RED HAT ISV PARTNER AGREEMENT
This is a software development and marketing agreement. Red Hat, Inc., a
Delaware corporation ("Red Hat"), and XxxxxxxXxxxxxx.xxx, a Illinois corporation
("ISV"), enter into this agreement as of the last date following the signatures
below.
1. DEFINITIONS
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A. "Product" means the "Official Red Hat Linux" product, version 6.1 and
greater, of Red Hat as released by Red Hat.
B. "LACD" means the Linux Applications CD, which is a collection of software
applications of third parties that is included with the Product, as determined
by Red Hat in its discretion from time to time.
C. "Confidential Information" means any information identified as being
Confidential Information by either party, either orally or in writing, at the
time it is disclosed, or designated as confidential in writing (either
electronically or by other means) within 30 days following such disclosure.
Confidential Information shall not include any information that the receiving
party can demonstrate (a) was generally in the public domain prior to the
disclosure, (b) becomes generally known or part of the public domain through no
action or disclosure by the receiving party, (c) can be shown to have been in
the rightful possession of the receiving party without confidentiality
restriction prior to having been identified as Confidential Information by the
disclosing party, or (d) is independently developed by receiving party without
reference to Confidential Information.
2. FEES AND PAYMENTS
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In consideration for the benefits to be provided by Red Hat to ISV pursuant to
this Agreement, ISV shall pay to Red Hat an annual participation fee of
$2,495.00. This payment shall be non-refundable. Payment shall be in U.S.
funds, shall be due at the time of execution of this Agreement, and shall be
deemed to be made upon receipt of funds by Red Hat. Red Hat shall incur no
obligation pursuant to this Agreement unless and until Red Hat receives payment
from ISV as set forth in this section.
3. PRESS AND PUBLICITY
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A. Neither party shall issue a press release related to this Agreement without
first obtaining the approval of it from the other party.
B. Red Hat shall develop and maintain on its web site an index of software
application products available for Red Hat Linux and shall list the applicable
products of ISV on such list. The information to be provided on the index shall
be supplied by ISV on the attached Exhibit B and shall be submitted to Red Hat
at the time of execution of this Agreement. Red Hat shall maintain a link from
its site to ISV's site and to other sites agreed to by both parties.
C. ISV grants to Red Hat, and Red Hat accepts, the right and license to use and
display the trade name, corporate logo, and other trademarks of ISV related to
the software applications of ISV listed on the attached Exhibit B, for display
on Red Hat's web site, for the purposes described in section 3.B of this
Agreement. All use of the name, corporate logo, and other trademarks of ISV by
Red Hat under this Agreement shall inure solely to the benefit of ISV.
4. PRODUCT BUNDLING
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ISV shall have the option, but not the obligation, to apply for participation in
the LACD. The terms and conditions for the LACD are set forth in Exhibit A of
this Agreement, "Red Hat LCD Agreement." The submission to Red Hat of Exhibit A
signed by ISV shall be deemed to be an acceptance of the terms and conditions of
Exhibit A and shall be deemed to be ISV's application for participation in the
LACD program. Red Hat reserves the right to determine in its sole discretion
whether ISV is selected for participation in the LACD.
5. TRAINING AND SUPPORT
----------------------
A. Red Hat shall present to ISV during the term of this Agreement opportunities
for support and training services to be provided by Red Hat related to the
development of software applications for Red Hat Linux. Such support and
training, as well as the content, terms and conditions of such training, shall
occur at a time and place to be determined by Red Hat in its discretion from
time to time.
B. Red Hat shall provide to ISV a "Developer Resource Kit" within 60 days of
the effective date of
this Agreement. The Developer Resource Kit shall be a collection of software,
documentation, and other materials designed to assist ISV in the development of
software applications that run on Red Hat Linux. The content of the Developer
Resource Kit shall be determined by Red Hat and may be modified by Red Hat in
its discretion from time to time.
C. Red Hat shall provide to ISV beta releases of new versions of Red Hat Linux
during the term of this Agreement. Beta releases shall be provided pursuant to
a schedule and by a means determined by Red Hat in its discretion.
6. PROPRIETARY RIGHTS
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Each party acknowledges and agrees that the other party may own certain
intellectual property rights, including, without limitation, patent, copyright,
trade secret and trademark rights. Other than as set forth in this Agreement,
each party retains all right, title and interest to its intellectual property.
This Agreement grants no implied license or other rights with respect to any
intellectual property interest of either party.
7. TERMS AND TERMINATION
-----------------------
A. This Agreement shall be effective on the last date following the signatures
below and the initial term shall be one year. Any renewal of this Agreement
must be in writing and must be signed by both parties in order to be effective.
B. Either party may terminate this Agreement for any reason by providing 30
days written notice to the other party. Either party may terminate this
Agreement immediately in the event that the other party becomes insolvent, makes
a general assignment for the benefit of creditors, or avails itself of or
becomes subject to any proceeding in bankruptcy or other proceeding relating to
insolvency or protection of creditors.
8. LIMITATION OF LIABILITY
-------------------------
Red Hat's aggregate liability for damages claimed under this Agreement and
arising out of Red Hat's performance of services hereunder shall be limited to
the total fees paid by ISV to Red Hat pursuant to Section 2 of this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ANY DAMAGES OR
LIABILITY ARISING OUT OF THE LACD AGREEMENT, WHICH ARE GOVERNED BY THE
PROVISIONS CONTAINED IN THE LACD AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS
OF DATA, USE OR PROFITS, OR LOSS OF CONTRACTS OR BUSINESS OPPORTUNITY, ARISING
OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT OR ARISING
OUT OF EITHER PARTY'S PERFORMANCE OR NON-PERFORMANCE HEREUNDER, WHETHER OR NOT
REASONABLY FORESEEABLE AND EVEN IF THE PARTY AGAINST WHOM A CLAIM FOR DAMAGES IS
MADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, ARISING UNDER STATUTE OR OTHERWISE.
9. DISCLAIMER OF WARRANTY
------------------------
To the maximum extent allowable by applicable law, THE GOODS AND SERVICES
PROVIDED BY RED HAT PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND RED HAT
MAKES NO WARRANTY TO ANY PERSON OR ENTITY OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OF QUALITY AND ANY IMPLIED
WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
10. CONFIDENTIALITY
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A. Red Hat and ISV agree that, during the term of this Agreement, each party
may disclose to the other certain Confidential Information. In the event of
such disclosure, each party agrees that it will not use the other party's
Confidential Information except as necessary to achieve the purposes of this
Agreement, and will not disclose such Confidential Information to any third
party. The receiving party may disclose Confidential Information to its
employees, agents and contractors with a bona fide need to know such
Confidential Information , but only to the extent necessary to discharge their
duties under this Agreement, and only if such employees, contractors, agents, as
the case may be, are advised of the confidential nature of such Confidential
Information agreement to protect the confidentiality of such Confidential
Information.
B. ISV agrees that all of its employees, contractors, and other agents shall
enter into or have entered into a separate written confidentiality agreement
with ISV that ensures they will comply with the confidentiality provisions of
this Agreement.
C. The receiving party agrees not to reproduce or copy by any means
Confidential Information, except as reasonably required to accomplish the
purposes of this Agreement. Upon demand by the disclosing party at any time, or
upon termination or expiration of this Agreement, the receiving party shall
return promptly to the disclosing party or destroy, at the disclosing party's
option, all tangible materials that disclose or embody Confidential Information;
provided, however, that the receiving party may retain one copy of the
disclosing party's Confidential Information for archival purposes only.
D. The obligations of this section shall survive for three years after the
termination of this Agreement.
11. FORCE MAJEURE
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Neither party shall be liable for its failure to perform any of its obligations
hereunder, including, but not limited to, delivery obligations, during any
period in which such failure of performance is caused by an act of God; act of
any federal, state, or local governmental authority; fire or flood; strike or
labor unrest; degradation of telecommunications service; degradation of computer
services not under the direct control of such party; or unusually severe weather
conditions. Delays in delivery due to events beyond either party's reasonable
control shall automatically extend the delivery date for a period equal to the
duration of such events.
12. MISCELLANEOUS
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A. This Agreement is not an exclusive arrangement, and each party remains free
to enter into similar agreements with other parties.
B. This Agreement shall be governed by and shall be construed in accordance
with the laws of the State of North Carolina, U.S.A., regardless of its choice
of law provisions. The parties each agree that they are subject to the personal
jurisdiction of the state and federal courts within the State of North Carolina,
and each waives the right to challenge the personal jurisdiction of those courts
over it. The United Nations Convention on Contracts for the International Sales
of Goods shall not apply to this Agreement.
C. Any notice under this Agreement shall be in English, in writing, and shall
be deemed to be given upon receipt. Notices to Red Hat shall be delivered to
Counsel, Red Hat, Inc., 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, XX 00000 XXX. Notices to
ISV shall be delivered to 0000 Xxxxxxxx, Xxxxxxx Xxxxxxx, Xx 00000.
D. This Agreement, including all Schedules, constitutes the entire
understanding of the parties. This Agreement supersedes and terminates all
prior representations, warranties and agreements, written or oral, regarding the
subject matter of this Agreement. Any modification to this Agreement must be in
a writing signed by both parties.
E. All covenants and obligations of sections 6, 8, 9, 10 and 12 of this
Agreement shall survive the termination of this Agreement.
F. If one or more of the provisions contained in this Agreement is held
invalid, illegal or unenforceable in any respect by any court of competent
jurisdiction, such holding will not impair the validity, legality, or
enforceability of the remaining provisions.
G. Headings in this Agreement are used for convenience of reference only and do
not affect the interpretation of the provisions.
H. Failure or delay on the part of any party to exercise any right, remedy,
power or privilege hereunder will not operate as a waiver. Any waiver must be
in writing and signed by the party granting such waiver in order to be
effective.
I. No provision of this Agreement is to be interpreted for or against either
party on the grounds that one party or the other, or their legal counsel,
drafted such provision.
J. In the event that Red Hat is merged with or consolidated into any other
entity, or in the event that substantially all of the assets of Red Hat are sold
or otherwise transferred to any other entity, the provisions of this Agreement
will be binding upon, and inure to the benefit of, such other entity.
K. Nothing in this Agreement shall be construed to make the parties partners,
joint venturers, representatives, or agents of each other, nor shall either
party so hold itself out.
To show their assent, the duly authorized representatives of the parties hereto
have signed this Agreement.
RED HAT, INC. ("Red Hat")
/s/ Xxxxx Xxxxxx
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Signature
Xxxxx Xxxxxx
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Name
Business Dev Mgr
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Title
2/11/00
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Date
XXXXXXXXXXXXXX.XXX ("ISV")
/s/ Xxxxx X. Xxxxxxx
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Signature
Xxxxx X. Xxxxxxx
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Name
VP of Operations
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Title
2/10/00
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Date
