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RED HAT READY APPLICATION AGREEMENT

This Red Hat Ready™ Application Agreement (the "Agreement") is between Red Hat, Inc. ("Red Hat") and the independent software vendor that accepts this Agreement ("ISV"). The effective date of this Agreement is the earlier of the date that the ISV accepts this Agreement or the date that the ISV uses the Red Hat Marks (the "Effective Date").

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE RED HAT MARKS (DEFINED BELOW). BY USING THE RED HAT MARKS, ISV 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 ISV DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN DO NOT USE THE RED HAT MARKS.

Purpose. ISV wishes to confirm the general availability of its respective software applications and its willingness to support such applications if and when they are deployed at our mutual customers running Red Hat-branded technologies, including Red Hat Enterprise Linux, Red Hat Desktop, JBoss Application Platform, GFS, and other Red Hat-branded software. In exchange, Red Hat will provide ISV 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. Red Hat Software Catalog Guidelines. Red Hat has established certain criteria, set forth in Exhibit A hereto (the "Listing Criteria"), to which ISV must continuously adhere in order for its applicable software applications to be listed as compatible with the applicable Red Hat software as indicated in Exhibit A. For purposes of this Agreement, a software application that adheres to the Listing Criteria is called a "Red Hat Ready Application" with respect to the associated Red Hat software with which the application is compatible. In the event that the ISV fails to support an end customer running a Red Hat Ready Application with the applicable Red Hat software, Red Hat may, in its sole discretion, remove this application from the Red Hat Software Catalog and require that ISV immediately cease use of the associated Red Hat Mark (as set forth in Exhibit A) with respect to such application.
• 2. Marketing Obligations
  • 2.1 Listing on redhat.com. Red Hat will place ISV's contact information and a description of each Red Hat Ready Application in Red Hat's Software Catalog, as it exists from time-to-time, located on its website. Red Hat may also provide information regarding each Red Hat Ready Application in any related printed marketing collateral. ISV agrees to allow Red Hat to market such information in any forum in which Red Hat is marketing certified software applications.
  • 2.2 Use of the Red Hat Mark. ISV may use the Red Hat trademark(s) indicated in Exhibit A (the "Red Hat Mark(s)") that are associated with the Red Hat-branded software with which each Red Hat Ready Application is compatible. ISV will not use any other Red Hat trademarks, including but not limited to the Shadowman, when marketing Red Hat Ready Applications.
• 3. Trademarks
  • 3.1 License Grant. Red Hat grants ISV a non-exclusive, non-transferable, worldwide, royalty-free, revocable license, with no right to sublicense, to use the applicable Red Hat Marks solely in connection with the sales, marketing and distribution of the Red Hat Ready Application as a stand alone product that is not integrated or bundled with Red Hat-branded software. This license is granted only to ISV and does not extend to any of ISV's affiliated and/or subsidiary companies. All other usage of the Red Hat Marks is prohibited.
  • 3.2 Use of the Red Hat Mark. ISV agrees to use the Red Hat Marks only as stated in this Agreement and to follow the standards of quality established by Red Hat from time-to-time. ISV agrees not to use the Red Hat Marks 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 ISV of the Red Hat Marks. ISV agrees that when using the Red Hat Marks, 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." ISV 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 Marks. Before any use of the Red Hat Marks, ISV 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. ISV agrees to amend the use of the Red Hat Marks 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.
  • 3.3 Reservation of Rights. All uses of the Red Hat Marks by ISV, including the goodwill therein, inure to the benefit of Red Hat. ISV acquires no right, title or interest in the Red Hat Marks or the goodwill associated with them, other than the right to use the Red Hat Marks according to this Agreement. In accepting this Agreement, ISV acknowledges that as between ISV and Red Hat, Red Hat is the owner of the Red Hat Marks and ISV agrees not to apply to register any marks which include the Red Hat Marks or any trademark, service mark, trade name or derivation confusingly similar to the Red Hat Marks, or to register any domain name containing the Red Hat Marks or a derivative or abbreviation thereof in any country or territory during or after the term of this Agreement. ISV will not challenge Red Hat's registration of the Red Hat Marks, nor assist any one in challenging them. ISV will not take any action in derogation of any of the rights of Red Hat in the Red Hat Marks. At the request of Red Hat, ISV will execute any papers or documents reasonably necessary to protect the rights of Red Hat in the Red Hat Marks and execute and deliver such other documents as may be reasonably requested by Red Hat. The right to use the Red Hat Marks will cease immediately upon the termination of this Agreement, and ISV must immediately discontinue use of the Red Hat Marks. If ISV becomes aware of any possible infringement on the intellectual property rights of Red Hat, ISV will use reasonable efforts to promptly notify Red Hat.
  • 3.4 Indemnity. ISV 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 ISV's breach of Section 3 of this Agreement.
• 4. Term and Termination
  • 4.1 Term. 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.
  • 4.2 Termination. This Agreement may be terminated by either Red Hat or ISV 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 ISV 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.
• 5. Confidentiality ISV 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.
• 6. Limitation of Liability and Disclaimer of Damages
  • 6.1 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 GREATER OF (A) THE AMOUNT THAT ISV PAID TO RED HAT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY AND (B) $2,000.00.
  • 6.2 Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL RED HAT OR ITS AFFILIATES BE LIABLE TO ISV 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.
• 7. 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.
• 8. 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. ISV hereby consents to jurisdiction of both the state or federal courts of North Carolina, and ISV agrees that any disputes under this agreement shall be brought in the state or federal courts of 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.
• 9. Miscellaneous (9.1) Notices. 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 ISV 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. (9.2) Assignment. 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 8. 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 ISV. (9.3) Export Responsibilities. Red Hat may supply ISV with technical data that may be subject to export control restrictions. Red Hat will not be responsible for compliance by ISV with applicable export obligations or requirements for such technical data. ISV agrees to comply with all applicable export control restrictions. (9.4) Dispute Resolution. If ISV is not satisfied with the Services provided by Red Hat, ISV 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 ISV 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. (9.5) Headings. 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. (9.6) Severability. 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. (9.7) Waiver. 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. (9.8) 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 ISV 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. (9.9) Amendment. 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. (9.10) 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.

EXHIBIT A

Red Hat Software Catalog Guidelines

The Red Hat Ready Software Catalog Guidelines for applications are intended to encourage interoperability between applications on the Red Hat family of products, including the Red Hat Enterprise Linux family as well as the JBoss family of products, and assure that the joint solution of ISV applications running together with the applicable Red Hat software is supported for our mutual customers. Red Hat does not guarantee interoperability, nor does Red Hat provide any support for third party applications. Red Hat reserves the right to change these guidelines without notice.

After the applicable technical and business guidelines set forth below are met with respect to the indicated Red Hat software, an application is eligible for inclusion in the Red Hat Software Catalog. Red Hat, however, at its sole discretion, retains the right to determine whether an ISV or a particular application appears in the Red Hat Software Catalog.