{"id":42856,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/sun-channel-agreement-master-terms-sun-microsystems-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"sun-channel-agreement-master-terms-sun-microsystems-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/sun-channel-agreement-master-terms-sun-microsystems-inc-and.html","title":{"rendered":"Sun Channel Agreement Master Terms &#8211; Sun Microsystems Inc. and Intraware Inc."},"content":{"rendered":"<pre>                              SUN CHANNEL AGREEMENT\n\n                                  MASTER TERMS\n\n\n         THIS SUN CHANNEL AGREEMENT MASTER TERMS ('Master Terms'), is made as of\nSeptember 1, 1999 ('Effective Date') between Sun Microsystems, Inc., with its\naddress at 901 San Antonio Road, Palo Alto CA 94303 ('Sun'), and Intraware Inc.,\nwith its address at 25 Orinda Way, Orinda, CA 94563 ('Customer').\n\n         The parties agree as follows:\n\n1.       SCOPE OF AGREEMENT\n\n         1.1 EXHIBITS AND SCHEDULES. These Master Terms describe the general\nterms by which, Customer may purchase Product and Service from Sun. The specific\nterms related to the purchase of Equipment, Software and Service are described\nin the appropriate Product or Service Exhibits and Schedules (collectively\nreferred to as 'Exhibits'). The Exhibit will specify whether Customer will\npurchase Equipment and\/or Service directly from Sun or a Sun authorized\nreseller. Each Exhibit and these Master Terms together constitute a separate\nagreement ('the Agreement'). Exhibits may be added or deleted from time to time\nby the agreement of the parties, but Customer is only authorized to purchase\nProduct or Service hereunder to the extent that one or more applicable Exhibits\nis executed and in force.\n\n         1.2 ORDER OF PRECEDENCE. The provisions of any Exhibit will take\nprecedence over these Master Terms, to the extent that they are inconsistent.\n\n2.       DEFINITIONS\n\n         2.1 EQUIPMENT means the hardware components (may also be referred to as\n'hardware') of Product and includes the media on which Software is pre-loaded.\n\n         2.2 PRODUCT means any Equipment and Software delivered by Sun directly\nor indirectly to Customer under the Agreement.\n\n         2.3 SERVICE means any consulting, educational and support services\nprovided directly or indirectly to Customer under the Agreement.\n\n         2.4 SOFTWARE means any binary software (and related documentation)\nprovided by Sun directly or indirectly to Customer under the Agreement.\n\n3.       TERM AND TERMINATION\n\n         3.1 TERM. These Master Terms commence on the Effective Date and will\ncontinue until the expiration or termination of all Exhibits. Each Exhibit shall\ndetail the commencement date of the Exhibit ('Exhibit Effective Date').\n\n\n\n         3.2 TERMINATION AT WILL. Either party may terminate these Master Terms\nand\/or any Exhibits without cause, for any reason, on one hundred eighty (180)\ndays written notice to the other party.\n\n         3.3 TERMINATION FOR CAUSE: Either party may terminate these Master\nTerms and any or all Exhibits:\n\n             (a) immediately, by written notice, upon material breach by the \nother party of the Agreement, if such breach cannot be remedied;\n\n             (b) by written notice, if the other party fails to cure any \nmaterial remediable breach of the Agreement within thirty (30) days of \nreceipt of written notice of such breach;\n\n             (c) automatically if Customer ceases to do business in the \nnormal course, becomes or is declared insolvent or bankrupt, is the subject \nof any proceeding relating to the liquidation or insolvency of Customer which \nis not dismissed within ninety (90) days or makes an assignment for the \nbenefit of its creditors;\n\n             (d) immediately by written notice if Customer undergoes any \nmaterial change in ownership or control (whether by way of voting or contract \nrights or otherwise) or in its business, which change Sun considers material, \nin the light of the fact that Customer has been appointed by Sun because of \nits present financial, technical and managerial conditions.\n\n         3.4 TERMINATION BY SUN. In addition to the general reasons set forth in\nSections 3.2 and 3.3 above, Sun may terminate these Master Terms and any or all\nExhibits, immediately by written notice if Customer:\n\n             (a) breaches any Sun Software license;\n\n             (b) breaches Section 5 (Confidential Information) of these \nMaster Terms;\n\n             (c) breaches (or Sun reasonably believes Customer will breach) \nthe U.S. Export Administration Regulations, the U.S. Foreign Corrupt \nPractices Act or similar laws or regulations of any other government; or\n\n             (d) infringes or challenges the validity of any Sun copyright or \nSun Trademark (as defined herein.)\n\n         3.5 CONSEQUENCES OF TERMINATION OR EXPIRATION. Upon any expiration or\ntermination of the Agreement (or all of them), the following will occur:\n\n             (a) all outstanding invoices and amounts owing from Customer to \nSun will there upon become immediately due and payable;\n\n             (b) Sun will have the right of first refusal to repurchase \nProduct in Customer's inventory at the lower of net invoice price or the then \nfair market value, as may be adjusted for any amounts due but unpaid pursuant \nto Section 3.5(a). If Sun desires to exercise this right, it will do so\n\n\n                                       -2-\n\n\nby written notice. Except in the case of Sun's termination for material \nbreach, for a period of ninety (90) days from the date of termination or \nexpiration, Customer may sell and\/or license under the terms of the Agreement \nany inventory Sun elects not to repurchase;\n\n             (c) Sun will have the right to cancel by written notice all or \npart of any unfulfilled order previously accepted by Sun. To the extent that \nSun does not cancel any such order, the Agreement will continue to apply to \nsuch order;\n\n             (d) except as otherwise provided in sub-section 3.5(b), Customer \nwill immediately return all Sun property under Customer's control (including \nwithout limitation all Sun confidential information, schematics, manuals, \nSoftware and Sun business plans) and remove, cancel and\/or cease to use the \nSun Trademarks, any signs or other advertising materials referring to Sun, or \nProduct or Service or to Customer as an authorized reseller of Sun; and\n\n             (e) except as otherwise provided in sub-section 3.5(b), all \nCustomer's rights under the Agreement shall immediately cease and Customer \nshall at no time in the future represent that it is an authorized reseller of \nSun or that it is in any way associated with Sun or Products.\n\n         3.6 SURVIVAL. Rights and obligations under the Agreement which by their\nnature should survive, will remain in effect after termination or expiration of\nthe Agreement. All provisions of these Master Terms shall continue to apply to\nany Exhibit which by its terms survives termination of these Master Terms.\n\n         3.7 NO LIABILITY FOR TERMINATION OR EXPIRATION. The right of\ntermination or expiration provided herein is absolute. Each party waives and\nreleases the other from any claim to compensation or indemnity related to the\npermitted or lawful termination of the business relationship established under\nthe Agreement.\n\n4.       COMMERCIAL TERMS\n\n         4.1 Commercial terms for Customers who purchase Products or Services\nfrom a Sun authorized reseller will be determined by Customer's agreement with\nsuch reseller. This Section 4.1 applies only to Customers who purchase Products\nor Services directly from Sun.\n\n             (a) PRICES AND TAXES. Prices and fees for Product and Service\nare [DDP excluding VAT (INCOTERMS 1990) or exclusive of all shipping and\ninsurance charges, and do not include sales tax or any other tax based upon the\nvalue of Product and\/or Service. Customer is responsible for payment of all such\ncharges and taxes. To the extent that Customer is required to withhold taxes\nbased upon Sun's income in any country, Customer will provide Sun with written\nevidence of such withholding suitable for Sun to obtain a tax credit in the\nUnited States.\n\n             (b) PAYMENTS. If Customer satisfies Sun's credit requirements, \npayment terms are net thirty (30) days from the date of Sun's invoice or \nshipment whichever is the later. Otherwise terms are cash in advance of \ndelivery. Sun in its reasonable commercial judgment may place Customer on \ncredit hold, in which event, Sun will promptly inform Customer and may: (i) \nwith respect to Product purchases, delay or reschedule Customer orders, and \n(ii) with respect to Service, discontinue delivery upon thirty (30) days' \nwritten notice to Customer. Interest will accrue from the\n\n\n                                       -3-\n\n\ndate on which payment is due at the lesser of fifteen percent (15%) per annum \nor the maximum rate permitted by applicable law. Customer will not be \nrequired to pay the disputed portion of any invoice, pending resolution of \nthat dispute, provided that written notice of the dispute has been forwarded \nto Sun in writing within (15) days of the date of that invoice.\n\n         4.2 RECORDS AND AUDITS. During the term of the Agreement and for a\nperiod of three (3) years thereafter, Customer will maintain accurate records as\nnecessary to verify compliance with the Agreement. Sun may audit these records\nat any time after reasonable written notice to verify compliance. Sun will\nconduct this audit through an independent auditor of Sun's choice ('Auditor'),\nduring Customer's normal business hours. Auditor will be bound to keep\nconfidential the details of the business affairs of Customer and to limit\ndisclosure of the audit results to only the sufficiency of the records,\nincluding, whether Customer is in compliance with the terms of the Agreement and\nthe amount, if applicable, of any required additional payment or other payment\nadjustment. Except as described below, Sun will bear all costs and expenses\nassociated with the exercise of its audit rights. Any errors in payments\nidentified will be corrected by Customer by appropriate adjustment in payment\nfor the quarterly period during which the error is discovered. In the event of\nan underpayment of more than five percent (5%), Customer will reimburse Sun the\namount of the underpayment, the reasonable charges of the Auditor in performing\nthe audit that identified the underpayment, and interest on the overdue amount\nat the maximum allowable interest rate from the date the obligation accrued.\n\n5.       CONFIDENTIAL INFORMATION\n\n         If either party desires that information provided to the other party\nunder the Agreement be held in confidence, that party will, prior to or at the\ntime of disclosure, identify the information in writing as confidential or\nproprietary. The recipient may not disclose such confidential or proprietary\ninformation, may use it only for purposes specifically contemplated in the\nAgreement, and must treat it with the same degree of care as it does its own\nsimilar information, but with no less than reasonable care. These obligations do\nnot apply to information which: a) is or becomes known by recipient without an\nobligation to maintain its confidentiality; b) is or becomes generally known to\nthe public through no act or omission of recipient, or c) is independently\ndeveloped by recipient without use of confidential or proprietary information.\nThis section will not affect any other confidential disclosure agreement between\nthe parties.\n\n6.       LIMITED WARRANTIES\n\n     6.1 PRODUCT AND SERVICE WARRANTIES. Any warranties for Product and Service\nwill be specified in the Exhibit(s).\n\n         6.2      YEAR 2000 WARRANTY.\n\n                  (a) Sun warrants that specified versions of Product identified\non Sun's external Web site (url: www.sun.com\/y2000\/cpl.html) as being Year 2000\ncompliant ('Listed Product') will not produce errors in the processing of date\ndata related to the year change from December 31, 1999 to January 1, 2000. Date\nrepresentation, including leap years, will be accurate when Listed Product \n\n\n                                       -4-\n\n\nare used in accordance with their accompanying documentation, provided that \nall hardware and software products used in combination with Listed Product \nproperly exchange date data with them.\n\n                  (b) In addition to the Listed Products, the warranty also\napplies to the Products identified in Attachment A to the Software Exhibit\nattached hereto.\n\n                  (c) Versions of Product identified on Sun's external Web site\nas not yet compliant, but which are scheduled to be made compliant, will become\nListed Product when remedial replacement parts, patches, software updates or\nsubsequent releases ('Y2K Fixes') are issued and properly installed.\n\n                  (d) Other Product are not covered by these warranties.\n\n                  (e) To the extent that Sun installs Y2K Fixes or performs\nother Service under the Agreement for Customer, Sun respectively warrants that:\n\n                         (i) upon installation of the Y2K Fixes, Product will\nbecome Listed Product; and\n\n                         (ii) Service performed on Listed Product will not\nresult in them ceasing to be Listed Product.\n\n                  (f) Customer's sole and exclusive remedy for Sun's breach of\nthese warranties will be for Sun: (i) at Sun's expense, to use commercially\nreasonable efforts to provide Customer promptly with equivalent Year 2000\ncompliant Product; or (ii) if (i) is commercially unreasonable, to refund to\nCustomer its net book value for non-compliant Listed Product.\n\n         6.3 [*]\n\n         6.4 DISCLAIMER OF WARRANTIES. UNLESS SPECIFIED IN THE AGREEMENT, OR IN\nANY EXHIBIT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,\nINCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR\nPURPOSE OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH\nDISCLAIMERS ARE HELD TO BE LEGALLY INVALID.\n\n7.       IMPORT AND EXPORT LAWS\n\n         All Product, Service and technical data delivered under the Agreement\nare subject to U.S. export control laws and may be subject to export or import\nregulations in other countries. Customer agrees to comply strictly with all such\nlaws and regulations and acknowledges that it has the responsibility to obtain\nsuch licenses to export, re-export or import as may be required after delivery\nto Customer.\n\n\n                                       -5-\n\n\n8.       NUCLEAR APPLICATIONS\n\n         Customer acknowledges that Products are not designed or intended for\nuse in the design, construction, operation or maintenance of any nuclear\nfacility. Sun disclaims any express or implied warranty of fitness for such\nuses.\n\n9.       TRADEMARKS\n\n         9.1 TRADEMARKS. 'Sun Trademarks' means all names, marks, logos,\ndesigns, trade dress and other brand designations used by Sun in connection with\nProduct and Service. Customer may refer to Product and Service by the associated\nSun Trademarks provided that such reference is not misleading and complies with\nSun's Trademark and Logo Policies. Customer may not remove or alter any Sun\nTrademarks, nor may it co-logo Product. Customer agrees that any use of Sun\nTrademarks by Customer will inure to the sole benefit of Sun or its licensors.\nCustomer agrees not to incorporate any Sun Trademarks into Customer's\ntrademarks, service marks, company names, internet addresses, domain names, or\nany other similar designations.\n\n         9.2 SPECIAL PROGRAM LOGOS. Customer may use the special program logo,\nif any, applicable to Customer's appointment, as established in any Exhibit\n(e.g. Authorized Reseller Logo) only: (a) as shown in the art work provided by\nSun; (b) in pre-sale marketing materials and advertising, but not on goods,\npackaging, product labels, documentation or other materials distributed with\nProduct; (c) in a manner no more prominent than Customer's corporate name and\nlogo; and (d) otherwise in accordance with the then current Sun Trademark and\nLogo Policies.\n\n         9.3 USE OF CUSTOMER INFORMATION. Each party has the right to disclose\nand publish the other party's name, address and profile information in\nconnection with it's Customer programs.\n\n10.      INTELLECTUAL PROPERTY CLAIMS\n\n         Sun will defend or settle at its option and expense any legal \nproceeding brought against Customer, to the extent that it is based on a \nclaim that the use of Product (or the use of the replacement parts, \nenhancements, maintenance releases, and patches ('Materials') provided to \nCustomer by Sun) directly infringe a [*], and will pay all damages and costs \nawarded by a court of final appeal attributable to such claim, provided that \nCustomer: (a) gives written notice of the claim promptly to Sun; (b) gives \nSun sole control of the defense and settlement of the claim; (c) provides to \nSun all available information and assistance; and (d) has not compromised or \nsettled such claim. If any Product or Materials are found to infringe, or in \nSun's opinion are likely to be found to infringe, Sun may elect to: (a) \nobtain for Customer the right to use such Product and\/or Materials; (b) \nreplace or modify such Product and\/or Materials so that they become \nnon-infringing; or if neither of these alternatives is reasonably available, \n(c) remove such Product and\/or Materials and refund Customer's net book value \nfor these Product and\/or Materials. Sun has no obligation under this Section \n10 for any claim which results from: (a) use of Product and\/or Materials in \ncombination with any equipment, software or data not provided by Sun, \nprovided such infringement claim would have been avoided had the Product not \nbeen used in combination with such equipment, software or data; (b) Sun's \ncompliance with designs or specifications of Customer; (c) modification of \nProduct and\/or Materials; or (d) use of an allegedly infringing version \n\n                                       -6-\n\n\nof any Product and\/or Materials, if the alleged infringement could be avoided \nby the use of a different version made available to Customer. THIS SECTION 10 \nSTATES THE ENTIRE LIABILITY OF SUN AND EXCLUSIVE REMEDIES OF CUSTOMER FOR \nCLAIMS OF INFRINGEMENT.\n\n11.      LIMITATION OF LIABILITY\n\n         11.1 Except for obligations under Section 10 (Intellectual Property\nClaims), or Section 12 (Indemnity and Insurance) or breach of any applicable\nlicense grant, and to the extent not prohibited by applicable law, each party's\naggregate liability to the other for claims relating to the Agreement, whether\nfor breach or in tort, will be [*].\n\n         11.2 Neither party will be liable for any indirect, punitive, special,\nincidental or consequential damage in connection with or arising out of the\nAgreement (including loss of business, revenue, profits, use, data or other\neconomic advantage) however it arises, whether for breach or in tort, even if\nthat party has been previously advised of the possibility of such damage.\n\n         11.3 Liability for damages will be limited and excluded even if any\nexclusive remedy provided for in the Agreement fails of its essential purpose.\n\n12.      INDEMNITY AND INSURANCE\n\n         Except for claims arising under Section 10 (Intellectual Property\nClaims), Customer will indemnify Sun and its suppliers from and against all\nclaims, liabilities, damages and costs (including legal fees and costs),\nrelating to (i) Customer's use or distribution of Product and Service under the\nAgreement or (ii) any acts or omissions of Customer. Customer shall carry\nliability insurance to protect Sun from all such claims, pay the premiums\ntherefor, and deliver to Sun, upon request, proof of such insurance (which shall\nrequire thirty (30) days' written notice to Sun in event of modification or\ntermination).\n\n13.      FORCE MAJEURE\n\n         A party is not liable under the Agreement for non-performance caused by\nevents or conditions beyond that party's control, if the party makes reasonable\nefforts to perform. This provision does not relieve either party of its\nobligation to make payments then owing.\n\n14.      WAIVER OR DELAY\n\n         Any express waiver or failure to exercise promptly any right under the\nAgreement will not create a continuing waiver or any expectation of\nnon-enforcement.\n\n15.      ASSIGNMENTS\n\n         Neither party may assign or otherwise transfer any of its rights or\nobligations under the Agreement, without the prior written consent of the other\nparty, which consent shall not be unreasonably withheld, except that Sun may\nassign its right to payment, assign the Agreement to an \n\n\n                                       -7-\n\n\naffiliated company, or subcontract the delivery of Service or Product. If Sun \nelects to subcontract Service or Product delivery, Sun will remain primarily \nresponsible for delivery.\n\n16.      RELATIONSHIP OF THE PARTIES\n\n         An Agreement is not intended to create a relationship such as a\npartnership, franchise, joint venture, agency, or employment relationship.\nNeither party may act in a manner which expresses or implies a relationship\nother than that of independent contractor, nor bind the other party.\n\n17.      NOTICES\n\n         All written notices required by the Agreement must be delivered in\nperson or by means evidenced by a delivery receipt and will be effective upon\nreceipt.\n\n18.      SEVERABILITY\n\n         If any provision of the Agreement is held invalid by any law or\nregulation of any government or by any court or arbitrator, such invalidity will\nnot affect the enforceability of any other provisions.\n\n19.      GOVERNING LAW\n\n         Disputes which cannot be settled amicably will be governed by the laws\nof the US and the state of California. Choice of law rules of any jurisdiction\nand the United Nations Convention on Contracts for the International Sale of\nGoods will not apply.\n\n20.      ENTIRE AGREEMENT\n\n         20.1 An Agreement (which includes the applicable Exhibit) is the\nparties' entire agreement relating to its subject matter. It supersedes all\nprior or contemporaneous oral or written communications, proposals, conditions,\nrepresentations and warranties and prevails over any conflicting or additional\nterms of any quote, order, acknowledgment, or other communication between the\nparties relating to its subject matter.\n\n         20.2 No modification to the Agreement will be binding, unless in\nwriting and signed by an authorized representative of each party.\n\n\n                                       -8-\n\n\n         IN WITNESS WHEREOF, THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES\nHAVE EXECUTED THESE MASTER TERMS AS OF THE EFFECTIVE DATE.\n\n\nSUN MICROSYSTEMS, INC.                      INTRAWARE\n\n\n\nBy:  \/s\/ Alton D. Page                      By:   \/s\/  Donald M. Freed\n    -------------------------------------       ---------------------------\n\nName:    Alton D. Page                      Name:      Donald M. Freed\n      --------------------------------             ---------------------------\n\nTitle:   VP Operations                      Title:   EVP\/CFO\n      --------------------------------             ---------------------------\n\nDate:    8\/31\/99                            Date:    8\/31\/99\n      --------------------------------             ---------------------------\n\n\n\n\n                                    EXHIBIT A\n\n                                SOFTWARE PRODUCTS\n                       DIRECT VALUE ADDED RESELLER (DVAR)\n\nThis SMI Software Exhibit ('Software Exhibit') between Sun Microsystems, Inc.\nand Customer is an attachment to the Master Terms between Sun and Customer and\nis effective as of the date of execution by Sun ('Exhibit Effective Date'). The\nMaster Terms are an integral part of this Software Exhibit and are incorporated\nby reference herein.\n\n1.       DEFINITIONS\n\n         1.1 'BCL' means the Sun binary code license contained in Software or\nrelated documentation.\n\n         1.2 'Channel Web' means Sun's proprietary software channel information\nsystem.\n\n         1.3 'End User' means the entity licensed to use Software under a BCL.\nIf End User is a corporation or other entity, then, for license fee purposes,\n'End User' includes each individual within such corporation or entity licensed\nto use Software under the BCL.\n\n         1.4 'Error' means any reproducible failure of Software to perform its\nintended function or any significant inaccuracy in its related documentation.\n\n         1.5 'Error Correction' means a modification, procedure, patch or\nroutine intended to correct the practical adverse effect of an Error.\n\n         1.6      'Fees' means the fees set forth in the Price List.\n\n         1.7 'Guide' means the Sun Channel Program Guide or Guides relating to\nSoftware ordered under this Software Exhibit.\n\n         1.8 'NFR Software' means Software designated on the Channel Web as 'not\nfor resale' software.\n\n         1.9 'Price List' means the applicable Sun Price List current at the\ntime of execution of this Software Exhibit and any subsequent price changes made\nby Sun under Section 3.4 of this Software Exhibit.\n\n         1.10 'Software', in addition to the definition in the Master Terms,\nincludes Error Corrections, upgrades, NFR Software and Subscription Kits.\n\n         1.11 'Software Release' means a release of Software that is designated\nby Sun in its sole discretion by a change in the digit(s) to the left of the\ndecimal point in the Software version number [(x).x.x].\n\n\n         1.12 'Subscription Kit' means tangible or electronically downloadable\nmaterials designated in the Price List as a Sun Software Subscription Program\nProduct and delivered in kit form.\n\n         1.13 'Territory' means the countries or geographic regions \nidentified in SCHEDULE 1 to this Software Exhibit.\n\n         1.14 'Update' means a release of a Software that is designated by Sun\nin its sole discretion by a change in the digit(s) to the right of the tenths\ndigit in the Software version number [x.x.(x)].\n\n         1.15 'Upgrade' means Updates, Version Releases, or Software Releases\nthat Sun makes generally commercially available.\n\n         1.16 'Version Release' means a release of a Software that is designated\nby Sun in its sole discretion by a change in the tenths digit in the Software\nversion number [x.(x).x.]\n\n2.       APPOINTMENT OF CUSTOMER\n\n         2.1 APPOINTMENT. Sun appoints Customer as a nonexclusive 'Authorized\nSoftware Enterprise Partner' and grants Customer the nonexclusive and\nnontransferable right to distribute Software to End Users in the Territory\nidentified in Schedule 1.\n\n         2.2 SOFTWARE CATEGORIES. Sun will segregate the Software in three (3)\ncategories (Level I, Level II, and Level III), as provided in Attachment A.\nLevel I Software do not require product training and authorization of Customer\nby Sun to sell such Software. Customer must be trained and authorized by Sun to\nsell Level II and Level III Software to its end user customers. Customer agrees\nto successfully complete and pass all training and authorization obligations for\nLevel II and Level III Software offered by Sun.\n\n         2.3 GUIDE. The Guide sets forth additional terms and information\nconcerning special promotions and programs relating to the Sun Software Channel\nProgram. Customer may participate in the promotions and programs, provided that\nCustomer is in compliance with its other obligations under the Agreement, and\nany other agreement with Sun or its affiliated companies, including payment and\nreporting obligations. Certain Software as identified in the Guide, may only be\npurchased from Sun Authorized Distributors. Customer will not advertise, sell,\nlease, or ship Software outside the Territory without Sun's prior written\nconsent, which shall not be unreasonably withheld. Customer may not open\nSoftware prior to delivery to End User. Sun has the right to change the Guide at\nany time withhold notice. Changes to the Guide may be provided via the Channel\nWeb and Customer agrees to be bound by these changes. For Customers who do not\nhave regular access to the internet and Channel Web, printed copies of changes\nto the Guide will be provided by Sun upon written request.\n\n         2.4 OBLIGATIONS. Customer agrees to: (a) actively market and support\nSoftware; (b) follow up on any leads provided by Sun (which will be considered\nSun Confidential Information); (c) ensure that the marketing and support efforts\nfor Software are conducted identified and trained personnel within Customer who\nhave knowledge of Software and meet the training requirements the Guide; (d)\nprovide Sun on a quarterly basis with relationship planning document as\n\n\n                                       -2-\n\n\ndescribed in the Guide; (e) provide Sun monthly 'sales out' activity (including,\nbut not limited to, end user name and address, dollar volume, and type and\nquantity of Software shipped; (f) submit a quarterly, non-binding forecast of\nCustomer's projected shipments for Software; and (g) not misrepresent Software\nor make any representation or warranty inconsistent with the Master Terms, this\nSoftware Exhibit or a BCL.\n\n         2.5 ELECTRONIC DISTRIBUTION. Customer may electronically distribute any\nSoftware appearing on Attachment A, excluding Software pending Sun approval for\nelectronic distribution in the following Level II and Level III Software\ncategories: ISP Services Product Speciality, Network Security Product\nSpeciality, Messaging Product Speciality, Application Server Product Speciality,\nand Portal Services Product Speciality. Prior to any electronic distribution,\nCustomer shall: (a) manufacture a secure, electronic version of the Product in a\ndigital wrapper or 'envelope'; (b) appropriate mechanisms to ensure that (i)\nCustomer can accurately secure and account for the number of electronic\ndownloads and (ii) electronic distribution occurs only as expressly set forth\nherein and that such file transfer protocol (FTP), HTTP and\/or SHTTP and\/or\nother agreed upon site shall not permit any other person or entity to download\nor otherwise electronically access any Product except as expressly set forth\nherein; and (c) institute systems to accrue payment hereunder for each copy of\nProduct prior to or contemporaneous with such distribution. Customer represents\nand warrants that the secure wrapper oar 'envelope' cannot be unlocked and the\nProduct installed until the End User has registered with, and obtained an\nauthorized password or key from Customer.\n\n     2.6 LIMITED TERRITORY LICENSE. Customer may, on a case by case basis as\napproved in advance in writing by Sun, and as part of its electronic\ndistribution service to U.S. end users, permit downloading to non-U.S.\nsubsidiaries or to other non-U.S. business sites in the European and\nIntercontinental territories.\n\n3.       COMMERCIAL TERMS\n\n         3.1 REPORTING. Customer will provide to Sun a written [*] by the [*] \nworking day of each month that includes the [*] and other information \ndescribed in the Guide. Customer acknowledges that it will not receive \nmarketing funds unless it has met all point-of-sale requirements. In \naddition, on the first business day of each calendar quarter, upon request \nfrom Sun, Customer will provide Sun a [*] Customer will also provide a \ncompleted relationship management document as described in the Guide. [*]\n\n         3.2 RETURNS. Commencing on the Exhibit Effective Date, on a \nquarterly basis Customer may request to return for credit, a quantity of \nSoftware (other than NFR Software) the net Fees for which will not exceed [*] \nof the cumulative net Fees for Software shipped to Customer during the \nimmediately preceding quarter. Before returning any Software, Customer must \nobtain from Sun a 'Return Material Authorization' (RMA). Customer must place \nan offsetting order with Sun for Software of dollar value at least equal to \nany credit issued hereunder. No more than [*] of all returned Software may be \nin opened packages. Customer may not deduct the amount of any credit from \noutstanding invoices. Customer will be responsible for paying \n\n                                       -3-\n\n\nall freight and shipping charges for Software returned under this Section \n3.3. Stock rotation is not available for discontinued Software.\n\n         3.3 PAYMENTS. For all Software purchased under this Software Exhibit,\nCustomer will pay Sun an amount equal to the Fee, less the applicable discount\nset forth in SCHEDULE 1.\n\n         3.4 PRICE CHANGES. Sun reserves the right to change the Price List, \ndiscounts and Fees for any Software [*]. Changes which result in decrease in \nFees will take effect [*]. In the event of a change which increase Fees, Sun \nwill provide Customer with [*] days prior written notice. If, during the term \nof this Software Exhibit Sun decreases the Fee for any Software, Customer \nwill be entitled to a credit toward new orders for any Software placed within \n[*] after announcement by Sun. This credit will be equal to the difference \nbetween the new Fee and the Fee paid by Customer less any previous credit \nprovided, for the affected Software multiplied by the quantity of that \nSoftware in Customer's inventory as of the date of the announcement. In order \nto claim this credit Customer must, within [*] days of announcement of a \nchange which decreases Fees, supply Sun with a written report including: (a) \nthe identification of all affected Software which were in Customer's \ninventory immediate prior to announcement of the decrease; (b) the net Fee \nfor this Software before and after the decrease and (c) other information as \nSun may reasonably request. Sun will issue the credit to Customer within \nsixty (60) days from the date Sun receives the report. All orders for \nSoftware scheduled for shipment or in transit to Customer at the time of the \nannouncement will be adjusted to the decreased Fee.\n\n         3.5 DELIVERY AND TITLE. Software purchase orders will be submitted to\nSun by Customer under the terms of the Software Exhibit and subject to a minimum\nof Five Thousand Dollars ($5,000) per order. Sun will delivery Software Ex\nWorks, Sun facilities. Customer assumes all risk of loss or damage upon delivery\nof Software. Customer acknowledges that it does not take title to Software, with\nthe exception of media and printed materials, but rather licenses Software under\nthe terms of this Agreement.\n\n         3.6 UPDATES, VERSION RELEASES AND SOFTWARE RELEASES. Fees are for the\nSoftware releases current as of the Effective Date. Except as provided in\nSection 4 of this Software Exhibit, Updates, Version Releases and Software\nReleases may require additional payment and be subject to addition terms. Sun\nmay, without Customer's approval and without incurring any liability to\nCustomer, modify Software discontinue its manufacture, sale or support upon\nthirty (30) days prior written notice to Customer.\n\n4.       UPGRADES AND OBSOLESCENCE\n\n          4.1 DIRECT PURCHASES ONLY. This Section 4 applies only to Customer's\npurchase of Software directly from Sun.\n\n         4.2 UPGRADES. Subject to the terms below, Customer may upgrade unopened\nSoftware in its inventory before the date Sun commences shipment of a new\nUpgrade ('Commencement Date'):\n\n\n                                       -4-\n\n\n                  (a) Updates from the immediately proceeding Update version \nwill be provided to Customer at no charge.\n\n                  (b) Upgrades to a Version Release or Software Release from the\nimmediately preceding Version Release or Software Release will be provided to\nCustomer at no charge unless Sun increases its Fees for the new release. If Sun\nincreases its Fees, the new release will be made available to Customer at the\nincremental price difference between the original Fee paid by Customer and the\nFee for the new release.\n\n                  (c) To receive Upgrades under this Section 4, Customer must \nprovide Sun with a written request for the Upgrade, obtain an RMA and return \nto Sun all Software to be upgraded. Customer will pay all shipping charges \nfor returned Software and Upgrades ordered under this Section 4. Sun will \ncredit Customer with the total amount Customer paid for the returned Software \nif the return is accompanied by a firm order for the immediate delivery of \nUpgrades whose total payment amount at least equals that of the returned \nSoftware. Customer is limited to [*] upgrade requests for each Update, \nVersion Release and Software Release. The first request must be received by \nSun within thirty (30) days of the Commencement Date and the second request \nwithin ninety (90) days of the Commencement Date. If Customer fails to make \nthe requests within the time frame described, Customer will no longer have \nthe right to upgrade Software under this Section 4.\n\n                  (d) For a period of [*] days after Sun discontinues \noffering Software, Customer will have the right, shipping prepaid and \nretaining all risk of loss, to return the unopened discontinued Software to \nSun. Sun will credit Customer with the total amount Customer paid for the \ndiscontinued Software if the return is accompanied by a firm order for the \nimmediate delivery of other Software whose total payment amount at least \nequals that of the returned Software.\n\n5.       SUBSCRIPTION KITS\n\n         5.1 DISTRIBUTION OF SUBSCRIPTION KITS. Sun grants to Customer a\nnon-transferable, nonexclusive, limited license to distribute Subscription Kits\nwithin the Territory. 'Subscription Kit' means tangible or electronically\ndownloadable materials for Licensed Products designated in the applicable Sun\nprice list as a Sun Software Subscription products and delivered in a kit form.\nSubscription Kits contain (i) a certificate for the Sun Software Subscription\nservices entitling an End User to receive drop-shipments of upgrades for\nLicensed Products directly from Sun; (ii) Sun Software Subscription services\nprogram terms; (iii) End User registration and acceptance forms to be completed\nand returned to Sun; and (iv) marketing collateral.\n\n         5.2 RESTRICTIONS. Customer may not open any Subscription Kit prior to\ndelivery to End Users. Customer may not sell or distribute Subscription Kits\nunless the End User has first provided satisfactory proof of its license for the\nmost current version of the Licensed Products. Proof of End User's current\nlicense will be satisfied by the End User showing Customer copies of its license\nor install disk, cover page of the install disk manual or other form of proof\nsatisfactory Sun that End User is licensed to the current version level.\nSubscription Kits may be purchased only from Authorized Distributors or Sun.\n\n\n                                       -5-\n\n\n         5.3 RETURNS. In the event an End User does not accept terms provided \nin the Subscription Kit and elects within [*] days of purchase to return the \nSubscription to Customer, Customer must accept return of the Subscription Kit \nand refund the fees paid by End User. Customer may return, shipping prepaid, \nto the Authorized Distributor from which the Subscription Kit was purchased, \nthe Subscription Kit returned by the End User for a refund of the fees paid \nby Customer, provided, however, that: (i) the Subscription Kit was properly \nreturned to Customer by the End User within [*] days of its purchase; and \n(ii) Customer requests and has received a Return Material Authorization \n('RMA') number from the Authorized Distributor within five (5) business days \nof the Subscription Kit's return by the End User to Customer.\n\n         5.4 OTHER PROGRAMS. Any additional subscription offerings and \nrequirements are set forth in the Guide.\n\n6.       NOT FOR RESALE SOFTWARE\n\n         6.1 PURCHASE. As part of the Sun Software Channel Program, Customer may\nobtain not-for-resale copies Licensed Products ('NFR Software'). Licensed\nProducts available as NFR Software are designated on the Channel Web and may be\nordered only from Authorized Distributors and Sun. Customer may use no more than\none (1) copy of each NFR Software at each Customer business location (including\nfield sales offices). Each location at which NFR Software is used must be\nstaffed with Customer employees who have met all applicable training, testing\nand authorization requirements set forth in the Guide.\n\n         6.2 LABELING AND USE. NFR Software must at all times clearly labeled\n'Not For Resale Software' and may be used only for purposes of internal staff\ntraining, presales support, customer demonstrations and Sun approved marketing.\n\n         6.3 DESTRUCTION OF NFR SOFTWARE. Applicant must destroy NFR Software:\n(i) upon notice that the NFR Software has been discontinued or is available as a\nnew revision release or (ii) if it is no longer being used on a regular basis by\nApplicant for the purposes described in Section 6. To obtain new revision\nreleases of NFR Software, Applicant may provide Authorized Distributor or Sun\nwith written certification that the NFR Software has been destroyed.\n\n         6.4 RESTRICTIONS. Applicant may not use the NFR Software development of\nsoftware programs; nor copy, resell or distribute the NFR Software to any third\nparty. In addition this Section 6, Applicant's use of NFR Software is further\nsubject to the terms of the BCL which accompanies the software.\n\n7.       SUPPORT\n\n         During the term of this Agreement, Customer will provide prospective\nEnd Users with complete pre-sale support, and End Us with post-sale support as\nprovided in the Guide.\n\n8.       SUN SOFTWARE CHANNEL PROGRAM WEB SITE\n\n         Subject to the following, Sun will provide Customer with an account\nlogin, password and the site URL for the Channel Web.\n\n\n                                       -6-\n\n\n         8.1 USE OF WEB CONTENTS. Title to and ownership in all products,\nincluding software products, documents and other program information contained\nin the Channel Web ('Web Contents') will solely and exclusively be and remain in\nSun and its licensors. Customer may use Web Contents only for: (a) its internal\nevaluation purposes and (b) at its primary business facility. If the software\nproducts accessed as part of Web Contents contain third party code, Customer's\nuse of the products may be subject to additional terms. Customer is not\nauthorized to make any modifications or revisions to Web Contents nor distribute\nWeb Contents to any third party. Customer will indemnify Sun from all liability,\nexpense, and damage of any type arising from Customer's violation of this\nSection 8.1.\n\n         8.2 NO SUPPORT FOR WEB CONTENTS. Customer acknowledges that Sun is not\nobligated to make any of Web Contents available as a final Sun product. Sun\nretains the right to make any modifications or changes to Web Contents at any\ntime without prior notice to Customer. Web Contents are provided strictly on an\n'AS IS' basis. Customer acknowledges that no support will be provided by Sun for\nthe software product(s) contained in the Web Contents.\n\n9.       WARRANTIES AND DISCLAIMER\n\n         Sun warrants that for a period of ninety (90) days from Customer's\nreceipt of Software provided under this Software Exhibit the media on which the\nSoftware is furnished will be free of defects in materials and workmanship under\nnormal use. Customer's exclusive remedy and Sun's entire liability under this\nlimited warranty will be for to replace the Software media.\n\n10.      ADDITIONAL LIMITATIONS\n\n         IN NO EVENT WILL ANY ENTITY WORKING WITH SUN THE DEVELOPMENT AND SUPPLY\nOF ANY LICENSED PRODUCT OR PART THEREOF BE LIABLE UNDER THIS AGREEMENT.\n\n11.      TERM AND TERMINATION.\n\n         This Software Exhibit will commence upon the Software Effective Date.\nUnless earlier terminated as provided in the Master Terms, this Software Exhibit\nwill remain in effect until the date established in following schedule:\n\n\n            EFFECTIVE DATE                            EXPIRATION DATE\n            --------------                            ---------------\n                                                      (OF THE FOLLOWING YEAR)\n                                                      -----------------------\n            July 1 - September 30                      September 30\n\n            October 1 - December 31                    December 31\n\n            January 1 - March 31                       March 31\n\n            April 1 - June 30                          April 30\n\n\n                                       -7-\n\n\n         IN WITNESS WHEREOF, the parties have authorized their representatives\nto execute this Software Exhibit effective as of the Effective Date written\nbelow.\n\n\nSUN MICROSYSTEMS, INC.                        INTRAWARE, INC.\n\n\n\n\nBy:  \/s\/ Alton D. Page                        By:   \/s\/ Donald M. Freed\n    --------------------------------------         ---------------------------\n\nName:    Alton D. Page                        Name:     Donald M. Freed\n      -------------------------------               --------------------------\n           (printed or typed)                          (printed or typed)\n\nTitle:   VP Operations                        Title:   EVP\/CFO\n       ------------------------------                -------------------------\n\nEffective Date:    8\/31\/99                    Effective Date:  8\/31\/99\n                ---------------------                         ----------------\n\n\n\n                                   SCHEDULE I\n\n                               TO SOFTWARE EXHIBIT\n                                     (DVAR)\n\n\n1.       Territory:  United States and Canada\n\n2.       Discount Schedule: Customer's discount for the Sun-Netscape Alliance \nSoftware shall be [*] off the MSRP as set forth in the Sun-Netscape Alliance \nPrice List for the first [*] of revenue from fees. Customer's discount for \nrevenue in excess of [*] shall be [*] off the MSRP as set forth in the \nSun-Netscape Alliance Price List.\n\n3.       Discretionary Rebates\/Offset: If and to the extent Sun makes \navailable to its resellers a discretionary rebate program to which Customer, \nas a Sun reseller would be entitled, then the rebate will not initiate until \nit exceeds [*]. In the event Customer is entitled to such rebate, then Sun \nwill only be obligated to pay a rebate in the amount that exceeds [*].\n\n4.       'Accumulated Savings' is calculated as [*] of MSRP, as set forth in \nthe Sun-Netscape Alliance Price List, of Products sold by Customer plus the \ntotal of discretionary rebates forfeited by Customer at any point in time. \nAccumulated Savings shall not exceed [*]. As of September 30, 2000, or \nsooner, if terminated, if the Accumulated Savings is not equal to [*], \nCustomer will remit to Sun an amount equal to the difference between the \nAccumulated Savings and [*], or the prorated portion thereof, within thirty \ndays from September 30, 2000 or the date of termination. This provision shall \nsurvive termination of the Agreement.\n\n5.       Co-op Accrual Program: Customer will accrue [*] Co-op funds on \nAlliance Software net revenue sold, and be eligible to access Market \nDevelopment Funds pursuant to the Guide.\n\n\n\n                                  ATTACHMENT A\n\n\n\n               ALLIANCE PRODUCTS - LEVEL I, LEVEL II AND LEVEL III\n\n\n\n\nI.       LEVEL I ALLIANCE PRODUCTS(S)\n\n                  Netscape Directory Server\n\n                  Netscape Certificate Management System\n\n                  Netscape Delegated Administrator\n\n                  Netscape Meta-Directory\n\n                  Netscape Directory for Secure E-Commerce\n\n                  Netscape Process Manager\n\n                  Netscape Calendar Server\n\n                  Netscape Messaging Server\n\n                  Netscape Messaging Server Hosting\n\n                  Netscape Hosting Suite\n\n                  Netscape Enterprise Server\n\n                  Netscape FastTrack Server\n\n                  Netscape SuiteSpot Standard\n\n                  Netscape SuiteSpot Professional\n\nII.      LEVEL II AFFIANCE PRODUCT(S)\n\n                  ISP SERVICES PRODUCT SPECIALITY\n\n                           Solaris ISP Server\n\n                  NETWORK SECURITY PRODUCT SPECIALITY\n\n                           SunScreen EFS\n\n                           SunScreen SecureNet\n\n                           SunScreen SKIP\n\n                           SunScreen SPF-200\n\n                  SUITESPOT PRODUCT SPECIALITY\n\n                           Netscape SuiteSpot (Standard\/Professional)\n\n\nIII.     LEVEL III ALLIANCE PRODUCT(S)\n\n                  MESSAGING PRODUCT SPECIALITY\n\n                           Sun Internet Mad Server\n\n                           Sun Calendar Server\n\n                  APPLICATION SERVER PRODUCT SPECIALITY\n\n                           Netscape Application Server\n\n                           Netscape Application Builder\n\n                           Netscape Extension Building\n\n                           Netscape Extension for MQSeries\n\n                           Netscape Extension for Tuxedo\n\n                           Netscape Application Server for R\/3\n\n                           Netscape Application Server for CICS\/MS\n\n                           NetDynamics Application Server\n\n                           NetDynamics PAC for COM\n\n                           Net Dynamics PAC for SAP\n\n                           NetDynamics PAC for PeopleSoft\n\n                           NetDynamics PAC SDK\n\n                           Net Dynamics Developer Studio\n\n                  E-Commerce Product Speciality\n\n                           Netscape BuyerXpert\n\n                           Netscape MerchantXpert\n\n                           Netscape SellerXpert\n\n                           Netscape BillerXpert\n\n                           Netscape PublisherXpert\n\n                           Netscape TradingXpert\n\n                           Netscape ECXpert\n\n                           Netscape ECXpert Enterprise\n\n                           Netscape ECXpert Extension for MQSeries\n\n                           Netscape ECXpert Extension for Oracle Applications\n\n                           Netscape ECXpert Extension for SAP R\/3\n\n                           Netscape ECXpert Mercator Authoring Tool\n\n\n                                       -2-\n\n\n                           Netscape ECXpert SAP R\/3 Authoring Tool\n\n                  PORTAL SERVICES PRODUCT SPECIALITY\n\n                           Custom Netcenter\n\n                           I-Planet\n\n\n                                       -3-\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":[9613,9619],"class_list":["post-42856","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__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42856","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=42856"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42856"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42856"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42856"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}