CONFIDENTIAL TREATMENT REQUESTED
[*] Denotes information for which confidential treatment has been requested
pursuant to a confidential treatment request filed with the Securities and
Exchange Commission. Confidential portions omitted have been filed separately
with the Commission.
Exhibit 10.14
[NETSCAPE LOGO]
AMENDED AND RESTATED
ELECTRONIC DISTRIBUTION LICENSE AGREEMENT
No. 003987
This Amended and Restated Electronic Distribution License Agreement (this
"Agreement") is entered into by and between Intraware, Inc., a Delaware
corporation ("Intraware"), with principal offices at 00 Xxxxxx Xxx, Xxxxxx,
XX 00000 and Netscape Communications Corporation, a Delaware corporation
("Netscape"), effective as of the date of execution by Netscape (the
"Effective Date").
WHEREAS, Netscape and Intraware entered into an Electronic Distribution
License Agreement effective March 6, 1997 (as amended to date, the
"Agreement"), the initial term of which expired May 5, 1998, but was extended
by mutual tacit agreement of the parties.
WHEREAS, Netscape and Intraware desire to amend, restate and supersede the
Agreement and to update certain business terms therein as of the Effective
Date.
WHEREAS, Intraware markets and distributes computer software products.
WHEREAS, Netscape has proprietary or re-marketing rights to certain computer
software products.
WHEREAS, Netscape wishes to grant to Intraware and Intraware desires to
obtain certain license rights to such computer software products more
particularly described below in accordance with the terms and conditions of
this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following terms and conditions, which set forth the
rights, duties, and obligations of the parties.
1. Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
1.1 "Derivative Work(s)" means a revision, modification, translation,
abridgment, condensation or expansion of a Netscape Product or
Documentation or any form in which a Netscape Product or Documentation
may be recast, transformed, or adapted, which, if prepared without the
consent of Netscape, would be a copyright infringement.
1.2 "Documentation" means those software user manuals, reference manuals and
installation guides, or portions thereof, which are distributed in
conjunction with the Netscape Products set forth in Exhibit A.
1.3 "End User" means any third party licensed by Intraware to use, but not
to further distribute, the Netscape Products except that if such third
party is a corporation or other entity, then, for fee accrual purposes
only under Section 4.1 "End User" means each individual within such
corporation or entity licensed by Intraware pursuant to this Agreement
to use, but not to further distribute, the Netscape Product.
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Netscape 1 CONFIDENTIAL
1.4. "Exhibit(s)" means the Exhibits to this Agreement which are attached
hereto and incorporated herein:
1.4.1 Exhibit A (Description of Netscape Products and Services) which
sets forth a description of each Netscape Product licensed hereunder and
Services.
1.4.2 Exhibit B (Pricing, Payment Schedules and Deliverables) which sets
forth pricing for Intraware, payment schedules, and specific items to be
delivered to Intraware.
1.4.3 Exhibit C (Netscape's End User License Agreements) which sets
forth Netscape's terms and conditions of licensing applicable to an end
user customer as of the Effective Date.
1.4.4 Exhibit D (Technical Support) which sets forth Netscape's and
Intraware's support obligations.
1.4.5 Exhibit E (Intraware Product(s)) which sets forth a description of
Intraware Products which will be bundled with the Netscape Products.
1.4.6 Exhibit F (Point of Sale Reports) which sets forth the form
pursuant to which Intraware shall provide monthly reports.
1.4.7 Exhibit G (Professional Services Agreement), which sets forth the
terms pursuant to which the Services are offered hereunder.
1.5 "Intraware Product(s)" means Intraware's computer software products
developed and marketed by Intraware, as described in Exhibit E, with
which the Netscape Products are bundled for distribution.
1.6 "Major and Minor Updates" mean updates, if any, to the Netscape
Products. Major Updates involve additions of substantial functionality
while Minor Updates do not. Major Updates are designated by a change in
the number to the left of the decimal point of the number appearing
after the product name while Minor Updates are designated by a change in
such number to the right of the decimal point. Netscape is the sole
determiner of the availability and designation of an update as a Major
or Minor Update. Major Updates exclude software releases which are
reasonably designated by Netscape as new products. Where used herein
"Updates" shall mean Major Updates and Minor Updates interchangeably.
1.7 "Netscape Product(s)" means the executable version (but not the source
code version) of Netscape's proprietary software products listed or
described in Exhibit A and any Updates thereto as may be provided to
Intraware pursuant to this Agreement.
1.8 "Order(s)" shall have the meaning set forth in Section 15. 1 hereof.
1.9 "Prepaid License Fee" shall have the meaning set forth in Section 4.1.1
hereof.
1.10 "Program Errors" means one or more reproducible deviations in the
Netscape Products from the applicable specifications shown in the
Documentation.
1.11 "Services" shall have the meaning set forth in Section 15.1 hereof.
1.12 "Territory" means the geographic area set forth in Exhibit B.
Intraware 9/29/98ks
Netscape 2 CONFIDENTIAL
2. GRANT OF LICENSES AND RIGHTS
2.1. Licenses
2.1.1 Reproduction, Internal Use and Distribution License. Subject to
the terms and conditions of this Agreement, Netscape hereby grants
and Intraware hereby accepts, a nonexclusive and nontransferable
right and license in the Territory to (a) reproduce, without change,
the Netscape Products (in executable form only); (b) use the Netscape
Products for Intraware internal business purposes in accordance with
the license grant provisions of the end user license agreement that
accompanies the Netscape Products; and (c) distribute by sublicense
tangible copies and/or secure electronic copies of the Netscape
Product to End Users; and (d) authorize End Users who have ordered a
"10 pack" or "50 pack" of the Netscape Client Product and purchased a
right to copy license, the right to reproduce, without change, the
number of copies of the Netscape Client Product (but not the
Documentation), set forth in Intraware's invoice therefor. Netscape's
license to distribute NAS products is subject to NAS guidelines and
the additional terms and conditions set forth in the Special Terms
and Conditions provided with this Agreement.
2.1.2 Distribution Restrictions. Intraware shall only electronically
distribute the Netscape Products: (a) from one FTP (file transfer
protocol) HTTP and /or SHTTP site operated by Intraware and located in
the Territory, or such other protocol as the parties shall mutually
agree in writing; (b) in exportable versions, or in non-exportable
versions provided Intraware complies with applicable export and import
laws and otherwise complies with the conditions of Section 2.2 and
Exhibit A hereto ; and (c) after the End User has indicated its
acceptance of the Netscape end user license agreement or the End User
License Agreement (defined in Section 3.3) for such Netscape Product;
and (e) to the End User on a trial use basis provided the Netscape
Products are provided with the appropriate trial user End User License
Agreement provided by Netscape or consistent with such Netscape
agreement. Prior to any electronic distribution, Intraware shall: (x)
manufacture a secure, electronic version of the Netscape Product in a
digital wrapper or "envelope"; (y) implement appropriate mechanisms to
ensure that: (i) Intraware can accurately secure and account for the
number of electronic downloads; and (ii) electronic distribution occurs
only as expressly set forth herein and that such FTP, HTTP and /or,
SHTTP and/or other agreed upon site shall not permit any other person or
entity to download or otherwise electronically access any Netscape
Product except as expressly set forth herein; and (z) institute systems
to accrue payment hereunder for each copy of the Netscape Product prior
to, or contemporaneous with such distribution. Intraware represents and
warrants that said secure wrapper or "envelope" cannot be unlocked and
the Netscape Product installed until the End User has registered with,
and obtained an authorized password or key from Intraware. Intraware
shall not indirectly sell, indirectly sublicense or otherwise indirectly
distribute the Netscape Products. Intraware is expressly prohibited from
any marketing and/or distribution of Netscape Products outside of the
Territory or on a standalone basis. Except as expressly permitted in
this Section 2.1.2 or Section 2.1.6 below, Intraware shall have no right
to otherwise distribute the Netscape Products or any portion thereof.
2.1.3. Source Code Restrictions. Intraware agrees that, except and
only to the extent that Netscape makes source code for certain Client
Products publicly available on certain public license terms, not to copy
(except as expressly permitted by Section 2.1.1), modify, translate,
decompile, reverse engineer, disassemble, or otherwise determine or
attempt to determine source code from the Netscape Products or to create
any Derivative Works based upon the Netscape Products or Documentation,
and agrees not to permit or authorize anyone else to do so.
Intraware 9/29/98ks
Netscape 3 CONFIDENTIAL
2.1.4 Third Party License. If all or any part of the Netscape Products
or Updates delivered to Intraware has been licensed to Netscape by a
third party software supplier then, notwithstanding anything to the
contrary contained in this Agreement, Intraware is granted a sublicense
to the third party software subject to the same terms and conditions as
those contained in the agreement between Netscape and such third party
software supplier. In addition, Netscape reserves the right to
substitute any third party software in the Netscape Products so long as
the new third party software does not materially affect the
functionality of the Netscape Products. Netscape represents that the
current release of the Netscape Products contains no third party
software which would require Intraware to agree to any terms and
conditions in addition to those set forth in this Agreement.
2.1.5 Promotion of Products and Services. Intraware agrees to treat all
Netscape Products and Services at least as favorably as it treats any
other products distributed by Intraware that are competitive with any
Netscape Product or Service. Specifically, Intraware agrees that it will
not market or promote any Netscape Product and Service or any other
product in a manner that states or implies that the Netscape Product
or Service is inferior or secondary to the other product. For example,
Intraware will not market or promote any other product as "preferred,"
"premier," "primary" or the like as compared to any Netscape Product
or Service. Notwithstanding the foregoing, Netscape has no objection
to Intraware recommending other software products under its
"Compariscope" program.
2.1.6 Patches. In the event Netscape releases a patch to the Netscape
Product for general commercial distribution by permitting customers to
download such patch from Netscape's World-Wide Web home page on the
Internet, then Intraware shall have the right to distribute such patch
(but not the entire Netscape Product) electronically to its End Users.
2.1.7 [*]
2.1.8 Limited Territory License: Intraware may, on a case by case
basis as approved in advance in writing by Netscape, and as part of
its electronic distribution service to U.S. end users, permit
downloading to non-U.S. subsidiaries or to other non-U.S. business
sites in the European and Intercontinental territories, each as set
forth in Addendum 2.1.8 to Exhibit B. Intraware shall report to
Netscape any Netscape Products that are distributed outside the United
States using Internet-based reporting.
2.2 Export
Intraware shall comply fully with all then current applicable laws,
rules and regulations relating to the export of technical data,
including, but not limited to any regulations of the United States
Office of Export Administration and other applicable governmental
agencies and Intraware acknowledges that by virtue of certain security
technology embedded in the Netscape Products, that export of such
software may not be legal. Intraware shall conspicuously xxxx all
packaging containing the Netscape Products identified by Netscape as not
for export with a "Not For Export" notice. Netscape agrees to cooperate
in providing information requested by Intraware as necessary to obtain
any required licenses and approvals. None of the Netscape Products
or
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Netscape 4 CONFIDENTIAL
underlying information or technology may be installed or otherwise
exported or reexported (i) into (or to a national or resident of) Cuba,
Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to
which the U.S. has embargoed goods; or (ii) to anyone on the U.S.
Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders.
3. MARKETING, DISTRIBUTION AND TRAINING
3.1 Non-Exclusivity
3.1 Non-Exclusivity. Intraware understands that Netscape may enter
into arrangements similar to this Agreement with third parties.
3.2 Public Announcements, Promotional Materials and Cooperative Marketing
Funds
3.2.1 Public Announcements and Promotional Materials. Netscape and
Intraware shall cooperate with each other so that each party may issue
a press release concerning this Agreement, provided that each party must
approve such press release prior to its release. Netscape shall have
the right to use Intraware's name as a customer reference and the names
of the Netscape Services or Netscape Products licensed by Intraware to
third parties. Netscape shall cooperate with Intraware in its
development of the initial marketing and sales materials used to promote
the Netscape Services and distribution of the Netscape Products and
Services. Intraware agrees that all marketing and sales materials for
the Intraware Products under the license granted in Section 2.1.1 will
primarily promote the Intraware Products and not the fact that the
Netscape Product or Service is included.
3.2.2 Cooperative Marketing Funds. Cooperative marketing funds ("COOP")
shall accrue at the rate of [*] of license fees paid to Netscape. After
any applicable Prepaid License Fees have been fully depleted, COOP shall
accrue as Netscape receives license fees and point of sale reports from
Intraware. Intraware is limited to using the COOP for the sales,
promotion, advertising or marketing of Netscape Products or Services,
and only after Netscape has approved of such activities. All COOP
accruals will be credited to Intraware's COOP account which will be paid
to Intraware on an invoice basis. Any unused credit to Intraware's COOP
account upon expiration of the Initial Term or any earlier termination
of this Agreement shall be forfeited to Netscape.
3.3 Terms Relating to Distribution
3.3.1 General Restrictions on Distribution. Intraware agrees to comply
with all applicable laws, rules and regulations to preclude the
acquisition of unlimited rights to technical data, software and
documentation provided with the Netscape Product or Services to a
governmental agency, and ensure the inclusion of the appropriate "U.S.
Government End Users" notice required by the U.S. Government agencies or
other applicable agencies.
3.3.2 End User License Agreements. Intraware shall not sublicense or
otherwise distribute the Netscape Products or Documentation to End Users
except pursuant to a written sublicense agreement ("End User License
Agreement") that contains terms and conditions not inconsistent with and
no less restrictive than the applicable terms and conditions set forth
in Netscape's then-current standard end user license agreement for such
Netscape Products and Documentation. Copies of Netscape's End User
License Agreements as of the Effective Date are attached as Exhibit C.
Netscape's End User warranty is set forth in Netscape's then-current
standard end user license agreement. If Intraware does not use
Netscape's then current End
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Netscape 5 CONFIDENTIAL
User License Agreements, Intraware shall include a provision that
Netscape is an intended third party beneficiary of such license entitled
to audit and enforce such license.
3.3.3 Third Party Requirements. In the event that Netscape is required
by a third party software supplier to cease and to cause its licensees
to cease reproduction and distribution of a particular revision of the
Netscape Products, Intraware agrees to comply herewith provided Netscape
provides Intraware with thirty (30) days prior written notice and
further provided Netscape replaces such affected Netscape Product with a
functionally equivalent Netscape Product as soon as commercially
practicable.
3.3 Enforcement of Sublicense Agreements
Intraware shall use commercially reasonable efforts to enforce each End
User License Agreement, with at least the same degree of diligence used
in enforcing similar agreements governing others. Intraware shall use
commercially reasonable efforts to protect Netscape's copyright, and
Intraware shall notify Netscape of any breach of a material obligation
under an End User License Agreement affecting Netscape Products or
Documentation, and will cooperate with Netscape in any legal action to
prevent or stop unauthorized use, reproduction or distribution of
Netscape Products or Documentation.
3.5 Training
Netscape agrees to invite Intraware to attend training classes and other
product informational sessions on the Netscape Products that Netscape
makes generally available at no charge to its OEMs, system integrators
and resellers.
4. FEES AND PAYMENT
4.1 Prepaid License Fees
4.1.1 The parties agree during any Term that Intraware will pay to
Netscape the non-refundable prepaid fees ("Prepaid License Fee"), as
they may specify from time to time be amended by mutual agreement of the
parties. Upon exhaustion of the Prepaid License Fees, Intraware shall
pay to Netscape the license fee specified in Exhibit B for each license
granted by Intraware to End Users in connection with the distribution of
all or any portion of a Netscape Product or Update. Such Prepaid License
Fees shall be credited against the license fees accruing under this
Agreement during the applicable term in which the prepayment is made.
Licenses will accrue in the applicable corresponding quantity upon: (a)
the initial date of Intraware's internal use of a Netscape Product
(other than the number of "no charge" copies listed in Exhibit B); and
(b) distribution by Intraware of a copy of a Netscape Product to an End
User; and (c) authorization by Intraware for an End User to reproduce
the Netscape Client Product pursuant to a "10 pack" Use or "50 pack".
Intraware shall pay Netscape such license fees accrued during each
month, together with any maintenance fees, within thirty (30) days
following the end of such month and each such payment shall be
accompanied by a monthly report as described in Section 4.3 below.
[*]
4.1.2 Maintenance and Support Fees. Intraware shall pay to Netscape the
applicable fees, if any, set forth in Exhibit B, Section F, for the
level of maintenance and support services offered or chosen by
Intraware.
Intraware 9/29/98ks
Netscape 6 CONFIDENTIAL
4.2 Payment and Taxes
4.2.1 Payments. Within 10 days after receipt by Netscape of Intraware's
monthly sales report, Netscape will invoice Intraware for amounts
payable hereunder on a monthly basis as provided below. All invoiced
amounts shall be calculated in accordance with the prices set forth on
Attachment B, as then in effect, and all invoices shall reference the
number of Netscape's then applicable blanket purchase order. All
payments shall be made in United States dollars, at Netscape's option:
(a) at Netscape's address as indicated in this Agreement or at such
other address as Netscape may from time to time indicate by proper
notice hereunder; or (b) by wire transfer to a bank and account number
designated by Netscape. All invoices are due and payable within thirty
(30) days of Netscape's date of invoice. Interest shall be payable at
the rate of one percent (1%) per month or at the maximum rate permitted
by law, whichever is less, on all overdue and unpaid invoices until paid
in full.
4.2.2 Taxes. All prices are in U.S. Dollars and are exclusive of any
applicable taxes. Intraware shall pay all sales, use, value added or
other taxes of any nature, other than taxes on Netscape's net income,
including penalties and interest, and all government permit or license
fees assessed upon or with respect to any products sold or licensed to
Intraware and any services rendered to Intraware (except to the extent
Intraware provides Netscape with a valid tax exemption certificate). In
the event the Territory is amended to include countries outside the
United States and Canada, Intraware shall pay, indemnify and hold
Netscape harmless from all import duties, customs fees, levies or
imposts, and all sales, use, value added or other taxes of any
nature, other than taxes on Netscape's net income, including
penalties and interest, and all government permit or license fees
assessed upon or with respect to any products sold or licensed to
Intraware and any services rendered to Intraware (except to the
extent Intraware provides Netscape with a valid tax exemption
certificate). If any applicable law requires Intraware to withhold
amounts from any payments to Netscape hereunder, (i) Intraware shall
effect such withholding, remit such amounts to the appropriate taxing
authorities and promptly furnish Netscape with tax receipts
evidencing the payments of such amounts, and (ii) the sum payable by
Intraware upon which the deduction or withholding is based shall be
increased to the extent necessary to ensure that, after such
deduction or withholding, Netscape receives and retains, free from
liability for such deduction or withholding, a net amount equal to
the amount Netscape would have received and retained in the absence
of such required deduction or withholding.
4.3 Monthly Reports
Intraware shall maintain full, true and accurate records of End Users,
including the name and address of each End User, the specific product
and platforms distributed to each End User, and any further information
as Netscape may from time to time reasonably request. Intraware shall
report to Netscape within ten (10) business days after the end of each
month, on the form set forth in Exhibit F, the product, platform and
number of licenses granted for each of the Netscape Products distributed
during such prior month. Such monthly report shall also include the name
and "xxxx" to and "ship to" address of each End User, which will
indicate the state, province, country or postal code.
4.4 Audit of Records
Intraware shall keep and maintain, and shall obligate End Users that are
authorized to reproduce the Netscape Client Product to keep and
maintain, full, true, and accurate records
Intraware 9/29/98ks
Netscape 7 CONFIDENTIAL
containing all data reasonably required for verification of amounts to
be paid, and the quantity of Netscape Products distributed. Intraware
shall also keep and maintain a central End User license agreement
database where all End User activity relating to a particular instance
of license rights is recorded and managed centrally. Netscape shall have
the right, during normal business hours upon at least five (5) business
days prior notice, to audit and analyze the relevant records of
Intraware and such End Users to verify compliance with the provisions of
this Agreement. Audits shall occur no more frequently than twice in any
twelve (12) month period unless the results of the last two (2) audits
reveal that Intraware has underpaid Netscape by more than five percent
(5%) of the amount actually due in any month, in which event audits may
be conducted on a monthly or quarterly basis until the results of two
(2) consecutive audits disclose that Intraware has paid Netscape the
correct amounts. The audit shall be conducted at Netscape's expense
unless there is inadequate record keeping or the results of such audit
establish that inaccuracies in the monthly reports have resulted in
underpayment to Netscape of more than five percent (5%) of the amount
actually due in any month, in which case Intraware shall (i) bear the
expenses of the audit and (ii) promptly pay to Netscape the amount of
any underpayment determined by any such audit.
4.5 Intercontinental Payment and Reports.
For each Netscape Product sold in the Intercontinental Territory under
Section 2.1.8, payments made and reports generated under Sections 4.1.1,
4.1.2, 4.2 and 4.3 of this Article 4, or otherwise under this Agreement,
shall be executed pursuant to separate invoices, billing numbers and
reports, and otherwise as appropriate to be separate and distinct from
payments made or reports generated for Netscape Products sold within
North America.
5. DELIVERABLES
Netscape shall provide Intraware with the deliverables indicated in
Exhibit B ("Deliverables"). All deliveries under this Agreement shall
be F.O.B. Netscape.
6. TRADEMARKS AND TRADE NAMES/LICENSE TO USE
Whenever Intraware makes reference to the Netscape Products or
Services or the functionality of the Netscape Products provided within
the Intraware Product, Intraware shall during the Initial Term and any
Subsequent Term use, and is hereby granted a non-transferable,
non-exclusive and restricted license (with no right to sublicense),
"Netscape Navigator Included," "Netscape Communicator Included,"
"Powered by [name of Netscape product]" and those Netscape trademarks,
trade names or service names relating to the applicable Netscape
Products or Services in any advertising, marketing, technical or other
materials related to such Netscape Products or Services which are
distributed by Intraware in connection with this Agreement. Such use
shall be in accordance with Netscape's then current trademark
guidelines to be provided and updated by Netscape from time to time.
Intraware need not use Netscape's trademarks and trade names in any
country in which their connotation is offensive, and will consult with
Netscape as to the foreign translation of Netscape's trademarks and
trade names so that Netscape can help ensure uniformity with their use
by Netscape or third parties. Intraware shall clearly indicate
Netscape's ownership of Netscape's trademarks or trade names. All such
usage shall inure to Netscape's benefit. Intraware agrees not to
register any Netscape trademarks or trade names without Netscape's
express prior written consent. Upon Netscape's request from time to
time Intraware agrees to provide Netscape with copies of goods bearing
Netscape's trademarks and trade names so that Netscape can verify that
the quality of Intraware's use of such trademarks is comparable to
that of Netscape's use thereof. Intraware shall suspend use of
Netscape trademarks and trade names if such quality is reasonably
deemed
Intraware 9/29/98ks
Netscape 8 CONFIDENTIAL
inferior by Netscape until Intraware has taken such steps as Netscape
may reasonably require to solve the quality deficiencies.
7. PROPRIETARY RIGHTS
7.1 Proprietary Rights
Title to and ownership of all copies of the Netscape Products and
Documentation whether in machine-readable or printed form, and
including, without limitation, Derivative Works, compilations, or
collective works thereof and all related technical know-how and all
rights therein (including without limitation rights in patents,
copyrights, and trade secrets applicable thereto), are and shall remain
the exclusive property of Netscape or its suppliers. Intraware shall not
take any action to jeopardize, limit or interfere in any manner with
Netscape's ownership of and rights with respect to the Netscape Products
and Documentation. Intraware shall have only those rights in or to the
Netscape Products and Documentation granted to it pursuant to this
Agreement.
7.2 Proprietary Notices
7.2.1 No Alteration of Notices. Intraware and its employees and agents
shall not remove or alter any trademark, trade name, copyright, license
agreement or other proprietary notices, legends, symbols, or labels
appearing on or in copies of the Netscape Products and Documentation
delivered to Intraware by Netscape and shall use the same notices,
legends, symbols, or labels in and on copies of Netscape Products and
Documentation made pursuant to Section 2.1 as are contained in and on
such Netscape Products and Documentation.
7.2.2 Notice. Each portion of the Netscape Products and Documentation
reproduced by Intraware shall include the intellectual property notice
or notices appearing in or on the corresponding portion of such
materials as delivered by Netscape hereunder.
8. CONFIDENTIAL INFORMATION AND DISCLOSURE
8.1 Confidential Information
Each party agrees to maintain all Confidential Information in
confidence to the same extent that it protects its own similar
Confidential Information and to use such Confidential Information only
as permitted under this Agreement. For purposes of this Agreement
"Confidential Information" shall mean information including, without
limitation, computer programs, code, algorithms, names and expertise
of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other
technical, business, financial and product development plans,
forecasts, strategies and information marked "Confidential" or if
disclosed verbally identified as confidential and reduced to writing
within thirty (30) days of such disclosure. Each party agrees to take
all reasonable precautions to prevent any unauthorized disclosure or
use of Confidential Information including, without limitations
disclosing Confidential Information only to its employees (a) with a
need to know to further permitted uses of such information and (b) who
are parties to appropriate agreements sufficient to comply with
Section 8, and (c) who are informed of the nondisclosure/ non-use
obligations imposed by Section 8 and both parties shall take
appropriate steps to implement and enforce such non-disclosure/non-use
obligations. The foregoing restrictions on disclosure and use shall
survive for three (3) years following termination of this Agreement
but shall not apply with respect to any Confidential Information which
(i) was or becomes publicly known through no fault of the receiving
party; (ii) was rightfully known or becomes rightfully known to the
Intraware 9/29/98ks
Netscape 9 CONFIDENTIAL
receiving party without confidential or proprietary restriction from a
source other than the disclosing party; (iii) is independently developed
by the receiving party without the participation of individuals who have
had access to the Confidential Information; (iv) is approved by the
disclosing party for disclosure without restriction in a written
document which is signed by a duly authorized officer of such disclosing
party; or (v) the receiving party is legally compelled to disclose;
provided, however, that prior to any such compelled disclosure, the
receiving party will (x) assert the privileged and confidential nature
of the Confidential Information against the third party seeking
disclosure and (y) cooperate fully with the disclosing party in
protecting against any such disclosure and/or obtaining a protective
order narrowing the scope of such disclosure and/or use of the
Confidential Information. In the event that such protection against
disclosure is not obtained, the receiving party will be entitled to
disclose the Confidential Information, but only as and to the extent
necessary to legally comply with such compelled disclosure.
8.2 Confidentiality of Agreement
Unless required by law, and except to assert its rights hereunder or for
disclosures to its own employees on a "need to know" basis, Intraware
agrees not to disclose the terms of this Agreement or matters relating
thereto (including, without limitation, the information contained in the
monthly reports provided in accordance with Section 4.3), without the
prior written consent of Netscape, which consent shall not be
unreasonably withheld.
9. WARRANTIES
9.1. Limited Warranty
(a) General. Subject to the limitations set forth in this Agreement,
Netscape warrants only to Intraware that the Netscape Products when
properly installed and used will substantially conform to the
functional specifications set forth in the Documentation in effect
when the Netscape Products are delivered to Intraware. Netscape's
warranty and obligation shall extend for a period of ninety (90) days
("Warranty Period") from the date Netscape first delivers the
Netscape Products to Intraware. All warranty claims not made in
writing or not received by Netscape within the time period specified
above Warranty Period shall be deemed waived. Netscape's warranty
and obligation is solely for the benefit of Intraware, who has no
authority to extend this warranty to any other person or entity.
NETSCAPE MAKES NO WARRANTY THAT ALL ERRORS OR FAILURES WILL BE
CORRECTED.
(b) Year 2000. Year 2000. Netscape warrants that the current version
of the Netscape Products contain functionality, including the
time-and-date-related code, needed for the December 31, 1999 to
January 1, 2000 date change; provided the underlying operating system
of the host machine, and any non-Netscape-owned software provided with
or in the host machine or Product(s), also contain functionality,
including the time-and-date-related code, needed for the December 31,
1999 to January 1, 2000 date change. The sole and exclusive remedy for
any breach of this warranty is repair or replacement of the affected
Product(s), excluding any non-Netscape- owned software or underlying
operating system. This warranty is null and void if Intraware alters,
modifies or misuses any portion of the Product(s).
(c) Virus. To the best of Netscape's knowledge, on the date of shipment,
the Software shipped to Licensee will be free from any self-destruction
mechanism, illicit code or any copy protection scheme (the "Virus")
which interferes with Licensee's abilities to exercise its rights and
privileges under this Agreement or other computer operations of
Licensee, but only if the Virus
Intraware 9/29/98ks
Netscape 10 CONFIDENTIAL
can be discerned by use of virus protection software that is generally
available for use on a particular platform as of such date.
9.2 EXCLUSIVE WARRANTIES
THE EXPRESS WARRANTY SET FORTH IN SECTION 9.1 CONSTITUTES THE ONLY
WARRANTY WITH RESPECT TO THE NETSCAPE PRODUCTS AND DOCUMENTATION.
NETSCAPE MAKES NO OTHER REPRESENTATION OR WARRANTY OR CONDITION OF
ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF
LAW) WITH RESPECT TO THE NETSCAPE PRODUCTS AND DOCUMENTATION.
NETSCAPE EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NETSCAPE DOES NOT
WARRANT THAT THE NETSCAPE PRODUCTS OR DOCUMENTATION ARE ERROR-FREE
OR THAT OPERATION OF THE NETSCAPE PRODUCTS WILL BE SECURE OR
UNINTERRUPTED AND HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT
THEREOF. THERE IS ALSO NO IMPLIED WARRANTY OF NON-INFRINGEMENT; THE
SOLE REMEDY FOR INFRINGEMENT IS PROVIDED IN SECTION 10. This subsection
shall be enforceable to the extent allowed by applicable law.
9.3 Defects Not Covered by Warranties
Netscape shall have no obligations under the warranty provisions set
forth in Section 9.1 if any nonconformance is caused by: (a)
Intraware's incorporation, attachment or otherwise engagement of any
attachment, feature, program, or device to the Netscape Products, or
any part thereof; or (b) accident; transportation; neglect or misuse;
alteration, modification, or enhancement of the Netscape Products by
Intraware; failure to provide a suitable installation environment;
use of supplies or materials not meeting specifications; use of the
Netscape Products for other than the specific purpose for which the
Netscape Products are designed; use of the Netscape Products on any
systems other than the specified hardware platform for such Netscape
Products; or Intraware's use of defective media (other than defective
media provided by Netscape to Intraware) or defective duplication of
the Netscape Products or Intraware's failure to incorporate any Minor
Update previously released by Netscape which corrects such
conformance.
9.4 Exclusive Remedy
If Intraware finds what it believes to be errors or a failure of the
Netscape Products to meet then functional specifications set forth in
the Documentation in effect when the Netscape Products are delivered to
Intraware, and provides Netscape with a written report during the
Warranty Period, Netscape will use reasonable efforts to correct
promptly, at no charge to Intraware, any such errors or failures. This
is Intraware's sole and exclusive remedy for any express or implied
warranties hereunder.
10. INDEMNIFICATION
10.1 Netscape shall defend or settle, at its option, any action brought
against Intraware to the extent it is based on a claim that use,
reproduction or distribution by Intraware of the Netscape portion
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Netscape 11 CONFIDENTIAL
of the Netscape Products furnished hereunder within the scope of a
license granted hereunder directly infringes any valid United States
copyright, U.S. patent, U.S. copyright trade secret in the United States
or U.S. trade secret. Netscape shall also defend any action brought
against Intraware to the extent that it is based on a claim that the
Netscape trademark(s) Intraware is licensed to use hereunder directly
infringes any valid United States trademark. Netscape will pay resulting
costs, damages and legal fees finally awarded against Intraware in such
action which are attributable to such claim provided that Intraware: (a)
promptly (within twenty (20) days) notifies Netscape in writing of any
such claim and Netscape has sole control of the defense and all related
settlement negotiations; and (b) cooperates with Netscape, at Netscape's
expense, in defending or settling such claim.
10.2 Should a Netscape Product become, or be likely to become in Netscape's
opinion, the subject of infringement of such U.S. patent, copyright,
trademark or trade secret, Netscape may procure for Intraware: (i) the
right to continue using the same; or (ii) replace or modify it to make
it non-infringing. In the event that Netscape shall reasonably determine
that neither (i) nor (ii) above is commercially practicable, Netscape
may terminate the license for the infringing Netscape Product and refund
the portion of license fee paid by Intraware to Netscape for such
Netscape Product for which Intraware has not derived a benefit. Netscape
shall have no obligation or liability for, and Intraware shall defend,
indemnify and hold Netscape harmless from and against any claim based
upon: (a) use of other than the then current, unaltered version of the
Netscape Product, unless the infringing portion is also in the then
current, unaltered release; (b) use, operation or combination of
Netscape Products with non-Netscape programs, data, equipment or
documentation if such infringement would have been avoided but for such
use, operation or combination; (c) Intraware's or its agent's activities
after Netscape has notified Intraware that Netscape believes such
activities may result in such infringement; (d) compliance with
Intraware's designs, specifications or instructions; (e) any
modifications or marking of the Netscape Products not specifically
authorized in writing by Netscape; (f) Intraware's use of any trademarks
other than those set forth in Exhibit F, Section 6; or (g) third party
software. The foregoing states the entire liability of Netscape and the
exclusive remedy of Intraware with respect to infringement of any
intellectual property rights, whether under theory of warranty,
indemnity or otherwise.
10.3 General Indemnification by Intraware. Intraware agrees to defend,
indemnify, and hold harmless Netscape and its suppliers from and against
any claims, liabilities, losses, damages expenses and costs (including
attorneys' fees and costs) directly relating to or arising out of
Intraware's use, distribution or reproduction of the Netscape Products
including, without limitation, any claims, liabilities, losses, damages,
expenses and costs arising out of a breach relating to the failure of
Intraware's data encryption methods deployed for distribution of the
Netscape Products, defective reproduction of or the use of defective
media in the reproduction of Netscape Products, breach of warranty or
support obligations by Intraware, unauthorized or illegal export of the
Netscape Products, or infringement or misappropriation of intellectual
property rights by the Intraware Products, except to the extent that
Netscape is responsible for a claim under Section 10.1.
11. LIMITATION OF LIABILITY
11.1 TO THE EXTENT ALLOWED BY APPLICABLE LAW, AND EXCEPT FOR A BREACH OF
SECTION 2.1.3 OR SECTION 8, IN NO EVENT SHALL EITHER PARTY OR ITS
SUPPLIERS BE
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Netscape 12 CONFIDENTIAL
LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA,
INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF A PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.2 IN NO EVENT WILL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR, EXCEPT FOR
SECTIONS 10.1 AND 10.2, ANY CLAIM AGAINST INTRAWARE BY ANY THIRD PARTY
OR FOR (A) ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY
INTRAWARE, ANY AGENT OF INTRAWARE; (B) FAILURE OF THE NETSCAPE PRODUCTS
TO PERFORM AS SPECIFIED HEREIN EXCEPT AS, AND TO THE EXTENT, OTHERWISE
EXPRESSLY PROVIDED HEREIN; (C) FAILURE OF THE NETSCAPE PRODUCTS TO
PROVIDE SECURITY; OR (D) ANY USE OF THE NETSCAPE PRODUCTS OR THE
DOCUMENTATION OR THE RESULTS OR INFORMATION OBTAINED OR DECISIONS
MADE BY END USERS OF THE NETSCAPE PRODUCTS OR THE DOCUMENTATION. THE
REMEDIES PROVIDED HEREIN ARE INTRAWARE'S SOLE AND EXCLUSIVE REMEDIES.
11.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AND
EXCEPT FOR A BREACH OF SECTION 2.1.3 OR SECTION 8, EACH PARTY'S ENTIRE
LIABILITY TO THE OTHER PARTY FOR DAMAGES CONCERNING PERFORMANCE OR
NONPERFORMANCE BY NETSCAPE OR IN ANY WAY RELATED TO THE SUBJECT
MATTER OF THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR
SUCH DAMAGES IS BASED IN CONTRACT OR IN TORT, SHALL NOT EXCEED [*]
11.4 If for any reason, by operation of law or otherwise, any limitations of
liability set forth in Section+11 are unenforceable, the parties
agree that: (a) except for a breach of Section 2.1.3 or Section 8, a
party's Netscape's entire liability for any loss or damage to real
property or to tangible personal property arising out of or in
connection with this Agreement shall not exceed the amount received
by Netscape from Intraware during the previous twelve (12) months
Netscape Products or Services giving rise to such claim; and (b) a
party's Netscape's liability shall be unlimited with respect to any
loss or damage arising from bodily injury, including death, when such
loss or damage is caused by the negligent acts or omissions or
intentional wrongdoing of such party's employees or agents arising
out of the performance of this Agreement, provided that the party
that is liable receives Intraware gives Netscape prompt written
notice of any such claim of loss or damage, the cooperation of the
damaged party and is allowed to control, and fully cooperates with
Netscape in the defense and all related settlement negotiation.
12. TERM OF AGREEMENT
Unless sooner terminated under the provisions of Section 13, or
otherwise rightfully terminated, this Agreement shall remain in effect
for a period of two (2) years from the Effective Date ("Term").
Thereafter, this Agreement may be renewed by mutual agreement in writing
for an additional one (1) year period.
13. DEFAULT AND TERMINATION
13.1 Termination for Default
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Netscape 13 CONFIDENTIAL
If either party defaults in any of its obligations under this Agreement,
the non-defaulting party, at its option shall have the right to
terminate this Agreement by written notice unless, within thirty (30)
calendar days after written notice of such default, the defaulting party
remedies the default, or, in the case of a default which cannot with due
diligence be cured within a period of thirty (30) calendar days, the
defaulting party institutes within the thirty (30) calendar days steps
necessary to remedy the default and thereafter diligently prosecutes the
same to completion. In the event Intraware breaches Sections 2.1.3
and/or Section 8 of this Agreement, Netscape may immediately terminate
this Agreement.
Either party shall have the right to terminate this Agreement if the
other party ceases to do business in the normal course, becomes or is
declared insolvent or bankrupt, is the subject of any proceeding
relating to its liquidation or insolvency which is not dismissed within
ninety (90)calendar days, or makes an assignment for the benefit of its
creditors.
13.2 Effect on Rights
13.2.1 Termination of this Agreement by either party shall not act
as a waiver of any breach of this Agreement and shall not act as a
release of either party from any liability for breach of such party's
obligations under this Agreement.
13.2.2 Except as specified in Sections 13.4 and 13.5 below, upon
termination or expiration of this Agreement, all licenses for Netscape
Products and Documentation granted under this Agreement shall terminate.
13.2.3 Except where otherwise specified, the rights and remedies
granted to a party under this Agreement are cumulative and in addition
to, and not in lieu of, any other rights or remedies which the party may
possess at law or in equity, including without limitation rights or
remedies under applicable patent, copyright, trade secrets, or
proprietary rights laws, rules or regulations.
13.3 Effect of Termination
Within thirty (30) calendar days after termination of this Agreement,
Intraware shall either deliver to Netscape or destroy all copies of
the Netscape Products and Documentation (except as provided in
Section 13.5) and any other materials provided by Netscape to
Intraware hereunder in its possession or under its control, and shall
furnish to Netscape an affidavit signed by an officer of Intraware
certifying that, to the best of its knowledge, such delivery or
destruction has been fully effected. Notwithstanding the foregoing,
and provided Intraware fulfills its obligations specified in this
Agreement with respect to such items, Intraware may continue to use
and retain copies of the Netscape Products and Documentation to the
extent, but only to the extent, necessary to support and maintain
Netscape Products rightfully distributed to End Users by Intraware
prior to termination of this Agreement.
13.4 Continuing Obligations
13.4.1 Payment of Accrued Fees. Within thirty (30) calendar days of
termination of this Agreement, Intraware shall pay to Netscape all sums
then due and owing. Any other such sums shall subsequently be promptly
paid as they become due and owing.
13.4.2 Continuance of Sublicenses. Notwithstanding the termination
of this Agreement, all End User sublicenses which have been properly
granted by Intraware pursuant to this Agreement prior to its termination
shall survive.
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Netscape 14 CONFIDENTIAL
13.4.3 Other Continuing Obligations. The respective rights and
obligations of Netscape and Intraware under the provisions of Sections
2.1.3, 2.2, 3.4, 4.4, 7, 8, 9.1, 9.2, 9.3, 9.4, 10, 11, 13.2, 13.3, 13.4
and 15 shall survive any termination of this Agreement.
14. PROVISIONS GENERAL
14.1 Notices
Any notice, request, demand, or other communication required or
permitted hereunder shall be in writing and shall be deemed to be
properly given upon the earlier of (a) actual receipt by the addressee
or (b) five (5) business days after deposit in the mail, postage
prepaid, when mailed by registered or certified airmail, return receipt
requested, or two (2) business days after being sent via private
industry courier to the respective parties at the addresses set forth
herein or to such other person or address as the parties may from time
to time designate in a writing delivered pursuant to this Section 14.1.
Notices to Netscape and Intraware shall be attention to: Legal
Department.
14.2 Waiver and Amendment
The waiver by either party of a breach of or a default under any
provision of this Agreement, shall not be construed as a waiver of any
subsequent breach of the same or any other provision of this Agreement,
nor shall any delay or omission on the part of either party to exercise
or avail itself of any right or remedy that it has or may have hereunder
operate as a waiver of any right or remedy. No amendment or modification
of any provision of this Agreement shall be effective unless in writing
and signed by a duly authorized signatory of Netscape and Intraware.
14.3 Assignment
Neither party may assign this Agreement and the licenses granted
hereunder are to a specific legal entity or legal person, not including
corporate subsidiaries or affiliates of Intraware, nor are the
obligations imposed hereunder delegable without the prior written
consent of the other party, which consent shall not be unreasonably
withheld. Any attempt to sublicense (except as expressly permitted
herein) assign or transfer any of the rights, duties or obligations
under this Agreement in derogation hereof shall be null and void.
Notwithstanding the foregoing, either party may assign this Agreement in
the event of a business reorganization or spin out that affects the sale
of the business unit to which this Agreement pertains, or the merger or
sale of all or substantially all of the stock or assets of such party.
14.4 Governing Law
This Agreement is entered into in the State of California, U.S.A., and
this Agreement shall be governed by and construed in accordance with the
laws of the State of California, U.S.A., without reference to its
conflicts of law provisions. Any dispute regarding this Agreement shall
be subject to the exclusive jurisdiction of the California state courts
in and for Santa Xxxxx County, California (or, if there is exclusive
federal jurisdiction, the United States District Court for the Northern
District of California), and the parties agree to submit to the personal
and exclusive jurisdiction and venue of these courts. This Agreement
will not be governed by the United Nations Convention of Contracts for
the International Sale of Goods, the application of which is hereby
expressly excluded.
14.5 Relationship of the Parties
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Netscape 15 CONFIDENTIAL
No agency, partnership, joint venture, or employment is created as a
result of this Agreement and neither Intraware nor its agents have any
authority of any kind to bind Netscape in any respect whatsoever.
14.6 Captions and Section Headings
The captions and section and paragraph headings used in this Agreement
are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement.
14.7 Severability
If the application of any provision or provisions of this Agreement to
any particular facts of circumstances shall be held to be invalid or
unenforceable by any court of competent jurisdiction, then (a) the
validity and enforceability of such provision or provisions as applied
to any other particular facts or circumstances and the validity of other
provisions of this Agreement shall not in any way be affected or
impaired thereby and (b) such provision or provisions shall be reformed
without further action by the parties hereto to and only to the extent
necessary to make such provision or provisions valid and enforceable
when applied to such particular facts and circumstances.
14.8 Force Majeure
Either party shall be excused from any delay or failure in performance
hereunder, except the payment of monies by Intraware to Netscape, caused
by reason of any occurrence or contingency beyond its reasonable
control, including but not limited to, acts of God, earthquake, labor
disputes and strikes, riots, war, novelty of product manufacture or
other unanticipated product development problems, and governmental
requirements. The obligations and rights of the party so excused shall
be extended on a day-to-day basis for the period of time equal to that
of the underlying cause of the delay.
14.9 Entire Agreement
This Agreement, including the Exhibits hereto, constitutes the entire
agreement between the parties concerning the subject matter hereof and
supersedes all proposals or prior agreements whether oral or written,
and all communications between the parties relating to the subject
matter of this Agreement and all past courses of dealing or industry
custom. The terms and conditions of this Agreement shall prevail,
notwithstanding any variance with any purchase order or other written
instrument submitted by Intraware, whether formally rejected by
Netscape.
15. NETSCAPE PROFESSIONAL SERVICES
15.1 Authorization to Solicit Orders for Services.
Subject to the terms and conditions herein, Netscape hereby authorizes
Intraware to solicit offers on behalf of Netscape for Netscape to supply
to third party clients with its professional consulting services (the
"Services") under the terms of a professional services agreement
substantially in the form set forth in Exhibit G. Each party hereto will
appoint a principal point of contact within its organization for the
solicitation of offers and placement of resulting purchase orders
("Order(s)") for the Services. In addition, Intraware shall provide
Netscape with the name of key contact persons of potential clients for
the Services, together with as much information about the potential
opportunity as may be reasonably necessary to enable Netscape
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Netscape 16 CONFIDENTIAL
to pursue the Order. Intraware may electronically submit Orders on such
terms as the parties shall mutually agree.
15.2 Limitations.
In soliciting Orders, Intraware shall have no authority to act for or to
bind Netscape in any way; to sign the name of Netscape in any way, or to
represent that Netscape is in any way responsible for the acts or
omissions of Intraware.
15.3 Compensation.
In consideration for soliciting Orders, Netscape shall pay Intraware a
commission, in the amount and subject to the terms and conditions set
forth in Exhibit B hereto.
15.4 Orders.
Netscape may in its sole discretion elect to pursue or not pursue any
potential Order. Netscape shall have no obligation to accept or reject
any Order for Services for any reason. Intraware shall not purport to
accept Orders in its own name or to bind Netscape to accept any such
Orders. An Order shall be deemed accepted by Netscape when a client has
executed an Order for the Services, which Order (a) accepts the terms
and conditions of the professional services agreement and (b) attaches a
completed statement of work that (i) specifies the Services to be
provided by Netscape and (ii) identifies a start date for the Services.
15.5 Pricing.
Netscape reserves the sole right to establish the prices of the
Services, or to grant to any client at any time any discount it deems
advisable, or to alter discounts.
15.6 Netscape Reports.
Each quarter, Netscape shall provide to Intraware a report that sets
forth, for the three-month period covered thereby, the number of Orders
(a) accepted by Netscape, (b) rejected by Netscape, or (c) that are in
progress. The report shall accompany the payment, if any, due by
Netscape to Intraware as provided in Exhibit B.
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Netscape 17 CONFIDENTIAL
16. COUNTERPARTS.
16. Counterparts. This Agreement may be executed in counterparts or by
facsimile, each of which shall be an original, and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
duly authorized representatives of the parties effective as of the Effective
Date.
NETSCAPE COMMUNICATIONS CORPORATION INTRAWARE, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Masheroni
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Masheroni
Title: Senior Vice President, Title: VP Business Development
Finance & Corporate
Controller
Date: 10/20/98 Date: 10/12/98
Address: 000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
EXHIBITS:
Exhibit A - Netscape Product and Service Descriptions
Exhibit B - Pricing, Payment Schedules and Deliverables
Exhibit C - End User License Agreements
Exhibit D - Technical Support
Exhibit E - Intraware Products
Exhibit F -Point of Sale Reports
Exhibit G -Professional Services Agreement
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Netscape 18 CONFIDENTIAL
EXHIBIT A
NETSCAPE PRODUCT AND SERVICES DESCRIPTIONS
As used herein, "Netscape Client Products", "Netscape Server Products" and
"Netscape Application Products" refer to those Netscape Products, and Updates
thereto, in the applicable product group listed on the Netscape's then
current applicable price list. A. Products
The following Netscape Products sold within North America (i.e., the
United States and Canada) are described below.
English language 40 bit and 128 bit versions of Netscape Server
Products, Netscape Client Products and Netscape Application Products
(including related tools) in production and generally available (e.g.
non-beta) as of Netscape's then current North America End User Price
List that are available from Netscape's web site for downloading or
otherwise as mutually agreed between the parties.*
The parties have entered into a trial evaluation period to consider
whether CommercXpert products will be included in the Agreement.
Appropriate representatives of the parties will attempt to resolve the
issue as soon as practicable.
* Provided approvals submitted by the United States Department of
Commerce, Bureau of Export Administration dated June 5, 1997, and
Intraware's inquiry thereto dated May 9, 1997, apply to such Netscape
Product otherwise non-exportable 128 bit versions of Netscape Products.
B. Services.
Netscape Professional Services shall be provided under the Professional
Services Agreement is substantially in the form attached hereto as
Exhibit G. Netscape reserves the right to change, discontinue, or add
Services without any obligation to Intraware, and Exhibits A and G shall
be deemed amended from time to time thereby.
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Netscape 19 CONFIDENTIAL
EXHIBIT B
PRICING, PAYMENT SCHEDULES AND DELIVERABLES
1. Pricing for Netscape Products and Services. The license fee for each
copy of a Netscape Product shall be as set forth below. The parties will
review this shrinkwrap pricing within [*] of the Effective Date:
A. Shrinkwrap Pricing
End User "Shrinkwrap" Client Products: [*] discount off of the then
current North America End User Price List (quantity 1); (Intraware shall
have the right to use up to 100 copies of the Client Products for its
internal use at no charge other than for any third party royalties
payable by Netscape.)
**Client Product Software Subscription and Support: [*] discount off of
the then current North America End User
Price List (quantity 1);
Shrinkwrap Server Products (Non-NAS): [*] discount off of the then
current North America End User Price List (quantity 1); (Intraware shall
have the right to use up to [*] copies of the Enterprise Server and
up to [*] copies of all other Server Products for its internal use
at no charge.)
**Server Product Software Subscription and Support: [*] discount off of
the then current North America End User
Price List (quantity 1).
Prices for the Services (defined in Section 15 of the Agreement) shall
be offered at 100 percent of Netscape's then current project pricing
policies. Such prices may, from time to time, be amended by Netscape in
its sole discretion.
B. Charters Pricing. Volume Discount pricing under Netscape's Charters
Program or other then current volume program: [*] discount off of the
then current North America applicable End User Price List.
C. ISP Pricing. [*] discount off of the then current North America
applicable End User Price List.
D. Third Party Software Products. (Marimba and Diffusion), if and only to
the extent authorized by the applicable company) [*] discount off of the
then current North America applicable End User Price List.
E. SuiteTools. Included as part of Server products, see discount above.
F. Other Netscape Products. Netscape Applications Server Products: [*]
discount off of the then current North America End User Price List.
Intraware may use up to [*] CPUs of its NAS products for [*].
G. [*]
Intraware 9/29/98ks
Netscape 20 CONFIDENTIAL
[*]
H. General
1. Prepayment. Terms of prepayment, if any, will be added by mutual
agreement and inserted as part of this Section 2 to this Exhibit B.
2. Subscription. First year software subscription may only be purchased
at the time when the initial applicable license is purchased; however, a
renewal may be purchased if an initial subscription sale has been made.
3 Deliverable One (1) master reproduction copy of each of the Netscape
Products (media) and one (1) copy of the applicable Documentation, in
any format generally available from Netscape.
4. Territory. United States and Canada, except as set forth in Addendum
A to this Exhibit B.
5. Point of Sales Reports.
Contact Name: Xxxx Xxxxxx
Director, Xxxxxxxxx.xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxx@xxxxxxxxx.xxx
6. Addresses:
Xxxx To Address for Invoice Ship To Address for Deliverables
(not P.O. address)
Intraware Intraware
00 Xxxxxx Xxx 00 Xxxxxx Xxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx Attention: Xxxx Xxxxxxxx
VP, Finance Operations Specialist
Telephone: 000-000-0000 Telephone: 000-000-0000
Email: xxxxx@xxxxxxxxx.xxx Email: xxxx@xxxxxxxxx.xxx
7. For each Order for Services accepted by Netscape, shall pay Intraware
on a quarterly basis a commission representing [*] of the total
Orders for professional services accepted by Netscape in that quarter,
less any credits due to Netscape for cancellations by clients that occur
within the first three months of receipt of such services. Netscape may
offset any amount it owes Intraware under this Section 8 with any amounts
it owes Intraware hereunder. Such payment shall be accompanied by a
quarterly report set forth in Section 15.6 hereof.
8. This agreement is conditional on the following understandings:
a. Intraware will make every reasonable, commercial effort to provide
Netscape with possible consulting opportunities involving Netscape
products on an equal footing with other consulting companies.
b. Netscape has the right to not pursue an opportunity identified by
Intraware
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Netscape 21 CONFIDENTIAL
c. Netscape will appoint one point of contact and Intraware will
appoint one point of contact to reconcile project opportunities on a
monthly and quarterly basis.
d. This agreement does not include client engagements entered into
between Netscape and the client subsequent to the initial
opportunity, including, without limitation, subsequent engagements
to the initial opportunity identified by the modifications to the
original statement of work to add additional work.
Sales Tax Resale Exemption Certificate No.:_____________________
(ORIGINAL CERTIFICATE MUST BE FURNISHED TO NETSCAPE)
Netscape Sales Rep: Xxxx Occupinti
Telephone Number: 000.000.0000
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Netscape 22 CONFIDENTIAL
Addendum 2.1.8 to Exhibit B
European Territory
Europe France
FRA FRANCE
FXX FRANCE, METROPOLIT
MCOMONACO
Europe Germany
AUT AUSTRIA
DEU GERMANY
Europe Multi-Country
ESH WESTERN SAHARA
ZWE ZIMBABWE
EGY EGYPT
WLF WALLIS AND FUTUNA
TUV TUVALU
RUS RUSSIAN FEDERATION
KIR KIRIBATI
AGO ANGOLA
CMR CAMEROON
BWABOTSWANA
UZB UZBEKISTAN
ARE UNITED ARAB EMIRAT
IntlUNK International Unknown
ZMB ZAMBIA
ZAR ZAIRE
YEM YEMEN
GIN GUINEA
ITA ITALY
STP SAO TOME AND PRINC
SDN SUDAN
SPM ST. PIERRE AND MIQ
SGS SOUTH GEORGIA AND
UKR UKRAINE
TCA TURKS AND CAICOS I
TKM TURKMENISTAN
TUN TUNISIA
TON TONGA
TKL TOKELAU
TZA TANZANIA, UNITED R
TJK TAJIKISTAN
SYR SYRIAN ARAB REPUBL
SWZ SWAZILAND
SUR SURINAME
VGB VIRGIN ISLANDS (BR
KNA SAINT KITTS AND NE
ROMROMANIA
REU REUNION
PRI PUERTO RICO
PCN PITCAIRN
PLW PALAU
OMN OMAN
NIU NIUE
LBN LEBANON
MOZMOZAMBIQUE
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MARMOROCCO
MSR MONTSERRAT
MUS MAURITIUS
MRT MAURITANIA
MHLMARSHALL ISLANDS
MLT MALTA
LUX LUXEMBOURG
HUNHUNGARY
GRC GREECE
GIB GIBRALTAR
CYP CYPRUS
BEL BELGIUM
KGZ KYRGYZSTAN
Europe Multi County Cont. KWT KUWAIT
BEN BENIN
BRB BARBADOS
BHR BAHRAIN
BHS BAHAMAS
ABWARUBA
ARMARMENIA
ATG ANTIGUA AND BARBUD
ATA ANTARCTICA
GRD GRENADA
GEO GEORGIA
GUF FRENCH GUIANA
EST ESTONIA
DOM DOMINICAN REPUBLIC
CUB CUBA
CCK COCOS (KEELING) IS
CYM CAYMAN ISLANDS
IOT BRITISH INDIAN OCE
BTN BHUTAN
BLR BELARUS
AZE AZERBAIJAN
AIA ANGUILLA
AFG AFGHANISTAN
YUG YUGOSLAVIA
ESP SPAIN
PRT PORTUGAL
ISR ISRAEL
CZE CZECH REPUBLIC
ANDANDORRA
LAO XXX XXXXXXX DEMOCR
XXX KENYA
IRQ IRAQ
LBY LIBYAN ARAB JAMAHI
LVA LATVIA
MDA MOLDOVA, REPUBLIC
MTQ MARTINIQUE
MKDMACEDONIA, THE FOR
MMR MYANMAR
NRU NAURU
RWARWANDA
QAT QATAR
MNPNORTHERN MARIANA I
NER NIGER
SLE SIERRA LEONE
VCT SAINT XXXXXXX AND
SHN ST. HELENA
UGA UGANDA
TTO TRINIDAD AND TOBAG
TGO TOGO
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SJM SVALBARD AND JAN M
GUY GUYANA
GNB GUINEA-BISSAU
GLP GUADELOUPE
XXX XXXXXXXXX
XXXXXXXX
XXX XXXXXX
GAB GABON
ATF FRENCH SOUTHERN TE
FRO FAROE ISLANDS
FLK FALKLAND ISLANDS (
ETH ETHIOPIA
ERI ERITREA
GNQEQUATORIAL GUINEA
DMA DOMINICA
DJI DJIBOUTI
HRV CROATIA (local nam
CIV COTE DIVOIRE
COG CONGO
Europe Multi County Cont. COMCOMOROS
CXR CHRISTMAS ISLAND
TCD CHAD
CAF CENTRAL AFRICAN RE
CPV CAPE VERDE
XXX XXXXXXX
XXX XXXXXXX XXXX
XXX XXXXXXXX
BVT BOUVET ISLAND
BIH BOSNIA AND HERZEGO
BMU BERMUDA
ASM AMERICAN SAMOA
DZA ALGERIA
ALB ALBANIA
VAT VATICAN CITY STATE
TUR TURKEY
CHE SWITZERLAND
POL POLAND
NLD NETHERLANDS
KAZ KAZAKHSTAN
XXX XXXXXX
JAM JAMAICA
IRN IRAN (ISLAMIC REPU
HMD HEARD AND MC XXXXX
HTI HAITI
LBR LIBERIA
LSO LESOTHO
MLI MALI
MWI MALAWI
MDGMADAGASCAR
LTU LITHUANIA
LIE LIECHTENSTEIN
ANT NETHERLANDS XXXXXX
XXX NAMIBIA
LCA SAINT LUCIA
NGANIGERIA
SLB SOLOMON ISLANDS
SVN SLOVENIA
SVK SLOVAKIA (Slovak R
SYC SEYCHELLES
SEN SENEGAL
SAU SAUDI ARABIA
MYT MAYOTTE
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SOM SOMALIA
SMR SAN MARINO
Europe Nordic
DNK DENMARK
FIN FINLAND
NOR NORWAY
SWE SWEDEN
ISL ICELAND
Europe United Kingdom
IRL IRELAND
ZAF SOUTH AFRICA
GBR UNITED KINGDOM
Intercon Australia
PNG PAPUA NEW GUINEA
NZL NEW ZEALAND
AUS AUSTRALIA
NCL NEW CALEDONIA
COK XXXX ISLANDS
VUT VANUATU
NFK NORFOLK ISLAND
Intercontinental Territory
A. Japan
B. North Asia region:
PRC (incl. Hong Kong)
Taiwan
Macau
C. SE Asia region:
Singapore
India
Thailand
Philippines
Pakistan
Vietnam
Indonesia
Australia
New Zealand
Malaysia
Burma
Cambodia
D. Latin America region:
Brazil
Venezuela
Mexico
Bermuda
Chile
Colombia
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Argentina
Equador
Peru
Uraguay
Paraguay
The European and Intercontinental Territories may be amended from time to
time as the parties shall mutually agree.
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EXHIBIT C
END USER LICENSE AGREEMENTS
End User Licenses Provided to Intraware Include:
Client Products License
Server Products License
NAS Products License
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EXHIBIT D
TECHNICAL SUPPORT
These terms will be updated from time to time to be consistent with
Netscape's then current Distributor Tech. Support Model and may vary by
product.
1. Back-end Support. Netscape will provide to Intraware, at no charge,
back-end, escalation technical support by telephone and e-mail to assist
Intraware in providing End Users with support in the installation and set up
of the Netscape Products. Netscape's technical support obligations are
limited solely to the foregoing and do not include support for Program Errors
or the provision on Updates.
2. Front-line Support. Intraware, and not Netscape, will provide
front-line, or first and second level, technical support to its End Users in
the installation and set up of the Netscape Products. Such support includes
call receipt, call screening, installation assistance, problem identification
and diagnosis. Intraware agrees that any documentation distributed by
Intraware will clearly and conspicuously state that an End Users should call
Intraware for technical support in the installation and set up of the
Netscape Products. Netscape will have no obligation to furnish any
assistance, information or documentation with respect to the Netscape
Product, to any End User unless such End User has contracted with Netscape
for support. If Netscape customer support representatives are being contacted
by a significant number of Intraware's End Users in the installation and set
up of the Netscape Products then, upon Netscape's request, Intraware and
Netscape will cooperate to minimize such contract. In the event that Netscape
is able to identify any End User obtaining front-line support from Netscape
as a customer of Intraware, Netscape shall refer such End User back to
Intraware and/or offer such End User the option to purchase support directly
from Netscape.
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EXHIBIT E
INTRAWARE PRODUCTS
Virtual Express Delivery
SubscribNet
ScriptWrapper installation interface software
ExtraDoc software
Compariscope
Radarscope
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EXHIBIT F
POINT OF SALE REPORTS
Transaction_Date
PO#
Bill_To_Name
Sell_To_Name
Sell_To_Address1
Sell_To_Address2
Sell_To_City
Sell_To_State
Sell_To_Postal_Code
Sell_To_Country
VLA# (License#)
Acct_Part_Num
Netscape_SKU
Part_Description
Part_OpSys (if not included in Part_Description)
Qty_sold
Price (COGs)
Extended_Price
Direct_Purchase_Flag (or separate files for direct/indirect purchases) POS
data is due no later than the 10th calendar day of the month, in excel, ASCII
text, or other downloadable format.
Intraware Contact: Xxxxx Xxxxx, VP Finance
Tel: 000-000-0000 Fax: 000-000-0000 e-mail: xxxxx@xxxxxxxxx.xxx
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EXHIBIT G
PROFESSIONAL SERVICES AGREEMENT
Netscape's then current professional services agreement, the current version
of which has been provided to Intraware
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