Exhibit
10.26


CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY


CONFIDENTIAL TREATMENT REQUESTED:  INFORMATION FOR WHICH CONFIDENTIAL TREATMENT


HAS BEEN REQUESTED IS OMITTED AND NOTED WITH “***.”
AN UNREDACTED VERSION OF THIS


DOCUMENT HAS BEEN SUBMITTED SEPARATELY TO THE SECURITIES AND EXCHANGE
COMMISSION.


DISTRIBUTION
AGREEMENT


THIS DISTRIBUTION
AGREEMENT (“Agreement”), is by and between INGRAM MICRO INC. (“Ingram Micro”),
a Delaware corporation, located at 1600 E. St. Andrew Place, Santa Ana,
California 92705, and WEBSENSE, INC., a Delaware corporation (“Vendor”),
located at 10240 Sorrento Valley Road, San Diego, California 92121. The
effective date (“Effective Date”) of this Agreement shall be the date of the
last signature set forth below.


1.                                      DISTRIBUTION
SCOPE


1.1                                 Product.  Vendor agrees to authorize Ingram Micro
and/or its resellers to market and distribute the Vendor’s proprietary software
applications (“Software”) together with subscriptions to access certain
Vendor-owned proprietary databases of URL addresses, software applications or
other content (“Databases”) (collectively the “Products”), subject to the terms
set forth in this Agreement including its exhibits, solely to resellers (“Resellers”)
and not directly to customers of such Resellers (“End-Users”). Additional terms
are included in Exhibits A – D. Vendor agrees that each Reseller will be
subject to Ingram Micro’s standard Sales Terms and Conditions, located at
www.ingrammicro.com,  at the time of
purchase for such Product  and such
Product is also subject to Vendor’s then –current Subscription Agreement that
each End-User must accept to enable Product download.  Ingram Micro agrees to use reasonable efforts
to promptly notify Vendor of any breach by any Reseller or End-User of any term
of the Subscription Agreement of which it becomes aware and to take such action
as is reasonably requested by Vendor to protect Vendor interests in the
Products.  Ingram Micro will not modify
or copy any Product; however, Ingram Micro may bundle the Software along with
other software or hardware and distribute the Software to its Resellers.   No minimum purchase is required and no
ordering restrictions shall apply. Vendor shall provide Ingram Micro with not
less than thirty (30) days prior written notice of Product discontinuance
including alternatives and cessation of Product production. Vendor agrees to
provide information regarding new Products, Price changes, Product changes, or
Product discontinuance in an electronic format determined by Ingram Micro and
mutually acceptable to Vendor.


1.2                                 Territory.  Vendor grants to Ingram Micro and its
Affiliates as defined above the *** (as set forth below), nontransferable right
to market and distribute the Products to its Resellers in *** (the “Territory”).
Unless otherwise agreed between the parties, this *** shall be effective for ***
after the execution of this Agreement; thereafter, Vendor grants to Ingram
Micro and its Affiliates the nontransferable right to market and distribute the
Products to its Resellers in *** on a ***. ***. Additionally, the parties agree
***. Any Ingram Micro Affiliate located within the United States or Canada that
elects to distribute Products in its local region will determine if it will
purchase Products from Ingram Micro in accordance with this section or purchase
Products directly from Vendor. Any other Ingram Micro Affiliate outside of the
United States or Canada that elects to distribute Products in its local region
will determine if it will purchase Products from Ingram Micro in accordance
with this section or purchase Products directly from Vendor’s affiliate,
Websense International Limited (“Vendor’s Affiliate”). If the Affiliate chooses
to purchase Products directly from either Vendor or Vendor’s Affiliate, the
Affiliate and Vendor (or Vendor’s Affiliate) shall enter into a separate
agreement governing the terms of such purchases.


2.                                      TERM


The initial term
of this Agreement is one (1) year from the Effective Date. Unless terminated as
set forth in Section 11.20 below, this Agreement will automatically renew for
successive one (1) year terms unless either party provides written notice of
termination no less than thirty (30) days prior to the anniversary date.


3.                                      PRODUCT
AVAILABILITY, INFORMATION, MARKETING SUPPORT & REPORTING


3.1                                 Product
Availability.  Vendor shall provide
Ingram Micro with new Product development and Product revisions information
prior to notification of new Product announcements or introductions. Vendor
shall use commercially reasonable efforts to notify Ingram Micro of new Product
or Product revisions introduction at least thirty (30) days prior to
marketplace introduction, but under no circumstances will Vendor notify Ingram
Micro of any new Product or Product revisions later than Vendor’s other
distributors or resellers, and shall make such Product available for
distribution by Ingram Micro no later than the date it is first offered for
general sale in the marketplace.


3.2                                 Information.
 Vendor agrees to provide the following
information to Ingram Micro:






*** Confidential material redacted and submitted
separately to the Commission



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(a)                Data,
images, photos, logos, and other varieties of information regarding Vendor’s
products and services provided by Vendor to Ingram Micro (collectively “Information”)
solely for distribution or use by Ingram Micro through its catalog, the World
Wide Web (internet), Intranet, Fax, CD-ROM, Floppy disk, broadcast, e-mail, and
other electronic or printed media (“Electronic Resources”).  Vendor hereby grants Ingram Micro a
royalty-free, non-exclusive worldwide license to market, sub-license,
distribute, display, perform, transmit and promote the Information in
furtherance of this Agreement through the Electronic Resources, provided Ingram
Micro complies with Vendor’s guidelines for use of the Information.  Vendor agrees that it is both necessary and
of mutual benefit to the parties that the Information be as current and
error-free as is commercially feasible. Vendor agrees to update the Information
regularly. Both parties agree that the Electronic Resources and Information
contained therein will be made available to users registered with Ingram
Micro.  Information may also be made
available to Ingram Micro customers, non-registered users, or other entities or
persons transacting business with Ingram Micro. Ingram Micro shall not be
required to screen, edit, or monitor Information prior to its distribution by
Electronic Resources, but may do so at its discretion so long as it complies
with Vendor’s guidelines for use of the Information.


(b)               Public
information reasonably requested by Ingram Micro from time to time for the
purpose of assessing Vendor’s financial position. Such information includes,
without limitation, quarterly financial statements including no less detail
than as required by the U.S. Securities and Exchange Commission in a 10-Q
statement provided that such information is made available in the public
domain.


(c)                Notification
of changes to Vendor’s name, address, 
any sale of substantially all of its assets or any sale of any subsidiary
or affiliate of Vendor or of any change in the control of Vendor, whether
effected by merger or stock sale all of which shall be provided promptly upon
public disclosure of such information.


3.3                                 Information.   Ingram Micro agrees to provide the following
information to Vendor:


(a)                                  Public
information reasonably requested by Vendor from time to time for the purpose of
assessing Ingram Micro’s financial position. Such information includes, without
limitation, quarterly financial statements including no less detail than as
required by the U.S. Securities and Exchange Commission in a 10-Q statement
provided that such information is made available in the public domain.


(b)                                 Notification
of changes to Ingram Micro’s name, address, 
any sale of substantially all of its assets or any sale of any
subsidiary or affiliate of Ingram Micro or of any change in the control of
Ingram Micro, whether effected by merger or stock sale all of which shall be
provided promptly upon public disclosure of such information.


3.4                                 Marketing
Support.  Vendor shall provide to
Ingram Micro, its employees, and its customers reasonable amounts of sales
literature, advertising materials and training to support Product sales and
reasonable amounts of demonstration Product and training to support Product
sales, all at no cost to Ingram Micro.


3.5                                 Reporting.


(a)          Ingram
Micro. Ingram Micro will provide Vendor access to *** in an electronic
format as determined by Ingram Micro. If Vendor requests non-standard sales
data or other information (“Data”) such Data may be subject to the additional
terms of ***.


(b)         Vendor. Vendor will provide Marketing
Reports in the form as mutually agreed between the parties including *** with
Vendor and co-op Vendor reports including expenditures to date. Reports shall
be provided *** after the end of the applicable *** or as mutually agreed upon
by the parties.


4.                                      PRICING


4.1                                 ***.


4.2                                 Special
Pricing.  Vendor may offer special
Product pricing, discounts, rebates or incentives (“Special Pricing”) to Ingram
Micro and/or to Ingram Micro customers. 
Vendor agrees that all such *** shall be designated as a ***. Ingram
Micro shall have *** from a customer, or reimburse Vendor for any such ***, in
the event (i) *** or (ii) ***. 
Notwithstanding the foregoing, all Special Pricing will be subject to a
separate agreement between the parties.


4.3                                 Subscription
Fees.  Subscription Fees will be
Vendor’s then current published list price attached as described in Exhibit D
which may be updated from time to time.


4.4                                 Purchase
Orders (“PO”).  Products shall be
ordered by Ingram Micro by submitting purchase orders which specify the
following Reseller and End-User information: 
name of Reseller and End-User companies, the name and e-mail address of






*** Confidential
material redacted and submitted separately to the Commission



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End-User contact,
the Vendor part number that corresponds to the Product ordered, the SKU
identifying the number of Seats for each End-User which shall have a unique
identifier as agreed between the parties, Ingram Micro invoice number and price
per SKU and the start and end date of the applicable subscription(s).  ***. 
The parties agree that it is the responsibility of the Vendor to verify
that the Vendor’s Subscription Order Form has been signed prior to acceptance
of the applicable Purchase Order. All purchase orders placed with Vendor for
Products by Ingram Micro shall be subject to acceptance in writing by Vendor
referencing Ingram Micro’s Purchase Order Number; however, Vendor shall be
deemed to have accepted a Purchase Order if it fulfills such Purchase
Order.  Vendor agrees to consider any
return requests by Ingram Micro or Ingram Micro’s customers on a case-by-case
basis.  Vendor is under no obligation to
accept returns under this Agreement.


5.                                      TRADEMARK
USE


5.1                                 Use
and Ownership of Marks.  Each party
recognizes the other party’s ownership and title to its respective trademarks,
logos, service marks and trade names, including those related to the Products
and the Information, whether or not registered (collectively “Marks”). Each
party grants to the other party a limited license to use such party’s Marks in
connection with the marketing and distribution of the Products subject to such
party’s trademark and usage guidelines and prior written approval. Each party
may not use the other party’s Marks in advertising, promotion, and publicity of
the Products without the express written consent of the other party. Any
consent to use a party’s Marks will be conditioned upon compliance with the
most current guidelines for use of Marks. Upon request by the other party, the
party owning Marks shall provide Marks guidelines (or equivalent guidance) to
the other. Any unauthorized modification to Marks is expressly prohibited.
Neither party shall acquire any rights in Marks of the other nor will it act to
impair the rights of the other party in and to such Marks.


5.2                                 Domain
Locations.  Each party shall maintain
ownership and administration of the addresses on the World Wide Web (“Domain
Locations”) that have been registered on its behalf and neither party may
establish any Domain Locations on behalf of the other party without its
consent.  Upon termination, each party
agrees to assign to the other party any rights it may have in any domain names
or adwords that include the other party’s Marks.


6.                                      MARKETING


6.1                                 ***.  In addition
to *** identified below, Vendor agrees
to provide mutually agreed upon *** to
Ingram Micro for Product launch and awareness activities commensurate with the
Product and customer segments being targeted. 
Such activities may include training, sales and customer communication
and tools, Vendor and Product listing in Ingram Micro’s online catalog, and
recruiting services. ***.


6.2                                 ***.  Vendor agrees to establish a *** as mutually
agreed by the parties (or the allowance offered by Vendor to Ingram Micro
Competitors, if greater) of the amount of *** submitted by Vendor to Ingram
Micro (or the marketing allowance offered by Vendor to Ingram Micro
Competitors, if greater) to *** of Product advertising and/or promotions by
Ingram Micro or its customers. 
Notwithstanding the foregoing, all marketing activities, including but
not limited to ***, will be subject to separate written agreements between the
parties.


6.3                                 ***.  Exclusive of ***, Vendor may, from time to time,
provide *** to Ingram Micro or selected customer groups (e.g., to government
resellers). Any advertising and promotions subject to these *** shall be
submitted to Vendor for review and approval prior to implementation, and Vendor
shall not unreasonably withhold or delay such approval.


6.4                                 ***.  *** will be made in accordance with separate
marketing agreements prior to the commencement of such activities.


6.5                                 Programs.  Ingram Micro may, in
its sole discretion, offer *** to Vendor including but not limited to ***. The
costs, as well as terms and conditions of such programs are outlined in their
respective program agreements.


6.6                                 Email.  Each party consents to the other party
sending messages of an informational, advertisement or technical nature via e-mail.


7.                          WARRANTY


7.1                                 General
Warranty.  Vendor represents and
warrants that (i) ***;






*** Confidential
material redacted and submitted separately to the Commission



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THE FOREGOING
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO DEFECTS IN THE PHYSICAL MEDIA, OPERATION OF
THE SOFTWARE AND THE DATABASES, AND ANY PARTICULAR APPLICATION OR USE OF THE
SOFTWARE AND THE DATABASES.


Ingram Micro
agrees, and will notify and encourage its Resellers to not make any
representations or warranties with respect to the Products other than the
limited warranties made by Vendor under this Agreement.


7.2                                 End-User
Warranty.  Vendor shall provide ***.


7.3                                 Harmful
Code Warranty.  Except as set forth
below, ***.


8.                                      INDEMNIFICATION


8.1                                 Vendor
Indemnity.  Vendor will defend,
indemnify and hold Ingram Micro harmless from and against any and all damages,
liabilities, costs and expenses (including but not limited to attorneys’ fees)
arising out of or incurred by Ingram Micro in connection with or as a result of
any third party claim or proceeding made or brought against Ingram Micro  with respect to any allegation that (i) *** ,
or (ii) ***.


8.2                                 Intellectual
Property Indemnity.  Vendor shall
defend, indemnify and hold Ingram Micro and its customers harmless from and
against any claims, demands, liabilities, or expenses (including attorney’s
fees and costs) incurred by Ingram Micro arising from the alleged infringement
of any third party’s patent, copyright, trademark, trade secret or other
proprietary right by reason of the manufacture, sale, marketing, or use of
Product or Information to the extent such claim is not based upon: (a) ***; (b)
***; or (c) ***.  Upon threat of claim or
claim of infringement, Vendor may, at its expense and option  (i) ***, (ii) ***, or (iii) ***. However,
such right of return is in addition to, and not a substitute for, Ingram Micro’s
right to indemnification hereunder.


8.3                                 Document
Production Indemnity.  Each party
shall indemnify and hold the other party harmless from and against all actual
out of pocket costs associated directly with document production, depositions,
interrogatories and related demands, arising either from private third party
claims or governmental claims or investigations against or concerning the party
wherein the other party is neither a party to nor target of such claims or
investigations.


8.4                               Indemnification
by Ingram Micro.  Ingram Micro will
defend, indemnify and hold Vendor harmless from and against any and all
damages, liabilities, costs and expenses (including but not limited to
attorneys’ fees) arising out of or incurred by Vendor in connection with or as
a result of any third party claim or proceeding made or brought against
Vendor  with respect to any allegation
that (i) *** , or (ii) ***.


9.                                      LIMITATION
OF LIABILITY


EXCEPT
AS OTHERWISE STATED HEREIN, AND EXCEPT TO THE EXTENT OF BODILY INJURY OR DEATH
OR VIOLATION OF SECTIONS 5 OR 11.2, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR LOST PROFITS OR BUSINESS, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES,
WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE) WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. EXCEPT FOR CLAIMS BASED ON SECTIONS 5, 8 OR 11.2, IN NO EVENT
WILL VENDOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY INGRAM MICRO TO VENDOR ***.


10.                               GOVERNMENT
PROGRAMS


Vendor may, at its
sole option, participate in a special pricing and marketing program targeting
the federal, state and local government and/or educational markets. If Vendor
participates in such a program, Vendor agrees to execute a separate






*** Confidential
material redacted and submitted separately to the Commission



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agreement and
comply with all mandatory Federal Acquisition Regulation (“FAR”) flow-down
provisions, if any, required by such government entity and to which Vendor has
agreed in writing.


11.                               GENERAL
PROVISIONS


11.1                           Conflicting
Terms.  In the event of a conflict
between the terms and conditions of the underlying Agreement and the terms and
conditions in any exhibit thereto, the terms and conditions in the exhibit
shall govern.


11.2                           Confidentiality.


(a)                Either party may
disclose to the other information in connection with its performance hereunder
which it deems to be confidential and proprietary. Such information, which is
originated by the disclosing party (the “Owner”) or is within the special
knowledge of such party shall, if in documentary form and conspicuously marked “confidential,
at the time of disclosure or it would otherwise by its nature be reasonably
considered “confidential”, be considered to be confidential and proprietary (“Confidential
Information”). In addition, if any other information is not marked and in
documentary form when disclosed, but is thereafter reduced to a writing and
forwarded to the other party within ten (10) days of the date of initial visual
or oral disclosure and marked “confidential”, it shall, effective from the time
of initial disclosure be considered (also “Confidential Information”).
Notwithstanding, however, the presence or absence of a marking as indicated
above, Confidential Information shall include all information, regardless of
the form in which it is transmitted, relating to the Owner’s (or another party
whose information Owner has in its possession under obligations of
confidentiality) past, present or future research, development or business plans,
software, operations or systems (including, without limitation, the terms and
conditions of this Agreement, studies or reports, software, memoranda, drafts
and other information in either tangible or intangible form).


(b)         For
a period of two (2) years from the date of disclosure to the party receiving
the Confidential Information (the “Recipient”), Recipient shall not disclose
any Confidential Information it receives from Owner to any person, firm or
corporation except: (i) employees of Recipient and its affiliated companies who
have a need to know and who have been informed of Recipient’s obligation
hereunder; (ii) contractors or consultants under contract to Recipient who have
a need to know, who have been informed of Recipient’s obligations hereunder, and
who have agreed in writing not to disclose Confidential Information for a
period not shorter than the nondisclosure period provided above; and (iii) as
provided in subparagraph (c) below. 
Notwithstanding the foregoing, the obligations set forth in this Section
11.2 shall, for any Confidential Information which constitutes as trade secret
under applicable law, continue so long as such information constitutes a trade
secret and the Recipient has not disposed of the Confidential Information
pursuant to its document retention policies. 
Recipient shall use the same degree of care, but in no case less than
reasonable care, to avoid disclosure of such Confidential Information as
Recipient uses with respect to its own Confidential Information of like
importance.


(c)          Information
shall not be deemed confidential or proprietary for purposes of this Agreement,
and Recipient shall have no obligation with respect to any such information,
which: (i) is already known to Recipient at the time of its disclosure without
restriction; (ii) is or becomes publicly known through no wrongful act of
Recipient; (iii) is received from a third party without similar restrictions
and without breach of this Agreement; (iv) is independently developed by
Recipient without use of or reference to the Confidential Information; or (v)
is lawfully required to be disclosed to any government agency or is otherwise
required to be disclosed by law provided that the Recipient provides prompt
notice to the Owner and uses reasonable efforts to protect the confidentiality
of such information.


(d)         All
Confidential Information disclosed by Owner to Recipient pursuant to this
Agreement in tangible form (including, without limitation, information
incorporated in computer software) shall be and remain in the property of
Owner, and all such Confidential Information shall be promptly returned to
Owner or certified as destroyed, as the Owner may so designate, upon written
request.


(e)          Neither
party shall be liable for any errors or omissions in the Confidential
Information or for the use or the results of use of Confidential
Information.  ANY AND ALL INFORMATION
DISCLOSED UNDER THIS AGREEMENT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY
KIND, AND DISCLOSER HEREBY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.


11.3                           Independent
Contractors.  Each party shall be
considered an independent contractor. The relationship between the parties
shall not be construed to be that of employer and employee, nor constitute a partnership,
joint venture or agency of any kind. 
Neither party shall have any right to enter into any contracts or
commitments in the name of, or on behalf of, the other party, or to bind the
other party in any respect whatsoever.


11.4                           Notices.  Any legal notices  which
either party may desire to give the other party must be in writing and may be
given by (i) personal delivery to an officer of the party, (ii) by mailing the
same by registered or certified mail, return receipt requested, or via
nationally recognized courier services to the party at the address of such
party as set forth below, or such other



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address as the
parties may hereinafter designate, and (iii) by facsimile subsequently to be
confirmed in writing pursuant to item (ii) herein.


Notices to Ingram Micro:


 


Ingram Micro Inc.


1600 E. St. Andrew
Place


Santa Ana, CA
92705


 


Notices to Vendor:


 


Websense, Inc.


10240 Sorrento
Valley Road


San Diego, CA 92121


11.5                           Governing
Law.  This Agreement shall be
construed and enforced in accordance with the laws of the State of California,
exclusive of its conflicts of law provisions. The United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this
Agreement. The parties agree to the exclusive jurisdiction and venue of the state
and federal courts located in Orange County, California, USA, for the
adjudication of any disputes arising from, related to or regarding the Products
or the subject matter of this Agreement.


11.6                           Dispute
Resolution.  Unless otherwise agreed
in writing, the exclusive procedure for handling disputes shall be as set forth
herein. Notwithstanding such procedures, either party may, at any time, seek
injunctive relief in addition to the process described below. Performance under
the Agreement shall continue during the dispute resolution process except in
such instance where continuation would cause the Agreement to fail its
essential purpose. The parties agree that payment disputes shall not, in
association with such dispute resolution procedures, be considered as a
condition giving rise to failure of essential purpose.


(a)          Informal
Dispute Resolution. Prior to mediation the parties shall seek informal
resolution of disputes. The process shall be initiated with written notice of
one party to the other describing the dispute with reasonable particularity
followed with a written response within ten (10) days of receipt of notice.
Each party shall promptly designate an executive with requisite authority to
resolve the dispute and who is at a higher level of management than the person
with administrative responsibility over the Agreement. The informal procedure
shall commence within ten (10) days of the date of response. All reasonable
requests for non-privileged information reasonably related to the dispute shall
be honored. If the dispute is not resolved within thirty (30) days of
commencement of the procedure, either party may proceed to mediation pursuant
to the rules set forth in (b) below.


(b)         Mediation.
If the dispute is valued, in the aggregate, at not less than *** and has not
been resolved pursuant to (a) above or, if the parties fail to commence
informal dispute resolution pursuant to (a) above, either party may, in writing
and within twenty (20) days of the response date noted in (a) above, ask the
other party to participate in a one (1) day mediation with an impartial
mediator, and the other party shall do so. Each party will bear its own
expenses and an equal share of the fees of the mediator.  If the mediation is not successful the
parties may proceed with litigation subject to Section 11.5 above


11.7                           Tax
Exemption Certificate.  Upon request,
Ingram Micro will provide Vendor with a valid tax exemption certificate.


11.8                           Compliance.  Each party shall comply with all applicable
state, federal, and where applicable, country specific rules and regulations
and shall indemnify the other party in the event of any violations thereof.


11.9                                                 Insurance.


Vendor shall
obtain and maintain the following insurance coverage at its expense:






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(a)          Commercial General
Liability (including product and completed operations, personal and advertising
injury and contractual liability coverage) with a minimum per occurrence limit
of ***; General Aggregate limit of ***; Products and Completed Operations
Aggregate limit of *** and Personal & Advertising Injury limit of ***,
written on an occurrence form. Limits noted above will be comprised of primary
Commercial General Liability and Umbrella Liability.  The insurance policy will include a Vendor
Endorsement executed in favor of Ingram Micro Inc.


(b)         Workers’
Compensation Insurance with statutory limits granting a waiver of subrogation
in favor of Ingram Micro Inc.


(c)          Employers’
Liability (Stop-Gap Liability) insurance with minimum limits of ***.


(d)         Automobile
Liability Insurance with *** coverage limits for each accident, including
owned, non-owned and hired vehicles.


(e)          The
coverage territory applicable to the insurance policies required above must be
worldwide with the exception of Workers’ Compensation insurance, which must be
maintained in those territories where such coverage is mandated, and Auto
Liability. Vendor will provide Certificates of Insurance at all times naming
Ingram Micro Inc. as “Additional Insured”
with respect to General Liability, Umbrella Liability, and Auto Liability
policies. Vendor shall provide the Certificates of Insurance evidencing the
required coverage and specifically confirming the vendor endorsement and waiver
of subrogation as stated above upon execution of this Agreement and at each
renewal thereafter.


(f)            Vendor’s insurers must
be Best rated A-, VII or better. Policy limits may not be reduced, terms
materially changed, or policies canceled by either party except after thirty
(30) days prior written notice to Ingram Micro. Vendor’s insurance shall be
primary with respect to all obligations assumed by Vendor pursuant to this
Agreement. Any insurance carried by Ingram Micro shall not contribute to
insurance maintained by Vendor. Coverage and limits referred to above shall not
in any way limit the liability of Vendor.


11.10                     Media
Releases. 
Except for any announcement intended solely for internal
distribution by either party or any disclosure required by legal, accounting,
or regulatory requirements, all media releases, public announcements, or public
disclosures, including but not limited to promotional or marketing material, by
either party or its employees or agents relating to this Agreement or its
subject matter, or including the Marks of the other party or any affiliate of
such party, shall be coordinated with and approved in writing by the other
party prior to the release thereof.


11.11                     Gifts,
Gratuities, Entertainment and other Courtesies.  Ingram Micro’s policy prohibits solicitation
of gifts, gratuities, entertainment and other courtesies from Vendor and will
be provided in writing to Vendor.


11.12                     Construction.  The parties to this Agreement and their
counsel have reviewed and revised this Agreement and the normal rule of
construction that any ambiguities in the Agreement are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement.


11.13                     Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


11.14                     Section
Headings.  Section headings in this
Agreement are for convenience only, and shall not be used in construing the
Agreement.


11.15                     Incorporation
of all Exhibits.  Each exhibit
referred to and attached hereto is incorporated by reference as if set forth
fully herein.


11.16                     Severability.  If any provision of these terms and
conditions shall be held to be invalid, illegal or unenforceable, such provision
shall be enforced to the fullest extent permitted by applicable law and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


11.17                     No Implied
Waivers.  If either party fails to require
performance of any duty hereunder by the other party, such failure shall not
affect its right to require performance of that or any other duty
thereafter.  The waiver by either party
of a breach of any provision of this Agreement shall not be a waiver of the
provision itself or a waiver of any breach thereafter, or a waiver of any other
provision herein.


11.18                     Binding
Effect; Assignment.  Neither party
shall assign this Agreement without the express written consent of assignment
by the other party, except for an assignment to an Affiliate or an assignee of
all or substantially all of the assets, stock, or equity of the assigning party
(whether pursuant to a merger, acquisition, or otherwise) provided that the
assigning party promptly notifies the non-assigning party of such assignment in
writing and provides written evidence that the assignee






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has assumed all of
the obligations of the assigning party under this Agreement; any other attempt
to assign or transfer  this Agreement
without the express written consent of the other party shall not be binding
upon the other party and shall not relieve 
from any liability or obligation under this Agreement. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.


11.19                     Acquisitions.  If, as a result of any merger or acquisition
of any kind, Vendor becomes obligated under, or entitled to the benefits of,
any other distribution agreement with Ingram Micro the terms of which are not
consistent with the terms of this Agreement, then the parties shall have the
right to mutually determine with respect to any such conflicting terms, which terms
shall be binding on Vendor and Ingram Micro.


11.20                     Termination.  Notwithstanding anything to the contrary in
this Agreement, if the parties fail to reach agreement on the pricing and fees
applicable to this Agreement on or before the forty-fifth day after the
Effective Date, then Websense may terminate this Agreement without penalty or
obligation.  ***. Either party may
terminate this Agreement with written notice if the other party: materially
breaches any term of this Agreement and fails to cure *** after written
notification detailing such breach; or ceases to conduct business in the normal
course, becomes insolvent, makes a general assignment for the benefit of
creditors, suffers or permits the appointment of a receiver for its business or
assets, or avails itself of or becomes subject to any proceeding under any
Bankruptcy Act or any other federal or state statute relating to insolvency or
the protection of rights of creditors.


11.21                     Survival.  Unless a provision setting forth the rights
or obligations of a party hereunder is expressly terminated pursuant to the
specific language of the provision, the parties acknowledge and agree that all
rights and obligations set forth herein, which by their nature or operation are
considered material, shall survive termination of this Agreement.


11.22                     Entirety.  This Agreement constitutes the entire
agreement between the parties regarding its subject matter. This Agreement
supersedes any and all previous proposals, representations or statements, oral
or written. Any previous agreements between the parties pertaining to the
subject matter of this Agreement are expressly terminated. The terms and
conditions of each party’s purchase orders, invoices, acknowledgments,
confirmations or similar documents shall not apply to any order under this
Agreement, and any such terms and conditions on any such document are objected
to without need of further notice or objection. Any modifications to this
Agreement must be in writing and signed by authorized representatives of both parties.


11.23                     Signatory
Acknowledgement.  The signatory
hereto acknowledges that this contract is intended to bind it and its
subsidiaries and affiliates. Accordingly, the signatory hereto shall (i) take
all necessary action to ensure compliance with the terms of this Agreement by
all of its subsidiaries and affiliates and (ii) be responsible for any breaches
by any of its subsidiaries and affiliates of any obligation hereunder,
including without limitation, any payment obligation, any indemnification obligation
and any warranty obligation.


11.24                     Authorized
Representatives.  Either party’s
authorized representative for execution of this Agreement or any amendment
hereto shall be president, a partner, or a duly authorized vice-president or
representative  of the respective party.  The parties executing this Agreement warrant
that they have the requisite authority to do so.


11.25                     Force
Majeure.  Neither party shall be
liable or deemed to be in default for any delay or failure in performance under
this Agreement or interruption of service resulting directly or indirectly from
acts of God, acts of war or any causes beyond the reasonable control of the
acting party.  Notwithstanding the
foregoing, if a party fails to perform under this Agreement because of the
events stated herein, the affected party shall take commercially reasonable
steps to mitigate the detrimental impact of such failure of performance on the
other party.


IN WITNESS WHEREOF, the
parties hereunto have executed this Agreement.


	
  Ingram Micro Inc. (“Ingram
  Micro”)

  	
   

  	
  Websense, Inc. (“Vendor”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Printed Name:

  	
   

  	
   

  	
   

  	
  Printed Name: 

  	
   

  	
   

  
									



 






*** Confidential
material redacted and submitted separately to the Commission



 8
 









 


	
  Title:

  	
   

  	
   

  	
   

  	
  Title: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  



 


EXHIBITS:


A              End-User
Subscription Agreement


B                Subscription Order
Form


C                Subscription
Product Terms


D               Subscription Fees



 9
 









EXHIBIT A


For information
purposes only





The
following Agreement describes the terms and conditions under which WEBSENSE
offers you a subscription to use its software and database(s).  By clicking on the “I Agree” button below or
by using WEBSENSE software or any WEBSENSE database, YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT, AND YOU AGREE
TO BE BOUND BY ITS TERMS AND CONDITIONS.


SUBSCRIPTION
AGREEMENT


1.              Subscription


 


Websense, Inc., located at
10240 Sorrento Valley Road, San Diego, CA 92121 (“WEBSENSE”), hereby provides
you (“You” or “Your”) with certain subscription services (the “Subscription”)
in accordance with the terms of this Agreement. 
As part of the non-transferable Subscription, certain WEBSENSE
proprietary software applications (“Software”), WEBSENSE proprietary
database(s) of URL addresses, applications and other valuable information (“Database(s)”),
changes to the content of the Database(s) (“Database Updates”) and certain
modifications or revisions to the Software (“Software Upgrades”), together with
applicable documentation (collectively, the “Products”) shall be made
accessible to You on a periodic basis as set forth below.  For clarification, the term “Software” shall
include Software Upgrades and the term “Database(s)” shall include Database
Updates.


2.              Evaluation Key


 


If You have received a temporary
encrypted alphanumeric access code (“Evaluation Key”) as a prospective
subscriber for evaluation purposes, You must use it strictly for Your own
internal use in evaluating the Products’ performance to facilitate Your
subscription decision.  The Evaluation
Key will allow You to access certain Databases using certain of the Software
for a maximum period of thirty (30) days in accordance with the terms and
conditions provided therewith.  At the
end of the thirty (30) day evaluation period, (i) the Agreement shall terminate
and You must return or destroy all Products in Your possession, whether on
servers, computers, electronic appliances, devices, storage media or located
elsewhere, or (ii) You must convert this limited evaluation usage to a
Subscription by payment of the applicable Subscription fee (“Subscription Fee”)
for a fee-based encrypted alphanumeric Subscription access code (“Subscription
Key”).


3.              Subscription Key


 


Once the parties mutually
agree to the terms of a purchase commitment (the “Order”), WEBSENSE will issue
You a Subscription Key that allows You to access certain Databases and use the
Software in accordance with the terms and conditions set forth herein.  You may download the Software from WEBSENSE’s
web site located at http://www.websense.com or transfer it to Your server from
compact disk, diskette, tape or other media provided by WEBSENSE.  You may use the Software to access certain
Database(s) only on a specified server, in and for Your own or Your
subsidiaries’ or affiliates’ internal purposes and business operations.  The Subscription Key may be relocated and/or
transferred to operate on another of Your servers within another of Your
locations.


4.              Subscription Fee


 


Your payment of the
Subscription Fee entitles You to access the ordered Database(s) based on the
number of Seats that the Subscription Fee covers for the term of the
Subscription.  “Seat” means each
computer, electronic appliance or device that is authorized to access or use
the Database(s), whether or not through, or in conjunction with, a server.  The amount due will be set forth in the Order
and billed via an invoice from WEBSENSE or one of its authorized resellers (“Resellers”).  YOUR USAGE MAY EXCEED THE NUMBER OF SEATS
ONLY UPON THE PAYMENT OF ADDITIONAL SUBSCRIPTION FEES FOR ADDITIONAL
SEATS.  WEBSENSE may audit Your usage of
the Products on-site during normal business hours upon reasonable notice or
remotely at any time.  You will be invoiced
and required to pay for any Seats not previously subscribed to by You.  In the event any invoice is not paid by You
within thirty (30) days after receipt, WEBSENSE may assess a late payment
charge in an amount equal to a rate of two percent (2%) per month, or the
highest amount allowed under applicable law, whichever is lower, on any
outstanding balance which is not paid. 
Any and all fees specified in this Agreement do not include sales, use,
property, value-added, withholding or other taxes, duties or fees, associated
with the rights granted hereunder, the Products supplied herein or services
provided through this Agreement (“Taxes”). 
Any such Taxes shall be Your sole responsibility and will be billed to
and paid by You.  This Section 4 shall
not apply to Taxes based on WEBSENSE’s net income or payroll taxes.


5.              Term/Renewals


 


As used in this Agreement, “Term”
means the initial Subscription term and any subsequent renewal term(s) for the
Subscription.  The initial Term of the
Subscription is set forth in the Order. 
You must pay additional annual Subscription Fees prior to the expiration
date of the then-current Term for uninterrupted access to the Database(s) for a
renewal Term.



 10
 









6.              Database Updates and Software
Upgrades


 


WEBSENSE regularly makes
Database Updates and Software Upgrades. 
Your Subscription entitles You to advise WEBSENSE to download Database
Updates to Your designated server pursuant to Your reasonable instructions.
WEBSENSE may require You to install Software Upgrades up to and including the
latest release.  Database Updates and
Software Upgrades will be provided to You only if You have paid the appropriate
Subscription Fee for Your Seats.  You may
at Your sole discretion, provide to WEBSENSE manually, or utilizing the
automated technology of WEBSENSE’s proprietary software, WebCatcherTM, the URL addresses which You may have accessed or attempted to access,
so that WEBSENSE may analyze and categorize them and include them in the
Databases.  Should You elect to enable
WebCatcherTM, WEBSENSE makes no representations about the
legality of such monitoring in any particular jurisdiction, and You shall be
responsible and Websense shall have no responsibility for determining that this
proposed use of the Products complies with applicable laws.


7.              Email Opt-Out


 


Websense may periodically
send You messages of an informational, advertisement or technical nature via
email. You may choose to “opt-out” of receiving these messages by sending an
email to optoutlegal@websense.com requesting the opt-out. You acknowledge and
agree that by sending such email and “opting out” You will not receive emails
containing messages concerning upgrades and enhancements to Websense Products.


8.              Premium Groups and Application
Modules


 


WEBSENSE may offer certain enhanced
subscription services, including but not limited to subscription services that
allow You to utilize add-on application modules.  The parties may agree pursuant to an Order
that WEBSENSE shall provide the enhanced subscription services to You.  WEBSENSE shall provide the enhanced
subscription services only if You have paid the appropriate Subscription Fee
for Your Seats utilizing the enhanced subscription services.  With respect to certain enhanced subscription
services, in order to get the full benefit of the enhanced subscription
services, You shall have the right to install certain Software designated in an
Order on individual computers, electronic appliances or devices, rather than
merely on Your server.  If the
Subscription includes the appropriate application module(s), You may at Your
sole discretion, provide to WEBSENSE manually, or utilizing the automated
technology of WEBSENSE’s proprietary software, AppCatcherTM, the names of applications which You may have accessed or attempted to
access, so that WEBSENSE may analyze and categorize them and include them in
the Databases.  Should You elect to
enable AppCatcherTM, WEBSENSE makes no representations about the
legality of such monitoring in any particular jurisdiction, and You shall be
responsible as between the parties for determining that this proposed use of
the Products complies with applicable laws.


9.     Usage Policy


 


You represent and warrant
that: (i) You shall take all appropriate measures to avoid violating any
privacy rights of individuals in connection with Your use of the Products; (ii)
You shall provide written notice to all users of the Products that their use of
Your computers, electronic appliances and devices may be monitored, and that
the users should have no expectation of privacy when using the Products,
including accessing the Internet or applications, as appropriate; (iii)  when You submit any web or application use
data to WEBSENSE, You shall do so without any information identifying any
particular individual who attempted to access or actually accessed a specific
URL address or application, or any other data that might identify any
particular user; and (iv) You shall take appropriate steps to keep any
monitoring data confidential, and use it only for internal computer system
management purposes and (v) the Product will not be used to filter, screen,
manage or censor Internet content for consumers without their permission.


10.       Limited Warranty


 


WEBSENSE warrants that the
Products will operate in substantial conformance with the then current WEBSENSE
published documentation under normal use for the Term.  Notwithstanding the previous sentence,
WEBSENSE does not warrant that: (i) the Products will be free of defects; (ii)
the Products will satisfy all of Your requirements; (iii) the Products will be
used without interruption or error; (iv) the Products will always block access
to the addresses and applications that are contained in the Databases; (v) the
Databases will contain every foreseeable URL address or application that should
potentially be blocked; or (vi) addresses and applications contained in the
Databases will be appropriately categorized.


WEBSENSE shall use reasonable
efforts to remedy any significant non-conformance in the Products which You
report to WEBSENSE that WEBSENSE can reasonably identify and confirm.  WEBSENSE or its representative will repair or
replace any such non-conforming or defective Products.  You acknowledge that this paragraph sets
forth Your exclusive remedy and WEBSENSE’s exclusive liability for any breach
of warranty or other duty related to the Products.  Any unauthorized modification of the
Products, tampering with the Products, use of the Products inconsistent with
the accompanying documentation, or related breach of this Agreement by You
shall void the aforementioned warranty.


EXCEPT AS EXPLICITLY SET
FORTH HEREIN AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
PRODUCTS OR THE SUBJECT MATTER OF THIS AGREEMENT.


11.       Limitation of Liability


TO THE FULLEST EXTENT
PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL WEBSENSE, ITS LICENSORS OR
RESELLERS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE
OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED UPON ANY
CLAIMS INCLUDING, BUT NOT LIMITED TO CLAIMS FOR LOSS OF DATA, GOODWILL,
OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR
AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS,
PRIVACY, EMPLOYEE CONDUCT, ACCESS TO URL ADDRESSES OR APPLICATIONS CONTAINED IN
THE DATABASES THAT SHOULD HAVE BEEN BLOCKED, THE CONTENTS OF ANY ADDRESS OR
APPLICATION IN THE DATABASES, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE
AND THIRD PARTY CLAIMS, EVEN IF WEBSENSE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.  IN NO EVENT WILL ANY
AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO WEBSENSE
OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR
THE SPECIFIC SUBSCRIPTION FOR THE PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.



 11
 









12.       Ownership


 


All
right, title and interest in and to the Products and any modifications,
translations, or derivatives thereof, even if unauthorized, and all applicable
rights in patents, copyrights, trade secrets, trademarks and all intellectual
property rights in the same shall remain exclusively with WEBSENSE and its
licensors, if any.  Products provided
hereunder are valuable, proprietary, and unique, and You agree to be bound by
and observe the proprietary nature thereof. 
“Websense®,” “Websense Enterprise®,” “WebCatcherTM” and “AppCatcherTM” are trademarks of WEBSENSE.  WEBSENSE’s failure to list a trademark in
this Section 12 shall not constitute a waiver of any trademark rights.  You may not, and shall not allow third
parties to: (i) reverse engineer, decompile, or disassemble the Products,
except and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation; (ii) modify the Products or
incorporate the Products into, or with, any other software; (iii) remove any
Products’ identification or other notices; or (iv) loan, reproduce, transfer,
distribute or resell the Products or any portion thereof, without the prior
written consent of WEBSENSE.  You may
make copies of the Software for backup and hot swap purposes only. You may not,
and shall not allow third parties to, publish, distribute or disclose the
results of any benchmark tests performed on the Products without WEBSENSE’S
prior written approval.


13.       Intellectual Property
Indemnification


 


In the event of any claim by
a third party against You asserting, or involving, a patent or copyright
violation which concerns Products subscribed to by You hereunder, WEBSENSE will
defend You, at its expense, and will indemnify You against cost, expense,
attorneys’ fees and liability arising from such claim whether or not such claim
is successful; however, You must notify WEBSENSE in writing within ten (10)
days after You have received notice of any such claim of infringement.  WEBSENSE shall have sole control of the
defense and related settlement negotiations for the claim; provided that
WEBSENSE shall have no right to incur any financial liability for a claim or a
materially adverse impact on Your behalf without Your written consent.  You shall fully assist and cooperate in the
defense and settlement negotiations as reasonably requested by WEBSENSE so long
as WEBSENSE pays Your out-of-pocket expenses associated with such assistance
and cooperation.  Subject to WEBSENSE’s
right to control the defense and settlement of such claims, You may, at Your
cost and expense, engage Your own counsel to advise You regarding any claims.


In the event an injunction or
order shall be obtained against Your use of Products, or if in the opinion of
WEBSENSE, the Products are likely to become the subject of a claim of
infringement, WEBSENSE shall, at its sole option and expense:  (i) procure for You the right to continue
using the Products; (ii) modify the Products so that they become non-infringing;
or (iii) replace the Products with substitute Products which perform
substantially the same.  WEBSENSE will
have no liability to You with respect to any claim of patent or copyright
infringement which is based upon:  (a)
the combination or use of the Products with any other equipment or program not
furnished by WEBSENSE; (b) any modification of the furnished Products by a
party other than WEBSENSE; (c) any use of the Products by You that exceeds the
scope of the rights set forth in Section 12; or (d) the failure to promptly
use/install any Database Update or Software Upgrade provided by WEBSENSE.  You shall indemnify WEBSENSE for any third
party claims of patent or copyright infringement arising out of Your actions
(a)-(d), as set forth in the previous sentence.


THE FOREGOING STATES YOUR
SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND
THE ENTIRE LIABILITY OF WEBSENSE WITH REGARD THERETO.


14.       Termination/Suspension of Access


 


WEBSENSE may terminate this
Agreement, upon reasonable notice, if You breach any term hereof.  Any payment obligations of a party and the
terms of Sections 10, 11, 12, 13, 15, 16, 17, 18 and 19, as appropriate, shall
survive termination or expiration of this Agreement.  Upon expiration or termination of this
Agreement for any reason, all rights granted to You to use the Products or
access the Database(s) hereunder will cease and You must promptly destroy all
Products, and any copies thereof, in Your possession, whether on servers,
computers, electronic appliances, devices, storage media or located elsewhere.


15.       Software and Services


 


Subject to the terms and conditions of this
Agreement, and only prior to termination or expiration of this Agreement,
WEBSENSE hereby grants You a limited, non-exclusive, non-sublicensable,
non-transferable right solely to access and use internally Software and
Software Upgrades (in object code form only) to: (i) access WEBSENSE
Database(s) and Database Updates; and (ii) manage Your  Internet and application use, during the term
of this Agreement and as described in the Order.  This right extends only to the number of
Seats set forth in the Order and is effective only upon the payment of the
Subscription Fee.  The Products shall
reside on Your designated server, except as set forth in Section 8.  Websense provides its standard technical
support for Subscriptions to Products pursuant to the terms of this
Agreement.  Enhanced support offerings and
services are available for additional cost and are also sold pursuant to the
terms of this Agreement.


16.       Export Restrictions


 


You acknowledge that the
Products and all related technical information, documents and materials are
subject to export controls under the U.S. Export Administration Regulations and
the export regulations of other countries. 
You may not re-export the Products or related technical information,
documents or materials unless You have complied with all appropriate laws,
regulations and rulings, and obtained an appropriate authorization from the
U.S. Commerce Department and/or any other appropriate government authorities.


17.       Governing Law


 


This Agreement shall be
governed in all respects by the laws of the State of California, USA, excluding
its conflict of laws rules and without application of the United Nations
Conventions on Contracts for the International Sale of Goods.  You agree to the exclusive jurisdiction and
venue of the state and federal courts located in San Diego County, California,
USA, for the adjudication of any disputes arising from, related to or regarding
the Products or the subject matter of this Agreement.


18.       Government Customers


 


If a unit or agency of the U.S. government is given
certain rights to use the Products, this provision applies.  The Products (a) are or contain existing



 12
 









computer software and accompanying documentation and
were developed at private expense, (b) are trade secrets of WEBSENSE for all
purposes of the Freedom of Information Act, (c) are “commercial items” and/or “commercial
computer software” as defined in FAR 2.101, DFARS 252.227-7014(a)(1) and DFARS
section 252.227-7015, subject to limited utilization as expressly stated in
this Agreement, (d) in all respects are proprietary data belonging to WEBSENSE,
and (e) are unpublished and all rights are reserved under the copyright law of
the United States.  For civilian agencies
and entities given certain rights to use the Products, and any legend or mark
thereof, the rights to use the Products are limited to “Restricted Rights,” and
use, reproduction or disclosure is subject to restrictions set forth in this
Agreement, the provisions in FAR 12.212 or DFARS 227.7202-3 -227.7202-4 and, to
the extent required under U.S. federal law, the minimum restricted rights set
forth in FAR 52.227-14, Restricted Rights Notice (June 1987) Alternate
III(g)(3) or FAR 52.227-19.  To the
extent any technical data is provided pursuant to the Agreement, such data is
protected per FAR 12.211 and DFARS 227.7102-2 and to the extent explicitly
required by the U.S. government, is subject to limited rights set forth in
DFARS 252.227.7015 and DFARS 252.227-7037. 
In the event that any of the above referenced agency regulations are
modified or amended, the subsequent equivalent regulation shall apply.


19.  Miscellaneous


All notices or approvals
required under this Agreement must be given in writing and sent to the
respective addresses set forth in Section 1 above, in the case of Websense, and
in the relevant Order, in Your case, and shall be delivered by (i) Federal
Express or other overnight courier and deemed received within one business days
of sending; (ii) certified U.S. mail and deemed received upon written
verification of receipt; or (iii) facsimile and deemed received upon
acknowledgement of receipt of electronic transmission.  This Agreement and any Orders express the
complete and exclusive statement of this agreement between the parties and
supersede all prior oral or written agreements, communications, statements and
negotiations relating to the subject matter hereof.  Inconsistencies between this Agreement and
any Orders shall be governed by this Agreement. 
Any waiver or modification of this Agreement will not be effective
unless executed in writing and signed by the parties.  A waiver of any breach of this Agreement by a
party shall not be construed to be a waiver of a subsequent breach.  This Agreement will bind Your
successors-in-interest.  If any provision
of this Agreement is held to be unenforceable, in whole or in part, such
provision shall be struck in part or in whole, as necessary, and the remaining
provisions of this Agreement shall remain valid.  You acknowledge that WEBSENSE may use Your
company name only in a list of WEBSENSE customers.  Neither party shall be liable for any failure
or delay in performance due, in whole or in part, to any cause beyond its
reasonable control, except for payment of fees due under this Agreement.



 13
 









Exhibit B


For information
purposes only





10240 Sorrento Valley Road


San Diego, CA 92121


Subscription
Order Form


Websense Inc. hereby grants Subscriber, as identified below,
a non-exclusive, non-transferable right to use the Websense provided software
products (the “Software”) solely to access the Websense Database for a limited
time on the conditions set forth below and in the then current Websense
Subscription Agreement  (at
www.websense.com/global/en/Downloads/Terms/) incorporated herein by reference
(herein collectively the “Agreement”).


	
  Subscriber Information

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Subscriber
  Company:

  	
   

  
	
   

  	
   

  	
   

  
	
  Subscriber
  Company Name:

  	
   

  
	
   

  	
   

  	
   

  
	
  Subscriber
  Company Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Subscriber
  Contact Telephone:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Subscriber
  Contact email:

  	
   

  
									



 


 


Subscription Fees


Subscriber shall
pay a Subscription Fee of $             
for                           
(the number of) Seats for                 
(the number of) year(s).


The subscription
period will begin upon signature of this addendum.


Upon expiration of
the year(s) purchased, Subscriber must purchase additional years for proper
operation of the Software and for use of the Websense Database.


SUBSCRIBER ACKNOWLEDGES
THAT IT HAS AGREED TO THE
TERMS AND CONDITIONS FOR WEBSENSE PRODUCTS AT
(www.websense.com/global/en/Downloads/Terms/) WHICH MAY BE CHANGED FROM
TIME TO TIME BY WEBSENSE AND WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE,
BY INSTALLING AND USING THE SOFTWARE AND/OR THE WEBSENSE DATABASE. THE PERSON
SIGNING ON BEHALF OF THE SUBSCRIBER



 14
 









REPRESENTS THAT HE/SHE
HAS THE AUTHORITY TO SIGN THIS AGREEMENT AND BIND THE SUBSCRIBER TO ITS TERMS.


	
  Subscriber:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
						



 



 15
 









EXHIBIT C


SUBSCRIPTION PRODUCT TERMS


1.                                      PRODUCTS.


General.
The terms herein apply to Subscription Products (hereafter in this Exhibit C
the “Product”) and are in addition to the terms in the underlying Agreement. As
used herein, “End-User” shall have the meaning set forth in the Agreement.


2.                                      SUBSCRIPTION
GRANT


2.1                                 Right to Distribute Products. As specifically set forth in the Agreement,
Vendor grants to Ingram Micro a ***
right to distribute Products to its Resellers ***.


2.2                                 Retained Rights. Notwithstanding anything to the contrary
set forth in this Agreement, all right, title in and to the Products and any
modifications, translations or derivatives thereof, even if unauthorized, and
all applicable rights in patents, copyrights, trade secrets, trademarks and all
intellectual property rights in the same shall remain exclusively with Vendor
and its licensors, if any.


3.                                      DISTRIBUTION
PROCESS


3.1                                 Electronic
Product Access.  Vendor shall provide
access to the Products pursuant to an Ingram Micro PO.


3.2                                 Cancellation
of Orders.  Ingram Micro has the
right to cancel any PO ***. Any delivery of the Products on a *** will be
subject to ***.


3.3                                 Invoicing.  For each Product ordered by Ingram Micro with
access provided to an End-User, Vendor shall issue to Ingram Micro an invoice ***
as specified herein. At least ***, Vendor shall provide Ingram Micro with a
current statement of account listing all invoices outstanding and any payments
made and credits given since the date of the previous statement. Vendor agrees
to provide invoices related to the Product to Ingram Micro *** days of ship
date.


3.4                                 Information.
Vendor agrees to provide the following information within ten (10) days after
receipt of a written request from Ingram for any Product which is subject to
such requirements, each Product’s Export Control Classification Number (ECCN),
U.S. Harmonized Tariff System Number (HTS), Country of Origin, and for Products
containing encryption, the Encryption bit, the declaration of eligibility for
License Exception ENC,  and a copy of the
Commodity Classification Automated Tracking System (CCATS) approval form.


3.5                                 Product
Warranty:  Vendor represents and
warrants that (i) it will not *** of any Product on the End-User’s computer
that performs functions *** including, but not limited to: (a) transmission of
Product *** about the computer owner or End-User, (b) monitors and transmits ***,
or (c) ***, (ii) it will provide easy and reasonable removal procedures ***
from the End-User’s computer by End-User’s IT administrator, and (iii) it will ***.


3.6                                 Subscription
Desk ***.  ***.


4.                                      PRICING
& PAYMENT TERMS


4.1                                 Product
Pricing. Not less than *** prior to Vendor changing its list pricing,
Vendor must provide Ingram Micro with written notice thereof.  Ingram Micro shall ***.


4.2                                 Payment
and Withhold Amounts.  Ingram Micro’s
payment terms for any order of Product hereunder shall be *** from the invoice
date.  Payment shall be deemed made on
the *** or the *** of electronic funds transfer, if applicable. Notwithstanding
any other provision in this Agreement to the contrary, Ingram Micro shall not
be deemed in default if it deducts from invoice (“DFI”) or withholds any
specific amount invoiced by Vendor due to Vendor’s error and Vendor agrees that
Ingram Micro may DFI for any other mutually agreed upon credits due Ingram
Micro (e.g., Special Pricing or program withholds.) Any such DFI by Ingram
Micro shall constitute Ingram Micro’s submission of a claim related to such
item. Vendor agrees to notify Ingram Micro of any discrepancies. Vendor agrees
that Ingram Micro retains the right to withhold an amount






*** Confidential
material redacted and submitted separately to the Commission



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equal to any
complete, approved or pending mutually agreed upon marketing programs for which
Ingram Micro has not yet provided a claim or invoice to Vendor. The parties
agree to reconcile all accounting issues related to this Agreement on a ***.


4.3                                 Rebate.  Vendor will pay *** a rebate as mutually
agreed between the parties *** thereof commencing upon the Effective Date of
this Agreement. *** will provide Vendor with an invoice for the rebate sum at
the end of *** and Vendor will provide *** a check or wire funds in the amount
of the rebate sum *** after receipt of a correct invoice.


5.                                      TAXES
AND TITLES


5.1                                 Taxes.  ***. Should tax law in the Territory require
the withholding of tax by Ingram Micro on any of its payments to Vendor, then
Ingram Micro shall provide to Vendor documentation that establishes Ingram
Micro’s obligation to withhold such tax as well as all receipts, credit notices
or other documents which evidence the actual withholding and submission of such
taxes by Ingram Micro to the applicable taxing authorities.


5.2                                 Title.  Title to and risk of loss or damage to the
media containing the Software will pass to Ingram Micro upon *** or ***.


6.                                      RETURNS


6.1                                 Right
of Return.  Vendor agrees to consider any
return requests by Ingram Micro or Ingram Micro’s customers ***.






*** Confidential
material redacted and submitted separately to the Commission



 17
 









Exhibit D


Subscription
Fees


Subscription Fees
are based upon *** of the Database(s) pursuant to the terms of the End-User
Subscription Agreement the current form of which is set forth in Exhibit A for
a specified subscription term.  Upon
expiration of the initial subscription term, an End-User *** for uninterrupted
use of the Software to access the Database(s). 
“Seat” means any computer, electronic appliance or device that is
authorized to access or use the Databases(s), whether or not through, or in
conjunction with a server.  Vendor will
provide Ingram Micro notice of an increase in the list price of the Products,
as set forth in Exhibit C.  ***.


Current list of fees:


To be agreed in writing
between the parties on or before the *** after the Effective Date.






*** Confidential
material redacted and submitted separately to the Commission



 18