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RED HAT HARDWARE CERTIFICATION AGREEMENT
This Hardware Certification Agreement (the "Agreement") is between Red Hat, Inc. ("Red Hat") and the independent hardware vendor that accepts this Agreement ("IHV"). The effective date of this Agreement is the earlier of the date that the IHV accepts this Agreement or the date that IHV uses the Red Hat Marks or claims Red Hat Certified Hardware (the "Effective Date").
PLEASE READ THIS AGREEMENT CAREFULLY. YOU MUST AGREE TO THIS AGREEMENT PRIOR TO USING THE RED HAT MARKS (DEFINED BELOW) OR CLAIMING RED HAT HARDWARE CERTIFICATION. BY USING THE RED HAT MARKS, IHV SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF IHV DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN DO NOT USE THE RED HAT MARKS OR CLAIM RED HAT HARDWARE CERTIFICATION.
Purpose. IHV wishes to certify certain of its hardware as operational with the Red Hat Enterprise Linux operating system. In exchange, Red Hat will provide IHV with certain benefits as set forth in this Agreement.
In consideration of the mutual covenants set forth in this Agreement and intending to be legally bound, the parties agree as follows:
1. Certification Procedure
1.1 Certification Criteria
Red Hat has established certain criteria, set forth at https://hardware.redhat.com/doc/ (the "Certification Criteria"), to which IHV must adhere in order for the applicable hardware applications to be deemed certified with the Red Hat Enterprise Linux operating system. In accordance with the Certification Criteria, hardware may be deemed "Red Hat Certified Hardware" .
In the event a third party software is installed on Red Hat Entreprise Linux by any means at any time to support the hardware; the IHV may not use the Red Hat Certified HardwareTM logo (the "Red Hat Mark"), as set forth in section 4.1 in respect to such hardware
1.2 Provision of Hardware
If IHV desires to have Red Hat perform the hardware testing, IHV will provide to Red Hat all hardware to be tested and such hardware will become the property of Red Hat unless otherwise agreed in writing. For support purposes, Red Hat may request hardware from IHV. IHV will provide all hardware that Red Hat requests within one (1) business day of Red Hat’s request for such equipment. Red Hat will not return any hardware sent to Red Hat for certification. Any transportation, insurance charges, custom duties, tariffs, expenses and costs will be the sole responsibility of IHV and will be either paid directly by or invoiced to IHV and are not included in the prices set forth in Section 3. If any of the hardware provided to Red Hat by IHV is found to be defective, Red Hat will inform IHV and IHV will provide replacement hardware.
IHV agrees to collaborate with Red Hat in resolving any problems related to the Red Hat Certified Hardware. If IHV and Red Hat have a cooperative support agreement, this section is superseded by such agreement.
2. Program Benefits
2.1 Listing on Redhat.com
During the term of this Agreement, Red Hat will list the Red Hat Certified Hardware in its hardware catalog as it exists from time to time located on its website and any related printed marketing collateral. IHV agrees to allow Red Hat to market such information in any forum in which Red Hat is marketing certified hardware.
2.2 Use of the Red Hat Marks
IHV will display the Red Hat Mark set forth on Appendix 1, but no other Red Hat marks, including without limitation the ShadowmanTM logo, when marketing Red Hat Certified Hardware. IHV will not use any Red Hat marks in association with Red Hat Certified Hardware.
Red Hat will support customers using hardware that is Red Hat Certified Hardware in accordance with the customer's Red Hat Enterprise Linux Standard Subscription Agreement.
2.4 Press Releases
IHV agrees to allow Red Hat to use its name and the name of the Red Hat Certified Hardware in any press releases or announcements about Red Hat Hardware Certification Program.
2.5 Red Hat Hardware Certification Program Subscription
IHV will have access to all versions of Red Hat Enterprise Linux (server edition) via Red Hat Network during the term of this Agreement.
2.6 Certification Test Suite
IHV will have access to the Red Hat Hardware Certification Test Suite and all updates thereto via Red Hat Network during the term of this Agreement.
3.1 Fees and Expenses
IHV will pay Red Hat an annual program fee of $5,000.00 (the "Program Fee") on the Effective Date. The Program Fee covers unlimited self-testing by IHV. If IHV desires to have Red Hat perform the hardware testing, IHV will pay Red Hat, in addition to the Program Fee and prior to the performance of any testing, $1,500.00 per test run (including re-tests) of a single computer model, component, peripheral, or architecture ("Testing Fees"). Unless otherwise agreed to by the parties in writing, the Program Fee and any Testing Fees are stated in United States Dollars, must be paid in United States Dollars, and are exclusive of out-of-pocket expenses.
The Program Fee and Testing Fees are exclusive of any Taxes. IHV will pay to Red Hat an amount equal to any Taxes arising from or relating to this Agreement, including without limitation, sales, service, use or value-added taxes, which are paid by or are payable by Red Hat. "Taxes" means any form of taxation, levy, duty, customs fee, charge contribution or impost of whatever nature and by whatever authority imposed, include, without limitation, any fine, penalty, surcharge or interest, but excluding any taxes based solely on the net income of Red Hat. If IHV is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due Red Hat, then the sum payable to Red Hat will be increased by the amount necessary so that Red Hat receives an amount equal to the sum it would have received had IHV made no withholdings or deductions.
4.1 License Grant
Red Hat grants IHV a non-exclusive, non-transferable, worldwide, royalty-free, revocable license, with no right to sublicense, to use the Red Hat Mark solely in connection with the sales, marketing and distribution of the Red Hat Certified Hardware as a stand alone product that is not integrated or bundled with Red Hat Enterprise Linux, provided the license grant herein cannot be used in conjunction with hardware that requires third party software pursuant to Section 1.1.1.. This license is granted only to IHV and does not extend to any of IHV's affiliated and/or subsidiary companies. All other usage of the Red Hat Mark is prohibited.
4.2 Use of the Red Hat Mark
IHV agrees to use the Red Hat Mark only as stated in this Agreement and to follow the standards of quality established by Red Hat. IHV agrees not to use the Red Hat Mark in combination with any other trade name, trademark or service mark, except as stated in this Agreement, without the prior written approval of Red Hat. Red Hat reserves the right to terminate this Agreement as a result of any misuse by IHV of the Red Hat Mark. IHV agrees that when using the Red Hat Mark, in any advertising, promotional material or on its website to include the following notice: "[Name of Red Hat trademark] is a registered trademark of Red Hat, Inc. In the U.S. and other countries. Used under license." IHV agrees to adhere to the trademark usage guidelines found at http://www.redhat.com/about/corporate/trademark/guidelines and the Trademark Style Guide for the depiction of the Red Hat Mark. Before any use of the Red Hat Mark, IHV must furnish to Red Hat samples of its web pages, marketing collateral, or any other documents bearing any Red Hat Mark for usage approval to: Red Hat, Inc., Attn: Legal Affairs, 1801 Varsity Drive, Raleigh, NC 27606. IHV agrees to amend the use of the Red Hat Mark if any of the materials are not approved by Red Hat. Red Hat will have ten (10) business days from the date of receipt to approve or object to materials submitted for trademark usage approval. Materials identical to materials that have been previously approved do not require submission for approval.
4.3 Reservation of Rights
All uses of the Red Hat Mark by IHV, including the goodwill therein, inure to the benefit of Red Hat. IHV acquires no right, title or interest in the Red Hat Mark or the goodwill associated with them, other than the right to use the Red Hat Mark according to this Agreement. In accepting this Agreement, IHV acknowledges that as between IHV and Red Hat, Red Hat is the owner of the Red Hat Mark and IHV agrees not to apply to register any marks which include the Red Hat Mark or any trademark, service mark, trade name or derivation confusingly similar to the Red Hat Mark, or to register any domain name containing the Red Hat Mark or a derivative or abbreviation thereof in any country or territory during or after the term of this Agreement. IHV will not challenge Red Hat's registration of the Red Hat Mark, nor assist any one in challenging them. IHV will not take any action in derogation of any of the rights of Red Hat in the Red Hat Mark. At the request of Red Hat, IHV will execute any papers or documents reasonably necessary to protect the rights of Red Hat in the Red Hat Mark and execute and deliver such other documents as may be reasonably requested by Red Hat. The right to use the Red Hat Mark will cease immediately upon the termination of this Agreement, and IHV must immediately discontinue use of the Red Hat Mark. If IHV becomes aware of any possible infringement on the intellectual property rights of Red Hat IHV will use reasonable efforts to notify Red Hat.
IHV will indemnify, defend and hold harmless Red Hat from any and all claims, actions, damages, liabilities, costs and expenses (including reasonable attorney's fees) arising out of or incurred in connection with IHV's breach of Section 4 of this Agreement.
5. Term and Termination
This Agreement will begin on the Effective Date and will continue for a period of twelve (12) months from the Effective Date unless terminated earlier in accordance with this Agreement. This Agreement will automatically renew for successive one (1) year terms unless either party provides written notice of termination no less than thirty (30) days prior to the any anniversary date of this Agreement.
This Agreement may be terminated by either Red Hat or IHV prior to the expiration of the term as follows: (a) by either party upon thirty (30) days' prior written notice; (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, or (c) immediately by Red Hat if IHV 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.
IHV and Red Hat agree to maintain the confidentiality of the proprietary information received by the other party including non-public technical and business information for a period of two (2) years after the termination of this Agreement. This section will not apply to any publicly available or independently developed information.
7. Limitation of Liability and Disclaimer of Damages
7.1 Limitation of Liability
FOR ALL EVENTS AND CIRCUMSTANCES, RED HAT AND ITS AFFILIATES' AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNT THAT IHV PAID TO RED HAT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY.
7.2 Disclaimer of Damages
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL RED HAT OR ITS AFFILIATES BE LIABLE TO IHV OR ITS AFFILIATES FOR: ANY CLAIM BASED UPON A THIRD PARTY CLAIM; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF RED HAT OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Disclaimer of Warranty
RED HAT’S PERFORMANCE UNDER THIS AGREEMENT IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RED HAT, ITS AFFILIATES, DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
9. Governing Law/Consent to Jurisdiction
The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United States and of the State of New York without giving effect to the conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. IHV hereby consents to jurisdiction of both the state or federal courts of Wake County, North Carolina. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted.
Notices must be in English, in writing, and will be deemed given when delivered by hand or five (5) days after being sent to the respective addresses indicated on the first page hereof or to the facsimile numbers set forth below, using a method that provides for positive confirmation of delivery; provided that any notice from IHV to Red Hat includes a copy sent to: Red Hat, Inc., Attention: General Counsel, 1801 Varsity Drive, Raleigh, North Carolina 27606; Facsimile: (919) 754-3704.
This Agreement is binding on the parties to this Agreement, and nothing in this Agreement confers upon any other person or entity any right, benefit or remedy of any nature whatsoever, save for the parties’ affiliates as expressly provided in Section 7. This Agreement is assignable by either party only with the other party's prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, Red Hat may assign this Agreement to its affiliate, subsidiary or pursuant to a merger or a sale of all or substantially all of such party's assets or stock without the prior approval of IHV.
(10.3) Export Responsibilities.
Red Hat may supply IHV with technical data that may be subject to export control restrictions. Red Hat will not be responsible for compliance by IHV with applicable export obligations or requirements for such technical data. IHV agrees to comply with all applicable export control restrictions.
(10.4) Dispute Resolution.
If IHV is not satisfied with the Services provided by Red Hat, IHV 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 IHV before commencing any proceeding. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
All headings contained in this Agreement are inserted for identification and convenience, and will not be deemed part of this Agreement for purposes of interpretation.
If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement; provided, however, that this shall not apply if Section 3 cannot be modified to be valid and enforceable.
The delay or failure of either party to exercise any rights hereunder will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.
(10.8) Complete Agreement.
This Agreement constitutes the exclusive terms and conditions with respect to the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by IHV to place orders or otherwise effect transactions hereunder. This Agreement represents the final, complete and exclusive statement of the agreement between the parties with respect to subject matter hereof and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter hereof are merged therein. Any claim relating to the provision of the Services by Red Hat, its affiliates and their personnel will be made against Red Hat alone.
This Agreement may not be amended, supplemented or modified except by a written instrument signed by the parties hereto, which instrument makes specific reference to this Agreement.
(10.10) Waiver of Jury Trial.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.