Red Hat Linux Advanced Server and Services Agreement

This Red Hat Linux Advanced Server and Services Agreement (the "Agreement" is between Red Hat, Inc. ("Red Hat") and any purchaser or user ("Customer") of Red Hat Linux Advanced Server or Services (as defined below).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING RED HAT LINUX ADVANCED SERVER OR SERVICES. BY USING OR PURCHASING RED HAT LINUX ADVANCED SERVER OR SERVICES, CUSTOMER 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 CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN DO NOT USE OR PURCHASE RED HAT LINUX ADVANCED SERVER OR SERVICES.

The Effective Date of this Agreement is the earlier of the date that the Customer accepts this Agreement or the date that the Customer uses Red Hat Linux Advanced Server or the Services.

A. General Terms and Conditions of Service

Subject to the terms and conditions of this Agreement and upon payment in full of those total fees for the Services, Red Hat will deliver to Customer (a) a number of copies of Red Hat Linux Advanced Server installation CD’s, documentation CD’s and documentation manuals equal to the number of Installed Servers (as defined below in this paragraph), (b) a subscription for one (1) year of RHN Service (as defined in Section B below) for each Installed Server, and (c) one year of Software Services (as defined in Section C below) for each Installed Server. The term “Services” as used in this Agreement means, collectively, the RHN Service and the Software Services. The term “Installed Servers” means the number of servers on which Customer installs Red Hat Linux Advanced Server. The initial number of Installed Servers is the number of copies of Advanced Server that Customer purchases. Red Hat Linux Advanced Server is provided subject to the end user license agreement set forth on Red Hat's website, currently located at http://www.redhat.com/licenses/advancedservereula.html.

1. TERM AND TERMINATION

1.1 Term.   The term of this Agreement shall be for the duration of all Services provided under this Agreement. The initial term for Services shall commence on the effective date of this Agreement and shall continue for a period of one (1) year. Thereafter, the term for Services shall renew for successive terms of one (1) year each unless either party gives written notice to the other of its intention not to renew at least sixty (60) days prior to the commencement of the next term; provided, however, Customer shall have the right to terminate this Agreement at any time after the first year by giving sixty (60) days prior written notice of termination to Red Hat. Customer shall remain obligated for all fees through the date of termination, and to the extent that Customer has prepaid fees beyond the date of termination, Red Hat shall refund such prepaid fees to Customer within (30) days of termination.

1.2 Termination for Breach.   Red Hat may terminate this Agreement (a) in the event Customer fails to pay for Services when due, (b) in the event Customer commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach, or (c) as otherwise provided in this Agreement. Customer may terminate this Agreement in the event Red Hat commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach.

2. PRICING, INVOICING AND TAXES.   Customer agrees to provide Red Hat with accurate and complete billing information (including legal name, address, telephone number, and billing or credit information). Customer will report to Red Hat all changes to this information within thirty (30) days of the change. Red Hat reserves the right to suspend or cancel Services for non-payment. All fees are stated and must be paid in United States Dollars. If Customer is paying by credit card, then Customer authorizes Red Hat to bill Customer's credit card for the Services for the initial term and for the amount due at the time of renewal. If Red Hat has approved Customer to be invoiced, then Red Hat will invoice Customer for the total fees for the Services at the time of execution of this Agreement, and payment shall be due within thirty (30) days of the invoice date and any additional fees that Customer is required to pay under this Agreement shall be due within thirty (30) days of the invoice date. All prices and rates quoted by Red Hat are exclusive of any foreign, federal, state, or local sales, excise, use, or similar taxes. Customer agrees to pay all such taxes, when applicable, regardless of whether such taxes are originally charged on Customer's credit card or appear on Red Hat’s original invoice, or are later levied on Red Hat or Customer by a taxing authority, excluding any taxes levied solely on the net taxable income of Red Hat. Any renewal of this Agreement will be at Red Hat’s list prices in effect ninety (90) days prior to renewal; provided, however, the first such renewal shall be at the same price per Installed Server paid during the initial term.

3. PAYMENT.   Except in the case of breach of this Agreement by Red Hat or if this Agreement is terminated as provided in Section 1.1 hereof, any and all payments of amounts due under this Agreement are non-refundable. In the event Customer fails to make payment to Red Hat in the manner provided by this Agreement, Red Hat’s remedies include (a) suspending Services until Red Hat receives full payment from Customer for all fees, including late fees and interest, due Red Hat, or (b) terminating this Agreement without notice.

4. REPORTING AND AUDIT.   If Customer wishes to increase the number of Installed Servers, then Customer will purchase from Red Hat additional Services for each additional Installed Server. During the term of this Agreement and for one (1) year thereafter, Customer expressly grants to Red Hat the right to audit Customer’s facilities and records from time to time in order to verify Customer’s compliance with the terms and conditions of this Agreement. Any such audit shall only take place during Customer’s normal business hours and upon no less than ten (10) days prior written notice from Red Hat. Red Hat shall conduct no more than one such audit in any twelve-month period except for the express purpose of assuring compliance by Customer where non-compliance has been established in a prior audit. Red Hat shall give Customer written notice of any non-compliance, and Customer shall have fifteen (15) days from the date of such notice in which to make payment to Red Hat for any additional Installed Servers, such payments to be determined by the number of additional Installed Servers multiplied by the applicable annual fee for Service per server. If Customer is found to have underreported the number of Installed Server by more than five percent (5%), Customer shall, in addition to the annual fee for Service per Installed Server, pay a penalty equal to twenty percent (20%) of the underreported fees.

5. NON-TRANSFERABLE.   This Agreement, and all Services provided by Red Hat pursuant to this Agreement, may not be transferred, assigned or distributed without the prior written consent of Red Hat. Any attempt to transfer, assign or distribute without Red Hat's prior written consent shall terminate this Agreement, and Red Hat shall have no further obligation hereunder.

6. PUBLICITY.   Red Hat shall have the right to identify Customer as a subscriber to Red Hat Linux Advanced Server, provided, however, that Red Hat shall obtain Customer’s written consent before publishing such information in either electronic or print media.

7. WARRANTY.   Except as specifically stated in this Agreement, Red Hat Linux Advanced Server, the Services, any Software Program provided by means of the RHN Service, any Proxy Server, Satellite Server or the RHN Code are provided and LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. RED HAT DOES NOT GUARANTEE THAT THE USE OF RED HAT LINUX ADVANCED SERVER, RHN SERVICE, THE SOFTWARE PROGRAMS, THE PROXY SERVER, SATELLITE OR THE RHN CODE WILL NOT BE INTERRUPTED OR ERROR FREE.

8. LIMITATION OF LIABILITY.   Neither party shall be in breach of this Agreement due to failure of performance that arises out of causes beyond its reasonable control. To the maximum extent permitted by applicable law, IN NO EVENT WILL RED HAT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR RED HAT’S PERFORMANCE INCLUDING WITHOUT LIMITATION (A) RED HAT LINUX ADVANCED SERVER, THE SERVICES, THE SOFTWARE PROGRAMS, ANY PROXY SERVER, SATELLITE OR THE RHN CODE, (B) ANY INTERRUPTION OF USE OF THE RHN SERVICE, THE SOFTWARE PROGRAMS, THE PROXY SERVER, SATELLITE OR THE RHN CODE OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF DATA, EVEN IF RED HAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RED HAT’S LIABILITY HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT THAT DOES NOT EXCEED THE AMOUNT THAT CUSTOMER PAID TO RED HAT UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE MONTHS.

9. CONFIDENTIALITY.   Customer 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 shall not apply to any publicly available or independently developed information.

10. ENTIRE AGREEMENT.   This Agreement shall constitute the exclusive terms and conditions with respect to the purchases of products or Services under this Agreement by Customer from Red Hat, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer in such transactions. This Agreement contains the final, complete and exclusive statement of the agreement between the parties with respect to the transactions contemplated herein and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter herein are merged herein. This Agreement may not be amended, supplemented or modified (or any right or power granted hereunder waived) except by written instrument signed by authorized officers of the parties hereto (or in the case of a waiver, signed by the party to be bound), which instrument makes specific reference to this Agreement.

11. EXPORT CONTROL   As required by U.S. law, you represent and warrant that you: (a) understand that certain of the Software Programs are subject to export controls under the U.S. Commerce Department's Export Administration Regulations ("EAR"); (b) are not located in a prohibited destination country under the EAR or U.S. sanctions regulations (currently Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria); (c) will not export, re-export, or transfer the Software Programs to any prohibited destination, entity, or individual without the necessary export license(s) or authorization(s) from the U.S. Government; (d) will not use or transfer the Software Programs for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license; (e) understand and agree that if you are in the United States and export or transfer the Software Programs to eligible end users, you will, as required by EAR Section 741.17(e), submit semi-annual reports to the Commerce Department's Bureau of Industry & Security (BIS), which include the name and address (including country) of each transferee; and (f) understand that countries other than the United States may restrict the import, use, or export of encryption products and that you shall be solely responsible for compliance with any such import, use, or export restrictions.

12. GENERAL.   This Agreement shall be governed by and construed in accordance with the substantive laws of the State of North Carolina, U.S.A., without regard to choice of law provisions except that the United Nations Convention on the International Sale of Goods shall not apply. 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. Each party warrants that the person signing this Agreement is authorized to bind said party. This Agreement, including all schedules attached hereto, constitutes the entire understanding of the parties with respect to the subject matter hereof. 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. 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 provision of this Agreement which may be reasonably expected to survive the termination of this Agreement, including, but not limited to, the section entitled No Warranty/ Limitation of Liability, shall survive such termination. Any notice to be given pursuant to this Agreement, including any notice of change of address for notice, shall be deemed given when sent to Red Hat to General Counsel, Red Hat, Inc., 1801 Varsity Drive, Raleigh, N.C. 27606 and for Customer as set forth in the cover page to this Agreement (a) three (3) business days after being deposited with the U.S. Postal Service, postage prepaid, first class, certified, return receipt requested, (b) upon receipt when delivered in person, or (c) two (2) business days after being deposited with a reputable international overnight delivery service. In the event of a dispute between the parties regarding payment under this Agreement, the non-prevailing party shall pay the reasonable attorney’s fees of the prevailing party.

B. RHN Services

Red Hat Network Advanced Server Channel (including grouping functionality) is an Internet solution for managing one or more Red Hat Linux Advanced Server systems (the "RHN Service").

1. USE AND SUBSCRIPTION CONDITIONS
Customer must be either an entity or at least thirteen (13) years old to use or entitle a system with the RHN Service. Customer is responsible for securing Internet access to use the RHN Service. Red Hat reserves the right to modify the RHN Service at any time and for any reason or no reason.

2. PASSWORD AND SECURITY
Customer will create a user name, password, and account designation at the time Customer activates the RHN Service for each Installed Server or each cluster of Installed Servers. It is the Customer's duty to keep this user information confidential. Customer must notify Red Hat immediately upon discovering any unauthorized use of Customer’s account. Customer must purchase a subscription to RHN Service for each Installed Server to entitle such system to receive RHN Service. The RHN Service may be used only for the benefit of the Customer and only for the Installed Servers with subscriptions. Customer may not use one subscription for RHN Services for more than one Installed Server concurrently. Any unauthorized use of the RHN Service will be deemed to be a material breach of this Agreement.

3. END USER LICENSE AGREEMENT
All of the Software Programs provided by means of the RHN Service (the "Software Programs") are individually written and copyrighted, and are subject to individual end user license Agreements (each, a "EULA") that are applicable to the Software Programs. Customer agrees to review, and that it is subject to, each such EULA. All EULAs pertaining specifically to Red Hat Linux Advanced Server permit Customer to copy, modify and redistribute Red Hat Linux Advanced Server, in both source code and binary code forms. Nothing in this Agreement limits Customer's rights under, or grants Customer rights that supersede, any applicable EULA.

The Software Programs provided by means of the RHN Service, including source code, documentation, appearance, structure and organization are proprietary products of Red Hat and others and are protected by copyright and other laws. Title to these Software Programs, or to any copy, modification or merged portion of the Software Programs, shall at all times remain with the aforementioned, subject to the terms and conditions of the applicable EULA related to the Software Programs under consideration.

The "Red Hat" trademark and Red Hat's "Shadowman" logo are registered trademarks of Red Hat in the United States and other countries. Customer is not permitted to distribute the Software Programs utilizing Red Hat's trademarks.

4. PROVISION APPLICABLE TO PROXY SERVER OR SATELLITE
If Customer subscribes to Red Hat Network Proxy Server or Red Hat Network Satellite ("Proxy Server" or "Satellite") as an upgrade to Red Hat Network, then the following provisions apply to that subscription. Contingent upon credit approval by Red Hat, Red Hat will provide the RHN Service to Customer by means of one or more designated servers owned or leased by Customer, approved by Red Hat and located at Customer's site (the "RHN Servers"). To provide Proxy Server or Satellite, the Red Hat Network Proxy Server and/or the Satellite Code (the "RHN Code") will be installed onto the RHN Servers solely for the purpose of allowing Customer to receive the RHN Service during the period that the Customer subscribes to RHN Service (the "Subscription Period"). Customer may use the RHN Code only on the RHN Servers and, upon Red Hat's written approval, on one additional server for backup purposes. Customer may use the RHN Code only to receive the RHN Services for systems for which Customer has purchased a subscription for RHN Service. Customer may not use the RHN Code for any other purpose. Customer may not transfer or assign the RHN Code or any media containing the RHN Code. Customer may not modify, copy, make derivative works of, distribute, reverse engineer, decompile or export the RHN Code. During the subscription period, Customer agrees that Red Hat shall have such electronic or physical access to the RHN Servers as Red Hat reasonably requests to enable Red Hat to deliver the RHN Service and to update or enhance the RHN Code as Red Hat deems necessary, in its sole discretion.

The RHN Code and any physical media containing the RHN Code and all intellectual property rights contained therein, and all copies thereof made by Customer (if authorized by Red Hat) are the exclusive property of Red Hat and a valuable trade secret of Red Hat. Upon termination of the subscription period, Customer immediately will destroy all copies of the RHN Code in its possession (including any RHN Code installed on the RHN Servers). The RHN Code (and any media containing the RHN Code) is the confidential property of Red Hat and Customer shall not use or disclose any information regarding the RHN Code, except as permitted by this Agreement.

Availability – If Proxy Server or Satellite service is purchased under this Agreement, then Customer is entitled to seek support services for Proxy Server or Satellite covered by this Agreement in the specified geography during the hours of service specified at http://redhat.com/support/service/GSS_policy.html during the term of this Agreement.

Support Services for Proxy Server – If Proxy Server is purchased, support for Proxy Server includes the services specified at http://redhat.com/support/service/sla/proxy/ for the covered geography.

Support Services for Satellite - If Satellite is purchased, support for Satellite includes the services specified at http://redhat.com/support/service/sla/sat/ for the covered geography.

Response Guidelines – Red Hat will use commercially reasonable efforts to provide a response within the response guideline period set forth at the table found at at http://redhat.com/support/service/GSS_hours.html.

The support service definitions and descriptions and response guidelines applicable to this Agreement are those posted at the time of the making of this Agreement, or in the case of a renewal, on the effective date of the renewal.

C. Software Services Terms and Conditions

Red Hat will provide the Software Services subject to the terms and conditions set forth below. In this Schedule and other Schedules pertaining to Software Services, the following defined terms are used:

Platform - means the combination of the CPU and other hardware a computer system uses, its exact operating system including the version number, the compiler required, the type of libraries (e.g. libc, glibc), and the type of crypto library available (e.g. libcrypt, pam). Changes to any of these components which break binary compatibility, or prohibit functioning (including recompiling) of software, unless modified by Red Hat, constitute a different platform and may disqualify it from receiving Software Services. Should a platform be discontinued during the term of this Agreement, Red Hat will have the option to continue supporting Customer on that platform or to issue Customer a pro-rata refund.

Software - Red Hat Linux Advanced Server.

Software Services - means the Basic Red Hat Linux Advanced Server Services, or , if purchased, the Standard Red Hat Linux Advanced Server Services or Premium Red Hat Linux Advanced Server Services to be provided by Red Hat as specifically set forth below.

Supported Hardware or Platform - means hardware or a platform that functions with the software and components contemplated for use with the software. Information regarding the Red Hat Linux supportability status of hardware systems and components, as revised from time-to time, can be found at http://hardware.redhat.com/hcl. Additional Red Hat support policies that apply to the Software Services may be viewed at http://www.redhat.com/support/service/GSS_policy.html.

1  CUSTOMER OBLIGATIONS

1.1 Entitlement.   In order to access and utilize Software Services, Customer will be required to provide Customer’s user name, Red Hat Network machine name or Red Hat Network system ID at the time of service.

1.2 Customer’s Computer System.   Customer will be responsible for performing operations on Customer's computer system and Red Hat shall have no responsibility to perform operations on Customer's computer system. Customer acknowledges that Red Hat’s ability to perform certain Software Services may be conditioned upon access to certain Customer information and access to Customer's computer system as reasonably requested by Red Hat. Such information may include, but is not limited to, the type of hardware Customer is using, a description of the problem for which Customer seeks Software Services, and additional software Customer is using that falls outside the Software Services scope of coverage. Customer understands and agrees that the completeness and accuracy of the information Customer provides to Red Hat may affect Red Hat's ability to provide Software Services. The Software Services purchased by Customer are intended for use only for the benefit of the Customer and only for the Installed Servers with subscriptions. Customer may not use one subscription for Software Services for more than one Installed Server. Any unauthorized use of the Software Services will be deemed to be a material breach of this Agreement.

1.3 Designated Software Services Contact.   Red Hat will provide Software Services to Customer only by communication with the Customer’s designated technical contact or contacts (the "Contact"). Customer is entitled to the number of Contacts set forth in the Customer Contacts table in this Section C. Customer may purchase additional Contacts for a fee.

1.4 Contact Requirements.   The parties agree that the Software Services provided by Red Hat under this Agreement are intended to be provided to system administrators performing the daily hands-on administration of the software on Customer's machines. At least one of the Contacts shall be a system administrator. Each Contact must be an individual. Customer shall make reasonable efforts to maintain consistent designated Customer Contact for the term of this Agreement. Customer may not use a single Contact to act as a mere forwarding service for other personnel. The Contact may not use Software Services on the basis of this Agreement to benefit any person or entity other than the Customer. Each Contact must have read and/or write access to all necessary files. Each Contact must possess good English language communication skills and the relevant technical knowledge necessary to assist Red Hat in performing the Software Services contemplated under this Agreement. This knowledge includes familiarity with the Software, Platform and/or hardware associated therewith.

1.5 Change of Contact.   Customer shall use commercially reasonable efforts to maintain consistent Contacts during the term of this Agreement. Customer may change Contacts if the person previously designated to be the Contact has terminated employment or is no longer involved with day-to-day administration of the Platform. Customer must notify Red Hat of any change in Contacts in writing. Customer shall allow one calendar week for processing by Red Hat of any changes in Contacts. Red Hat reserves the right to approve changes to Contacts, such approval not to be unreasonably withheld.

1.6 Support Portal.   The method of initiation of Service Requests is through the web-based Support Portal located at Red Hat’s main web site, www.redhat.com/apps/support. Customer’s Contact personnel, as identified to Red Hat, are entitled to open a secure login to the Support Portal and use the Ticket Manager Application to submit a Service Request for any covered Service. Each Submitted Service Request is given a unique identification number (ID). Services logged through the Support Portal are managed using the English language.

2  RED HAT OBLIGATIONS

2.1 Scope of Coverage.   Red Hat will provide the Software Services specified herein during the hours specified below. Red Hat may, at its discretion, decline to provide Software Services for Software that has been modified or changed by Customer in any way, except as directed by Red Hat. Red Hat will provide Software Services for Supported Hardware and Platforms only. Red Hat will not be obligated to provide Software Services for any specific release of the Software for more than of three years following the release date. Red Hat will only provide Software Services for those Installed Servers for which Customer has subscribed under this Agreement.

2.2 Basic Red Hat Linux Advanced Server Services.   If Basic Red Hat Linux Advanced Server Services are purchased, then the Software Services for covered Installed Servers include Standard Installation Support and Basic Configuration Support, as those terms are defined at www.redhat.com/support/service/sla/rhel4.html.

Standard Red Hat Linux Advanced Server Services.   If Standard Red Hat Linux Advanced Server Services are purchased, then the Software Services for covered Installed Servers include Standard Installation Support, Basic Configuration Support, Advanced Configuration Support, Basic Systems Response, and Correction of Software Defects, as those terms are defined and described at www.redhat.com/support/service/sla/rhel4.html.

Premium Red Hat Linux Advanced Server Services.   If Premium Red Hat Linux Advanced Server Services are purchased, then the Software Services for covered Installed Servers include all of the Standard Software Services and Systems Administration Support, Expert Advice, and 24x7 Emergency Support for Security Issues, as those terms are defined and described at www.redhat.com/support/service/sla/rhel4.html

The Software Service definitions and descriptions that apply are those posted at the time of the making of this Agreement, or in the case of renewals, at the effective date of renewal.

2.3 Response Guidelines.   A response to a request for Software Services shall consist of receipt of and acknowledgment by Red Hat of Customer's request for Software Services. Red Hat will use commercially reasonable efforts to provide a response within the response guideline period set forth in the table found at www.redhat.com/services/techsupport/production/AS_hours.html. Customer acknowledges that a response may not include resolution for all requests for Software Services. Red Hat will use commercially reasonable efforts to provide answers and resolve Customer's requests for Software Services. However, Customer 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 Software Services. Red Hat makes no promises, guarantees, or assurances of any kind that it will be able to resolve all Customer Software Services requests.

Table for Number of Contacts: