similar to the Service.\n\n         2.3 TERMS OF DISTRIBUTION. Sun and Intraware shall offer the\nSubscription to End Users through Sun's maintenance agreement, and as soon as\npracticable after the Effective Date such agreement will clearly state on behalf\nof each party and for the benefit of Channel Distributors that maintenance\nincludes the SubscribNet service. End Users will be able to access the Services\nthrough \n\n\n                                       -3-\n\n\nthe Sun Web Site through a URL to be mutually agreed, however, the URL will \ninclude a Sun domain for the Sun-Netscape Alliance. The Service may also be \naccessed through other URLs on Sun's Web Site, URLs contained in email \nnotifications and\/or through such other sites within Sun's Web Site as Sun \nmay specify from time to time. For reporting purposes, all traffic on the \nsite shall be considered to be Sun traffic, however, Intraware may use \naggregated traffic data for the purposes of this Agreement and as directed by \nthe Sun contact person identified at paragraph 16.12 below.\n\n         2.4 SUBSCRIBNET UPDATES. [*] Such SubscribNet Updates will be \ndistributed in the same manner as the Services are distributed under this \nAgreement.\n\n         2.5 PERSONNEL. Each party shall provide adequate resources to assure\nits performance under this Agreement. Towards this goal, the parties will\ndesignate the resources set forth in this Section 2.5.\n\n                  (A) SUN PERSONNEL. Sun will designate an Operations Program\nManager for the implementation of this Agreement and to insure the success of\nthe Services. Sun will further designate a marketing representative to approve\ncontent and other marketing related issues.\n\n                  (B) INTRAWARE PERSONNEL. Intraware will assign a dedicated\nOperations Program Manager for the implementation of this Agreement and to\ninsure the success of the Services. Intraware will further assign a dedicated\nmarketing representative to approve content and other marketing related issues.\n\n         2.6 MONTHLY REVIEWS. During the Initial Term, Sun and Intraware shall\nmeet to conduct monthly reviews at Intraware's and Sun's primary business\naddresses in alternating order to discuss and adjust metrics and performance and\nto coordinate management information systems or other operational processes\narising out of this Agreement. Each party will bear its own travel or other\ncosts associated with attending any such meetings. In any renewal Term, the\nparties shall mutually agree upon the frequency and scope of periodic reviews.\n\n         2.7      END USER DATA:\n\n                  (A) Except as expressly provided in this subparagraph (A), \nall customer data, including channel transaction data, added to the \nSun\/SubscribNet Service or existing other data provided by Sun in connection \ntherewith on the date hereof will be considered Sun data ('Sun Customer \nData') and shall be solely owned by Sun, and [*]. If a Sun customer is also, \nindependently, an Intraware Customer, and requests that its account be \nhandled through Intraware, [*] such customer data shall be owned jointly by \nIntraware and Sun. All such data shall constitute 'Confidential Information' \nand shall be subject to the end user and privacy guidelines set forth in \nATTACHMENT B.\n\n                                       -4-\n\n\n                  (B) Intraware will implement procedures reasonably acceptable\nto Sun, and use reasonable commercial efforts, to distinguish channel\ntransaction data files between Sun Customers and Intraware Customers.\n\n                  (C) [*]\n\n         2.8 THIRD PARTIES. Notwithstanding anything in this Agreement to the\ncontrary, Intraware may perform Services hereunder for Third Party Products only\nif and to the extent Sun is authorized to enable electronic download of Third\nParty Products. The parties may mutually agree whether and the terms upon which\nadditional third party vendor products shall be added to the definition of\n'Third Party Products' under this Agreement.\n\n         2.9 CHANNEL DISTRIBUTORS. Notwithstanding anything in this Agreement to\nthe contrary, Sun's arrangements with its Channel Distributors may not permit\nIntraware to electronically distribute Sun Products, in which case such\narrangement shall be excluded from the Services. In addition, Sun 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\n         2.10 END USERS. Should a Non-consumer Party obtain a license to a Third\nParty Product through Sun or a Channel Distributor after the Effective Date, and\nshould such Non-consumer Party wish to acquire a maintenance subscription from\nSun or a Channel Distributor to receive the SubscribNet services, upon approval\nby Intraware and receipt by Intraware of [*] (or such other percentage and terms\nas the parties may agree) of the 'net Subscription sales price' from Sun for\neach such Non-consumer Party, such additional Non-consumer Party will become an\nEnd User. 'Net Subscription sales price' means the price indicated in an invoice\nfor any sale of a Sun Product, i.e., the gross sales price less applicable\ndiscounts, but excluding rebates, if any.\n\n         2.11 REPORTING\/ACCESS. Sun will have full access to the systems data\nrecords, and such records will be reasonably compatible with Sun systems.\nIntraware will provide Sun with an online and flexible direct interface to this\ndata through a reporting tool.\n\n                                    ARTICLE 3\n                              TERM AND TERMINATION\n\n         3.1 TERM. Unless sooner terminated in accordance with this Article or\nArticle 9 (Default), the term of this Agreement (the 'Term') shall commence on\nthe Effective Date and shall continue for a period ending on September 30, 2000.\n\n                  (A) If prior to the expiration of the Term, Sun, by written \nnotice to Intraware, elects to renew this Agreement for an additional term, \nbut the parties fail to mutually agree upon renewal after the initial Term, \nthen Intraware shall be obligated to continue to perform the Services for a \nperiod of [*] after the expiration of the Term and Sun will pay Intraware [*] \nof Sun's Subscription revenue of Sun Products covered during the period; and\n\n                                       -5-\n\n\n                  (B) If the parties agree on a renewal Term, the price for the\nServices shall not exceed [*] of Sun's Subscription revenue over the\npreceding Term.\n\n         3.2      TERMINATION.\n\n                  (A) For Convenience. This Agreement may be terminated by Sun\nfor convenience upon one hundred eighty (180) calendar days prior written notice\nto Intraware, and in such event, Sun shall pay Intraware for the Services based\nupon the pro rata portion of fees earned by Intraware through the effective date\nof termination.\n\n                  (B) WITH CAUSE. If this Agreement is terminated by Sun for\ncause by reason of an Event of Default, as set forth in Article 9, Intraware\nwill pay to Sun on a pro-rate basis over the Term, the quarterly pre-payments\npayable by Sun hereunder. Any termination, however, shall not relieve either\nparty from any obligations hereunder that survive termination under Section 16.3\nhereof.\n\n         3.3 TECHNOLOGY ESCROW. Intraware agrees that the entire source code for\nSubscribNet and other Intraware Products, together with all related listings and\ndocumentation, as it now exists or hereafter becomes available including, but\nnot limited to, the then current version(s) of such products being used by\nIntraware in the performance of the Services, ('Escrow Materials') will be\ndeposited, maintained and updated at Sun's expense in escrow substantially in\nthe form of the Escrow Agreement attached hereto as ATTACHMENT C. Intraware\nshall deposit the Escrow Materials within thirty (30) days of the Effective Date\nor, in the case of updates to the Service, within thirty (30) days after\ncommercial release of such updates.\n\n                                    ARTICLE 4\n                            WEB SITE RESPONSIBILITIES\n\n         4.1 TRADEMARKS AND BRANDING. A name using the format '[generic name ]\nby SubscribNet, an authorized Sun-Netscape Alliance provider' will be mutually\nagreed between the parties for use on the Sun\/SubscribNet site and throughout\nall communications and materials, including but not limited to marketing\nmaterials and price lists. relating to the Services. All use of the SubscribNet\nbrand by Sun will be subject to mutually agreed to trademark guidelines provided\nby Intraware to be attached in Attachment D, and all use of the 'Sun' or Sun\nowned or Netscape or Netscape owned trademarks will be subject to the Sun\nTrademark &amp; Logo usage Requirements provided by Sun at\nhttp:\/\/www.sun.com\/policies\/trademarks for Sun and in accordance with Netscape's\ncurrent trademark guidelines. Intraware shall not independently use the Sun name\nwithout Sun's prior written consent unless such use occurs in connection with\nIntraware's advertising sales and promotional efforts on behalf of the Service\nin accordance with the Sun Trademark &amp; Logo Usage Requirements. The use of the\nSun name or brands will be subject to Sun's then-current design guidelines to be\nprovided by Sun.\n\n         4.2 TECHNICAL SUPPORT. Intraware will provide technical support to Sun\nto ensure that content is correctly received and displayed by Sun. Intraware\nshall provide technical support services for the Service to Sun on a timely\nbasis, appoint a technical contact to whom Sun may \n\n\n                                       -6-\n\n\naddress all technical questions relating to the Service, and use reasonable \ncommercial efforts to promptly remedy any material malfunctioning of the \nService. Intraware shall be solely responsible for the purchase, \nimplementation, maintenance and support of all software and hardware required \nto fulfill its obligations under the Agreement.\n\n         4.3 SERVICE IMPLEMENTATION. Intraware shall provide Services on the\nSun's web Site. All content supplied by Intraware for the Service will meet\nspecifications provided by Sun with regard to page size, loading speed and speed\nof access to database driven content; provided that such obligations shall not\nbe materially more restrictive than the current features, unless the parties\notherwise mutually agree. Intraware shall be responsible for the production,\ntechnology deployment, content programming, and creation of graphic user\ninterfaces of the Service; all in accordance with Sun's then-current guidelines.\nThe Service shall use substantially the same technology and advantages that\nIntraware uses in its own proprietary SubscribNet service(s), if any, unless\notherwise mutually agreed by the parties. The Service shall not be disadvantaged\nor suffer from inferior production, programming or performance relative to\nIntraware's similar services, or any similar service that Intraware might make\navailable to, or operate on behalf of, third parties. The Service shall perform\nsubstantially in accordance with the performance standards of its own\nproprietary services, including, but not limited to, load time, timeliness of\ncontent, 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\n         4.4 LICENSE GRANT. During the Term, Intraware grants to Sun the\nnon-exclusive, worldwide and royalty-free right to store, display, perform, and\notherwise use the data, information, content or other intellectual property\nprovided by Intraware for use within the Service.\n\n         4.5 WEB SITE GENERAL TERMS. The parties agree and accept the Web \nSite General Terms provided herewith as ATTACHMENT A.\n\n                                    ARTICLE 5\n                                  PAYMENT TERMS\n\n         5.1 PRICE. In consideration for the Services performed hereunder and \nsubject to the terms and conditions hereof, Sun shall pay Intraware [*] for \nthe Services.\n\n         5.2 PAYMENT TERMS. Sun will pay [*] of the total amount due to \nIntraware under this Agreement on a Sun fiscal year quarterly basis with any \nremainder amount due to be paid in the final payment. All payments by Sun \nwill be forwarded within 30 days of Sun's receipt of the Intraware invoice \nduring the Term of this Agreement until all payments due to Intraware have \nbeen made. Intraware may submit its invoice on the first day of each calendar \nmonth which begins a Sun fiscal year quarter during the Term of this \nAgreement. Payment shall be considered a pre-payment for Services to be \nprovided by Intraware during that Sun fiscal year quarter. All payments made \nby Sun hereunder will be made by wire transfer to the bank\n\n                                       -7-\n\n\nspecified by Intraware. A finance charge of one and one-half percent (1.5%) per\nmonth, or the lawful limit if less, shall be assessed on all amounts that are\npast due, and 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         5.3 To the extent that Sun Products are added to the Price Books \nafter August 31, 1999, Sun shall pay to Intraware [*] of the Subscription \nfees received by Sun for such Sun Product, not to exceed [*], which amount \nshall be the total amount due to Intraware from Sun for the addition of Sun \nProducts as contemplated herein.\n\n                                    ARTICLE 6\n                          REPRESENTATIONS AND WARRANTY\n\n         6.1 INTRAWARE'S REPRESENTATIONS AND WARRANTY. Intraware represents\nand\/or warrants to Sun, as appropriate as follows:\n\n                  (A) NO RESTRICTIONS. Intraware represents that it is not under\nany obligation 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\nperformed by Intraware or subcontractors, shall be performed in a professional\nand workmanlike manner, with all due skill and care, and will meet or exceed the\nspecifications set forth in the requirements of this Agreement and any\ndocumentation provided by Intraware.\n\n                  (C) INTRAWARE PRODUCTS. Intraware warrants that (i) the media\non which the Intraware Products are delivered will be free of defects in\nmaterial and workmanship, (ii) the Intraware Product(s) will function in\naccordance with the specifications for the Intraware Product(s) in applicable\ndocumentation, and (iii) any documentation provided with the Intraware\nProduct(s) shall be accurate in all material respects. This warranty will not\napply to Intraware Products that have been improperly installed or used in a\nmanner other than as authorized under this Agreement. Intraware does not warrant\nthat the Intraware Products will meet Sun's requirements except in accordance\nwith this Agreement, or that the Intraware Products will operate in the\ncombinations which Sun may select for users, or that the operation of the\nIntraware Products or that all errors will be repaired. Any claim submitted\nunder this product warranty section must be submitted in writing to Intraware\nwithin the warranty period. 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\nthe Intraware Products, including the SubscribNet software, contain\nfunctionality, including the time-and-date-related code, needed for the December\n31, 1999 to January 1, 2000 date change; provided the underlying operating\nsystem of the host machine, and any non-Intraware-owned software provided with\nor in the host machine or Product(s), also contain functionality, including the\ntime-and-date-\n\n\n                                       -8-\n\n\nrelated code, needed for the December 31, 1999 to January 1, 2000 date \nchange. The sole and exclusive remedy for any breach of this warranty is \nrepair or replacement of the affected Product(s), excluding any \nnon-Intraware-owned software or underlying operating system. This warranty is \nnull and void if Sun alters, modifies or misuses any portion of the \nProduct(s).\n\n         In the case of a breach of the warranty described in this subsection\n(D), Intraware shall use reasonable efforts to modify the Intraware Products\nsuch that the Intraware Product(s) is Year 2000 Compliant. [*]\n\n                  (E) THE WARRANTIES CONTAINED IN THIS ARTICLE 6 ARE THE ONLY\nWARRANTIES GIVEN TO SUN IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES\nPERFORMED HEREUNDER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT\nLIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A\nPARTICULAR PURPOSE ARE DISCLAIMED.\n\n         6.2 SUN'S REPRESENTATIONS AND WARRANTY. Sun 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\nAgreement, or at any time thereafter, will Sun copy, modify or otherwise utilize\nthe SubscribNet user Interface.\n\n                  (B) NO RESTRICTIONS. Sun represents that, except as provided\nin Sections 2.8 and 2.9, it is not under any obligation or restriction that\nwould in any way interfere with or be inconsistent with its performance\nobligations 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\nthe Confidential Information of the other for any purpose except for carrying\nout the 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\nConfidential Information from disclosure to third parties. Disclosures of the\nConfidential Information shall be restricted to the parties' employees who are\ndirectly participating in the efforts covered by this Agreement, have a need to\nknow such Confidential Information and are bound by the provisions of this\nArticle 7, except that the parties may disclose Confidential Information to\nNetscape Communications Corporation employees who directly participate in the\nefforts covered by this Agreement and agree to be bound by the terms herein.\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\n                                       -9-\n\n\n               (1) If such Confidential Information is publicly available or \nlater becomes publicly available other than through a breach of this \nAgreement; or\n\n               (2) If the disclosing party generally furnishes its \nConfidential Information to a third party without similar confidentiality \nrestrictions on the third party's rights; or\n\n               (3) If disclosure of such Confidential information is \ncompelled by court order or judicial or administrative process; or\n\n               (4) If such Confidential Information is independently \ndeveloped by the receiving party subsequent to such disclosure without use of \nConfidential Information disclosed hereunder; or\n\n               (5) If such Confidential Information is lawfully obtained by \nthe receiving party from a third party without obligations of confidentiality.\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\n         8.2 INTELLECTUAL PROPERTY INDEMNITY:\n\n                  8.2.1 INTRAWARE INDEMNITY. Intraware shall defend or settle,\nat its option, any action brought against Sun to the extent it is based on a\nclaim that use, reproduction or distribution by Sun 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 Sun to the extent\nthat it is based on a claim that the Intraware trademark(s) Sun is permitted to\nuse hereunder directly infringes any valid United States trademark. Intraware\nwill pay resulting costs, damages and legal fees finally awarded against Sun in\nsuch action which are attributable to such claim provided that Sun: (a) promptly\nnotifies Intraware in writing of any such claim and Intraware has sole control\nof the defense and all related settlement negotiations; and (b) cooperates with\nIntraware, at Intraware's expense, in defending or settling such claim.\n\n     Should an Intraware Produce become, or be likely to become in Intraware's\nopinion, the subject of infringement of such U.S. patent, copyright or trade\nsecret, Intraware may \n\n\n                                       -10-\n\n\nprocure for Sun: (i) the right to continue using the same; or (ii) replace or \nmodify it to make it non-infringing. In the event that Intraware shall \nreasonably determine that neither (i) nor (ii) above is commercially \npracticable, Intraware may terminate the license for the infringing Intraware \nProduct and refund Sun for the fees that Sun has paid hereunder (excluding \nthe initial payment) up to [*]. Intraware shall have no obligation or \nliability for, and Sun shall defend, indemnify and hold Intraware harmless \nfrom and against any claim based upon: (a) use of other than the then \ncurrent, unaltered version of the Intraware Product, unless the infringing \nportion is also in the then current, unaltered release; (b) use, operation or \ncombination of Intraware Products with non-Intraware programs, data, \nequipment or documentation is such infringement would have been avoided but \nfor such use, operation or combination; (c) Sun's or its agent's activities \nafter Intraware has notified Sun that Intraware believes such activities may \nresult in such infringement; (d) compliance with Sun's designs, \nspecifications or instructions; (e) any modifications or marking of the \nIntraware Products not specifically authorized in writing by Intraware; or \n(f) third party software. The foregoing states the entire liability of \nIntraware and the exclusive remedy of Sun with respect to infringement of any \nintellectual property rights, whether under theory of warranty, indemnity or \notherwise.\n\n                  8.2.2 SUN INDEMNITY. Sun 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 Sun portion of\nthe Sun 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. Sun will pay resulting costs, damages and legal fees finally awarded\nagainst Intraware in such action which are attributable to such claim provided\nthat Intraware: (a) promptly (within twenty (20) days) notifies Sun in writing\nof any such claim and Sun has sole control of the defense and all related\nsettlement negotiations; and (b) cooperates with Sun, at Sun's expense, in\ndefending or settling such claim.\n\n     Should a Sun Product become, or be likely to become in Sun's opinion, \nthe subject of infringement of such U.S. patent, copyright or trade secret, \nSun may procure for Intraware: (i) the right to continue using the same; or \n(ii) replace or modify it to make it non-infringing. In the event that Sun \nshall reasonably determine that neither (i) nor (ii) above is commercially \npracticable, Sun may terminate the license for the Infringing Sun Product and \npay Intraware an amount representing the fees that Sun has paid hereunder \n(excluding the initial payment) up to [*]. Sun shall have no obligation or \nliability for, and Intraware shall defend, indemnify and hold Sun harmless \nfrom and against any claim based upon: (a) use of other than the then \ncurrent, unaltered version of the Sun Product, unless the infringing portion \nis also in the then current, unaltered release; (b) use, operation or \ncombination of Sun Products with non-Sun programs, data, equipment or \ndocumentation if such infringement would have been avoided but for such use, \noperation or combination; (c) Intraware's or its agent's activities after Sun \nhas notified Intraware that Sun believes such activities may result in such \ninfringement; (d) compliance with Intraware's designs, specifications or \ninstructions; (e) any modifications or marking of the Sun Products not \nspecifically authorized in writing by Sun; or (f) third party software. The \nforegoing states the entire liability of Sun and the exclusive remedy of \nIntraware with respect to infringement of any intellectual property rights, \nwhether under theory of warranty, indemnity or otherwise.\n\n                                       -11-\n\n\n                  8.2.3 Neither party will have any liability to the other for\nany claim of infringement in this Section 8.2 based on (i) the other party's\ncontinued use or distribution, as the case may be, of a superseded product after\nthe indemnifying 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 by\nthe 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 infringement\nwould have been avoided by the use of the Services without such programs or\ndata.\n\n                                    ARTICLE 9\n                                     DEFAULT\n\n         9.1 EVENT OF DEFAULT. An 'Event of default' shall occur under any of\nthe following conditions:\n\n                  (A) Either party fails to perform any material obligation to\nbe performed 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 is\nprescribed, within thirty (30) days after written notice from the other party.\n\n                  (B) Either party becomes insolvent or unable to pay its debts\nas they become 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\na party's assets or a petition is filed in any insolvency, bankruptcy,\nreorganization, scheme of arrangement, reconstruction or similar proceeding, and\nsuch receiver, manager or liquidator is not discharged, or such petition is not\nwithdrawn, within ninety (90) days after such appointment or filing.\n\n         9.2 REMEDY. If either party causes to occur an Event of Default as\nspecified in Section 9.1, then the non-defaulting party, at its option, shall\nhave the right to terminate this Agreement by written notice as provided in\nSection 3 and pursue any other remedy hereunder or otherwise available to it at\nlaw or in equity.\n\n         9.3 COMPENSATION. The parties hereby expressly agree and acknowledge\nthat, except as provided in Section 3 and in this Section 9.3, termination of\nthis Agreement by either party shall not entitle it to any termination\ncompensation or to any payment in respect of any goodwill established by either\nparty during the Term or render Sun liable for damages on account of any loss of\nprospective profits or on account of any expenditure, Investment or obligation\nincurred or made by Intraware.\n\n\n                                       -12-\n\n\n                                   ARTICLE 10\n                             LIMITATION OF LIABILITY\n\n         EXCEPT FOR A BREACH OF SECTION 7 (CONFIDENTIALITY), 8 (INDEMNIFICATION)\nAND 11 (OWNERSHIP):\n\n         (A) EACH PARTY'S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT \nWILL IN NO EVENT EXCEED [*]; AND\n\n         (B) NEITHER INTRAWARE NOR SUN 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\nOF SUCH DAMAGES OR FOR ANY SIMILAR CLAIM AGAINST LICENSEE BY ANY OTHER PARTY.\n\n                                   ARTICLE 11\n                                    OWNERSHIP\n\n         11.1 SUN OWNERSHIP. Intraware shall acquire no rights in and to the Sun\nProducts or the Sun Customer Data, and all ownership rights in and to the Sun\nProducts, Sun Customer Data and any marketing or customer data generated\nhereunder shall remain with Sun or its licensors, as appropriate. Intraware\nagrees that it shall not (i) sell, transfer or assign any of same or any rights\nor interest therein, or (ii) create or suffer to exist any liens with respect to\nthe Sun Products or its programs or publications, except in accordance with this\nAgreement or the specific instructions of Sun or its licensor hereunder or\nstatutory or common law liens resulting from Sun's failure to pay Intraware\ninvoices. Intraware acknowledges that Sun (or its licensor) is the owner of all\nintellectual and proprietary rights in the Sun Products or its programs and\npublications, including source and object code, copyrights and patents relating\nto the Sun Products or its programs and publications, and that neither this\nAgreement nor the Sun 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         11.2 INTRAWARE OWNERSHIP. Sun shall acquire no rights in and to the\nIntraware Products or the Intraware Customer data, and all ownership rights in\nand to such Intraware Product, shall remain with Intraware or its licensors, as\nappropriate. Sun agrees that it shall not (i) sell, transfer or assign any of\nsame or any rights or interest therein, or (ii) create or suffer to exist any\nliens with respect to the Intraware Products or its programs or publications,\nexcept in accordance with this Agreement or the specific instructions of\nIntraware or its licensor hereunder or statutory or common law liens resulting\nfrom Intraware's failure to pay Sun invoices. Sun acknowledges that Intraware\n(or its licensor) is the owner of all intellectual and proprietary rights in\nsuch Intraware Product, including source and object code, 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\n                                       -13-\n\n\n                                   ARTICLE 12\n                                    DISPUTES\n\n         Should any dispute or differences arise from this Agreement or any\nperformance hereunder, the parties shall first attempt to arrive at an amicable\nsettlement, as follows. A party shall identify the existence of a dispute by\nnotifying the other party in writing. Upon such notice, the matter shall be\nreferred to a senior executive officer of each party whose responsibilities are\nnot in the profit center that is the subject of the dispute, for oral\npresentations (with minimal written support such as briefing charts or summary\nsheets). No outside counsel may appear during this informal process.\n\n         If at the completion of such presentation such officers cannot resolve\nthis dispute within thirty days after escalation, then either party may seek any\navailable legal relief. This provision will not affect either party's right to\nseek injunctive or other provisional relief at any time.\n\n                                   ARTICLE 13\n                                      TAXES\n\n         All prices are in U.S. Dollars and are inclusive of any applicable\ntaxes. Intraware shall be responsible for filing all appropriate federal, state\nand local 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\n         Intraware shall comply fully with all then current applicable laws,\nrules and regulations relating to the export of technical data, including, but\nnot limited to any regulations of the United States Office of export\nAdministration and other applicable governmental agencies and Intraware\nacknowledges that by virtue of certain security technology embedded in the Sun\nProducts, that export of such 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 SubscribNet\nservice will be made available to Sun.\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 Sun. The parties will mutually agree upon the guidelines for\nmarketing materials.\n\n         15.3 SUN MARKETING EFFORTS. Sun will use reasonable commercial efforts\nto communicate and disseminate the details of the SubscribNet program to its\nsales force, customer service \n\n\n                                       -14-\n\n\nrepresentatives, technical support representatives, Channel Distributors, \nthird party partners and end user customers upon implementation, launch and \non an ongoing basis.\n\n         15.4 JOINT PRESS RELEASE. Sun and Intraware will jointly issue a press\nrelease describing Sun usage of Intraware SubscribNet service. Such release will\nbe issued within 7 days of execution of this Agreement or as soon thereafter as\npossible. Sun will support the release with timely and reasonably scheduled\npress and analyst calls.\n\n         15.5 RESPONSE TIMES. Sun shall respond to Intraware requests for\napproval of marketing materials within 24 hours during a business day or as soon\nas practicable thereafter, or as otherwise agreed to by the parties, to ensure\ntimely delivery of such materials to End Users, taking into consideration the\nimportance 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 Sun and\nIntraware, the order of priority of this Agreement shall be as follows:\n(a) this Agreement, and (b) 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 form 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 93. (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.\n\n         16.5 SEVERANCE. In the event that any provision of this Agreement shall\nbe held by a court of law or other governmental agency to be void, voidable, or\nunenforceable, the remaining portions hereof shall remain in full force and\neffect.\n\n         16.6 RELATIONSHIP. Intraware is an independent contractor and nothing\ncontained herein shall be construed to create any other relationship between the\nparties. Nothing in this Agreement shall be construed to constitute either party\nas the agent of the other party for any purpose whatsoever, and neither party\nshall bind or attempt to bind the other party to any contract or the \n\n\n                                       -15-\n\n\nperformance of any other obligation, or represent to any third party that it \nhas the right to enter into any binding obligation on the other party's \nbehalf.\n\n         16.7 GOVERNING LAW. All questions concerning the validity and operation\nof this Agreement and performance of the obligations imposed upon the parties\nhereunder shall be governed by the substantive laws of the State of California.\nJurisdiction and venue shall be in Santa Clara County or the Northern District\nof California. Choice of law rules of any jurisdiction and the United National\nConvention on Contracts for the International Sale of Goods will not apply.\n\n         16.8 HEADINGS. The headings and titles to the Articles and Sections of\nthis Agreement are inserted for convenience only and shall not be deemed a part\nhereof or affect the construction or interpretation of any provision hereof.\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 waiver 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 agreements,\noral or written, heretofore made with respect to the subject matter hereof and\nthe transactions contemplated hereby and, with the Attachments hereto, contains\nthe entire agreement of the parties.\n\n         16.12 NOTICES. Notices and communications required or permitted to be\ngiven under this Agreement shall be written in English and shall be addressed as\nset forth below.\n\n         If to Sun:\n\n                  Sun Microsystems, Inc.\n                  901 San Antonio Road, MS _____\n                  Palo Alto, CA 94303-4900\n                  Attention: TBD\n                  Title:\n                  Telephone:\n                  Fax:\n\n                  And to\n\n\n                                       -16-\n\n\n                  Netscape Communications Corporation\n                  501 E. Middlefield Road\n                  Mountain View, CA 94043\n                  Attention: Tony Weber\n                  Title: Director\n                  Telephone: 650\/937-3095\n                  Fax: 650-937-5421\n\n         If to Intraware:\n\n                  Intraware, Inc.\n                  25 Orinda Way\n                  Orinda CA 94563\n                  Attention: Frost Prelow\n                  Title: Vice President Business Development\n                  Telephone: 925\/253-6594\n                  Fax: 925-253-4599\n\n         Notice shall be sent by registered mail, postage prepaid, return\nreceipt requested, by reputable overnight courier, paid by the sender, or by\nfacsimile. The date of receipt shall be deemed to be the date on which such\nnotice was actually received. Each party shall promptly give the other party\nwritten notice of any change of address or contract.\n\n         16.13 COMPLYING WITH THE LAW. Intraware and Sun agree to comply fully\nwith all applicable federal, state and local laws.\n\n         16.14 ATTORNEY'S 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 Sun's request, Intraware shall provide Sun with satisfactory\nevidence of such insurance. Before any cancellation or material change in any\ncoverage, Intraware shall provide Sun with 30 days advance written notice.\n\n         16.16 COUNTERPARTS. This Agreement may be executed in counterparts or\nby facsimile, each of which shall be an original and all of which together with\nconstitute one and the same agreement.\n\n\n                                       -17-\n\n\n         IN WITNESS WHEREOF, authorized representatives of the parties hereto\nhave executed this Agreement as of the Effective Date.\n\n\n                                            SUN MICROSYSTEMS, INC.\n\n                                            By: \/s\/ Allen D. Page\n                                                ------------------------------\n                                                Print name:  Allen D. Page\n                                                Print title:  V.P. Operations\n\n\n\n                                            INTRAWARE INC.\n\n                                            By: \/s\/ Donald M. Freed\n                                                ------------------------------\n                                                Print name:  Donald M. Freed\n                                                Print title:  EVP\/CFO\n\n\n                                       -18-\n :  PAGE&gt;\n\n                                  ATTACHMENT A\n\n                             WEB SITE GENERAL TERMS\n\nUPTIME\n\n         The Service will function substantially in accordance with the terms\nset forth in this Agreement. In any given twenty-four hour period during the\nService Period, the Service shall have an uptime of at least 98% with industry\nstandard downtime for maintenance, provided that such downtime not occur at peak\ntraffic times. 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\nMAIL TO LINK\n\n        Notwithstanding the provisions below, Sun may in its discretion require\nthat the mail to link send certain help requests to Sun, as the parties shall\nagree.\n\n\n                                       A-1\n\n\n                                  ATTACHMENT B\n\n                          USER REGISTRATION AND PRIVACY\n\nI.       DEFINITIONS\n\n         'Registration' means the portion of the registration that s maintained,\nhosted, and controlled by Sun and applies to multiple services across.\nRegistration includes the assignment of a user name, password, and the\ncollection of core user profile data including but not limited to: First name,\nLast name, Address, City, State, Country, Zip Code, Email Address, Age and\nGender.\n\n         Sun Registration means any registration that is maintained, hosted, and\ncontrolled by Sun and applies to Sun's Web Site. Sun 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, State,\nCountry, Zip Code, Email Address, Age and Gender.\n\nII.      REGISTRATION PROCESS\n\n         To the extent that Intraware desires to offer a registration process,\nIntraware will be responsible for the implementation of the Service Registration\nand the integration of the Service with Registration. The functionality, design,\nand integration of the Service Registration process and Registration will be\nsubject to Sun's approval, terms and conditions as defined in this Agreement.\nSuch specifications, terms and conditions may be revised by Sun from time to\ntime upon 30 days prior notice to Intraware. Intraware will implement changes\nwithin a 30 day period unless the parties mutually agreed otherwise. The point\nof entry to the registration area from the Service shall be hosted and\ncontrolled by Sun unless otherwise determined by Sun.\n\nIII.     REGISTRATION FEATURES\n\n         The Service Registration area shall have a look and feel which is\nconsistent with the implementation of the registration process in other sections\nof Sun's Web Site, Intraware shall not launch the Service Registration until Sun\nhas notified Intraware in writing that Sun has accepted Intraware's\nimplementation. Intraware shall manage site access using site access models, as\nsuch site access models shall be determined by Sun from time to time upon notice\nto Intraware. Sun shall transfer to Intraware all data necessary to provide site\naccess to registered users. Intraware will make commercially reasonable efforts\nto implement such changes within a 30 day period.\n\nIV.      DATA COLLECTED BY INTRAWARE DURING SERVICE REGISTRATION PROCESS\n\n         Sun will determine the data to be collected in the Service Registration\nprocess considering Intraware's recommendations and technical restrictions. Sun\nreserves the right to change such data requirements from time to time. Intraware\nwill make best efforts to implement those changes within 5 working days unless\nmutually agreed to otherwise. If Sun implements a loyalty program, Intraware\nshall also offer end user loyalty selections as part of the Service Registration\nprocess at \n\n\n                                       B-1\n\n\nSun's request. Intraware shall deliver to Sun data collected pursuant to such \nloyalty programs in a format and timeframe as mutually agreed to by the \nparties.\n\nV.       DATA TRANSFER\n\n         Intraware shall use commercially reasonable efforts to transfer all end\nuser data collected during the Service Registration process and data collected\nby any other means, to Sun in real time data transfer, unless otherwise agreed\nto by the parties. Sun reserves the right to request any information collected\nduring the Service Registration to be supplied in a Sun specified format and\ntimeframe. If Intraware collects information about users accessing the Service\nin addition to information supplied by the users during the registration\nprocess, such information shall be made available to Sun in a format and\ntimeframe as the parties shall mutually agree.\n\nV.       DATA TRANSFER\n\n         Intraware shall use commercially reasonable efforts to transfer all end\nuser data collected during the Service Registration process and data collected\nby any other means, to Sun in real time data transfer, unless otherwise agreed\nto by the parties. Sun reserves the right to request any information collected\nduring the Service Registration to be supplied in a Sun specified format and\ntimeframe. If Intraware collects information about users accessing the Service\nin addition to information supplied by the users during the registration\nprocess, such information shall be made available to Sun in a format and\ntimeframe as the parties shall mutually agree.\n\n         VI.      WEB SITE CONSIDERATIONS\n\n         All third party programs participating in the Service within shall\nregister users with when the user completes an order, if such user is not\nalready registered with. If a user is a registered member, Intraware shall\npre-populate relevant customer data fields in the customer order form based on\ninformation in the database or seamlessly pass this information to the third\nparty provider.\n\n         VII.     USE OF PERSONAL DATA\n\n         Ownership and use of customer data shall be as set forth in the\nAgreement. Intraware: (i) shall have the right to aggregate such data and\ninformation and use such data and information and use such aggregated data only\nfor marketing and reporting pertaining to the SubscribNet service and\nspecifically not for sales solicitation of customers, except as required for\nlegal, audit or tax purposes; (ii) shall not disclose to any third party such\nend user data and information without Sun's prior written approval; and (iii)\nmay use information collected about the users during registration or from any\nother means ('End User Information') only for the purpose of marketing programs\nto the users. The parties shall treat all data pertaining to the Service,\nincluding without limitation Sun Customer Data and Intraware Customer Data, as\nConfidential Information. Intraware may not disclose any non-Intraware customer\ndata to any third party such end user data and information without Sun's prior\nwritten approval.\n\n\n                                       B-2\n\n\n         It is a material obligation of this Agreement that Intraware shall\nadhere to Sun's then-current privacy policy, set forth at\nhttp:\/\/www.sun.com\/privacy\/ or at such other URL as Sun may designate from time\nto time. The parties will cooperate to create guidelines for Intraware's\ndisclosure of aggregate statistical information concerning Service's\ndemographics and use to advertisers. Intraware shall not resell or disclose such\nEnd User Information to any third party; provided however, that Intraware may\nsell or disclose such End User Information to third parties upon prior notice to\nand consent from such end users and written approval from Sun. If Sun determines\nthat Intraware or third party in contract with Intraware is not complying with\nthe terms of use of personal data published on Sun's Web Site for the\nSun-Netscape Alliance, or such other URL as Sun may determine from time to time,\nSun may terminate this Agreement upon written notice to Intraware if Intraware\nis not in compliance within 5 days of written notice from Sun. After a given end\nuser has requested to be 'unsubscribed' from the Service, Intraware will\nterminate all Services unless otherwise specified by the user and discontinue\nany use of the 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 Sun Customer Data, to Sun and destroy all\ncopies of that data.\n\n\n                                       B-3\n\n\n                                  ATTACHMENT C\n\n                                ESCROW AGREEMENT\n\n\n         See Attached Pages.\n\n\n                                       C-1\n\n\n                                  ATTACHMENT D\n\n                              TRADEMARK GUIDELINES\n\n                               See Attached Pages.\n\n\n                                       D-1\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7907,8968],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9613,9620],"class_list":["post-42784","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-intraware-inc","corporate_contracts_companies-sun-microsystems-inc","corporate_contracts_industries-technology__hardware","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\/42784","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=42784"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42784"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42784"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42784"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}