Exhibit 10.19
SOFTWARE LICENSE AND SHIPMENT AGREEMENT
This License and Shipment Agreement ("Agreement") is made and entered into as of
the 25th day of February, 1999 (the "Effective Date"), by and between Dell
Products L.P., by and on behalf of itself, Dell Computer Corporation, a Delaware
corporation, and the other affiliates of Dell Computer Corporation ("Dell"),
which its principal place of business at Xxx Xxxx Xxx, Xxxxx Xxxx, Xxxxx 00000
and Red Hat Software, Inc. a Delaware corporation ("Developer"), with principal
place of business at 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, XX 00000.
1. LICENSE RIGHTS. Developer grants to Dell a non-exclusive, worldwide
license to repro-duce, install on the hard drive of Dell computers and ship the
software program(s) (the "Software") and related materials described on Schedule
"A" (collectively, the "Products"). Within five (5) days of the Effective Date,
Devel-oper will provide Dell with a master copy of the current released version
of the Products. Within [CONFIDENTIAL TREATMENT REQUESTED]** of any change to
the current version of any of the Products, [CONFIDENTIAL TREATMENT
REQUESTED]**, Developer will provide Dell with updated masters of the Products
and a description of the changes. Dell will purchase packaged copies of the
Products containing diskettes and documentation from Developer or a distributor
selected by Dell for inclusion with each Dell Computer containing the Software
that is shipped for revenue. The parties acknowledge that Developer and not Dell
is the "distributor" of the Products in the context of the General Public
License, and Dell's activities with respect to the Product shall not constitute
"distribution" under or otherwise fall within the scope of the General Public
License.
2. STOCK BALANCING AND RETURNS. Dell may balance its stock of packaged
Products [CONFIDENTIAL TREATMENT REQUESTED]**.
3. [CONFIDENTIAL TREATMENT REQUESTED]**.
4. PURCHASING; DELIVERY; PAYMENT. Dell shall submit purchaser orders
("Orders") for the Products to Developer or Developer's authorized distributor
specifying quantities for each Product ordered and required delivery date.
[CONFIDENTIAL TREATMENT REQUESTED]**. Developer will label Products ordered by
Dell with bar codes in accordance with Dell's Bar Code Label Guidelines. Prices
in Schedule A are exclusive of any shipping charges, sales, use or similar
taxes. Payment shall be [CONFIDENTIAL TREATMENT REQUESTED]**.
5. TRADEMARKS. Any and all trademarks and trade names which Developer
uses in connection with the Prod-ucts are and will remain the exclusive property
of Developer. Developer grants Dell a limited license to reproduce any such
trademarks and trade names as necessary or appropriate for Dell to promote and
market the Products subject to Developer's trademark use guidelines.
6. WARRANTY; DISCLAIMER. Developer will warrant the Product directly
to the end-user in accordance with the terms and conditions set forth in
Developer's end-user license agreement, or modifications of the
same.[CONFIDENTIAL TREATMENT REQUESTED]**.
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EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, DEVELOPER SPECIFICALLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING
WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE
AND MERCHANTABILITY.
On an ongoing basis, Developer represents and warrants that:
(a) the Product(s) will operate in accordance with its written
specifications;
(b) [CONFIDENTIAL TREATMENT REQUESTED]**;
(c) [CONFIDENTIAL TREATMENT REQUESTED]**;
(d) [CONFIDENTIAL TREATMENT REQUESTED]**;
7. TERM AND TERMINATION. This Agreement will begin as of the Effective
Date and will continue for a period of one (1) year. This Agreement is
automatically renewable at one year periods unless either party terminates as
provided herein. Either party may terminate this Agreement for cause upon thirty
(30) days prior written notice of a material breach, if the breach has not been
cured within this 30 day period. Upon termination or expiration of this
Agreement, Dell will immediately stop reproducing Products as provided in
Section 1 above; [CONFIDENTIAL TREATMENT REQUESTED]**. Additionally, Dell will
immediately return to Developer the master diskettes of the Products, together
with any information of Developer marked "Confidential," "Proprietary," or
containing similar markings, including any copies thereof, except those needed
for customer support, and all packaged Products except for one copy for each
copy of Product already installed on Dell computers as of the date of
termination or expiration, and Developer shall refund to Dell all sums already
paid for such Products.
8. TRAINING SUPPORT. Dell may make copies of the software Products at
no charge for internal sales training and sup-port, and Developer will provide
Dell with marketing and other Product literature and materials reasonably
requested by Dell for purposes of such training and support. [CONFIDENTIAL
TREATMENT REQUESTED]**. Dell will have access to Developer's applicable bulletin
board services.
9. NOTICES. Any notice required to be given will be deemed given if in
writing and actually delivered, transmitted by facsimile, or deposited in the
United States mail in registered or certified form, return receipt requested,
postage prepaid, or if sent by air courier, fees prepaid, addressed to the party
at the address set forth below or to such other address as the party may
indicate in accordance with this Section.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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Developer address:
Red Hat Software, Inc.
Attn: Counsel
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Dell Address:
Dell Products L.P.
Xxx Xxxx Xxx
XXX, Xxx 0
Xxxxx Xxxx, XX 00000
Attn: Strategic Commodity Manager
Software Procurement
Copy to:
Dell Computer Corporation
Xxx Xxxx Xxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx XxXxxxx
Dell Legal
10. ENTIRE AGREEMENT. This Agreement and the Purchase Orders issued
hereunder constitute the entire understanding of the parties with respect to the
subject matter hereof and merges all prior written or oral communications,
understandings, and agreements. Neither party may assign this Agreement without
the written consent of the other.
11. GENERAL.
(a) Developer may not assign this Agreement without Dell's
specific prior written consent which Dell will not unreasonably withhold, and
any attempted assignment in violation of the foregoing will be void.
(b) Neither party will be responsible for delays beyond its
reasonable control.
(c) No waiver of any term or condition is valid unless it is
in writing and signed by an authorized representative of the party charged with
the waiver. A valid waiver is limited to the specific situation for which it was
given.
(d) Each party agrees to comply with all applicable laws,
rules, regulations, orders and ordinances of the United States and of any other
state or country with jurisdiction over each party or each party's activities in
performance of its obligations hereunder, including without limitation all
applicable import or export regulations and all incensing or permitting
requirements.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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(e) This Agreement will be governed by and construed in
accordance with the laws of [CONFIDENTIAL TREATMENT REQUESTED]** and the
applicable laws of the United States, exclusive of any provisions of the
United Nations Convention on the International Sale of Goods and without
regard to principles of conflicts of law.
(f) Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is found to violate a law, it will
be severed from the rest of the Agreement and ignored.
(g) This Agreement may be executed in two or more counterparts
in the English language, and each counterpart will be deemed an original, but
all counterparts together will constitute a single instrument.
(h) The English language version of this Agreement will
control regardless of any subsequent translations of this Agreement.
(i) The headings contained in this Agreement are for the
purposes of convenience only and are not intended to define or limit the
contents of this Agreement.
(j) Dell and Developer are independent contractors; neither
party may bind or attempt to bind the other without the other's prior written
consent.
(k) This Agreement has been negotiated by the parties and
their respective counsel and will be interpreted fairly in accordance with its
terms and without any strict construction in favor of or against either party.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the date first set forth above.
DEVELOPER DELL
By: /s/ Xxxx XxXxxxxx By: Dell Products L.P.
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Name: Xxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxx /s/
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Title: Vice President Title: VP, Worldwide Procurement
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Date: 3/17/99 Date: 3/17/99
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SCHEDULE A
PRODUCT
Red Hat Linux
1. At Dell's option, Dell will use reasonable efforts to offer Red Hat Linux
(current version 5.2) installed by DPSI on selected configurations of Dell
servers by the end of March, 1999. Dell will be allowed to charge an
installation fee to Dell customers for this service. Developer will provide a
shrink-wrapped package containing System Builder Edition media and installation
manual to Dell for inclusion in the packaging of my Dell platform loaded with
Red Hat Linux. The cost of the package will be [CONFIDENTIAL TREATMENT
REQUESTED]**when purchased directly from Red Hat or at a standard xxxx-up when
purchased from an authorized distributor.
2. Two versions of the software, in English only, will be available to Dell
customers. Both have the same code, but different levels of support from
Developer. The System Builder addition is available at a cost of [CONFIDENTIAL
TREATMENT REQUESTED]**and includes no support. The Commercial Server Edition
includes 90-days of 24 x 7 support from Developer at a cost of [CONFIDENTIAL
TREATMENT REQUESTED]**. Developer will keep Dell informed should any other
languages as such languages become available.
3. Configurations will be limited due to lack of driver support for certain
peripherals.
4. [CONFIDENTIAL TREATMENT REQUESTED]**. Dell assumes no obligation in assuring
payment of such fees by Dell customers to Developer. Developer will arrange to
separately contract with Dell customers for support and service of Linux.
5. Initial installations will be on PE1300 and XX 0000. Additional platforms
including other server models, workstations, notebooks and desktops will be made
available, at Dell's option.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SCHEDULE B
Year 2000 Readiness Disclosure
Red Hat Linux has been designed and tested from the beginning to work
for our customers in the Year 2000 and beyond. We have tested the system
utilities and kernel of Red Hat Linux versions 4.1 and greater, and have found
them to be Year 2000 compliant, meaning that they will not produce errors in
date data related to the year change from December 31, 1999 to January 1, 2000.
Customers who use versions of Red Hat Linux prior to version 4.1 may upgrade to
more recent and up-to-date versions at no charge, by downloading a new version
from Red Hat's ftp site at XXX.XXXXXX.XXX or from one of many mirror sites
around the world.
Red Hat Linux, as an operating system, is only one layer of many in a
functioning computer system. Some applications written to work with Red Hat
Linux may not be Year 2000 compliant, even though the operating system itself
is. Therefore, we encourage our customers to evaluate their hardware, software
applications, and other computer products carefully.
Red Hat software believes Year 2000 readiness issues are more about
testing, good practices, and user education than product warranty. We will
continue to provide information to customers about year 2000 readiness, but
contractual warranties specific to Year 2000 readiness are not appropriate given
the true nature of Year 2000 issues and the simple fact that a single technology
provider, even one as well prepared for the Year 2000 as Red Hat, cannot solve
all issues related to the transition to the Year 2000. Warranties for Red Hat
Software's products are set forth in the license agreements that accompany the
products and we recommend that customers read those warranties to understand
their rights. The information we disseminate about year 2000 readiness does not
constitute an extension of any warranty for Red Hat Software products. Red Hat
Software provides this information to assist our customers in evaluating and
correcting potential issues for using dates into the next century.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
