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SOFTWARE LICENSING AGREEMENT
CONTRACT #___________
THIS SOFTWARE LICENSE AGREEMENT is entered into as of this 26th day of January,
2000 (hereinafter "Effective Date") by and between Dell Products L.P.
(hereinafter "Dell") with its principal place of business at One Dell Way,
Round Rock, Texas 78682, and Raid Power Services, Inc, a corporation having a
principal place of business at 3 Princess Road, Lawrenceville, N.J. 08648
(hereinafter "RP").
1.0 DEFINITIONS
1.1 AGREEMENT shall mean this Software License Agreement and its
Supplement.
1.2 ERROR shall mean the failure of the License Product to conform to its
accompanying documentation which failure can be reproduced by RP or by
Dell and demonstrated to RP.
1.3 LICENSED PRODUCT(S) shall mean: (i) all or any part of the software
and documentation listed in the Supplement to this Software License
Agreement, (ii) all Error corrections and bug fixes made by RP during
the term of this Agreement (individually a "Fix" and collectively
"Fixes") and, (iii) all improvements, modifications, alterations,
revisions, extensions, upgrades, national language versions and/or
enhancements to the software and/or documentation other than Fixes
made by RP and provided to Dell during the term of this Agreement
(hereinafter "Updates").
1.4 FCS shall mean Dell's first shipment of the production level version
of a Licensed Product to customers for revenue.
1.5 SUPPLEMENT shall mean the supplement executed under this Software
License Agreement. The Supplement shall describe the Licensed
Product(s) and may include additional terms and conditions such as
compensation, delivery schedules, technical contacts and other
information related to the Licensed Product(s). The terms and
conditions of this Software License Agreement shall apply to the
Supplement.
2.0 OBJECT CODE LICENSE WITH SOURCE CODE ESCROW PROVISIONS
2.1 RP hereby grants to Dell, during the term of this Agreement, a
non-exclusive (except as described in the Supplement, Section 5.0),
worldwide, right and license, to: (i) use, make, execute, reproduce,
display, and perform the Licensed Product(s), in object code form,
(ii) distribute, license, and sublicense, the Licensed Product(s), in
object code form, as part of, in conjunction with, or for use with,
Dell systems, which may include merging or abridging the object code
with software code owned by Dell and modifying script files included
with the object code (including, but not limited to electronic
download of the Licensed Product(s) from Dell websites for the
purposes described herein) and (iii) authorize, license and sublicense
third parties to do any, some or all of the foregoing (a "Third
Party"). Dell and each Third Party will offer the Licensed Product(s)
to end users pursuant to Dell's or RP's end user license agreement or
the like, as updated from time to time, a copy of which is attached
hereto as Exhibit B. It is RP's intent to grant to Dell all necessary
rights and licenses under any copyrights, patents, patent
applications, trade secrets and other intellectual property rights as
are necessary (but only to the extent necessary) to enable Dell to
exercise the foregoing rights and licenses.
2.2 The above grant includes, without limitation, the right and license
to, in accordance with RP's published trademark guidelines: (i) use
RP's trade names, product names and trademarks in connection with the
marketing and distribution of Licensed Product(s) and (ii) all
pictorial, graphic and audio visual works including icons, screens and
characters created as a result of execution of the Licensed
Product(s). RP grants Dell the right to establish Dell's own branding
of the Licensed Product(s).
2.3 Upon Dell's request, RP agrees to place into escrow with a mutually
agreeable third party escrow agent the Licensed Product(s), in source
code form, and all build tools and other materials owned by RP which
are
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necessary to enable Dell to maintain, service and manufacture the
Licensed Product(s) in object code form ("hereinafter Escrow
Materials"). Dell shall be responsible for paying the escrow agent's
fees. Dell agrees not to exercise its license to the Escrow Materials
set forth below unless and until the Escrow Materials are released to
Dell by the escrow agent. The escrow agent may only release the Escrow
Materials to Dell under the following circumstances which occur during
the term of the Agreement: (i) RP fails to meet its maintenance and
support obligations under this Agreement, after seven (7) days notice
to RP, provided that RP has not cured the failure during such seven
(7) day period, (ii) RP becomes insolvent, (iii) a claim of bankruptcy
is filed by or on behalf of RP, (iv) RP makes an assignment for the
benefit of a creditor, (v) subject to Section 11.3, transfer by RP of
any of the Intellectual Property that is the subject of this
Agreement, whether by operation of law or otherwise, to any of the
parties on the "Exclusivity List" stated in Section 5.0 of the
Supplement, or (vi) RP ceases to do business in the normal course.
2.4 Effective upon the release of the Escrow Materials, RP hereby grants
to Dell, during the term of this Agreement, a non-exclusive (except as
described in the Supplement, Section 5.0), worldwide, right and
license to internally: (i) use, execute, reproduce, display, perform,
and prepare derivative works of, the source code for the Licensed
Products, for the purposes of enabling Dell to maintain, service,
enhance, improve and manufacture the Licensed Product(s) and
distribute the object code versions of the modified source code as
part of the Licensed Products, and (ii) authorize, license and
sublicense third parties to do any, some or all of the foregoing on
Dell's behalf (provided such third parties execute appropriate
agreements to protect the confidentiality and proprietary nature of
the source code). It is RP's intent to grant to Dell all necessary
rights and licenses under any copyrights, patents, patent
applications, trade secrets and other intellectual property rights as
are necessary (but only to the extent necessary) to enable Dell to
exercise the foregoing rights and licenses. Notwithstanding the
release of the Escrowed Materials, Dell shall continue to pay
royalties as provided herein.
2.5 Except as provided in this Agreement, Dell shall distribute the
Licensed Product only in its original form and shall not modify,
disassemble, recreate, copy, decompile, reverse engineer or generate
the Licensed Products or any portion thereof, nor shall it include any
part of the Licensed Products in its original form or in a derivative
form, in any other product or software program.
3.0 COMPENSATION; PER COPY ROYALTIES
3.1 Dell will pay RP a per copy royalty as set forth in the Supplement for
each copy of the Licensed Product(s) distributed by Dell for
revenue. ***
3.2 The per copy royalties and the royalties for maintenance and support
set forth in the Supplement represent Dell's only financial
obligations under this Agreement and includes all costs and fees. All
payments shall be made in United States currency. RP acknowledges that
there is no minimum aggregate royalty due under this Agreement and
that any royalties received will be based solely on the criteria set
forth above. RP acknowledges and agrees that Dell has the right to
withhold any applicable taxes from any royalties due under this
Agreement if required by any government agency.
3.3 Upon request, Dell shall submit royalty reports within forty-five (45)
days after the end of Dell's fiscal quarters. For the purposes of
royalty reporting, as an example, Dell's fiscal quarters may be:
Quarter 1 - February 1-April 30, Quarter 2 - May 1-July 31, Quarter 3
- August 1-October 31, and Quarter 4 - November 1-January 31.
3.4 A nationally recognized accounting organization retained by RP and
acceptable to Dell may have access to those records maintained by Dell
that are necessary to determine whether Dell has paid the appropriate
royalties hereunder. Dell must receive at least sixty (60) or more
days of advance written notice of RP's intent to audit. Such audit may
only take place upon sixty (60) days written notice, during regular
business hours and no more than once per calendar year. Only three (3)
years of Dell records may be accessed from the date of audit, unless
there is a substantial discrepancy which may affect additional year
records. All
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records accessed during the audit shall be deemed Dell confidential
information and will be treated as such in accordance with the
confidentiality agreement in place between the parties. If no such
agreement is in place, the parties will negotiate in good faith the
terms of such an agreement.
3.5 If the parties discover and agree that Dell has overpaid RP, RP shall
refund the amount of the overpayment to Dell within forty-five (45)
days after receipt of an invoice. If the parties discover and agree
that Dell has underpaid RP, Dell will pay RP the amount of the
underpayment within forty-five (45) days after receipt of an invoice
and, if the underpayment is more than fifteen percent (15%) of the
amount actually paid to RP, Dell shall reimburse RP for the costs of
the audit.
4.0 PRE-DELIVERY TESTING, DELIVERY, ACCEPTANCE, AND DEVELOPMENTS
4.1 Prior to delivery, RP shall perform all testing necessary to ensure
that the Licensed Product(s) comply with its written specifications
and are compatible with Dell systems. RP shall appoint a designated
systems engineer who shall be available to provided reasonable support
to Dell in all areas relating to the Licensed Product(s). Such
designated systems engineer will work with Dell on any modifications
to the Licensed Product(s) that the parties mutually agree are
necessary to fully support Dell's systems and their features.
4.2 RP shall, at its expense, deliver a master copy of the Licensed
Product(s) to Dell in accordance with the schedule set forth in the
Supplement. RP also shall, at its expense, deliver to Dell, within
fifteen (15) days of Dell's request, but not earlier than the
commercial release of same, all Updates and Fixes to the Licensed
Product(s) made during the term of this Agreement. RP shall inform
Dell of the existence of a major Update or Fix at least thirty (30)
days prior to making such an Update or Fix generally available or
within five (5) days for a minor Update. Upon Dell's request and as
available, RP shall provide Dell with a pre-release copy of any Update
or Fix. RP shall deliver a master copy of its standard end user
license agreement and a copy of the Licensed Product's written
specifications at the same time RP delivers the Licensed Product(s).
4.3 RP shall deliver the candidate final version of each initial Licensed
Product at least thirty (30) days prior to Dell's code freeze date as
stated in the Supplement. Dell's code freeze date for a Licensed
Product shall occur six (6) calendar weeks prior to Dell's planned FCS
date as stated in the Supplement. Upon Dell's receipt of such
candidate final version of each initial Licensed Product and each
Update, Dell shall have thirty (30) days to conduct those tests that
Dell deems appropriate to determine whether the Licensed Product: (i)
complies with its written specifications, (ii) contains any Errors and
(iii) is compatible with Dell's systems ("Test Criteria"). If Dell
discovers a problem and notifies RP of such problem in detail during
such thirty (30) day period, Dell will notify RP and RP will have
fifteen days (15) to fix the problem and deliver a corrected version
of the Licensed Product or Update to Dell. Upon receipt of the
corrected version, Dell will have fifteen (15) days to test the
corrected version of the Licensed Product. If Dell reasonably
determines that there is still a problem, Dell will have the option of
rejecting the Licensed Product or agreeing upon a fix strategy with
RP. This acceptance and correction process shall continue for so long
as the parties agree. If Dell rejects the Licensed Product or Update
after the second or any subsequent submission to Dell, any up front
payments previously made by Dell to RP relating to such Licensed
Product or Update, if any, shall be refunded in their entirety within
thirty (30) days of Dell's rejection. If Dell decides to agree on a
fix strategy, such decision shall not be deemed an acceptance of the
Licensed Product. In fact, each version of the Licensed Product
delivered to Dell, in accordance with the fix strategy, will go
through the acceptance process set forth above. If Dell does not
notify RP of any problem within the initial thirty (30) day test
period or any fifteen (15) day test period, then the Licensed Product
shall be deemed accepted by Dell.
4.4 RP agrees to allow Dell to fund engineering projects to be done by RP
for specific Dell needs with respect to improvements and enhancements
to, or in conjunction for use with, the Licensed Products subject to
agreement by RP and Dell as to the terms and conditions of the
development of such projects, including price and the time frame for
development. Pricing for such projects will not exceed the reasonable
industry standard costs of development. On a project-by-project basis,
both parties must agree in advance to separate written statements of
work as to the specifications and scope of such development and to the
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ownership of, or exclusive or nonexclusive rights to (as appropriate),
the resulting work product and related intellectual property rights;
***. RP and Dell agree to share product roadmaps on a regular basis
and RP agrees to consider Dell's suggestions for additions to RP's
product line. Each party agrees that the other party's plans regarding
future development are confidential.
4.5 During the term of this Agreement, *** RP will offer Dell an
opportunity to evaluate such new product to determine whether Dell
wants to license such new product. The process for such evaluation
will be that RP shall provide Dell with an architectural overview and
proposed commercially reasonable royalty for the product. Dell shall
have thirty (30) days to inform RP whether it has an interest in
licensing such product. If Dell informs RP that it is interested in
licensing such product, then the parties shall agree on a product
review schedule. The product review schedule shall conclude with a
final design review. Dell shall have thirty (30) days after the final
design review to inform RP whether it intends to license such product.
In the event Dell fails to notify RP within either thirty (30) day
period, such failure to notify shall be deemed to be non-acceptance of
the product. *** If Dell agrees to license such new product from RP,
the new product will be added to this Agreement as a Licensed Product,
subject to the terms and conditions of this Agreement and the agreed
to royalty, ***. Prior to the addition of a new product to the
Supplement, the parties will agree on a schedule for Dell's
introduction of the new Licensed Product to Dell's customers that will
include at a minimum the RP code freeze date, the Dell code freeze
date and the planned FCS date for such Licensed Product, the
appointment of business and technical contacts for each party to
monitor compatibility issues and other Licensed Product release
issues, all of which shall be stated in the Supplement.
4.6 In the event that RP is unable to comply with the terms of the agreed
upon schedule for Licensed Product introduction as a result of events
solely within RP's control, RP will reimburse Dell for all direct
costs and expenses incurred by Dell, ***, as a result of RP's
non-compliance with this Section. Provided, however, that no such
reimbursement shall be due unless RP's non-compliance extends beyond
thirty (30) days after Dell's code freeze date.
5.0 SUPPORT, TRAINING AND MAINTENANCE
5.1 RP shall train an agreed upon number of Dell personnel to set up,
install, configure and operate the Licensed Product(s) and provide
such other training as agreed upon by the parties to assist and enable
Dell to fully perform and exercise its rights under this Agreement.
Such training shall be completed thirty (30) days prior to Dell's
commercial introduction of the Licensed Product(s). Additional
training periods for Updates shall also be provided within a mutually
agreed upon time period. RP agrees to waive all training fees with
respect to such training.
5.2 During the term of this Agreement, and provided that Dell is current
in its royalty payments to RP, RP shall, at RP's expense, provide
third level ongoing technical support, maintenance and services for
the Licensed Product(s) directly to Dell. Should RP become aware of
any reproducible Errors or be notified by Dell of any Errors in the
Licensed Product(s), RP shall promptly take appropriate measures to
correct such Errors and provide such corrections in accordance with
the time frames set forth below. RP shall provide, at RP's expense,
reasonable assistance in correcting difficulties caused by Errors,
including, but not limited to, phone assistance to Dell customer
service staff.
5.3 Dell shall provide, at its own expense, all first and second level
installation and support services to its end users with respect to the
Licensed Products. Dell shall be solely responsible for all first
level support to end users. First level support shall include call
acceptance from end users with diagnosis of problems to determine if
they relate to hardware, operating software or application software,
whether provided by Dell, RP or third parties. Dell shall be
responsible for investigating and collating all software related
Errors in the Licensed Products as reported by end users and for
attempting to apply known maintenance releases previously supplied by
RP to Dell. Any unresolved suspected Errors relating to the Licensed
Products may be referred by Dell to RP for third level support.
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5.4 Dell will notify RP of any problems discovered with the Licensed
Product(s). Such notification may be in writing or oral. The following
sets forth the time periods during which RP will use all reasonable
commercial efforts to correct any Errors:
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SEVERE DEFECT CORRECTION
RP acknowledgment and description Continuous remedial action until
of course of action within six (6) work-around or patch is completed.
hours of notification by Dell.
MAJOR DEFECT CORRECTION
RP acknowledgment and description of Remedial action during Business Hours
course of action within twenty four to produce work-around or patch.
(24) hours of notification by Dell,
but only during Business Hours.
MINOR DEFECT CORRECTION
RP acknowledgment and description of Next Release of the Licensed Product.
course of action within five (5)
days of notification by Dell.
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Severe Defect is any Error in the Licensed Product that fully impairs
the intended use or operation of the Licensed Product by Dell or
licensees of the Licensed Product.
Major Defect is any Error in the Licensed Product(s) that partially
impairs material functionality of the Licensed Product by Dell or
licensees of the Licensed Product.
Minor Defect is any Error that is outside of the Severe Defect or
Major Defect definitions.
5.5 RP will provide hardware certification services for certain Dell
configurations and components for the platforms referenced in
Supplement No. 1. Such services will consist of the following:
***
(ii) RP will certify a system within sixty (60) days after receipt of
the Dell system configuration;
(iii) Dell will have the option to self certify its configured systems
when such certification tests are available from RP;
(iv) RP will provide *** dedicated contacts for Dell certification
support, with specified contacts for backup in the event that the
designated contacts are unavailable;
(v) RP will certify and provide support for ***.
5.6 Notwithstanding the support and maintenance provisions above, RP shall
have no support or maintenance obligations with respect to any part or
parts of the Licensed Products which have been damaged by improper
installation or operation, or if Dell or any third party has modified
or attempted to modify the Licensed Product.
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6.0 REPRESENTATIONS AND WARRANTIES
6.1 On an ongoing basis, RP represents and warrants that:
(a) for a period of thirty (30) from the initial delivery of the
Licensed Product(s) to Dell, the Licensed Products will
operate in accordance with their respective written
specifications;
(b) RP has all the necessary rights, titles and interests in the
Licensed Product(s) to grant Dell the rights and licenses
contained in this Agreement;
(c) the Licensed Product(s) shall not infringe any copyright,
trade secret, United States patent or any other intellectual
property rights or similar rights of any third party;
(d) the Licensed Product(s) does not contain any known viruses,
expiration, time-sensitive devices or other harmful code that
would inhibit the end user's use of the Licensed Product(s)
or Dell system;
(e) if applicable, the Licensed Product(s) shall be able to
accurately process date data (including, but not limited to,
displaying, calculating, comparing, and sequencing) between
the twentieth and twenty-first centuries, provided that all
other information technology accurately exchanges correct
date data with the Licensed Product(s);
(f) RP and the Licensed Product(s) comply with all governmental
laws, statutes, ordinances, administrative orders, rules and
regulations and which are applicable to RP and that RP has
procured all necessary licensees and paid all fees and other
charges required so that Dell can exercise the rights and
license granted under this Agreement;
(h) the Licensed Product(s) are not encrypted, nor do they
contain encryption capability; if the Licensed Product(s)
does contain encryption capabilities, RP agrees to adhere
to the requirements described in Exhibit A OR the Licensed
Product(s) contain encryption capabilities as follows:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
[add what the encryption does, password, data, etc. and the
level of encryption such as 40 bit DES, 56 bit, etc.].
Attached hereto is a true, correct and complete copy of the
approval from the United States Department of Commerce or,
if applicable United States State Department, permitting
the export of the Licensed Product(s) to countries outside
the United States and Canada (the "Approval"); and
(i) with respect to encryption only, except as set forth in the
Approval, there is no restriction of any relevant
governmental authority which prohibits the export of the
Licensed Product(s) to countries outside the United States
and Canada, other than those laws of the United States which
prohibit exports generally to Libya, Cuba, North Korea,
Syria, Sudan, Iran and Iraq.
(j) RP has and will continue to comply with all applicable
governmental laws, statutes, rules and regulations including,
but not limited to, those related to export of product and
technical data, and RP agrees that for any updates, upgrades
and new products which are licensed to Dell pursuant to the
terms of this Agreement, RP shall provide prior written
notice of any facts which would make the foregoing
representations untrue.
6.2 Notwithstanding the warranty provisions above, RP shall have no
warranty obligations with respect to any part or parts of the Licensed
Products which have been damaged by improper installation or
operation, or if Dell or any third party has modified or attempted to
modify the Licensed Product.
6.3 THE WARRANTIES SET FORTH ABOVE SHALL BE EXCLUSIVE AND IN LIEU OF ALL
OTHER LIABILITIES, OBLIGATIONS AND/OR WARRANTIES, EXPRESSED OR IMPLIED
(INCLUDING BUT NOT LIMITED TO ANY IMPLIED AND/OR STATUTORY WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AS
WELL AS ANY IMPLIED AND/OR STATUTORY WARRANTIES ARISING FROM THE
COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE), AND DELL
HEREBY WAIVES ALL OTHER RIGHTS, OBLIGATIONS AND/OR WARRANTIES AND
ASSUMES ALL RISKS AND LIABILITIES IN RESPECT THEREOF. RP MAKES NO
WARRANTY THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR FREE OR
WITHOUT INTERRUPTION. RP DOES NOT
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WARRANT THAT THE PRODUCTS SHALL OPERATE WITH ANY HARDWARE AND
SOFTWARE OTHER THAN AS SPECIFIED IN THE DOCUMENTATION.
7.0 INDEMNIFICATION
7.1 RP shall fully indemnify, defend and hold harmless Dell, Dell Computer
Corporation, Dell Computer Corporation's subsidiaries and affiliates
and all of the foregoing entities' officers, directors, employees, and
agents and their successors and assigns, from and against any and all
claims, actions, suits, legal proceedings, demands, liabilities,
damages, losses, judgments, settlements, costs and expenses,
including, without limitation, attorney's fees, arising out of or in
connection with any alleged or actual:
(i) infringement by RP and/or the Licensed Product(s) of any
copyright, patent, trade secret or other intellectual
property rights or similar rights of any third party; and
(ii) damage to any tangible property, personal injury, death
or any other damages or losses sustained by whomever
suffered, resulting, or claimed to result, in whole or in
part from any alleged or actual defect in the Licensed
Product(s) whether latent or patent, including any alleged or
actual improper construction or design or the failure of the
Licensed Product(s) to comply with its written specifications
or any express or implied warranties.
7.2 In the event that Dell becomes aware of any such claim, Dell shall:
(i) notify RP of such claim, (ii) cooperate with RP in the defense
thereof and (iii) obtain RP's approval prior to settling any such
claim, provided such consent is not unreasonably withheld.
7.3 In addition to RP's obligations under Subsection 7.1 above, in the
event that a claim of infringement is made with regard to the Licensed
Product(s), RP shall, at its own expense, procure for Dell the right
to exercise the rights and licenses granted to Dell under this
Agreement or modify the Licensed Product(s) such that it is no longer
infringing.
7.4 Dell shall fully indemnify, defend and hold harmless RP and its
officers, directors, employees, and agents from and against any and
all claims, actions, suits, legal proceedings, demands, liabilities,
judgments and settlements, costs and expenses, including, without
limitation, attorney's fees, arising out of or in connection with any
claim by an end user or any third party related to (i) Dell's breach
of any obligation to end users or other third parties; (ii) any
misleading statements, misrepresentations, fraud, or other misconduct
on the part of or any act attributable to Dell or its agents, or (iii)
personal injury or physical property damage attributable to Dell or
its agents.
8.0 TERM AND TERMINATION OF AGREEMENT
8.1 Unless earlier terminated as provided below, the term of this
Agreement shall be for *** from the Effective Date and, unless either
party gives thirty (30) days or more written notice of nonrenewal
prior to the end of the initial term, this Agreement shall
automatically renew for successive *** periods.
8.2 Either Party may, at its option and upon written notice to the other
Party, terminate this Agreement if: (a) a material breach of this
Agreement by the other Party is not remedied within thirty (30) Days
after the breaching Party's receipt of written notice of the breach;
(b) the other Party admits in writing its inability to pay its debts
generally as they become due, files a petition for bankruptcy or
executes an assignment for the benefit of creditors or similar
document; (c) a receiver, trustee in bankruptcy or similar officer is
appointed for the other Party's property; or (d) a majority interest
of the equity or assets of the other Party is transferred to an
unrelated third party or this Agreement is assigned without the prior
written consent of the other Party to this Agreement.
8.3 All licenses and sublicenses granted to customers under this
Agreement, and all provisions of Sections 6.0, 7.0, 8.0, 9.0, 10.0 and
11.0, shall survive any expiration or termination of this Agreement
and shall bind the
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parties and their successors, heirs, assigns and legal
representatives. In addition, RP's obligations under Section 4 and 5
shall survive for 180 days after any expiration or termination of
this Agreement in order for Dell to satisfy its then existing
contractual obligations to its customers and licensees. Dell shall
retain a limited license in accordance with Section 2 to use the
Licensed Product(s) in order to satisfy such obligations and to
exhaust its inventory of Licensed Product(s) existing at expiration
or termination, provided that Dell's right to exhaust any such
inventory shall not extend beyond 180 days after expiration or
termination. Thereafter, Dell agrees to return or destroy all
additional copies of the Licensed Product(s) in its possession.
9.0 LIMITATION OF LIABILITIES
9.1 EXCEPT AS SET FORTH BELOW, NEITHER PARTY SHALL BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY PART
OF THIS AGREEMENT EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH
DAMAGES. Notwithstanding anything herein to the contrary, the maximum
aggregate amount of money damages for which RP may be liable to Dell
under this Agreement, resulting from any cause whatsoever, shall be
limited to the greater of: ***.
9.2 THE LIMITATIONS OF LIABILITY SET FORTH ABOVE, SHALL NOT APPLY TO ANY
OF EITHER PARTY'S OBLIGATIONS OR LIABILITIES UNDER SECTION 7
"INDEMNIFICATION" OR TO EITHER PARTY'S OBLIGATIONS UNDER SECTION 10.0
"CONFIDENTIAL INFORMATION."
10.0 CONFIDENTIAL INFORMATION
10.1 The parties agree that information exchanged under this Agreement that
is considered by either party to be confidential information will be
subject to the terms and conditions of the non-disclosure agreement,
***, in place between the parties. RP shall not provide to Dell any
information, which is considered confidential information of any third
party.
10.2 Dell acknowledges RP's sole and exclusive right, title and interest in
any and all proprietary, intellectual and industrial property rights,
whether registered or not, including all patents, copyrights, trade
secrets, trademarks and trade names, in and to the Licensed Products
and any part thereof or which RP may have at any time adopted, used,
registered or been issued in any location with respect to the Licensed
Products or otherwise (hereinafter referred to collectively as
"Intellectual Property Rights"). Dell further acknowledges that RP
represents that the Licensed Product, including the source and object
codes, logic and structure, constitute valuable trade secrets of RP.
10.3 Dell agrees that it will in no way alter, deface, remove, cover up
or mutilate in any manner whatsoever any copyright notice.
11.0 MISCELLANEOUS
11.1 Except as provided herein, this Agreement shall in no way preclude
either party from independently developing, having developed or
acquiring or marketing any products or services nor shall it in any
way preclude either party from entering into any similar agreement
with any other party.
11.2 Dell shall have full freedom and flexibility in its decisions
concerning the distribution and marketing of the Licensed Product(s)
including, without limitation, the decision of whether or not to
distribute or discontinue distribution of the Licensed Product(s).
Dell does not guarantee that its marketing, if any, of the Licensed
Product(s) will be successful.
11.3 This Agreement may not be assigned by RP, in whole or in part,
including, without limitation, by operation of law, in a merger or
stock or asset sale, *** without the express written permission of
Dell. If RP makes any attempt to assign this Agreement *** without
Dell's written consent, Dell will have the option to
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immediately terminate this Agreement. No permitted assignment or
subcontract by RP shall relieve RP of any obligations hereunder. RP
shall always remain jointly and severally liable with any assignees
under this Agreement. In the event of a transfer by RP of any of the
Intellectual Property that is the subject of this Agreement, whether
by operation of law or otherwise, *** and Dell does not exercise its
rights to terminate the Agreement as stated above, the escrow rights
described in Section 2.4 shall be deemed immediately vested.
11.4 RP is an independent contractor. RP is not a legal representative or
agent of Dell, nor shall RP have the right or authority to create or
incur any liability or any obligation of any kind, express or implied,
against, or in the name of, or on behalf of Dell.
11.5 If at any time during the term of this Agreement RP shall have granted
or shall grant any other license to the Licensed Product(s) containing
terms and conditions which are substantially similar to the terms and
conditions of this Agreement, but which provides for a lower royalty
rate, RP shall notify Dell and Dell shall, at its option, be entitled
to substitute those terms and conditions for the terms and conditions
of this Agreement, with such substitution to be retroactive to the
date such more favorable terms and conditions were granted.
11.6 RP shall not publicize the existence of this Agreement with Dell nor
refer to Dell in connection with any promotion or publication without
the prior written approval of Dell. Further, RP shall not disclose the
terms and conditions of this Agreement to any third party, including,
but not limited to, any financial terms, except as required by law or
with Dell's prior written consent.
11.7 Both parties shall comply with all applicable governmental laws,
statutes, ordinances, administrative orders, rules and regulations
including, without limitation, those related to the export of
technical materials. RP shall cooperate with Dell regarding any export
restrictions related to the Licensed Product(s).
11.8 Any and all written notices, communications and deliveries between RP
and Dell with reference to this Agreement shall be deemed made on the
date of receipt if sent by registered or certified mail, overnight
express mail or electronic mail to the respective address of the other
party as follows:
In the case of Dell: Dell Products L.P.
One Dell Way
BBP, Box 4
Round Rock, TX 78682
Attn: Strategic Commodity Manager
Software Procurement
In the case of RP: RAID Power Services, Inc.
3 Princess Road
Lawrenceville N.J. 08648
Attn: ***
11.9 This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Texas, U.S.A. without regards for its rules
of conflict of laws, as if this Agreement was executed in and fully
performed within the State of Texas. Both parties hereby waive any
right to a trial by jury relating to any dispute arising under or in
connection with this Agreement.
11.10 Should any provision herein be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, such provision
shall be modified to reflect the intentions of the parties. All other
terms and conditions shall remain in full force and effect.
11.11 No amendment, modification or waiver of any provision of this
Agreement shall be effective unless set forth in a writing executed by
an authorized representative of each party. No failure or delay by
either party in
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exercising any right, power or remedy will operate as a waiver of any
such right, power or remedy. No waiver of any provision of this
Agreement shall constitute a continuing waiver or a waiver of any
similar provision unless expressly set forth in a writing signed by
an authorized representative of each party.
11.12 Since Dell transacts business with the United States government, RP
must comply with the applicable federal laws and Federal Acquisition
Regulations ("FARs") which are otherwise applicable to RP, including
the following:
It is Dell's policy to take affirmative action to provide equal
employment opportunity without regard to race, religion, color,
national origin, age, sex, disability, veterans status or any
other legally protected status. As a condition of doing business,
Dell requires RP to practice equal opportunity employment and to
comply with Executive Order 11246, as amended, Section 503 of the
Rehabilitation Act of 1973, and Section 4212 of the Vietnam Era
Veteran's Readjustment Assistance Act of 1974, all as amended,
and the relevant Regulations and Orders of the U.S. Secretary of
Labor. Additionally, to the extent required by applicable law,
the following sections of Chapter 60 of Title 41 of the Code of
Federal Regulations are incorporated by reference in this
Agreement and each Order: 41 CFR 60-1.4(a); 41 CFR 60-1.8; 41 CFR
60-741; 41 CFR 60-250; 41 CFR 60-1.7; 41 CFR 60-1.40.
It is the policy of the United States (FAR 52.219-8) that small
business concerns, small business concerns owned and controlled
by socially and economically disadvantaged individuals and small
business concerns owned and controlled by women shall have the
maximum practicable opportunity to participate in performing
contracts for any Federal agency. RP agrees to comply with this
policy and to provide reporting of data as requested to the Small
Business Liaison Officer, Dell Computer Corporation, One Dell
Way, Round Rock, Texas, 78682.
If an order issued under this Agreement for commercial items as
defined in FAR 52.202-1) references a U.S. Government contract which
requires incorporation of portions of the Federal Acquisition
Regulation (FAR) the limited list of clauses shown below, current as
of the date of the order unless otherwise noted, shall apply tot hat
order in accordance with the Government's subcontracting policy
prescribed by FAR Subpart 44.4. The following definitions apply to
these clauses: "Contracting Officer" means "Buyer"; "Contractor"
means "Seller"; "Contract" or "Schedule" means "this order"; the
term "subcontract: includes any procurement made hereunder; and the
term "subcontractor" includes a supplier or vendor.
TITLE FAR SEE NOTE
Definitions 52.202-1
Defense Priority and Allocation requirements 52.211-15
Equal Opportunity 52.222-26 1.
Affirmative Action for the Special Disabled & Vietnam 52.222.35 1.
Affirmative Action for Handicapped Workers 52.222-36 1.
Restrictions on Certain Foreign Purchases 52.225-11
Authorization and Consent 52.227-1
Preference for Privately Owned US Flag Commercial Vessels 52.247-64 1,2
Notes: 1. In accordance with FAR 52.212-5(c), these are the
minimum number of clauses which must be flowed down
to subcontractors or vendors by the prime contractor
2. Required in subcontracts through end of April 1996
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11.13 This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter contained herein, and
merges all prior discussions and agreements, both oral and written,
between the parties. Nothing in any purchase order, invoice, order
acknowledgment, or other document of RP shall be of any effect
whatsoever and may not affect, alter, or modify the terms and
conditions of this Agreement. If the terms and conditions of this
Agreement conflict with any terms of a Dell purchase order relating to
the Licensed Product(s), the terms and conditions of this Agreement
shall govern. The terms and conditions set forth in Supplements are
hereby incorporated into this Software License Agreement by reference.
If the terms and conditions of this Software License Agreement
conflict with any terms and conditions contained in a Supplement, the
terms and conditions of the Supplement shall govern.
11.14 Government Rights. Use, duplication or disclosure by the Government is
subject to restrictions as set forth in subparagraphs (c)(1) and (2)
of the Commercial Computer Software -- Restricted Rights provision at
48 CFR [ ] 52.227-19. Manufacturer is Raid Power Services, Inc.,
3 Princess Road, Lawrenceville N.J. 08648.
IN WITNESS WHEREOF, the parties hereto have duly executed this Software License
Agreement by their respective duly authorized officers to be effective as of
the Effective Date as first written above.
DELL PRODUCTS L.P. Raid Power Services, Inc.
By: By:
Title: Title:
Date: Date:
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SUPPLEMENT TO
SOFTWARE LICENSING AGREEMENT
CONTRACT #___________
This Supplement provides additional terms and conditions to the above
referenced Software License Agreement. All terms and conditions of the Software
License Agreement apply to this Supplement and the terms and conditions of this
Supplement are hereby incorporated by reference into the Software License
Agreement.
1.0 DESCRIPTION OF LICENSED PRODUCT(S)
Definitions used in this Section 1.0:
INCREMENTAL RELEASE shall mean additional functionality that will be provided
before FCS. There will be a series of small components of functionality
delivered prior to the code freeze date.
SUBSEQUENT RELEASE shall mean substantial release of new features to be
delivered after FCS.
A: DELL SAN LICENSED PRODUCT
1. Mirroring
The ability to automatically replicate data within a RAID subsystem,
and between a RAID storage subsystem and another, both synchronously
and asynchronously. ***
2. Snapshot
***
3. Virtualization
Virtualization provides the capability to disassociate the logical
representation of a disk presented to a host system from the physical
components that make up the logical disk.
***
4. Mirroring Failover
Functionality is provided that enables one device running on the SAN
to failover to another device running on the SAN in the event that the
first unit fails. This is not a fault tolerant feature, but rather a
method to insure that data can continue to be mirrored for a limited
period of time while the failed device is replaced.
5. Host Failover
Functionality provided via RPIC services for host servers to recognize
multiple paths to storage and allow failover between available paths
to the server ***.
***
6. HBA Support
***
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7. Storage Failover
***
8. Cluster Support
***
9. SCSI Support
***
10. Server Support
***
11. LUN Support
***
12. Server OS Support.
***
13. Heterogeneous Storage Pooling.
RPIC will allow Heterogeneous storage pooling. ***
14. On-line Capacity Expansion
RPIC will support the ability to dynamically expand the capacity of a
volume in a Subsequent Release. This means the volume must be
presented to the server in such a way that the server recognizes the
increased storage after a server re-boot.
15. Physical Service Partitioning
An RPIC configuration must support the ability to partition physical
devices into multiple LUNs that are smaller than the physical devices
from which they are made
16. Management Tools
***
17. Switches
RPIC will attach to an FC switch and attach directly to both host
servers and storage.
19. RPIC Failover
***
20. Documentation
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Dellized (conforms to InfoDev e-doc initiative) and translated user
documents that cover complete functionality of the licensed product
will be delivered to Dell by March 31, 2000
B. ON-SITE DEVELOPMENT SUPPORT FOR DELL SAN LICENSED PRODUCT
RP shall provide software debug and development support, as requested by Dell,
in the Dell test and development labs during Unit, Product, System, and
Qualification testing. RP will provide a mix of System Engineers and Developer
support both on site and off site during the testing period, to a mutually
agreed upon schedule.
Dell will provide modem and phone capability for the engineer to consult with
RP development.
C. MULTI PATH MANAGER SOFTWARE, ARRAY MANAGEMENT SOFTWARE, REMOTE MONITORING
SERVICES
***
1. Multipath Manager Software
***
2. Array Management Software
***
***
f) Documentation
Dellized (conforms to InfoDev e-doc initiative) and
translated user documents that cover complete functionality
of the licensed product will be delivered to Dell by April
30, 2000.
***
2.0 COMPENSATION
2.1 Dell shall pay RP a per copy royalty of ***, plus an additional per
copy fee of *** for maintenance, support and Updates, for each copy of
the Dell SAN Licensed Product distributed directly or indirectly by
Dell to customers or other parties.
2.2 In the event the Multi-Path Manager and Array Management software are
added to this Agreement as Licensed Products, Dell shall pay RP a per
copy royalty of *** for each copy of the Array Management and
Multi-Path Manager Licensed Product distributed directly or indirectly
by Dell to customers or other parties. In addition, Dell shall pay RP
a per copy royalty of *** for each copy of the Array Management and
Multi-Path Manager distributed directly or indirectly by Dell to
customers or other parties ***.
3.0 DELIVERY SCHEDULE
Release 1 final beta: ***
Test Cycle: ***
Documentation Complete: ***
Raid Power Code Freeze: ***
Dell Code Freeze: ***
Planned FCS: ***
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4.0 TECHNICAL CONTACTS
***: EVP, General Manager Products and Services
***, VP, Head of Engineering
***, Director, SAN mgmt products
***, System Engineer
***
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IN WITNESS WHEREOF, the parties hereto have duly executed this Supplement to
the above referenced Software License Agreement by their respective duly
authorized officers.
DELL PRODUCTS L.P. RAID POWER SERVICES, INC.
By: By:
Title: Title:
Date: Date:
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EXHIBIT A
ENCRYPTED SOFTWARE EXPORT
In accordance with the U.S. Export Administration Regulations, certain software
and items possessing encryption capabilities may require formal export licenses
before they can be exported and/or re-exported from the United States. RP
agrees to complete the questions on the following Software Questionnaire.
Please contact Allyson Manuel if you have any questions @ (512) 723-6647.
If RP's software has not been classified, RP may refer to the BXA (Bureau of
Export Administration) Website at http://www.bxa.doc.gov for information
regarding classifying software. Under the category of "Getting Help and
Contacting Us", click on the "General Fact Sheets". Then click on "Obtaining a
Commodity Classification" to receive information on how to classify software.
Please fax the completed Export Questionnaire to (512)723-4256, or send the
form via e-mail to [email protected].
LICENSED PRODUCT NOT FOR EXPORT OUT SIDE THE US OR CANADA.
If the RP has several versions of the Licensed Product, such as 128-bit level
encryption for US customers and 40-bit level for international customers, RP
agrees to conspicuously identify on the Licensed Product media the level of
encryption of each version of the Licensed Product when the media is delivered
to Dell.
RP also agrees to conspicuously mark the media of the 128-bit level encryption
version of the Licensed Product with a label stating "NOT FOR EXPORT OUTSIDE
THE US OR CANADA. CONTAINS ENCRYPTION" prior to delivering the Licensed Product
media to Dell.
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SOFTWARE QUESTIONNAIRE
Company Name: _____________________________________________________________
Please attach additional pages if necessary.
Product name & version number:___________________Country of Origin ____________
Harmonized Tariff Schedule Number (HTS):_______________________________________
Export Commodity Control Number (ECCN):________________________________________
License Exception (if applicable):_____________________________________________
If product is 5D002, TSU [GSN], please provide a copy of the BXA classification
verification).
What is the functionality of your software (i.e.: word processing,
engineering/design, communication, operating system, etc.)?
_______________________________________________________________________________
What type of equipment is the software used to support (i.e.:
telecommunications, manufacturing/test, computers, etc.)? Please be
specific.
_______________________________________________________________________________
Is your software available to the public via sales from stock at retail selling
points by means of "over-the-counter" transactions, mail order, or telephone
call transactions (Mass Market)?
_______________________ If yes, please forward a copy of BXA approval.
Is your software designed for installation by the user without further
substantial support (substantial support does not include telephone (voice
only) help line services for installation or basic operation, or basic
operation training provided by the supplier?
_______________________________________________________________________________
Does your software or commodity have encryption capabilities? _________________
IF THE ANSWER TO QUESTION 5 ABOVE IS "NO", YOU DO NOT NEED TO COMPLETE THE
REMAINING QUESTIONS ON THIS FORM.
What function does the encryption provide (i.e.: password protection, data
encryption, etc.? Please be specific.
_______________________________________________________________________________
Does the data encryption algorithm exceed a key space
of 56 bits? ___________________________________________________________________
What is the specific key length of the encryption
algorithm? ____________________________________________________________________
Does your software or commodity allow the alteration of the data encryption
mechanism and its associated key spaces by the user?
_______________________________________________________________________________
Please provide a brief written summary of the encryption technology used in the
design of the software or commodity in question. Please be sure to identify
the type of algorithm used.
_______________________________________________________________________________
_______________________________________________________________________________
Is there an EXPORT version of the software named above? _______________________
This form Completed by:
Name ____________________ Title _______________ Signature:_____________________
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Date _______________ Phone #____________________
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EXHIBIT B
DELL SOFTWARE LICENSE AGREEMENT
This is a legal agreement between you, the user, and Dell. By using the
software, you agree to be bound by the terms of this agreement. If you do not
agree to these terms, promptly return all software items (disks, written
materials, and packaging) for a full refund.
You may use one copy of the software on only one computer at a time. If you
have multiple licenses for the software, you may use as many copies at any time
as you have licenses. "Use" means loaded in temporary memory or permanent
storage on the computer. Installation on a network server solely for
distribution to other computers is not "use", if you have a separate license
for each computer to which the software is distributed. If users will exceed
the number of licenses, you must have a reasonable process to assure that the
number of persons using the software concurrently does not exceed the number of
licenses.
The software is protected by United States copyright laws and international
treaties. You may make one copy of the software solely for backup or archival
purposes or transfer it to a single hard disk provided you keep the original
solely for backup or archival purposes. You may not rent or lease the software
or copy the written materials accompanying the software, but you may transfer
the software and all accompanying materials on a permanent basis, if you retain
no copies and the recipient agrees to the terms, hereof. Any transfer must
include the most recent update and all prior versions. You may not reverse
engineer, decompile or disassemble the software. If the package contains 3.5"
and 5.25" disks, you may use only the disks appropriate for your computer. You
may not use the disks on another computer or network, or loan, rent, lease, or
transfer them to another user except as permitted by this agreement.
LIMITED WARRANTY
Dell warrants that the software disks are free from defects in materials and
workmanship under normal use for ninety (90) days from the date you receive
them. This warranty is limited to you and is not transferable. Any implied
warranties are limited to 90 days. Some jurisdictions do not allow limits on
the duration of an implied warranty, so this limitation may not apply to you.
The entire liability of Dell and its suppliers, and your exclusive remedy,
shall be (a) return of the price paid for the software or (b) replacement of
any disk that does not meet this warranty which is sent with a return
authorization number to Dell, at your cost and risk. This limited warranty is
void if any disk damage has resulted from accident, abuse, misapplication, or
service or modification by someone other than Dell. Any replacement disk is
warranted for the remaining original warranty period or 30 days, whichever is
longer. Dell does not warrant that the functions of the software will meet your
requirements or that operation of the software will be uninterrupted or error
free. You assume responsibility for selecting the software to achieve your
intended results, and for the use and results obtained from the software. Dell
disclaims all other warranties, express or implied, including but not limited
to implied warranties of merchantability and fitness for a particular purpose,
for the software and all accompanying written materials. This limited warranty
gives you specific legal rights. You may have others, which vary from
jurisdiction to jurisdiction.
In no event shall Dell or its suppliers be liable for any damages whatsoever
(including, without limitation, damages for loss of business profits, business
interruption, loss of business information, or other pecuniary loss) arising out
of use or inability to use the software, even if advised of the possibility of
such damages. Because some jurisdictions do not allow an exclusion or limitation
of liability for consequential or incidental damages, the above limitation may
not apply to you.
U.S. GOVERNMENT RESTRICTED RIGHTS
The software and documentation are provided with Restricted Rights. Use,
duplication or disclosure by the Government is subject to restrictions as set
forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the
Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as
applicable. Contractor/manufacturer is Dell Products, L.P., One Dell Way, Round
Rock, TX 78682. This license is effective until terminated. It will terminate
upon the conditions
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set forth above or if you fail to comply with any term hereof. Upon
termination, you agree that the software and accompanying materials, and all
copies thereof, will be destroyed. This agreement is governed by the laws of
the State of Texas. You acknowledge that you have read this agreement, you
understand it, you agree to be bound by its terms, and that this is the
complete and exclusive statement of the agreement between you and Dell
regarding the software.
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