**Exhibit 10.1**

 

Note:   The **** symbol indicates that material hasbeen omitted pursuant to a request for confidential treatment.  A copy of this document without omissions hasbeen filed separately with the Securities and Exchange Commission.

** **

**SALES ALLIANCE AGREEMENT**

 

This Sales Alliance Agreement, effective asof August 1, 2005, including all Exhibits (“*Agreement*”), ismade by and between **Software Spectrum, Inc**.,with offices at 3480 Lotus Drive, Plano, TX 75075 (“*SoftwareSpectrum*”) and **Intraware, Inc.**,with offices at 25 Orinda Way, Orinda, CA 94563 (“*Intraware*”).  

 

WHEREAS,Software Spectrum, a leading, single-source provider of IT solutions andservices that help companies around the globe enable, manage and secure theirenterprises, has entered into an agreement (“*SunAgreement*”) with an authorized distributor of Sun Microsystems, Inc.(“*Sun*”), authorizing Software Spectrum toresell the Sun software products identified in Exhibit A and maintenanceservices for those products (collectively “Sun Products”).

 

WHEREAS, Intraware hasexperience and expertise in the sale of Sun Products to end user customers. 

 

WHEREAS, Software Spectrumand Intraware agree that both parties will benefit by forming a sales alliancewhereby Intraware will obtain purchase orders for sales of the Sun Products toend users and Software Spectrum will process invoices and fulfill (eitherphysically or electronically pursuant to Section 7.2) such Sun Productorders.  

 

NOW THEREFORE, intending tobe legally bound, and in consideration of the mutual promises and the terms,conditions and covenants of this Agreement, the parties hereby agree asfollows.

 

# **1.             DEFINITIONS**

1.1           “*Confidential Information*”shall have the same meaning as the term is defined in the Mutual Non-DisclosureAgreement, dated August 1, 2005, between Software Spectrum and Intraware,subject to Section 8.1 below. 

** **

1.2           “*Qualified Customer*”shall mean a customer who has been evaluated by the Director of SoftwareSpectrum Accounts Receivable or a designee and approved for business, based onwritten standards which are provided to Intraware, are reasonable, and imposerestrictions no more stringent than those which apply to customer qualificationin Software Spectrum’s software reselling business.

 

1.3           “*Qualified Order*”shall mean an order from a Qualified Customer for Sun Products that meets theterms of the Software Spectrum’s Global Customer Purchase Order AcceptancePolicy, which policy shall impose restrictions no more stringent than thosewhich apply to order acceptance in any other area of Software Spectrum’sbusiness.

 

1.4           “*Territory*”shall mean the same geographic area as is set forth in the Sun Agreement.

 

**2.             SCOPE**

 

2.1           Products Expertise. Intraware has experience and expertise in the sale of Sun Products.   

 

2.2           Services Provided. Software Spectrum agrees to retain the services of Intraware to obtainpurchase orders for Sun Products from Qualified Customers in the Territory asset forth herein.  During

 

 

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the term of this Agreement,Intraware will submit to Software Spectrum all purchase orders for Sun Productsreceived by Intraware from Sun Product customers and prospects.

 

2.3           Exclusivity. Software Spectrum agrees that Intraware shall be its exclusive thirdparty sales organization for Sun Products, and Intraware agrees to sell SunProducts exclusively for the benefit of Software Spectrum.  The preceding sentence shall not be construedto restrict Software Spectrum from selling Sun Products directly through itsown sales organization or through independent sales representatives authorizedby Software Spectrum to sell software, software licenses, and/or services.  Subject to the preceding two sentences, it isagreed that the relationship between the parties is non-exclusive, and eachparty is free to pursue any other business opportunities or interests.

 

2.4           Independent Contractors.  The relationship of the parties is that ofindependent contractor.  Neither party isan employee, agent, partner, or joint venturer of the other party, and SoftwareSpectrum and Intraware shall inform their respective employees of such.  Neither party shall represent or imply,directly or indirectly, that it has the authority to represent or bind theother by contract or in any way to incur obligations of any kind on behalf ofthe other party or take any action that would lead any person to believe theparty has such authority; provided, however, that Intraware, in the course ofproviding services under this Agreement, may submit binding quotes to customersfor sales of Sun Products, so long as such quotes to do not require SoftwareSpectrum to act in a manner inconsistent with its written customerqualification standards or its written order acceptance policy referred to inSections 1.2 and 1.3 above, respectively**.**

 

**3.             TERMAND TERMINATION**

 

3.1           Term.  Theterm of this Agreement shall commence on August 1, 2005 (“*EffectiveDate*”) and shall remain in effect for 24 months thereafter, unlessterminated earlier as provided herein. This Agreement will automatically renew for additional one (1) yearterms provided the Sun Agreement is also in effect for the same renewal period.

 

3.2           Termination. Either party may terminate this Agreement without cause upon 60 dayswritten notice to the other party.  Inaddition, either party may terminate this Agreement immediately if the otherparty: (i) commits a material breach of this Agreement and does not cure thebreach within 30 days after receiving the non-breaching party’s written noticeof the breach or (ii) becomes insolvent, makes a general assignment for thebenefit of creditors, suffers or permits the appointment of a receiver for itsbusiness or assets, or avails itself of or becomes subject to any proceedingunder any federal or state statute relating to insolvency or the protection ofrights of creditors.

 

3.3           Sun Agreement Termination.  In the event the Sun Agreement expires orterminates, then this Agreement shall terminate concurrent with the expirationor termination date of the Sun Agreement. 

 

3.4           Customers.  Upon any expiration or termination of thisAgreement, either party may pursue sales opportunities with Sun Productcustomers and prospective customers without obligation to the other party.  

 

3.5           Effect of Termination.  As of the effective date of the expiration ortermination of this Agreement, Intraware shall cease marketing and sellingProducts and providing services on behalf of Software Spectrum, and neitherparty shall have any further obligation to the other party except as otherwisespecified herein.  Within 30 days of theexpiration or termination of this Agreement, each party shall return alltangible information, data, and materials, including without limitationConfidential Information, belonging to the other party and delete allelectronic information or data belonging to the other party.  Sections 5.1.5 (Insurance), 7.3 (Payment) and7.5 (Audit) (for three years from the Effective Date), 8 (Confidentiality), 9.1(No Transfer of Rights), 10.2 (Warranty Disclaimer), 

 

 

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11 (Indemnity),12 (Limitation of Liability), 13 (Notices) and 14 (General) shall survive theexpiration or termination of this Agreement.  

 

**4.             APPOINTMENT**

 

4.1           Appointment.  Software Spectrum hereby appoints Intrawareto provide services as described herein and obtain purchase orders for SunProducts from Qualified Customers in the Territory, as set forth in thisAgreement.

 

4.2           Acceptance.  Intraware hereby accepts such appointment toprovide services as described herein and obtain purchase orders for SunProducts from Qualified Customers in the Territory, as set forth in thisAgreement.

 

**5.             RESPONSIBILITIES**

 

5.1           Mutual Responsibilities:

 

5.1.1        Dedicated Personnel. Each party will inform the appropriate personnel in their organizationof the existence of this Agreement and appoint one or more business managers,who shall serve as that party’s primary contact for day-to-day businessactivities.  Each party shall have toright to appoint a new business manager from time to time and agrees to notifythe other party if they appoint a new business manager.

 

5.1.2        PublicAnnouncements.  Any individual orjoint public announcement regarding this Agreement or the relationship ofSoftware Spectrum and Intraware shall be, in each instance, subject to bothparties’ prior written consent, unless a party is advised by counsel that apublic announcement of this Agreement is required by law, in which case theparty required by law to make the announcement shall submit the announcement tothe other party for approval and such approval shall not be unreasonablywithheld or delayed.  In the event theparties are unable to agree on an announcement required by law, then the partyrequired to make the announcement may, to the minimum extent required by law,make the announcement without the consent of the other party.

 

5.1.3        Costs and Expenses. Except as otherwise specified herein or mutually agreed to in writing,each party shall be solely responsible for their own costs and expenses in theperformance of this Agreement.  Eachparty shall be solely responsible for the payment of compensation of its ownemployees, agents, and contractors. Neither party shall be responsible for the payment of any wages,expenses, workers’ compensation, disability benefits, unemployment insurance,and any other employee benefit, including, but not limited to, pension, 401(k),medical, dental, and life insurance, vacation, sick days, and holidays, or forwithholding income taxes and social security for any employee, agent orcontractor of the other party. 

 

5.1.4        Increase Sales. Software Spectrum and Intraware agree to work together in good faith andexchange ideas and suggestions to increase Sun Product sales. 

 

5.1.5        Insurance.  Software Spectrum and Intraware shall eachmaintain insurance, with coverage limits, consistent with generally acceptedbusiness practices for the software resale industry. 

 

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5.2           Software Spectrum Responsibilities:

 

5.2.1        Procedures. Software Spectrum will advise Intraware sales personnel on, and providethem with copies of, Software Spectrum’s standard order acceptance and customerqualification policies and procedures, as described in Sections 1.2 and 1.3above.

 

5.2.2        Orders and Order Fulfillment.  Software Spectrum shall be responsible forentering into any contracts with Qualified Customers, processing andfulfillment of all Qualified Orders, invoicing Qualified Customers, collectingpayment from Qualified Customers, and making payments to the Sun authorizeddistributor under the Sun Agreement. With the exception of sales calls, Software Spectrum shall also besolely responsible for answering all customer inquires or questions.  Software Spectrum may, in its sole discretion,reject any Sun Product customers or orders that do not meet Software Spectrum’sstandard policies and procedures referenced in Sections 1.2 and 1.3 above.

 

5.2.3        Order Limits.  Software Spectrum shall only accept QualifiedOrders received from Qualified Customers.

 

5.2.4        Prices. Promptly after signing any Sun Agreement, Software Spectrum shallprovide Intraware with a copy of the price list for Sun Products.  Software Spectrum shall provide Intraware with30 days’ written notice or such period of time Software Spectrum receiveswritten notice from Sun, whichever is less, of any change to Software Spectrum’sSun Products price list, provided, however, that any such change shall bedelayed by up to an additional 60 days or such period of time as is agreed toby Sun, whichever is less, with respect to any quote which Intraware may maketo a Sun Product customer or prospect before receiving notice of the price listchange.

 

5.2.5        Marketing.  Software Spectrum and Intraware agree to worktogether in good faith to plan and conduct various Sun marketing activities andevents.  Each such marketing activityshall be subject to the parties’ mutual agreement. 

 

5.2.6        AcceptingPayments.  Software Spectrum shallhave no authority to collect funds or accept payment on behalf ofIntraware.  Software Spectrum shallimmediately forward to Intraware any and all money or remittance, in any form,that may be owed to Intraware, but incorrectly paid to Software Spectrum.  

 

5.3           Intraware’s Responsibilities:

 

5.3.1        Procedures. Intraware agrees to co-operate with Software Spectrum in meeting all ofSoftware Spectrum’s standard policies and procedures for account and orderacceptance which are referred to in Sections 1.2 and 1.3 above.   

 

5.3.2        Personnel Commitment. It is the parties’ intent to achieve sales goals set by Sun or set by anauthorized Sun distributor as a requirement for Software Spectrum to maintainmaximum product discount levels.  Suchintent shall be a primary consideration of Intraware in assigning salesrepresentatives (each, a *“Rep”*) to thesolicitation of Sun Product sales hereunder. Each Rep shall quote Products prices to customers using only SoftwareSpectrum’s standard price list provided by Software Spectrum to Intrawarepursuant to Section 5.2.4 above, as well as the delivery schedule and terms andconditions communicated by Software Spectrum to Intraware from time totime.  

 

5.3.3        No Warranties. Intraware may not make any representation, guarantee, or warranty withrespect to Sun Products inconsistent with those expressly set forth in thethen-current Sun end user license agreement supplied by Sun. 

 

 

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## 5.3.4        Returns. Intraware shall not authorize or bind Software Spectrum to provide anyrefund, credit, return, allowance or adjustment to a customer account unlessauthorized by Software Spectrum in writing.

##  

## 5.3.5        Accepting Payments.  Intraware shall have no authority to collectfunds or accept payment on behalf of Software Spectrum.  Intraware shall immediately forward toSoftware Spectrum any and all money or remittance, in any form, that may beowed to Software Spectrum, but incorrectly paid to Intraware.  Intraware shall provide assistance reasonablyrequested by Software Spectrum in the collection of overdue Sun Productaccounts, provided such assistance shall be limited to telephone calls andemails by Reps.

 

**6.             REPORTS**

** **

6.1           Reports by Intraware.  On Monday of each week, Intraware shallfurnish Software Spectrum with a weekly sales activity report and a non-bindingsales forecast report, and on the first Monday of each month, Intraware shallfurnish Software Spectrum with a report on contract renewal efforts.  Each such monthly report shall be in the formatspecified in Exhibit B hereto.  Intrawarewill furnish such additional reports as may be reasonably requested by SoftwareSpectrum from time to time.

 

6.2           Reports by Software Spectrum.  On each business day, Software Spectrum shallprovide Intraware a daily sales activity report for the prior business day, andwithin 5 days after the end of each calendar month, Software Spectrum shallprovide Intraware a monthly sales activity report for such calendar month.  Each such report shall be in the format specifiedin Exhibit C hereto, provided the format of such reports may be adjusted fromtime to time by mutual agreement of the parties via electronic mail without asigned amendment hereto (notwithstanding anything to the contrary in Section14.7 below). 

 

**7.             COMPENSATION**

 

7.1           Payment to Intraware.  Software Spectrum and Intraware agree toshare, ****% to Intraware and ****% to Software Spectrum, Gross Profits derivedby Software Spectrum from all sales of Sun Products by Software Spectrum andIntraware under this Agreement.  It isthe intent of Software Spectrum and Intraware that sales of Sun Productsinclude any such sales by their affiliates, resellers, distributors, agents,dealers, or representatives.  As usedherein, “Gross Profit” means, for each sale of a Sun Product, the sale price tothe customer less applicable sales taxes, shipping costs for Kits under Section7.2 below, returns approved by Sun or Sun’s authorized distributor, and theamount payable by Software Spectrum to Sun or Sun’s authorized distributor forsuch Sun Product.  “Gross Profit” shallalso include rebates and other incentives made available by Sun or Sun’sauthorized distributor to Software Spectrum, to the extent those rebates andother incentives are directly attributable to Sun Product sales made during theterm of this Agreement.  All Gross Profitdisbursements shall be paid 45 days following the end of each month.  

 

7.2           SubscribeNet.  During the term of this Agreement, Intrawarewill provide a co-branded version,  usingIntraware’s and Software Spectrum’s brand, of Intraware’s SubscribeNetelectronic software distribution service (“*SubscribeNet*”)to Qualified Customers requesting that Sun Products be delivered usingelectronic distribution.  As a fee forthe SubscribeNet service, Software Spectrum shall allocate ****% of Intraware’s****% Gross Profit share, as described in Section 7.1.  Thus, for purposes of example only, if thetotal Gross Profit from a Sun Product sale is $****, $**** will be retained bySoftware Spectrum and $**** will be paid to Intraware, and $**** of the $****paid to Intraware will 

_________________________

 

****  Indicates that material has been omittedpursuant to a request for confidential treatment.  A copy of this document without omissions hasbeen filed separately with the Securities and Exchange Commission.

 

 

 

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be deemed to be aSubscribeNet service fee.  SuchSubscribeNet service fees shall be paid by Software Spectrum as part of theGross Profits payment made according to the terms described in Section 7.  Intraware and Software Spectrum expect thatthe majority of Qualified Orders will be filled using SubscribeNet.   However, if a Qualified Customer requests aProducts media and documentation kit (“*Kit*”), SoftwareSpectrum will fulfill the request by ordering the Kit from a Sun Productsdistributor and shipping the Kit to the Qualified Customer. 

 

7.3           Payment.  Allpayments made under this Agreement shall be in United States dollars.  All compensation is exclusive of allgovernmental taxes, withholdings, fees or similar assessments.  In the event of a dispute regarding afinancial obligation owed pursuant to this Agreement, Software Spectrum andIntraware agree to meet in good faith to resolve the dispute within twenty daysof either party’s written notice to the other of the dispute.  SoftwareSpectrum and Intraware shall maintain adequate books and records in connectionwith their activities under this Agreement consistent with generally acceptedaccounting practices. Each party shall respond in a reasonably timely manner torequests by the other party’s outside auditors for confirmation of the parties’obligations in connection with this Agreement.

 

7.4           Market Development Funds.  All market development funds made availableby Sun to Software Spectrum shall be retained exclusively by Software Spectrumand shall not be considered when calculating any compensation under thisAgreement.  The parties anticipate thatmarket development funds will be expended on marketing events jointly developedby Intraware and Software Spectrum under Section 5.2.5 above, subject to theterms of that Section.   

 

7.5           Audit.  Therecords maintained by Software Spectrum under Section 7.3 above shall include,without limitation, documentation of the information reportable under Section6.2 above, those portions of the Sun Agreement that are necessary to determinefinancial obligations owed to Intraware (disclosure of the Sun Agreement issubject to the consent of Sun’s authorized distributor), and of all customerorders for Sun Products.  Intraware mayaudit the books and records of Software Spectrum relevant solely to thisAgreement, including but not limited to all documents related to customerorders for Sun Products.  Any such auditshall be conducted during regular business hours, mutually agreed to, atSoftware Spectrum’s offices and shall not interfere unreasonably with SoftwareSpectrum’s business activities.  If anaudit reveals that Software Spectrum has underpaid fees to Intraware, SoftwareSpectrum shall be invoiced for such underpaid fees.  Audits shall be made no more than onceannually.  Intraware shall bear the costof any such audit unless the audit reveals that Software Spectrum has underpaidGross Profit by 5% or more of the Gross Profit payable by Software Spectrum toIntraware for the preceding twelve (12) months (or any shorter period to whichthe audit may be limited by Intraware), in which case the cost of the auditshall be borne by Software Spectrum.  Allinformation and data resulting from an audit shall be deemed to be ConfidentialInformation.

 

**8.             CONFIDENTIALITY**

 

8.1           Mutual Nondisclosure Agreement.  The parties agree and acknowledge that it maybe necessary to disclose certain confidential or proprietary information toeach other in the performance of this Agreement.  To protect and preserve their respectiveconfidential information, Intraware and Software Spectrum agree to maintain allsuch information in confidence pursuant to the Mutual Non-Disclosure Agreementdated August 1, 2005 (“*NDA*”).  The NDA is hereby incorporated into thisAgreement by reference. 

** **

**9.             PROPERTY RIGHTS**

 

9.1           No Transfer of Rights. Each of Software Spectrumand Intraware is and shall at all times remain the sole owner of theirrespective intellectual property. Except as otherwise expressly specified inthis 

 

 

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Agreement, neither party isgranted any express or implied rights to the other party’s copyrights, tradesecrets, patents, trademarks, or any other intellectual property.

 

9.2           Trademarks.  For the term of this Agreement, SoftwareSpectrum grants Intraware a personal, non-transferable, non-exclusive andrevocable license to use Software Spectrum’s trademarks, in the Territory,solely in connection with Intraware’s performance of this Agreement.  Upon expiration or termination of thisAgreement, Intraware shall immediately cease all use of Software Spectrum’strademarks.

 

**10.          WARRANTY**

 

10.1         Authority.  Software Spectrum and Intraware each warrantsthat it has the right and authority to enter into this Agreement.

 

10.2         Warranty Disclaimer. EXCEPT AS SPECIFIED HEREIN, NEITHER SOFTWARE SPECTRUM NOR INTRAWAREMAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANYWARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. 

 

**11.          INDEMNITY**

 

11.1         Indemnity.  Intraware agrees to defend, indemnify and hold harmless Software Spectrum from and againstany and all claims, suits, liabilities, expenses, attorney’s fees or damages(collectively “*Claims*”) respecting real ortangible personal property, including loss of use thereof, and injuries topersons, including death, arising from the negligent acts or omissions orintentional misconduct of Intraware under this Agreement, or any of itssubcontractors, suppliers, officers, agents, employees or servants inconnection with the performance of this Agreement.  Intraware’s obligation hereunder shall not belimited by the provisions of any workers’ compensation act or similarstatute.  Intraware shall have noresponsibility or liability for any Claims to the extent caused by thenegligent act or omission or intentional misconduct of Software Spectrum.

 

11.2         Conditions.  Intraware’s foregoing indemnity obligationsare subject to: (a) Software Spectrum promptly notifying Intraware in writingof any such claim; (b) Software Spectrum cooperating in the defense andfurnishing related evidence in its control to Intraware; and (c) upon writtenacknowledgment of Intraware’s indemnification obligations hereunder, Intrawarehaving sole control of the defense and all related settlement negotiations,other than any settlement or negotiation which contemplates any restriction onSoftware Spectrum.

 

**12.      LIMITATION OF LIABILITY**

 

12.1         NEITHER PARTY SHALL BE LIABLE TO THE OTHERFOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, REGARDLESS OF THEFORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORTINCLUDING WITHOUT LIMITATION NEGLIGENCE AND REGARDLESS OF WHETHER OR NOT SUCHPARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  WITH THE EXCEPTION OF A PARTY’S INDEMNITYOBLIGATIONS HEREIN, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS,INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR BREACH OFWARRANTY OR OF A FINANCIAL OBLIGATION OWED TO THE OTHER PARTY, IN NO EVENTSHALL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO ANY CLAIM OR ARISING OUTOF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED$100,000.  

** **

 

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**13.          NOTICES**

 

13.1         Any notice, demand, acknowledgment orother communication which under the terms of this Agreement must be given ormade shall be in writing and may be: (i) sent via facsimile transmission (if,followed-up with a written notice sent via mail), (ii) hand delivered bycourier, or (iii) sent via certified or registered mail, postage paid, to therespective parties as follows:

 

If to Software Spectrum:

Software Spectrum, Inc.

3480 Lotus Drive

Plano, TX 75075

Attention: General Counsel

 

Ifto Intraware:

Intraware, Inc.

25 Orinda Way

Orinda, CA  94563

Attention: General Counsel

 

**14.          GENERAL**

 

14.1         Force Majeure.  In no event shall either party be responsiblefor any delay or failure to perform if such delay or failure to perform is dueto causes beyond its reasonable control, including, but not limited to,governmental authorities, epidemics, war, embargoes, fire, earthquakes or actsof God.

 

14.2         Assignment. Neither party shall assign its rights and obligations under thisAgreement to any third party without the prior written consent of the otherparty, which shall not be unreasonably delayed, conditioned, or withheld.

 

14.3         Waiver.  Any waiver of a violation or failure toenforce any provision of this Agreement by either party shall not constitute awaiver of either party’s rights with respect to this Agreement.

 

14.4         Severability.  All terms and conditions of this Agreementare severable.  If any term or provision,or any portion thereof, of this Agreement is held to be invalid, illegal orunenforceable, the remaining portions shall not be affected.

 

14.5         Governing Law.  Software Spectrum and Intraware agree tocomply with applicable laws and regulations, including without limitation, U.S.export law and regulations.  Thevalidity, construction, and performance of this Agreement shall be governed bythe laws of Texas, exclusive of its rules regarding conflicts of law.  English shall be the governing language ofthis Agreement.  The United NationsConvention for the Sale of Goods shall not apply to this Agreement.

 

14.6         Solicitation.  During the term of this Agreement, neitherparty shall, without the prior written consent of the other party, solicit foremployment any employee of the other party. Notwithstanding the foregoing, neither party shall be restricted fromplacing employment advertising in trade or general media or from usingrecruiters provided that such advertising and recruiters do not target theemployees of the other party.

 

14.7         Entire Agreement/Amendments.  This Agreement, including the Exhibits heretoand the NDA, constitute the entire agreement between the parties relating tothe subject matter contemplated herein and supersedes all previous orcontemporaneous oral or written communications, proposals and agreements inrespect thereof.  This Agreement may onlybe modified or amended by a written agreement executed by both parties.

 

 

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14.8         Equitable Relief.  The parties acknowledge that any materialbreach of their obligations with respect to proprietary rights of the otherparty may cause irreparable injury for which there may be inadequate remediesat law and that the non-breaching party shall be entitled to seek equitablerelief in addition to all other remedies available.

 

### 14.9         Miscellaneous.  Unless otherwise specified, words imputingthe singular include the plural, words imputing any gender include everygender, and words imputing persons include bodies corporate and unincorporated;and (in each case) vice versa.  Anyundertaking by a party not to do any act or thing shall be deemed to include anundertaking not to permit or suffer the doing of that act or thing; The word “including”shall mean “including without limitation or prejudice to the generality of anydescription, definition, term or phrase preceding that word”, and the word “include”and its derivatives shall be construed accordingly.  References to the parties include theirrespective directors, employees and agents. The headings in this Agreement are for convenience only and shall not inany way affect its interpretation.

 

*(Remainderof page intentionally left blank.)*

 

 

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** **

**INWITNESS WHEREOF,** the partieshave caused this Agreement to be executed by their duly authorized representativesto be effective as of the date first mentioned above.

 

 
| **INTRAWARE, INC.** | **SOFTWARE SPECTRUM, INC.**          |
|---------------------|--------------------------------------|
|                |                                 |
| By:                 | /s/ Wendy Nieto                      |   | By: | /s/ Melissa Womack |
|                |                                 |   |   |   |
| Name:               |   Wendy Nieto              |   | Name: |   Melissa Womack |
|                |                                 |   |   |   |
| Title:              |   Chief  Financial Officer |   | Title: |   Senior Vice  President |

 

 

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** **

**EXHIBIT A**

** **

**Sun Products**

** **

 

•                  The SunProducts shall be as specified in the Sun Agreement

 

 

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** **

**EXHIBIT B**

** **

**Form of Report — IntrawareMonthly Report**

** **

Seeattachment.

 

 

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**Sun Renewals**

 

**Generated By:**

Peter Michaelides

Intraware

8/8/2005 2:23 PM

 

 
| Filtered By: |                                                                           |
|--------------|--------------------------------------------------------------------------------|
|         | Interval: Contract  Effective Date equals Next 90 Days (8/8/2005 to 11/5/2005) |
|         | Relationship to  Opportunity: All opportunities                                |
|         | Opportunity Status: Any                                                        |
|         | Probability: All                                                               |
|         | Owner  Role contains Sun                                             |
|         | AND  Type contains Renewal                                           |

 
| **Contract**                                | ** ** | **Effective Date** | ** ** | **Close Date** | ** ** | **Account Name** | ** ** | **Account Site** | ** ** | **Potential Renewal Revenue** | ** ** | **Amount** | ** ** | **Opportunity Owner** | ** ** | **Opportunity Name** |   |
|---------------------------------------------|------------|--------------------|------------|----------------|------------|------------------|------------|------------------|------------|-------------------------------|------------|------------|------------|-----------------------|------------|----------------------|--------|
| Stage: Closed Lost (1 record)          |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       | $          | 10,000.00             |       |                 |   |   |   |
|                                        |       | 8/16/2005          |       | 4/21/2005      |       | ABC Corp.        |       | IL               |       | $                             | 10,000     |       | $          | 10,000.00             |       | John Smith           |   | ABC Corp. - SUN -  238801 |   |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       |       |                  |       |                 |   |   |
| Stage: Proposal/Price Quote (1 record) |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       | $          | 15,000.00  |                  |       |                 |   |   |
|                                        |       | 10/13/2005         |       | 10/13/2005     |       | XYZ Corp.        |       | IN               |       | $                             | 15,000     |       | $          | 15,000.00             |       | Jane Doe             |   | XYZ Corp. - SUNE  - 240331 |   |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       |       |                  |       |                 |   |   |
| Stage: Closed Won (1 record)           |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       | $          | 20,000.00  |                  |       |                 |   |   |
|                                        |       | 8/10/2005          |       | 7/15/2005      |       | 123 Corp.        |       | NJ               |       | $                             | 20,000     |       | $          | 20,000.00             |       | Joan Brown           |   | 123 Corp. - SUN -  246051 |   |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       |       |                  |       |                 |   |   |
| Grand Totals (3 records)               |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       | $          | 45,000.00  |                  |       |                 |   |   |

 

 

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**Renewal Status - due last Month**

 

**Generated By:**

Peter Michaelides

Intraware

8/8/2005 2:20 PM

 

 
| Filtered By: |   |                                                                         |
|--------------|--------|------------------------------------------------------------------------------|
|         |   | Interval: Contract  Effective Date equals Last Month (7/1/2005 to 7/31/2005) |
|         |   | Relationship to Opportunity:  All opportunities                              |
|         |   | Opportunity Status: Any                                                      |
|         |   | Probability: All                                                             |
|         |   | Owner  Role contains Sun                                           |
|         |   | AND  Type contains Renewal                                         |

 
| **Contract**                                | ** ** | **Effective Date** | ** ** | **Close Date** | ** ** | **Account Name** | ** ** | **Account Site** | ** ** | **Potential Renewal Revenue** | ** ** | **Amount** | ** ** | **Opportunity Owner** | ** ** | **Opportunity Name** |   |
|---------------------------------------------|------------|--------------------|------------|----------------|------------|------------------|------------|------------------|------------|-------------------------------|------------|------------|------------|-----------------------|------------|----------------------|--------|
| Stage: Closed Lost (1 record)          |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       | $          | 1,000.00              |       |                 |   |   |   |
|                                        |       | 7/29/2005          |       | 8/29/2005      |       | ABC Corp         |       | IL               |       | $                             | 10,000     |       | $          | 1,000.00              |       | John Doe             |   | ABC Corp. - SUN -  246411 |   |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       |       |                  |       |                 |   |   |
| Stage: Qualification (1 record)        |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       | $          | 5,000.00   |                  |       |                 |   |   |
|                                        |       | 7/24/2005          |       | 7/24/2005      |       | XYZ Corp.        |       | FL               |       | $                             | 15,000     |       | $          | 5,000.00              |       | Jane Doe             |   | XYZ Corp. - SUN -  245621/244521 |   |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       |       |                  |       |                 |   |   |
| Stage: Proposal/Price Quote (1 record) |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       | $          | 10,000.00  |                  |       |                 |   |   |
|                                        |       | 7/9/2005           |       | 7/9/2005       |       | 123 Corp.        |       | CA               |       | $                             | 20,000     |       | $          | 10,000.00             |       | John Smith           |   | 123 Corp. - SUN -  245471 |   |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       |       |                  |       |                 |   |   |
| Stage: Closed Won (1 record)           |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       | $          | 15,000.00  |                  |       |                 |   |   |
|                                        |       | 7/7/2005           |       | 6/30/2005      |       | 456 Corp.        |       | MI               |       |                          |       |       | $          | 15,000.00             |       | Jean Smith           |   | 456 Corp. - SUN -  242471 |   |
|                                        |       |               |       |           |       |             |       |             |       |                          |       |       |       |                  |       |                 |   |   |
| Grand Totals (4 records)               |       |               |       |           |       |             |       |             |       |                          |       |       |       |
|                                        |       |               |       |           |       |             |       |             |       |                          |       | $          | 31,000.00  |                  |       |                 |   |   |

 

----

** **

**EXHIBIT C**

 

**Form of Reports**

**Software Spectrum Daily andMonthly Reports**

** **

Seeattachment.

 

 

13

----

 

Software Spectrum, Inc.

Intraware Customer Sell Thu Report

For Period:

Confidential

 
| **Quote#** | ** ** | **Intraware  Rep  Name** | ** ** | **Customer  Name** | ** ** | **Contact  Name** | ** ** | **Customer    PO** | ** ** | **Invoice  Date** | ** ** | **Invoice  Type** | ** ** | **Invoice** | ** ** | **Order  Code** | ** ** | **Part  #** | ** ** | **Mfr  Product  Code** | ** ** | **Product  Description** | ** ** | **Units  Sold** | ** ** | **Unit  Cost** | ** ** | **Ext  Cost** | ** ** |
|------------|------------|--------------------------|------------|--------------------|------------|-------------------|------------|--------------------|------------|-------------------|------------|-------------------|------------|-------------|------------|-----------------|------------|-------------|------------|------------------------|------------|--------------------------|------------|-----------------|------------|----------------|------------|---------------|------------|
| USD        |       |                     |       |               |       |              |       |               |       |              |       |              |       |        |       |            |       |        |       |                   |       |                     |       |            |       |           |       |          |       |
|       |       |                     |       |               |       |              |       |               |       |              |       |              |       |        |       |            |       |        |       |                   |       |                     |       |            |       |           |       |          |       |
| Total For: |       | USD                      |       |               |       |              |       |               |       |              |       |              |       |        |       |            |       |        |       |                   |       |                     |       |            |       |           |       |          |       |
|       |       |                     |       |               |       |              |       |               |       |              |       |              |       |        |       |            |       |        |       |                   |       |                     |       |            |       |           |       |          |       |

 

----

 
| **Unit  Sell  Price** | ** ** | **Ext  Sales  Amt** | ** ** | **Margin($)** | ** ** | **Margin(%)** | ** ** | **Shipto  Company  Name** | ** ** | **Shipto  Dept** | ** ** | **Shipto  Building** | ** ** | **Shipto  Street** | ** ** | **Shipto  City** | ** ** | **Shipto  State** | ** ** | **Shipto  Zip** | ** ** | **Shipto  Country** | ** ** | **Bill to  Company  Name** | ** ** | **Bill to  Dept** | ** ** | **Bill to  Attn** | ** ** |
|-----------------------|------------|---------------------|------------|---------------|------------|---------------|------------|---------------------------|------------|------------------|------------|----------------------|------------|--------------------|------------|------------------|------------|-------------------|------------|-----------------|------------|---------------------|------------|----------------------------|------------|-------------------|------------|-------------------|------------|
|                  |       |                |       |          |       |          |       |                      |       |             |       |                 |       |               |       |             |       |              |       |            |       |                |       |                       |       |              |       |              |       |
|                  |       |                |       |          |       |          |       |                      |       |             |       |                 |       |               |       |             |       |              |       |            |       |                |       |                       |       |              |       |              |       |
|                  |       |                |       |          |       |          |       |                      |       |             |       |                 |       |               |       |             |       |              |       |            |       |                |       |                       |       |              |       |              |       |
|                  |       |                |       |          |       |          |       |                      |       |             |       |                 |       |               |       |             |       |              |       |            |       |                |       |                       |       |              |       |              |       |

 

 

----

 
| **Bill to  Building** | ** ** | **Bill to  Street** | ** ** | **Bill to  District** | ** ** | **Bill to  City** | ** ** | **Bill to  State** | ** ** | **Bill to  Zip** | ** ** | **Bill to  Country** | ** ** | **Content  Desc** | ** ** | **License  Qty** | ** ** | **Market** | ** ** | **Contract  Level** | ** ** | **Contract  Type** | ** ** | **Effective  Date** | ** ** | **Expiration  Date** | ** ** | **Ext  Cost** | ** ** |
|-----------------------|------------|---------------------|------------|-----------------------|------------|-------------------|------------|--------------------|------------|------------------|------------|----------------------|------------|-------------------|------------|------------------|------------|------------|------------|---------------------|------------|--------------------|------------|---------------------|------------|----------------------|------------|---------------|------------|
|                  |       |                |       |                  |       |              |       |               |       |             |       |                 |       |              |       |             |       |       |       |                |       |               |       |                |       |                 |       |          |       |
|                  |       |                |       |                  |       |              |       |               |       |             |       |                 |       |              |       |             |       |       |       |                |       |               |       |                |       |                 |       |          |       |
|                  |       |                |       |                  |       |              |       |               |       |             |       |                 |       |              |       |             |       |       |       |                |       |               |       |                |       |                 |       |          |       |
|                  |       |                |       |                  |       |              |       |               |       |             |       |                 |       |              |       |             |       |       |       |                |       |               |       |                |       |                 |       |          |       |

 

----