EXHIBIT 10.17
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
RED HAT, INC.
CERTIFIED SYSTEM PARTNER PROGRAM AGREEMENT
THIS CERTIFIED SYSTEM PARTNER PROGRAM AGREEMENT is entered into as of
August 9, 2002 (the "Effective Date") by and between Egenera, Inc. with a
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("Partner")
and Red Hat, Inc. with a principal place of business at 0000 Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxx Xxxxxxxx 00000 ("Red Hat") (collectively referred to as the
"Parties").
NOW THEREFORE, the Parties agree as follows:
INTRODUCTION
A. Red Hat has developed the Red Hat Certified System Partner Program
(the "Program") whereby, (1) upon payment of fees as specified in
Exhibit E (the "Program Fees"), Red Hat provides participants with
certain Program benefits and (2) in consideration for payment of the
Preload Fees (as defined below), Red Hat permits Program
participants to pre-install on OEM Products (as defined below) the
Preload Licensed Works (as defined below) and to distribute such
Software as integrated or bundled with the partner's OEM Products.
B. Partner wishes to participate in the Program on the terms and
conditions set forth in this Certified System Partner Program
Agreement.
1. DEFINITIONS
AGREEMENT means this Certified System Partner Program Agreement and the
Exhibits thereto.
AUTHORIZED INSTALLER OR AUTHORIZED REPLICATOR means Xxxxx Global Turnkey
Group, with a place of business at 0000 Xxxx Xxxxx, Xxxxxx XX or such
other firms approved by Red Hat in writing.
DISTRIBUTOR means a direct or indirect customer of Partner that is
approved by Red Hat in writing and is authorized by a distribution
agreement between Distributor and Partner to distribute OEM Products.
DOCUMENTATION means user manuals, training materials, product descriptions
and specifications, brochures, technical manuals, license agreements,
supporting materials
and other printed information relating to the Preload Licensed Works
whether distributed in print, electronic, or video format.
END USERS means the purchasers or licensees who have acquired Licensed
Works or OEM Products for their own personal or internal use and without
the right to resale, remarket or otherwise distribute the Red Hat Products
or the OEM Products.
LEVEL THREE refers to a category of problem reported for the Preload
Licensed Works that after initial analysis by the Partner is determined to
most likely be the result of a design or manufacturing defect with the
Preload Licensed Works or the result of a complex interaction between the
Preload Licensed Works and the OEM Product that cannot be resolved by the
Partner and that requires Red Hat's engineering knowledge or expertise to
further analyze and resolve the problem.
LICENSED WORKS means the Preload Licensed Works, including any
enhancements, additions, corrections or modifications to such Licensed
Works provided to Partner by Red Hat and any related Documentation.
OEM ERROR means an error that occurs when using Red Hat Linux Advanced
Server 2.1, System Builder Edition of the Licensed Works on an OEM Product
that is not reproducible in Red Hat Linux Advanced Server 2.1 running on
Red Hat Certified IA-32 based hardware.
OEM PRODUCTS means Partner's hardware product or other products listed on
Exhibit A on which the Preload Licensed Work will be installed after Red
Hat certifies such product.
PRELOAD LICENSED WORKS means the Software listed on Exhibit B provided by
Red Hat to Partner for purposes of preloading on storage media of OEM
Products.
RED HAT MARKS means the following trademarks owned by Red Hat: RED HAT(R)
and the RED HAT SHADOWMAN(R) Logo, RED HAT LINUX ADVANCED SERVER 2.1,
SYSTEM BUILDER EDITION.
RED HAT PROGRAM MARKS means the following trademarks owned by Red Hat: RED
HAT READY(TM) Logo, RED HAT CERTIFIED PARTNER(TM) Logo.
RED HAT PRODUCTS means the Licensed Works and Services.
REPRODUCIBLE ERROR means an error that occurs when using the Licensed
Works on an OEM Product that is reproducible in Red Hat Linux Advanced
Server 2.1 running on Red Hat Certified IA-32 based hardware.
SYSTEM BUILDER EDITION means the Red Hat Linux Advanced Server 2.1, System
Builder Edition. It is a version of Red Hat Linux Advanced Server 2.1 that
has been modified by Partner and approved and accepted by Red Hat as
specified in Exhibit D.
SERVICES means the services and benefits specified in Section 3 of this
Agreement to be provided by Red Hat to Partner.
SOFTWARE means the software listed in Exhibit B.
2. TERMINATION
2.1 TERM. The term of this Agreement and Partner's participation in the
Program shall begin on the Effective Date and shall terminate three
(3) years thereafter unless terminated earlier in accordance with
Section 2.2.
2.2 TERMINATION. This Agreement may not be terminated by either Red Hat
or Partner except as follows: (a) as provided under Section 2.1, (b)
by either Party upon fifteen (15) days prior written notice for any
material default or breach of the terms and conditions of the
Agreement by the other party, unless the defaulting party has cured
such failure or default within such 15-day period, provided however,
that no such cure period shall be permitted for a breach of Section
9 or 15 of this Agreement or (c) by either party if the other party
becomes insolvent, makes an assignment for the benefit of creditors,
files a voluntary petition of bankruptcy, has a receiver for its
business or assets appointed for it or becomes subject to any
proceeding under any bankruptcy or insolvency law.
2.3 EFFECT OF TERMINATION. If this Agreement is terminated for any
reason, the obligations of the parties under Sections 9, 14 through
20 of this Agreement shall survive termination. Upon the expiration
or any termination of this Agreement, Partner will immediately (a)
cease all promotion and sale of the Licensed Works, (b) cease all
use of any Red Hat trademarks for which rights have been granted
under this Agreement, and (c) return or destroy, at Red Hat's
option, all printed materials containing such marks, including all
Documentation and Promotional Materials (as defined below).
3. RED HAT OBLIGATIONS
Red Hat agrees to provide Partner with the following Services under the
Program:
3.1 [**] ENGINEERING. Red Hat shall perform engineering services as set
forth in Exhibit D within [**] of the execution of this Agreement.
3.2 ONGOING MAINTENANCE AND SUPPORT. During the term of this Agreement,
Red Hat shall provide ongoing maintenance of Red Hat Linux Advanced
Server on the OEM Product starting with Red Hat Linux Advanced
Server 3.0 and for any subsequent releases of Red Hat Linux Advanced
Server. Red Hat shall provide ongoing maintenance and support by
[**] of Red Hat Linux Advanced Server on the OEM Product in a manner
that is consistent with the support it provides to other supported
platforms.
[**] Red Hat Linux Advanced Server [**] may be required. [**] Red Hat will
[**].
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Following commercial release by Partner of Red Hat's Licensed Works, and
no less frequently than twice per year, representatives from each Party
will meet to review the performance of, and recommend improvements
regarding, the technical support provided by Red Hat to Partner and the
technical support provided by Partner to its End Users, under this
Agreement. Either Party can request a special meeting in the event that
such Party has substantial concerns regarding a Party's performance under
this Agreement.
3.3 TRAINING. Red Hat shall provide Partner with 20 Training Units for
redemption in Red Hat RHCE Training Courses.
3.4 MARKETING.
3.4.1 Red Hat shall list Partner and its OEM Product on the Hardware
Compatibility List or an equivalent descriptive placement on
XXXXXX.XXX.
3.4.2 Red Hat shall provide Partner with marketing collateral for
End Users for all Red Hat Products that Partner is permitted
to market under this agreement (the "Promotional Materials").
3.4.3 Red Hat shall provide Partner a placement on the Web in the
Red Hat Marketplace or any equivalent placement determined at
Red Hat's discretion.
3.5 PRODUCT PRIVILEGES.
3.5.1 Red Hat shall provide Partner membership in Red Hat's Beta
Software Program.
3.5.2 Red Hat shall provide Partner with Red Hat's Semi-annual Web
cast of its Technology Roadmap.
3.6 RESELLER PRIVILEGES. Subject to the terms and conditions of this
Agreement, Partner shall be entitled to resell Licensed Works.
3.7 NOTIFICATION OF RELEASES. Red Hat shall use commercially reasonable
efforts to notify Partner 90 days in advance of a new release of Red
Hat Linux Advanced Server.
3.8 SUPPORT. Upon the execution of this Agreement, Red Hat will provide
Partner with a Service Implementation Plan ("SIP") that sets forth
in detail the support relationship for the Preload Licensed Works
between the Parties as established by this Agreement.
When an End User contacts Partner for support services for the Preload
Licensed Works, Partner's support personnel will first work with the End
User on problem identification and verification of known issues or
problems. Red Hat will provide Partner with support for Level Three issues
in accordance with this Agreement and the service level terms
specified in Exhibit F. When contacted for support by Partner, Red Hat
will respond according to the Severity Levels listed in the SIP.
Should Red Hat be notified by Partner of any Reproducible Errors or be
notified by Partner of any Level Three issues with respect to the Preload
Licensed Works as a result of notification by Partner's End User, Red Hat
shall promptly take appropriate measures to respond to such errors and
provide such corrections or workarounds in accordance with the time frames
set forth in the SIP.
Should Red Hat be notified by Partner of any OEM Errors with respect to
the Preload Licensed Works as a result of notification by Partner's End
User, Red Hat will provide Partner with engineering advice regarding
characterization of the error and recommend steps Partner may wish to take
in order to correct the error. Red Hat will not be obligated to respond or
to provide corrections in accordance with the service levels set forth in
the SIP for Reproducible Errors.
Red Hat will provide support to Partner and End Users only for Preload
Licensed Works on hardware and peripherals that are certified by Red Hat
under its certified hardware program. Red Hat will perform certifications
at Partner's expense or permit Partner to self-certify under such program.
Partner will, at Partner's expense, provide all necessary hardware and
peripherals to all Red Hat support centers from which Red Hat provides
support for this agreement.
Technical Support Engagement
Under this Agreement, only named Partner contacts, as specified in the SIP
that are RHCE certified can escalate Level Three support issues to Red
Hat. Partner may have up to two (2) representatives who may contact Red
Hat. Partner and Red Hat will attempt to maintain consistent contacts
during the term of this Agreement. Each party must notify the other of any
change in contacts in writing. Partner shall allow one calendar week for
processing by Red Hat of any changes in contacts.
Solution Delivery
Partner will be the primary source for communication with the End User and
will stay involved until the End User's solution has been found.
The Services must be used during the term of the Agreement or will be
forfeited.
4. PARTNER OBLIGATIONS
4.1 SUPPORT. Partner shall offer to provide all Distributor and End User
support for the OEM Product and any integrated or pre-installed Red
Hat Products. To that end, Partner shall employ and maintain no less
than [**] Red Hat Certified Engineer ("RHCE") for the purpose of
providing pre- and post-sale technical assistance to End Users.
Partner shall deliver first-class service to End Users and shall
provide to Red Hat data, anecdotes, and other information about its
dealings with End Users reasonably necessary to enable Red Hat to
evaluate the level of
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customer service being provided by Partner to End Users, Evidence of
compliance, in the form of RHCE certification number, must be
provided within sixty (60) days of the date of execution of this
Agreement. Failure to comply with this requirement within the
allotted time will result in a suspension of Services until such
time as Partner provides evidence to Red Hat of compliance. [**]
which is [**], if the Distributor or End User declines support
offered by Partner, Partner must sell OEM Product with either Red
Hat Premium or Standard Support as described in Exhibit B.
Partner shall indicate to End Users in promotional materials and in
contracts with End Users that (i) all support for System Builder Edition
and earlier releases of Red Hat Linux is provided by Partner and that End
Users should not contact Red Hat for support of these products, and (ii)
the compatibility of third party software applications with System Builder
Edition and earlier releases of Red Hat Linux is not the responsibility of
Red Hat.
4.2 PROMOTION. Partner shall promote the Red Hat Products on its web
site and in Linux-based advertisements.
4.3 CERTIFICATION. Partner shall ensure that each hardware system and
each peripheral included in a hardware system on which Partner
preloads the Preload Licensed Work is certified under Red Hat's
hardware certification program as it exists from time to time
(including without limitation payment of any required fees) for each
release of the Preload Licensed Work.
4.4 HARDWARE REQUIREMENTS. Partner agrees to loan to Red Hat the
hardware listed below to Red Hat at no charge upon execution of this
Agreement pursuant to Partner's standard equipment loan agreement,
for the duration of this Agreement. Partner will be responsible for
shipment costs to and from Red Hat.
4.4.1 [**] Egenera BladeFrame unit for development and testing
purposes. The BladeFrame unit is to be configured with a set
of blades representative of the 5 types of blades that are to
be supported by Red Hat Linux Advanced Server.
4.4.2 All hardware, software, cabling, and documentation necessary
to use required hardware.
4.5 HARDWARE MAINTENANCE. Red Hat shall be responsible for risk of loss
of such equipment, and for the condition of the equipment, normal
wear and tear excepted, except that Partner shall provide at no
additional charge maintenance comparable to maintenance it provides
to its commercial customers.
4.6 TECHNICAL CONTACT. Partner will provide Red Hat with a technical
contact and technical assistance on an as needed basis for
responding to questions and issues to support Red Hat in fulfilling
its obligations under this Agreement. This assistance may include,
but is not limited to access to engineers, hardware labs, and
specialized testing equipment.
4.7 ADVANCED SERVER EXCLUSIVITY. Thirty days after Red Hat's approval of
the System Builder Edition as specified in Exhibit D, Partner shall
cease to provide End Users and Distributors with other releases of
Linux utilizing the Red Hat Marks except as provided for in this
Agreement.
5. LICENSE GRANT
5.1 LICENSE FOR LICENSED WORKS. Subject to the terms and conditions of
this Agreement, Red Hat grants to Partner, and Partner accepts, a
worldwide, nonexclusive, non-transferable right during the term of
this Agreement to use, reproduce, and distribute to End Users,
directly and indirectly, the Licensed Works solely as integrated or
bundled with the OEM Product subject to the terms and conditions,
including the End User license agreement, applicable to the Preload
Licensed Works. Red Hat hereby explicitly grants Partner a
nonexclusive, personal, non-transferable, worldwide license for the
term of this Agreement to pre-install the Preload Licensed Works
only on the hard drives of the OEM Products and only on a
fully-functional and operational basis, and ship the Preload
Licensed Works on a pre-installed basis with the Documentation, the
OEM Product and recovery copies on separate media, subject to the
terms of this Agreement. During the term of this Agreement, Red Hat
[**] in connection with [**], under this Agreement. [**] subject to
[**].
5.2 PROMOTIONAL MATERIALS. Subject to the terms and conditions of this
Agreement, Red Hat grants Partner, and Partner hereby accepts, a
nonexclusive, non-transferable right during the term of this
Agreement to reproduce or copy the Promotional Materials as
reasonably necessary for Partner to fulfill its promotional
obligations under this Agreement. All Promotional Materials shall
remain the property of Red Hat and except insofar as they are
distributed by Partner to End Users. Partner shall not modify,
create derivative works of or grant a sublicense with respect to the
Promotional Materials. Partner acknowledges that the Promotional
Materials are protected by U.S. copyright and other laws and agrees
to treat the Promotional Materials accordingly.
5.3 RETAINED RIGHTS. Partner's rights in the Licensed Works are limited
to those license rights expressly granted under this Agreement, and
Red Hat retains all rights not expressly granted. Except with the
prior written consent of Red Hat, Partner shall not (a) modify the
Licensed Works in any manner; or (b) use the Licensed Works in any
manner or for any purpose not specifically permitted by this
Agreement ([**], without limitation, [**]). Red Hat shall own and
retain all right, title, and interest in the Licensed Works and all
intellectual property rights inherent therein, including without
limitation all changes and improvements requested or suggested by
Partner, notwithstanding any use of terms such as "purchase", "sale"
or the like within this Agreement.
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6. DISTRIBUTION
6.1 INSTALLATION. Partner shall have the right, subject to the terms of
this Agreement, to install and reproduce or have any Authorized
Installer acting on Partner's behalf install and/or reproduce the
Licensed Works and for Partner or any Authorized Replicator acting
on Partner's behalf to install and/or reproduce the Licensed Works,
the Red Hat Marks including any related Documentation provided or
approved by Red Hat for distribution with the OEM products;
provided, however, Partner may not reproduce the Red Hat Marks if
the Licensed Works are modified in any manner. [**] Red Hat [**] Red
Hat [**] Red Hat [**]; but the foregoing shall not limit [**]. Any
work performed by an Authorized installer or Authorized Replicator
on behalf of Partner will be governed by an agreement that restricts
its use of the Licensed Works solely to installing or reproducing
the Licensed Works for Partner's use as permitted under this
Agreement.
6.2 DELIVERY OF MASTERS. To facilitate Partner's reproduction rights
granted in this Agreement, Red Hat will provide Partner one master
copy for each version of the Preload Licensed Works within ten (10)
business days after Red Hat's corresponding availability release
date. Red Hat may deliver such master copies either on physical
media or via an image available on a reliable high-speed network
server. Partner will use commercially reasonable efforts to ensure
that all reproductions of the Licensed Works made by or for the
benefit of Partner are accurate and of high quality and will
distribute all applicable Documentation (including any applicable
XXXX) to End Users.
Partner shall execute or have executed written agreements with any
of its Distributors, Authorized Installers or Authorized Replicators
performing activities in accordance with this Agreement, the terms
of which shall not be inconsistent with this Agreement. Partner may
not distribute or permit the distribution of any Licensed Works to
any End User unless such End User is subject to a corresponding end
user software license agreement ("XXXX") consistent with the GNU
General Public License and the EULAs included in or with the
Software. Red Hat Linux Advanced Server is subject to the XXXX set
forth on Red Hat's website at
xxxx://xxx.xxxxxx.xxx/xxxxxxxx/xxxxxxxxxxxxxxxxxx.xxxx.
6.3 COPYRIGHT NOTICES. Partner shall ensure that all copies of the
Licensed Works in Partner's possession or control incorporate
copyright and other proprietary notices in the same manner that Red
Hat incorporates such notices in the Licensed Works or in any manner
reasonably requested by Red Hat. Partner shall promptly notify Red
Hat in writing upon its discovery of any unauthorized use of the Red
Hat Products or infringement of the Red Hat Products or Red Hat's
proprietary rights in the Red Hat Products. Partner shall not
distribute the Red Hat Products to any third party if Red Hat has
notified Partner that such third party may be involved in potential
unauthorized use of the Red Hat Products or other infringement of
Red Hat's proprietary rights. Use of a work containing a copyright
notice using the words "Red Hat" placed by Red Hat shall not be
considered use of trademark.
7. TRADEMARKS
7.1 LICENSE TO RED HAT MARKS. Red Hat grants to Partner a nonexclusive,
non-transferable, worldwide right and license for the term of this
Agreement to reproduce and display the Red Hat Marks solely in
connection with the replication of the Licensed Works and
installation of the Preload Licensed Works pursuant to Section 5.1
hereof, and subject to and in accordance with this Agreement and the
trademark policies and guidelines established from time to time by
Red Hat in its sole discretion and posted on Red Hat's website.
Partner shall not modify or obscure any Red Hat Xxxx, or use any Red
Hat Xxxx in any manner other than as expressly authorized in this
Agreement or as otherwise approved in writing by Red Hat. Partner
acknowledges that the Red Hat Marks are the exclusive property of
Red Hat, and that Partner will not assert any claim of ownership to
any Red Hat Xxxx, or to the goodwill or reputation symbolized by any
Red Hat Xxxx, by virtue of Partner's use of the Red Hat Marks or
otherwise. All use of the Red Hat Marks by Partner under this
Agreement will inure solely to the benefit of Red Hat. Partner will
not take any action in derogation of any of the rights of Red Hat in
any Red Hat Xxxx.
7.2 LICENSE TO RED HAT PROGRAM MARKS. Red Hat grants to Partner a
nonexclusive, non-transferable, worldwide right and license for the
term of this Agreement to use and display the Red Hat Program Marks
solely in connection with Partner's authorized marketing and
distribution of the Licensed Works conducted under authority of this
Agreement and subject to and in accordance with this Agreement and
the trademark policies and guidelines established from time to time
by Red Hat in its sole discretion. Partner shall not modify or
obscure any Red Hat Program Xxxx, or use any Red Hat Program Xxxx in
any manner other than as expressly authorized in this Agreement or
as otherwise agreed to in writing by Red Hat. Partner acknowledges
that the Red Hat Program Marks are the exclusive property of Red
Hat, and that Partner will not assert any claim of ownership to any
Red Hat Program Xxxx, or to the goodwill or reputation symbolized by
any Red Hat Program Xxxx, by virtue of Partner's use of the Red Hat
Program Marks or otherwise. All use of the Red Hat Program Marks by
Partner under this Agreement will inure solely to the benefit of Red
Hat. Partner will not take any action in derogation of any of the
rights of Red Hat in any Red Hat Program Xxxx.
7.3 OBLIGATION UPON TERMINATION OR EXPIRATION. Upon expiration or
termination of this Agreement (excepting termination for material
breach of this Agreement) Partner will [**] cease all use of the Red
Hat Marks and Red Hat Program Marks and, at Red Hat's election,
either destroy or deliver to Red Hat all materials in Partner's
control or possession which bear such Red Hat Marks. If termination
is due to a material breach of this Agreement by Partner, then
Partner will immediately cease all use of the Red Hat Marks and Red
Hat Program Marks, and, at Red Hat's election, either destroy or
deliver to Red Hat all materials in Partner's control or possession
which bear such Red Hat Marks.
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7.4 ADDITIONAL TRADEMARK USE RESTRICTIONS.
7.4.1 RED HAT READY(TM) Logo. Partner may only use the RED HAT
READY(TM) LOGO in conjunction with the promotion or sale of an
OEM Product, which has been certified by Red Hat. Partner may
not use the logo in general advertisements or marketing
materials that do not specifically address the certified
hardware system or peripheral.
7.4.2 RED HAT CERTIFIED PARTNER(TM) Logo. Partner may only use the
RED HAT CERTIFIED PARTNER(TM) LOGO in conjunction with general
promotions regarding its OEM Products that have been certified
by Red Hat.
7.4.3 RED HAT MARKS. Partner may use the Red Hat Marks as specified
in Section 6.1 and 7.1 hereof solely in connection with the
replication and installation of the Preload Licensed Works and
only if the Software is not modified in any manner.
7.4.4 RED HAT LINUX ADVANCED SERVER 2.1, SYSTEM BUILDER EDITION(TM)
. Partner may use the Red Hat Linux Advanced Server 2.1,
System Builder Edition trademark only until [**] after Red Hat
releases for general availability Red Hat Linux Advanced
Server 3.0.
8. QUALITY CONTROL; INFORMATION; AUDITS
8.1 QUALITY CONTROL. The OEM Product shall be of at least standard
quality and shall meet or exceed any and all governmental and
industry standards, regulations, and guidelines regarding such
product as they relate to the integration with Licensed Works. Upon
Red Hat's request, Partner will make available the OEM Product in
the form to be distributed to End Users for Red Hat's review at
Partner's premises. If Red Hat reasonably disapproves the quality of
any OEM Product, Red Hat shall so notify Partner, in which case the
parties will promptly work together to resolve any issues in a
commercially reasonable manner.
8.2 INFORMATION; AUDITS. Partner will keep and maintain commercially
reasonable written records and accounts regarding Partner's
distribution of Red Hat Products. Red Hat, or a certified public
accountant designated by Red Hat, shall have the right, upon ten
(10) days written notice to Partner, to conduct an inspection and
audit of all relevant facilities and records of Partner. Such audit
shall be conducted during regular business hours at Partner's
offices and in such manner as not to interfere with Partner's normal
business activities. In no event shall audits be conducted hereunder
more frequently than once every six (6) months The audit shall be
conducted at Red Hat's expense; provided, however, that if the audit
reveals that Partner has failed to comply with any material term of
this Agreement, Partner shall pay all reasonable costs and expenses
incurred by Red Hat in conducting the audit.
8.3 REPORTING. Partner shall provide to Red Hat on a monthly basis a
report showing the total number of OEM Products distributed by
Partner during the preceding month as well as the information listed
in Exhibit C. Red Hat shall invoice Partner regarding the Preload
Licensed Works based on this report.
9. FEES, INVOICES AND TAXES
9.1 FEES. Partner agrees to pay Red Hat the Program Fees specified in
Exhibit E. In addition, Partner agrees to pay Red Hat the Preload
Fee per processing blade that the End User licenses to run Red Hat
Linux Advanced Server, set forth in Exhibit B for each Preload
Licensed Works distributed with an OEM Product under the payment
terms described in 9.2. All fees are stated in United States
Dollars, and must be paid by Partner to Red Hat in United States
Dollars.
9.2 INVOICE. Program Fees shall be invoiced as specified in Exhibit E.
Preload Fees shall be invoiced upon receipt of the monthly report
specified in Section 8.3. Any and all payments made by Partner
pursuant to this Agreement are non-refundable. Partner shall make
payment within 30 days of the date of the invoice by wire transfer
to the bank account specified in Exhibit C. Red Hat reserves the
right to terminate this Agreement if actual payment has not been
received within the aforementioned 30-day period.
9.3 TAXES. All fees specified herein are exclusive of any U.S. federal,
state, or local sales, excise, use, or similar taxes. Except for
taxes relating to Red Hat's income, Partner agrees to pay all other
taxes that, as per applicable U.S. federal, state or local Laws, are
incumbent on the buyer or beneficiary of the Services provided by
Red Hat to Partner hereunder. Any taxes imposed in Korea on any
payment made under this Agreement shall be borne by Partner under
the tax treaty between Korea and the United States.
10. PRICE INCREASES
Red Hat shall have the right to increase End User prices for the Red Hat
Products from time to time. Red Hat will provide Partner with reasonable notice
of such price increases.
11. DISCOUNTS
Any discounts granted pursuant to the Program are discounts from Red Hat's
pricing for advertising, service, support, hardware/software certification, or
training in effect at the time Partner places Partner's order for the same. Red
Hat reserves the right to adjust such pricing at any time without prior notice.
[**] as specified in Exhibit B during the term of this Agreement [**].
12. PROGRAM SUBSTITUTION
Red Hat reserves the right, in its sole discretion, to supplement or
substitute the Services, provided that any such substituted benefit shall be of
value reasonably comparable to the benefit
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replaced. Changes in program benefits will have no effect on Partner's rights to
the benefits listed in Sections 3.1, 3.2, 3.3, and 3.6.
13. LACK OF EXCLUSIVITY
This Agreement is not an exclusive arrangement, and each party remains
free to enter into similar agreements with other parties. Nothing in this
Agreement shall be construed as making the Parties partners, joint venturers,
representatives or agents of each other, nor shall either party so hold itself
out. Nothing in this Agreement shall obligate Partner to buy any additional
service or product from Red Hat.
14. LIMITATION OF LIABILITY
In all events and circumstances (including in the event Red Hat breaches
this Agreement), or if any remedy of Partner is found to fail of its essential
purpose, Red Hat's total aggregate liability shall be limited to direct damages
of Partner in an amount not to exceed the amount of Program Fee paid by Partner
for under this Agreement (computed as of the time of the event giving rise to
Red Hat's liability).
15. PUBLICITY AND CONFIDENTIALITY
Partner will not disclose, market or advertise to third parties the terms
of this Agreement (including the fees paid hereunder) without the prior written
consent of Red Hat. Red Hat shall be permitted to reference its relationship
with Partner during Red Hat's earnings calls, discussions with analysts,
meetings with the press and customer briefings. Nothing in this Agreement shall
restrict the disclosure of the terms of this Agreement as required by law
(including securities laws, after appropriate requests for confidential
treatment) or the rules relating to companies listed on any securities exchange
on which its securities are listed, or to their respective legal counsel,
accountants, bankers, financing sources as necessary in connection with
obtaining services from such third parties, or in due diligence for
acquisitions.
The Parties agree that any Confidential Information provided under this
Agreement shall be treated in accordance with the mutual nondisclosure agreement
(the "NDA") signed on 5 April 2002.
16. INDEPENDENT DEVELOPMENT
Each party understands that the other party may develop or receive
information similar to the other party's confidential information. Subject to
intellectual property rights of the other party, either party may develop or
acquire technology or products, for itself or others, that are similar to or
competitive with the technology or products of the disclosing party.
17. DISCLAIMER OF DAMAGES
PARTNER ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL RED HAT HAVE
LIABILITY TO PARTNER OR ANY THIRD PARTY OF ANY KIND FOR LOST PROFITS, LOSS OF
BUSINESS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN
IF INFORMED OF THEIR POSSIBILITY.
18. WARRANTY
Red Hat represents and warrants to Partner that: (i) it has the right to
furnish the Licensed Works in the form delivered to Partner, (ii) except as
expressly agreed by Partner in writing the Licensed Work (and each component) is
provided under an open source license compatible with the GNU Public License;
and (iii) [**] in accordance with the terms of this Agreement [**].
Except as provided in this Agreement, THE RED HAT PRODUCTS ARE PROVIDED
"AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE. THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY RED HAT (EXPRESS OR
IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. RED HAT DISCLAIMS
ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
19. GOVERNING LAW/CONSENT TO JURISDICTION
The validity, interpretation and enforcement of this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
Partner hereby consents to federal jurisdiction in either state or federal court
in the State of Delaware.
20. GENERAL PROVISIONS
20.1 NOTICES. Notices must be in writing and are effective upon receipt
by either party at the respective addresses indicated on the first
page of this Agreement, provided that methods of transmission
include but are not limited to certified mail with return receipt
requested, or some other method that provides for positive
confirmation of delivery within five (5) days.
20.2 ASSIGNMENT. This agreement is assignable by either party only with
the other party's prior written consent, which shall not be
unreasonably withheld. If an assignment is being made to the
assigning party's affiliate, subsidiary, or is a result of a merger,
prior approval from the other party is not required as long as the
cost, number of persons supported, risks or obligations do not
increase as a result of said assignment. Red Hat may subcontract
Services under this Agreement without the prior approval of Partner;
provided, however, that such subcontractor must agree to use its
best efforts to keep any proprietary information received from Red
Hat or Partner confidential.
20.3 EXPORT RESPONSIBILITIES. Red Hat may supply Partner with technical
data that may be subject to export control restrictions. Partner
agrees to comply with all applicable laws and regulations, including
without limitation, export control laws. Red Hat shall not be
responsible for compliance by Partner with applicable export
obligations or requirements for such technical data. Red Hat agrees
to cooperate with Partner in Partner's procurement of any licenses,
permits, registrations or other permission necessary to export the
Licensed Work to foreign locations
-13-
(including import requirements of the country of destination) as may
be requested by Partner.
20.4 HEADINGS. The title and paragraph headings contained in this
Agreement are inserted for identification and convenience, and will
not be deemed part of this Agreement for purposes of interpretation.
20.5 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable for any reason, the Parties agree that such invalidity
shall not affect the validity of the remaining provisions of the
Agreement and further agree to substitute for the invalid provision
a valid provision that most closely approximates the intent and
economic effect of the invalid provision.
20.6 WAIVER. The failure of either party to exercise any rights hereunder
shall not constitute or be deemed a waiver of forfeiture of such
rights.
20.7 DISPUTE RESOLUTION. Partner satisfaction is an important objective
to Red Hat in performing its obligations under this Agreement. If
Partner is not satisfied with the Services provided by Red Hat,
Partner agrees to give Red Hat a written description of the
problem(s) and to make a good faith effort to amicably resolve the
problem with Red Hat before commencing any proceeding. Red Hat also
agrees to make a good faith effort to amicably resolve any problem
with Partner before commencing any proceeding.
20.8 FORCE MAJEURE. Neither party shall be liable for nonperformance or
delays caused by acts of God, wars, riots, strikes, fires, floods,
earthquakes, government restrictions or other causes beyond its
control. In the event of the occurrence of any of the foregoing, the
date of performance shall be deferred for a period of time equal to
the time lost by reason of the delay. The affected party shall
notify the other in writing of such events or circumstances promptly
upon their occurrence.
20.9 COMPLETE AGREEMENT. This Agreement constitutes the complete contract
between the Parties and supersedes all prior or contemporaneous
communications, agreements and understanding, written or oral, with
respect to the subject matter hereof including without limitation
the terms of any purchase order issued in connection with this
Agreement and the Red Hat Inc. Certified System Partner Program
Agreement dated May 31, 2001 between the Parties. This Agreement
shall not be amended or modified except in a writing signed by
authorized representatives of each party.
20.10 COUNTERPARTS AND FACSIMILE SIGNATURE. This Agreement may be executed
in counterparts, each of which shall be deemed an original and all
of which shall constitute one and the same instrument. The Parties
may exchange signature pages by facsimile and such signatures shall
be effective to bind the parties.
20.11 PREVAILING PARTY. In the event of a dispute between the Parties
regarding payment under this Agreement, the prevailing Party's
attorney's fees shall be paid by the other Party.
IN WITNESS WHEREOF, each of the Parties hereto has executed this CERTIFIED
SYSTEM PARTNER PROGRAM AGREEMENT by its duly authorized representatives on the
respective date entered below.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
EGENERA, INC. RED HAT, INC.
/S/XXXXX XXXXX /S/XXXXX X. XXXXXXXX
------------------------------------ ------------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
XXXXX XXXXX XXXXX X. XXXXXXXX
------------------------------------ ------------------------------------
PRINTED NAME PRINTED NAME
VP, PRODUCT MARKETING AND MANAGEMENT EXEC VP & CFO
------------------------------------ ------------------------------------
TITLE TITLE
AUG 9 2002 8/8/02
------------------------------------ ------------------------------------
DATE EXECUTED DATE EXECUTED
-15-
EXHIBIT A
OEM PRODUCTS
Partner must provide to Red Hat a list of Products that it will sell with Red
Hat Linux Advanced Server.
- Egenera BladeFrame.
EXHIBIT B
PRELOAD LICENSED WORKS
PRODUCT: - Includes: PRELOAD FEE:
-------- --------------------------- ------------
-
Red Hat Linux Advanced Server 2.1, - 1 year Red Hat Network Fee to Partner: $[**] per
System Builder Edition plus Level providing: processing blade
Three pass through support - Security Errata
- Critical fixes
- Minor functional
enhancements
- Level Three pass through
support, 24 x 7
365 days a year:
Red Hat Linux Advanced Server 3.0 - 1 year Red Hat Network Fee to Partner: $[**] per
plus Level Three pass through providing: processing blade
support - Security Errata
- Critical fixes
- Minor functional
enhancements
- Level Three pass through
support, 24 x 7
365 days a year.
Red Hat Linux Advanced Server 3.0 - 1 year Red Hat Network Fee to Partner: $[**] per
plus Red Hat Standard Support providing: processing blade
- Security Errata
- Critical fixes MSRP: $[**] per processing blade
- Minor functional
enhancements
- Direct support from Red Hat,
9:00 am to 9:00 pm EST/EDT, 5
business days per week.
Red Hat Linux Advanced Server 3.0 - 1 year Red Hat Network Fee to Partner: $[**] per
plus Red Hat Premium Support providing: processing blade
- Security Errata
- Critical fixes MSRP: $[**] per processing blade
- Minor functional
enhancements
- Direct support from Red
Hat, 24 x 7 365 days a
year
-17-
Prices are for North America and the version specified above only. International
prices and prices for new versions will be provided upon request.
PRELOAD LICENSED WORKS: One gold master will be provided for each version of the
Preload Licensed Works. Updates/fixes are available through Red Hat Network.
EXHIBIT C
REPORTING
For all questions and correspondence, please contact:
Partner Accounting Associate
[**]
Please submit a report each month indicating the following:
Customer name and contact information
Number of units received from replicator
Dates the units were received from replicator
Customer part #
Red Hat SKU #
Agreed upon price per contract
Report of replicator showing units and date of shipment to End Users.
Any new Customer part numbers are to be communicated to Red Hat's Partner
Accounting Associate.
The above reports are to be received by Red Hat no later than the 15th of the
following month via email.
Lockbox Instructions for Payment:
[**] [**] [**] [**]
-19-
EXHIBIT D
CUSTOM ENGINEERING
1. DELIVERABLES
1.1 Upon execution of Agreement, Red Hat will provide Partner with
source code for Advanced Server 2.1.
1.2 Red Hat will [**] as specified in Section 3 below. This process may
require Partner to make fixes and minor modifications to System
Builder Edition. The result of this [**] will be Red Hat's approval
to use System Builder Edition as a Preload Licensed Work. Red Hat
will provide the results of the [**] process to Partner within [**]
of receipt of System Builder Edition from Partner. [**].
1.3 Red Hat will [**] which are licensed under the [**]. Red Hat and
Egenera agree that the result of this work will provide the same
functionality that exists in Egenera's Advanced Server, System
Builder Edition 2.1 version. Red Hat and Egenera agree [**]. Red Hat
and Egenera agree that the goal is for general acceptance of all
kernel patches by the Linux open source community and will make
commercially reasonable efforts to obtain that goal.
This will be accomplished by Red Hat and Egenera [**] as necessary
[**].
1.4 Upon completion of 1.3, Red Hat will deliver to Partner a beta
version of Red Hat Linux Advanced Server 3.0 that includes the
changes from 1.3.
2. SPECIFICATIONS
2.1 ENGINEERING MEETINGS
Red Hat and Partner agree to hold monthly meetings and/or conference calls
to discuss [**] any issues.
3. PARTNER OBLIGATIONS.
Partner shall [**] provided by Red Hat. [**] that are licensed under the
[**] Products. Partner shall fully test and quality assure the final
version of modified for Red Hat Linux Advanced Server 2.1 source code and
shall deliver it to Red Hat for approval as a Preload License Work by 1
October 2002. [**] Red Hat will [**] as defined in this Agreement. The
System Builder Edition will not be a generally available version of Red
Hat Linux and will not have any third party software products certified by
Red Hat to run on it. Nothing in this Section gives Red Hat any rights to
Partner's proprietary software, including without limitation PAN Manager.
EXHIBIT E
PROGRAM FEES AND INVOICE SCHEDULE
Year 1: $[**][**]
Year 2: $[**]
Year 3: $[**]
INVOICE DATE INVOICE AMOUNT
------------ --------------
Effective Date $[**]
Effective Date [**] $[**]
Effective Date [**] $[**]
Effective Date [**] $[**]
Effective Date [**] $[**]
-21-
EXHIBIT F
LEVEL THREE SUPPORT SERVICE TERMS
1. SERVICE LEVELS AND COMMITMENTS
The severity level of the problem defines the classification of the
request.
CLASSIFICATION OF THE REQUEST CALL WINDOW RESPONSE TIME WORKAROUND/RESOLUTION TIME
----------------------------- ----------- ------------- --------------------------
Severity 1 Problem -- a catastrophic 24 hrs 7 days per [**] When working a Severity I
problem, which may severely impact week Problem, Red Hat will make
Partner's ability to conduct commercially reasonable
business. This may mean that the efforts to get Partner
Partner's systems and/or product are operational with respect to
down or not functioning or that there the specific Severity 1
is loss of production data and no Problem within [**] following
procedural work-around exists. receipt of the request for
Severity 1 also applies to a problem support and to downgrade the
that results in a serious security problem severity
breach. accordingly. Efforts to
isolate, diagnose, and
affect a workaround or
repair to a Severity 1
Problem shall be
continuous. Progress
updates by phone or email
will occur with a
frequency not less than
every 24 hours until the
problem severity is
reduced.
Severity 2. Problem - a high-impact 24 hrs 7 days per [**] When working a Severity 2
problem where the Partner's operation week Problem, Red Hat will make
is disrupted, but there is capacity to commercially reasonable
remain productive and maintain efforts to reduce the problem
necessary business-level operations. severity within [**]
Severity 2 also applies to problems following receipt of the
resulting in minor security breach request support. Efforts to
situations. isolate, diagnose, and affect
a work-around or repair to a
Severity 2 Problem maybe
discontinuous.
Severity 3 Problem- a problem is 24 hours 7 days [**] When working a Severity 3
medium-to-low impact problem which per week Problem, Red Hat will make
involves partial non-critical commercially reasonable
functionality loss. It is a problem efforts to fix the problem or
which impairs some operations, but provide a statement of
allows the Partner to continue to problem disposition within
function. This may be a minor issue [**] following receipt of the
with limited loss or no loss of request for support. Efforts
functionality or impact to the to isolate, diagnose, and
Partner's operation and issues in affect a fix to a Severity 3
which there is an easy circumvention Problem may be discontinuous.
or avoidance by the end user. This
includes documentation errors.
Partner acknowledges and understands that no software is perfect or error free
and that, despite Red Hat's commercially reasonable efforts, Red Hat may be
unable to provide answers to or resolve some or all requests for support. Red
Hat makes no promises, guarantees, or assurances of any kind that it will be
able to resolve all of Partner's support requests.
-23-
