MASTER SERVICES AGREEMENT
This Agreement is made as of December 1, 1999 ("Effective Date"),
between Linuxcare, Inc., a Delaware corporation with an office at 650 Townsend
Street, San Francisco, CA 94103, USA (Phone: 415-354-4878; Fax: 415-701-7457; E-
mail: jfisher@linuxcare.com, ("Linuxcare") and the "Customer" listed below.
Customer: Amdahl Corporation Contact: Matthew Erickson
Address: 1250 East Arques Avenue Phone: (408) 737-5929
Sunnyvale, California 94088 Fax: (408) 390-5936
E-Mail: matthew_erickson@amdahl.com
SERVICES INFORMATION
Service Level: OEM
Service Fee Period 18 Months from
Signature
SERVICES PROVIDED
Subject to payment of all applicable fees, Linuxcare will use reasonable
commercial efforts to perform the support services specified in Linuxcare's
current, published "Linuxcare Technical Support Programs" documentation
appropriate to the Service Level selected by Customer ("Services"), in
accordance with the Terms and Conditions exhibit attached to this Agreement, and
otherwise set forth in the "Linuxcare Technical Support Programs" documentation.
Linuxcare may change the "Linuxcare Technical Support Programs" documentation,
and the services that will be performed for a particular Service Level, at any
time; such changes will take effect at the beginning of the next Service Fee
Period. Customer understands that Linuxcare's performance is dependent in part
on Customer's actions. Accordingly, any dates or time periods relevant to
performance of Services by Linuxcare shall appropriately and equitably extended
to account for any delays resulting from changes to Customer products or
otherwise due to Customer. Customer may request additional hours or levels of
Services ("Extended Services"), which Linuxcare may provide at Linuxcare's sole
discretion, provided that Customer pays Linuxcare's then current fees for such
Extended Services.
This Agreement includes the attached Terms and Conditions Exhibit, and contains,
--------------------------------------------------------------------------------
among other things, warranty disclaimers and liability limitations. Any
------------------------------------------------------------------
different or additional terms of any related purchase order, confirmation, or
similar form even if signed by the parties after the date hereof shall have no
force or effect. References in this Agreement or the Terms and Conditions
Exhibit to a capitalized term appearing on this cover page shall have the
meaning or value of such term on this cover page.
Customer: Linuxcare:
By: /s/ William Jestron By: /s/ Thomas W. Phillips
------------------------ -------------------------
Name: William Jestron Name: Thomas W. Phillips
--------------- ------------------
Title: DIRECTOR of PURCHASING Title: V.P. Sales
---------------------- ----------
TERMS AND CONDITIONS EXHIBIT
1. Training. Subject to payment of all fees, Linuxcare will provide the
--------
training specified in Linuxcare's current, published "Linuxcare Training
Programs" documentation. Unless otherwise arranged between Customer and
Linuxcare, all training shall occur at Linuxcare's facilities in San Francisco,
California. The fees for training will be Linuxcare's current, published
training fees, less the Training Discount ("Training Fees").
2. Fees and Payment. Customer shall pay Linuxcare the fees for the selected
----------------
Service Level shown in Linuxcare's current price list, less the Service Discount
("Service Fees"). Customer will pay the Service Fees for the initial Service Fee
Period within 15 days of the Effective Date. Customer will pay the Service Fees
and Extended Service fees within 45 days after receipt of Linuxcare's invoice.
Customer will also pay Linuxcare all Training Fees and Extended Services fees
within 45 days after receipt of Linuxcare's invoice therefor. All payments are
non-refundable. Any payments over 30 days overdue will bear a late payment fee
of the lower of 1.5% per month or the maximum rate allowed by law provided that
payment is not reasonably in dispute by Customer.
3. Proprietary Rights. As between the parties, Linuxcare will retain all
------------------
right, title and interest in and to any software, tools, techniques, and other
materials used in connection with providing the Services ("Linuxcare
Materials"). As between the parties, Customer will retain all right, title and
interest in and to any software, products, documentation and other materials it
supplies. Linuxcare hereby assigns to Customer all right, title and interest, in
any work product created as part of the Services ("Work Product"), but this
assignment does not include any portion of the Linuxcare Materials, and will not
prevent Linuxcare from using the expertise, ideas and know-how learned while
performing Services for other purposes (including, without limitation, for
itself or on behalf of third parties).
4. Confidential Information. Neither party will disclose its Confidential
------------------------
Information to the other, except under a specific nondisclosure agreement.
5. Termination. This Agreement will continue until terminated by either party.
-----------
Either party may terminate this Agreement upon thirty (30) days written notice
to the other party, except if Linuxcare is terminating the Agreement such
termination will not be effective until the end of any fully paid-up Service Fee
Period. Linuxcare may terminate this Agreement at any time in the case of non-
payment by Customer of any fees which have not been reasonably disputed by
Customer, unless Customer pays such fees in full within ten (10) days after such
notice. Sections 4, 5, 7, 8, and 9 of this Agreement, and all accrued rights to
payment, shall survive termination. Termination is not an exclusive remedy and
all other remedies will be available whether or not termination occurs.
6. Warranty and Disclaimer. Linuxcare hereby warrants to Customer, and only
-----------------------
Customer, that all Services shall be performed in a professional and workmanlike
manner. THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT
FOR THE SUPPLY OF GOODS. EXCEPT FOR THE FOREGOING, LINUXCARE MAKES NO OTHER
WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES RENDERED, AND HEREBY DISCLAIMS
ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT. LINUXCARE FURTHER DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL
SUCCEED IN RESOLVING ANY PROBLEM, OR THAT ANY WORK PRODUCT OF THE SERVICES WILL
BE FREE FROM PROGRAM ERRORS.
7. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
-----------------------
OTHERWISE, AND EXCEPT FOR BODILY INJURY AND PROPERTY DAMAGE:
7.1 LINUXCARE SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE
OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES; (II)
FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS;
OR (III) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.
7.2 NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE OR OBLIGATED WITH RESPECT
TO THE
SUBJECT MATTER OF THIS AGREEMENT. FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS.
8. Export Control. Customer shall comply with the U.S. Foreign Corrupt
--------------
Practices Act and all applicable export laws, restrictions, and regulations of
the U.S. and foreign agency or authority.
9. Miscellaneous. This Agreement is not assignable or transferable by Customer
-------------
without the prior written consent of Linuxcare; any attempt to do so shall be
void. Subject to Customer's consent, which will not be unreasonably withheld,
Linuxcare may assign this Agreement in whole or in part, or subcontract the
performance of Services to third parties. The parties agree that they are
independent contractors and that this Agreement and relations between Linuxcare
and Customer hereby established do not constitute a, joint venture, agency or
contract of employment between them, or any other similar relationship. Neither
party has the right or authority to assume or create any obligation or
responsibility on behalf of the other. Any notice, report, approval or consent
required or permitted hereunder shall be in writing. No failure or delay in
exercising any right hereunder will operate as a waiver thereof, nor will any
partial exercise of any right or power hereunder preclude further exercise. If
any provision of this Agreement shall be adjudged by any court of competent
jurisdiction to be unenforceable or invalid, that provision shall be limited or
eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable. This Agreement shall
be deemed to have been made in, and shall be construed pursuant to the laws of
the State of California and the United States without regard to conflicts of
laws provisions thereof. Any waivers or amendments shall be effective only if
made in writing. This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements and communications relating to the subject matter of
this Agreement. The prevailing party in any action to enforce this Agreement
will be entitled to recover its attorney's fees and costs in connection with
such action.
AMDAHL STATEMENT OF WORK
LINUXCARE CONFIDENTIAL
EXHIBIT A
STATEMENT OF WORK, TECHNICAL SUPPORT
CONTROL
Document ID AM0001
Location X459
Originator Jim Fisher
T.S.Approval
Issue Date 11/23/1999
Status
Version 1.0
DISTRIBUTION
LINUXCARE
AMDAHL
CORPORATION
VERSION MODIFIED BY DATE DESCRIPTION
-------- ----------- ---- -----------
0.1 Jim Fisher 11/23/1999 Initial SOW
0.2 Revisions as discussed with ISP.
LINUXCARE PAGE 1 OF 8
Rev: 11-05-1999 Tech. Svc.
TABLE OF CONTENTS
-----------------
1 INTRODUCTION 3
1.1 TERM 3
1.2 LIMITATION ON LIABILITY 3
1.3 NO TRANSFER RIGHTS 3
1.4 RENEWAL AND TERMINATION 3
2 RELATIONSHIP OBJECTIVES 4
2.1 RELATIONSHIP 4
2.2 DEFINITIONS 4
2.3 PAYMENT 4
2.3.1 Currency 4
3 SERVICES 5
3.1 SERVICE SCOPE 5
3.1.1 Service Entitlement: 5
3.1.2 Service Delivery: 5
3.1.3 Hours of Operation: 5
3.1.4 Response, Report and Resolution: 5
3.2 SERVICE RATE AND BILLING 5
3.2.1 Telecommunication Costs 5
3.2.2 Rate and Billing 6
3.3 SERVICE REQUEST PROCEDURE 6
3.4 SERVICE RESTRICTIONS 6
4 MANAGEMENT 7
4.1 LINUXCARE'S RESPONSIBILITY AND OBLIGATION 7
4.1.1 Personnel 7
4.1.2 Quality of Service 7
4.1.3 Fair Representation 7
4.1.4 Audit Information 7
4.2 CUSTOMER'S RESPONSIBILITY AND OBLIGATION 7
4.2.1 Forecast and Minimum Service 7
4.2.2 Certification 7
4.2.3 Service Request Routing Facility 7
4.2.4 Escalation Point of Contact 7
PAGE 2 OF 8
1 INTRODUCTION
This Statement of Work, No. AM0001 ("SOW"), effective 01/01/2000 is agreed upon
------ ----------
by sets forth the agreement between Linuxcare Inc. ("LINUXCARE") and Amdahl
------
Corporation ("CUSTOMER") regarding the services to be provided by services
-----------
provided by LINUXCARE pursuant to the Master Services Agreement between
LINUXCARE and CUSTOMER dated 01/01/2000.
-----------
This document is intended solely for CUSTOMER and LINUXCARE, constitutes
Confidential Information under the Master Services Agreement and is not be
provided to third parties without the prior written consent of LINUXCARE.
1.1 TERM
The service period of the SOW shall commence on the effective date and continue
for the period of 18 months 06/01/2001 (the "Term"), unless earlier terminated
----------
under the Master Service Agreement.
During the period LINUXCARE and CUSTOMER will evaluate CUSTOMER's needs and
LINUXCARE's service capacity as basis of negotiation for the next service
period.
1.2 FORCE MAJEURE Neither CUSTOMER nor LINUXCARE shall be in breach of this
agreement or be held liable for any damage due to any failure of
performance that arises out of causes beyond either party's control after
exercising its reasonable efforts to perform.
1.3 NO TRANSFER RIGHTS
This SOW, and all rights under and describe by it herein, can not be transferred
or assigned by CUSTOMER. Any attempt to transfer, assign or re-use the right
contained by CUSTOMER is a violation and shall immediately terminate this SOW
and all rights under it.
1.4 RENEWAL AND TERMINATION
Two (2) months prior to expiration of an existing Term, CUSTOMER and LINUXCARE
shall meet to: (1) evaluate the quality of the service provided, and (2)
evaluate whether it is appropriate to adjust the service scope and duration of a
future Term, and (3) in the case of agreement with respect to an adjustment of
the service scope or duration of the Term, mutually agree in writing as to such
future Term.
PAGE 3 OF 8
2 RELATIONSHIP OBJECTIVES
2.1 RELATIONSHIP
The structure of the LINUXCARE and CUSTOMER relationship is outlined in the
following diagram:
[CHART OMITTED]
2.2 DEFINITIONS
"END USER" means a customer of CUSTOMER.
"Linux" shall mean the Linux operating system.
"SEVERITY 1" A critical system component, network or application is non-
operational and the End User cannot continue to operate. The
End User is willing to commit the necessary resources to
arrive at a problem resolution
"SEVERITY 2" A system, network or critical application problem exists that
seriously degrades system or application operations and the
End User is willing to commit the necessary resources to
arrive at problem resolution. The problem could be
intermittent
"SEVERITY 3" The End User's system, network and applications continue to
run, and operation is not degraded, but a problem exists that
requires resolution
"SEVERITY 4" A low impact problem, or a call for information, or a
documentation call.
"RESOLUTION" means formulation and development of answers, advice, and
opinion for and of circumvention, fixes, work-around and how-
to assistance. Problems shall be considered resolved when
corrective actions resume the normal performance of a feature
or function or is mutually agreed to be a code restriction or
"working as designed" issue, and when CUSTOMER conveys
acceptance to LINUXCARE.
PAGE 4 OF 8
3 SERVICES
3.1 SERVICE SCOPE
The scope of the service includes the following:
3.1.1 SERVICE ENTITLEMENT:
The work under the SOW as specified herein will ensure that the CUSTOMER's End
User community is provided with support services for their LINUX based system.
-----
The services include providing answers, advice or opinions pertaining to Linux
and its run-time environment or the usage of Linux Operating System and its run-
time environment pursuant to the applicable severity level. Services exclude
consulting, project management, auditing, and any configuration assistance.
End Users or CUSTOMER's RTC support staff shall be responsible for performing
the corrective operation under LINUXCARE's guidance.??? LINUXCARE will provide
support for major Linux distributions such as Red Hat, Caldera, Debian
GNU/Linux, Laser5 Linux, Linux-Mandrake, LinuxPPC, MkLinux, Slackware Linux,
Stampede, SuSE, TurboLinux, UltraLinux, and Yellow Dog and any other derivative
of Linux.
3.1.2 SERVICE DELIVERY:
3.1.3 SUPPORT SERVICE IS DELIVERED VIA TELEPHONE OR EMAILS, RESPONSE, REPORT
AND RESOLUTION:
LINUXCARE will attend to the incident reported by CUSTOMER according to the
following criteria.
Severity Initial Response Time Resolution or Report Escalation
Level Time
(Section 2.2)
1 30 Minutes 8 Hours Same Day
2 4 Hours Within 2 Business Day 2 Business Day
3 4 Hours Within 5 Business Day 5 Business Day
4 4 Hours Within 7 Business Day 7 Business Day
3.2 SERVICE RATE AND BILLING
3.2.1 TELECOMMUNICATION COSTS
LINUXCARE will be responsible for all outbound telecommunication costs related
to the provision of services provided. CUSTOMER will be responsible for all
inbound costs to LINUXCARE which are incurred through the provisioning of
services except collect calls placed by End Users.
PAGE 5 OF 8
3.2.2 RATE AND BILLING
DESCRIPTION LIST PRICE
24x7 Telephone Based Support Requests will be billed for a minimum charge of
1/2 hour and in 15-minutes increment thereafter,
up to an hour, at the rate of $180/hour.
3.3 SERVICE REQUEST PROCEDURE
I). Initiate: CUSTOMER shall initiate the service request via telephone,
email or web forms located on CUSTOMER's web site with the following
information:
* Name and contact information.
* Description use the incident, description of the symptom and
necessary configuration information.
II). Response: LINUXCARE will respond to the routed service requests by
providing an initially email response in accordance with the time defined in
Response, Report and Resolution, (Section 3.1.3). The email response to End
Users shall indicate the CUSTOMER's email address or alias.
III). Closure: Service requests are considered closed or "resolved" in
accordance with the definition in Section 2.2.
IV): Escalation: If LINUXCARE is unable to resolve response in accordance with
the time defined in Response, Report and Resolution, (Section 3..1.3), it will
escalate to CUSTOMER.
3.4 SERVICE RESTRICTIONS
The services provided by LINUXCARE are to be used by CUSTOMER's End User
community. Accordingly, CUSTOMER shall not:
* Re-Sell LINUXCARE support packages to other third party service
providers.
* Make any additional or conflicting representations or warranties
on behalf of LINUXCARE.
* Use the trademark LINUXCARE name, logo, or the phrase "At the
Center of Linux" without prior written consent from LINUXCARE in
each case.
PAGE 6 OF 8
4 MANAGEMENT
4.1 LINUXCARE'S RESPONSIBILITY AND OBLIGATION
4.1.1 PERSONNEL
LINUXCARE shall secure all qualified personnel required to perform the Services
as defined in Section 3.1.1.
4.1.2 FAIR REPRESENTATION
LINUXCARE will represent CUSTOMER fairly and will make no representations or
guarantees concerning CUSTOMER which are false or misleading. LINUXCARE will
comply with all applicable laws and regulations in performing under this
agreement.
4.1.3 AUDIT INFORMATION
LINUXCARE shall record and maintain relevant data in accordance with Section
3.1.4?? and 3.2 and 3.3.
LINUXCARE shall make summary incident reports online available to CUSTOMER for
each incident reported to LINUXCARE by CUSTOMER. These incident reports will be
issued in English only.
4.2 CUSTOMER'S RESPONSIBILITY AND OBLIGATION
4.2.1 FORECAST AND MINIMUM SERVICE
CUSTOMER will commit a minimum of eighty-four (84) hours of support service in
the duration defined by TERM. There shall be no refund or credits from LINUXCARE
to CUSTOMER for any unused service time upon the termination of this agreement
for any reason. CUSTOMER shall provide a forecast to LINUXCARE of the estimated
service requests per months prior to commencement of each calendar quarter.
4.2.2 SERVICE REQUEST ROUTING FACILITY
CUSTOMER will provide necessary facility, including web forms, email
address/alias and call routing system, for initiating and routing service
request.
4.2.3 ESCALATION POINT OF CONTACT
CUSTOMER will provide the contact information of the engineer(s) responsible for
escalated service request to LINUXCARE. CUSTOMER will facilitate resolution
information on escalated service requests upon request from LINUXCARE.
PAGE 7 OF 8
CUSTOMER: LINUXCARE:
By: /s/ William Jestron By: /s/ Thomas W. Phillips
----------------------- -----------------------
Name: William Jestron Name: Thomas W. Phillips
--------------- ------------------
Title: Director of Purchasing Title: V.P. Sales
---------------------- ----------
PAGE 8 OF 8
TYPE: EX-10.2.2
SEQUENCE: 7
DESCRIPTION: SUPPORT TRAINING AND CERTIFICATION AGREEMENT
EXHIBIT 10.2.2
SUPPORT, TRAINING AND CERTIFICATION AGREEMENT
THIS SUPPORT, TRAINING AND CERTIFICATION AGREEMENT is entered into as of
this _____ day of _______________, 19___ (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 Linuxcare
Inc, a __________ corporation having a principal place of business at
__________ (hereinafter "Linuxcare").
DEFINITIONS:
"Linux Distributions" shall include the current and future versions and
releases of the Linux-based operating systems distributed by Redhat,
Caldera, SuSE, Turbolinux (Pacific HiTech) and Debian.
"System Configuration" shall mean any combination of the Base Platforms
described in Sections A and B of Supplement 1 with any or all of the
devices as certified by LinuxCare Labs, that are listed in Section C of
Supplement 1, as amended from time to time by Dell.
1. SUPPORT
SCOPE OF SUPPORT SERVICES
-------------------------
90-Day Installation Support
---------------------------
Linuxcare will provide phone and email support to Dell customers,
located in the geographical regions listed in Supplement 3 and in
other geographies which Dell may include from time to time. Support
will be in the following areas, for customers who choose and pay for
Linuxcare as their Linux operating system support provider for * per
Linux system sold by Dell and referenced in Supplement 1:
(i) Reinstallation of factory installed Linux operating system
distributions installed by Dell in all geographic regions.
The reinstall is done by the customer from a CD provided
with the system. Linuxcare will provide direction to the
customer as requested;
(ii) Configuration of client services associated with enabling a
system to communicate with the network and to connect to
existing networks via supported Linux drivers;
(iii) Connectivity testing between Linux workstation and the
network using the TCP/IP on workstations to verify that the
Ethernet controllers included with Dell systems
communicates with the network as specified in the industry
standard TCP/IP architecture;
(iv) Configuration of Linuxcare Labs Certified onboard devices
which consist of:
Network Interface Controller (NIC)
Disk Drives
Video adapters
memory
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1
Processors
Tape Back up units
Disk drive controllers
Audio controllers
(vi) Assistance with basic system administration tasks such as
adding a user, changing password;
(vii) 14x7 (local region time) English based phone, email, and web-
based support
(viii) Local language support provided as available at no additional
charge; Local language support will be available from Linuxcare
for the following: Japan October 31, 1999 German, French,
Dutch, Spanish, Italian November 31, 1999
Linuxcare will provide 2 Linuxcare certification support contacts for
Dell to utilize as technical resources
Extended Support Offering
-------------------------
In the event that the customer's support requirement falls outside the
previously described installation support, the customer may take advantage of
Linuxcare Extended Support offerings. These incident packs may be purchased at
time of system purchase or within the 90-Day Installation Support period only
and cover the Linux Distributions Unused incidents will expire one year from
purchase date.
Description of Services included:
---------------------------------
Post 90-day installation support coverage includes English based phone, email,
and web-based support, and local language phone and written support provided as
available. In the event consulting services are necessary, an incident coupon
can be used as a credit equal to the dollar amount or amounts of the incident
coupon(s), towards the agreed upon consulting rate.
Incident coverage consists of the following:
(i) Identifying and solving software and hardware issues
(excluding "Windows"', RAID systems, WAN Networking
products and USB devices) that have prescribed solutions,
existing patches, prior fixes;);
(ii) configuration of new non "Windows" hardware utilizing
existing functional device drivers;
(iii) basic re-configuration of the operating system;
(iv) configuration of professional user space applications
These services may require multiple e-mail and/or telephone communications
between Linuxcare support technician and the end user. The incident support
coverage requires that covered support issues be reported and handled on a
single incident basis, restricting communication to a single incident within the
scope of the problem/issue reported.
Pricing for Incident Packs:
---------------------------
*for 5 incident pack (* incident)
*for 10 incident pack (* incident)
*for 25 incident pack (* incident)
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
2
Escalation Support
------------------
Escalation support will be handled by Linuxcare in the manner
proscribed in Supplement No.2 as attached.
II. PAYMENT TERMS
For all amounts to be paid to Linuxcare for all of the services stated in
this Agreement (including those hereinafter defined as training and
certification services), Dell will pay Linuxcare the fees stated herein.
Linuxcare will receive from Dell a weekly reporting stating how many of
Dell's customers who had a Linux Distribution installed, chose Linuxcare as
a provider of support. From this data Linuxcare will generate an acceptable
invoice to Dell for payment. Linuxcare will also send out a letter to
Dell's customers, who have chosen Linuxcare as their support provider,
advising the customer of what the support offering will consist of and the
hours of operation, along with a toll free number for the customer to call
into for service.
III. TRAINING
Scope of Training Services
--------------------------
Linuxcare will provide training to Dell on site for class sizes between ten
and fifteen students per day. Training Services will be provided at the
current rate of [*] /person/day plus reasonable and actual travel and
shipping training materials expenses incurred per Dell's request and in
accordance with Dell's policy attached as Supplement X or found at (url).
Training will be in English only. If Dell chooses to do translations,
Linuxcare can do the translation at Dell's request and Dell shall
reimburse Linuxcare at cost for such translations. . Custom courseware
development fees may apply for courses developed or tailored to Dell's
specific needs.
Dell will pay or reimburse Linuxcare for any applicable sales, use, and
similar taxes associated with Dell's acquisition of the Services, except
that Dell will have no liability for any taxes based on Linuxcare's net
assets or net income, or for which Dell has an appropriate resale or other
exemption. Dell will reimburse Linuxcare for all pre-approved actual,
reasonable, documented out-of-pocket expenses, including travel expenses,
incurred by Linuxcare at Dell's request which are in accordance with Dell
policy (attached or found at
http://inside.us.dell.com/travel/vid/policy1.htm#statement.) Payment terms
are thirty (30) days from Dell's receipt of an acceptable Linuxcare
invoice. All payments will be in U.S. currency unless otherwise agreed to
in writing. No invoice will be sent prior to the performance of the related
Services. In the event that Linuxcare is in default of any of its
obligations under this Agreement, Dell may withhold payment of any part of
the unpaid price for the Services specifically in dispute until Linuxcare
has, to Dell's satisfaction, completely remedied the breach. All Services
purchased by Dell from Linuxcare will aggregate for calculating any
discounts, if applicable.
Linuxcare courseware is available for licensing by Dell for replication at
for an additional cost as referenced on Exhibit ____. Dell has the option
to use any training mechanism or provider that it deems, in conjunction
with any of its Linux offerings Therefore, nothing in this contract is
deemed to give Linuxcare exclusive Dell business.
Linuxcare hereby gives Dell the right to use and reproduce, any Linuxcare
trademarks and or logs in the marketing and distribution of Linuxcare
services.
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
3
IV. CERTIFICATION SERVICES
Scope of Certification Services
-------------------------------
Linuxcare Labs, a division of Linuxcare, Inc 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:
(i) Dell has the option to submit up to 45 System Configurations per Linux
Distribution for certification, during a 12 month period;
(ii) Certifications will be for all previously defined Linux Distributions
(iii) Linuxcare will certify a system 96 hours after receipt of the Dell
system configuration, if the Dell submitted system passes Linuxcare Labs
certification;
(iv) Linuxcare will certify Japanese versions of TurboLinux against all
submitted Dell System Configurations;
(v) Linuxcare will also certify French, German, Dutch and English beginning
December, 1999
(vi) Linuxcare will certify Italian and Spanish as soon as it becomes
available from Linuxcare Labs;
(vii) Dell will have the option to self certify its configured systems when
such certification tests are available from Linuxcare Labs;
(viii) Linuxcare will provide 2 dedicated contacts for Dell certification
support, with specified contacts for backup in the event that the
designated contacts are unavailable;
(ix) Linuxcare will certify and provides support for IA64 code architecture
as designed by IBM when it becomes available for the core Linux operating
system as designated by Linus Torvald.
Pricing and Payment Terms
-------------------------
The price for each separate certification of each of the above referenced
distributions is * per System. New releases (e.g., 1.1 to 1.2) of the
Linux Distributions will be included in the * fee, new versions
(e.g., 1.0 to 2.0) will require a separate certification.
Metrics
-------
Linuxcare will employ a scientific and replicable process that measures the
success or failure of a computer system's system initialization, booting,
launching of necessary services, networking, video, and other included
components. Upon request, Linuxcare will provide to Dell documentation of
this process.
Deliverables
------------
A configuration is certified if it is made fully operational with the
currently available Linux Distribution software and patches. Linuxcare will
post all Linuxcare Labs Certified machines on its web site and maintain
links from associated partners web sites and Linuxcare will provide Dell a
document describing the System Configuration which was certified. Linuxcare
will provide a separate document for Linux individual distributions to Dell
within 3 days of certification.
V. CONSULTING SERVICES
Linuxcare will provide consulting, development, optimization, benchmarking,
etc. to Dell, if requested by Dell, at current contract pricing, subject to
availability of Linuxcare resources.. Projects and long-term contracts, if
any, will be negotiated on a case-by-case basis if necessary, and a
separate
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
4
Statement of Work ("SOW"), will be executed by the parties and made an
addendum to this agreement.
VI. SERVICE LEVEL GUARANTEES
Linuxcare agrees to provide the following service levels for Dell
customers who choose Linuxcare as their Linux operating system support
provider:
FIRST TIME CLOSURE RATE: 85%
(known to Dell as First Time Resolve "FTR")
EMAIL SUPPORT LEVEL "SL": acknowledge receipt of email within 4 hrs
L1 issues within 12 hrs
L2 issues within 24 hours
WEB SL: L1 issues within 12 hrs
L2 issues within 24 hours
PHONE SL: L1 issues resolved on the call
L2 issues within 4 hours
VII. TERM
The Agreement shall have an initial term of one (1) year commencing on
the date this agreement is fully executed by both parties ("Initial
Term"). It shall be automatically renewed for successive one (1) year
terms at Linuxcare's then current rates for the selected Services,
unless and until terminated by either party by written notice to the
other at least sixty (60) days prior to the expiration of the Initial
Term or any then-current renewal term. If Linuxcare's rates for any
selected services shall be increased for any renewal term, DELL may,
no longer than thirty (30) days from the receipt of notice of such
increase, elect to terminate such Services by written notice to
Linuxcare. As used herein, "Term" shall mean the Initial Term and any
renewals thereof.
VIII. TERMINATION AND DEFAULT
If Dell fails to pay any invoice in full within a period of forty-five
(45) days after the same is due and such failure continues for a
period of thirty (30) days after Linuxcare gives notice to DELL
thereof, then in addition to all other rights and remedies at law or
otherwise, Linuxcare shall have the right to terminate this Agreement
upon thirty (30) days notice to DELL. Except for Dell's failure to
make payments, as herein above set forth, either party may terminate
this Agreement on written notice if the other party has breached any
material provision of this Agreement, or becomes insolvent, invokes as
a debtor any laws relating to the relief of debtors' or creditors'
rights, or has such laws invoked against it as a debtor. Such
termination shall be effective thirty (30) days after notice, unless
such breach has been cured or the terminating party is satisfied with
the other party's solvency within that time.
Termination for convenience. Dell may upon 30 days written notice to
Linuxcare, terminate this agreement for convenience, unless Dell is in
breach of this agreement as stated in Section VIII. If Dell is in
breach of the agreement, as stated in Section VIII, Dell shall have to
cure such breach prior to exercising this termination for convenience
option.
5
IX. WARRANTY
Linuxcare warrants that they have all necessary authorization to
perform support and certification on all of the Linux Distributions.
Linuxcare further will provide written evidence of such authorization
for the manufactures of the referenced Distributions, to Dell within
60 days of the Effective Date of this agreement.
Linuxcare warrants to DELL that Services hereunder will be performed
in a professional manner and in accordance with good usage and
accepted practices as established in the community in which such
Services are performed. If such Services prove to be not so performed
and if DELL provides written notification to Linuxcare within a ninety
(90) day period commencing on the date of completion of the Service,
Linuxcare will, at DELL'S option, either correct any defects and
deficiencies for which it is responsible or render prorated refund or
credit based on the original charge for the Services.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
X. INDEMNITY
LINUXCARE AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS DELL PRODUCTS
L.P., DELL COMPUTER CORPORATION ("DCC"), AND ANY OF DCC'S SUBSIDIARIES OR
AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
REPRESENTATIVES, AND AGENTS (THE "INDEMNITEES") FROM AND AGAINST ANY AND
ALL CLAIMS, ACTIONS, DEMANDS, LEGAL PROCEEDINGS, LIABILITIES, DAMAGES,
LOSSES, JUDGMENTS, AUTHORIZED SETTLEMENTS, COSTS OR EXPENSES, INCLUDING
WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES, (THE "DAMAGES") ARISING OUT
OF OR IN CONNECTION WITH ANY ALLEGED OR ACTUAL:
(i) INFRINGEMENT BY LINUXCARE AND/OR A DELIVERABLE(S) OF A COPYRIGHT,
PATENT, TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY OR INTELLECTUAL
PROPERTY RIGHT OF ANY THIRD PARTY;
(ii) CLAIM THAT LINUXCARE AND/OR GOODS AND DELIVERABLES PROVIDED UNDER
THIS AGREEMENT HAS CAUSED BODILY INJURY (INCLUDING DEATH) OR HAS DAMAGED
REAL OR TANGIBLE PERSONAL PROPERTY;
(iii) BREACH OF ANY OF LINUXCARE'S WARRANTIES CONTAINED IN THIS AGREEMENT;
(iv) ANY VIOLATION BY LINUXCARE OF ANY GOVERNMENTAL LAWS, RULES,
ORDINANCES, OR REGULATIONS; AND/OR,
(v) CLAIM BY OR ON BEHALF OF LINUXCARE'S SUBCONTRACTORS, SUPPLIERS,
EMPLOYEES OR AGENTS.
LINUXCARE WILL PROVIDE THE ABOVE INDEMNITY EVEN IF LOSSES ARE DUE, OR
ALLEGED TO BE DUE, IN PART TO ANY INDEMNITEE'S CONCURRENT NEGLIGENCE OR
OTHER FAULT, BREACH OF CONTRACT OR WARRANTY, VIOLATION OF THE TEXAS
DECEPTIVE TRADE PRACTICES ACT, OR STRICT LIABILITY WITHOUT REGARD TO FAULT;
PROVIDED, HOWEVER,
6
THAT LINUXCARE'S CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL NOT EXTEND
TO THE PERCENTAGE OF THE THIRD PARTY CLAIMANT'S DAMAGES OR INJURIES OR THE
SETTLEMENT AMOUNT ATTRIBUTABLE TO THE INDEMNITEE'S NEGLIGENCE OR OTHER
FAULT, BREACH OF CONTRACT OR WARRANTY, OR BREACH OF THE TEXAS DECEPTIVE
TRADE PRACTICES ACT, OR TO STRICT LIABILITY IMPOSED UPON INDEMNITEE AS A
MATTER OF LAW.
IN THE EVENT OF ANY SUCH CLAIMS, DELL SHALL: (1) PROMPTLY NOTIFY LINUXCARE,
(2) COOPERATE WITH LINUXCARE IN THE DEFENSE THEREOF, AND (3) NOT SETTLE ANY
SUCH CLAIMS WITHOUT LINUXCARE'S CONSENT WHICH LINUXCARE AGREES NOT TO
UNREASONABLY WITHHOLD. LINUXCARE SHALL KEEP DELL INFORMED AT ALL TIMES AS
TO THE STATUS OF LINUXCARE'S EFFORTS AND CONSULT WITH DELL (OR DELL'S
COUNSEL) CONCERNING LINUXCARE'S EFFORTS; AND, LINUXCARE SHALL NOT SETTLE
THE CLAIM WITHOUT DELL'S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE
UNREASONABLY WITHHELD.
XI. LIMITATION OF LIABILITY
IN NO EVENT, SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY PERSON
OR ENTITY USING ANY SERVICE SUPPLIED UNDER THIS AGREEMENT, FOR LOSS OF
TIME, INCONVENIENCE, LOSS OF USE OF ANY SOFTWARE PRODUCT OR EQUIPMENT
OR THEIR FAILURE TO WORK, OR FOR ANY DAMAGE CAUSED BY ANY SOFTWARE
PRODUCT OR EQUIPMENT OR THEIR FAILURE TO WORK, OR FOR ANY OTHER
INDIRECT, SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSS OR
DAMAGE ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING
THEREFROM OR THE USE OR PERFORMANCE OF ANY SOFTWARE OR PRODUCTS
WHETHER IN AN ACTION FOR OR ARISING OUT OF ALLEGED BREACH OF WARRANTY,
ALLEGED BREACH OF CONTRACT, DELAY, NEGLIGENCE STRICT TORT LIABILITY OR
OTHERWISE.
EXCEPT FOR THE SPECIFIC INDEMNITIES PROVIDED FOR IN THIS AGREEMENT,
THE PARTIES EXPRESSLY AGREE THAT IN NO EVENT SHALL EITHER PARTY BE
LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT,
PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING
WITHOUT LIMITATION LOST PROFITS AND DAMAGES RESULTING FROM LOSS OF USE
OR LOST OR CORRUPTED DATA OR SOFTWARE EVEN IF SUCH PARTY HAS BEEN
ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. BOTH
PARTIES EXPRESSLY WAIVE ANY CLAIMS DESCRIBED IN THE PRECEDING
SENTENCE.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH
ABOVE IN SECTION XI, SHALL NOT APPLY TO PROVIDER'S OBLIGATIONS AND
LIABILITIES UNDER SECTION X ABOVE.
X. NONWAIVER
No course of dealing, course of performance, or failure of either
party strictly to enforce any term, right or condition of this
Agreement shall be construed as a waiver of any term, right, or
condition. No waiver of breach of any provision of this Agreement
shall be construed to be a waiver of any subsequent breach of the same
of any other provision.
XI. FORCE MAJEURE
7
Neither Party shall be liable to the other Party for any failure to
perform any of its obligations hereunder during any period in which
such performance is delayed by fire, flood, war, embargo, strike, riot
or the intervention of any governmental authority or similar
circumstances (a "Force Majeure"). In such event, however, the delayed
Party must: (a) promptly provide the other Party with written notice
of the Force Majeure; and (b) use its best efforts to resume or
commence performance under this Agreement. The delayed Party's time
for performance will be excused for the duration of the Force Majeure,
but if the Force Majeure event lasts longer than forty-five (45) Days,
the other Party may immediately terminate this Agreement.
XII. CHOICE OF LAW
Laws of the State of Texas shall govern the construction,
interpretation, and performance of, and all transactions under this
Agreement.
XIII. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all
prior oral or written understandings between the parties, shall
constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and shall not be contradicted,
explained or supplemented by any course of dealing between Linuxcare
or any of its affiliates and DELL or any of its affiliates. Linuxcare
employees' statements and Linuxcare advertisements or descriptions
other than its published specifications do not constitute warranties
or other contractual obligations, and shall not be relied upon by Dell
as such. This Agreement shall not be modified or amended except by
writing signed by an authorized representative of both parties.
XIV. ASSIGNMENT
This Agreement may not be assigned by either party without the prior
written consent of the other party. Such consent shall not be
unreasonably withheld.
XV. PARTIES BOUND
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representatives, heirs,
successors and assignees.
XVI. NOTICES
All notices under this Agreement (except for requests for Service)
shall be in writing and shall be given by telegram or similar
communication, or by U.S. Certified mail, postage prepaid addressed to
DELL at the address set forth on the front page of this Agreement and
to Linuxcare at the address listed in the Section WRITTEN NOTICES, or
to such other address as either party may designate by written notice
pursuant hereto. Such notice shall be deemed to have been given when
received.
Any statement, notice, request or other communication shall be deemed
to be sufficiently given to addressee and any delivery hereunder
deemed made when sent by certified mail addressed to DELL at its
office specified in the Agreement or to Linuxcare at the appropriate
address specified in this section.
8
Each party to this Agreement may change an address relating it by
written notice to the other party.
XVII. SEVERABILITY
If any paragraph, or clause thereof, in this Agreement shall be held
to be invalid or unenforceable in any jurisdiction in which this
Agreement is being performed, then the meaning of such paragraph or
clause shall be severed from this Agreement and the remainder shall
remain in full force and effect. However, in the event such paragraph
or clause is considered an essential element of this Agreement, the
parties shall promptly negotiate a replacement thereof. If the parties
are unable to agree upon a replacement term within thirty (30) days of
the final ruling rendering such term invalid or unenforceable, either
party may terminate this Agreement upon ten (10) days prior written
notice.
XIII. TAXES
Any tax or related charge resulting from this Agreement or any
activities hereunder, exclusive of any tax based on or measured by net
income, which Linuxcare shall be required to pay or collect for any
government shall be billed to Dell as a separate item and shall be
paid by DELL unless a valid exemption certificate is furnished by Dell
to Linuxcare.
XX. WRITTEN NOTICES AND PAYMENTS
Payments and all correspondence to either party relating to this
Agreement shall be sent to:
Linuxcare, Inc. DELL Products, LP
ATTN:
Strategic Commodity Manager Software
One Dell Way
Round Rock, Texas 78682
Linuxcare: DELL:
/s/ Thomas W. Phillips /s/ Sharon Peterson
Name: Name:
Title: VP Worldwide Sales Title: WWSP, Dir.
------------------ ----------
Signature: Thomas W. Phillips Signature: Sharon Peterson
------------------ ---------------
Date: 10/13/99 Date: 10/22/99
-------- --------
9
Supplement No: 1
SUPPORTED PLATFORMS
Dell Red Hat Linux
Hardware Dell Diag Name Diag Red Hat Linux File and
Location Configuration Tool Command Diags
A. Base In Box
System GX1 Dell Diagnostics File Boot Install /proc/pci.
GX1p Library /proc/cpuinfo
B. Base In Box
System 410 Dell Ver.3.92B/A03 or File Boot Install /proc/pci.
610 higher, P/N 33260 Library /proc/cpuinfo
C. (1) Single In Box, kernel.rpm for
or Dual Dell Diagnostics File single, kernel- /proc/pci,
Processor Library smp.rpm for multi /proc/cpuinfo
(2) Any RAM In Box,
up to 1 GIG Dell Diagnostics File Boot Install /proc/meminfo
Library
(3) Onboard In Box,
IDE Dell Diagnostics File Boot Install /proc/pci.
controllers Library /proc/ide
(4) Onboard In Box,
add-on Dell Diagnostics File Boot install /proc/pci
Adaptec SCSI Library /proc/scsi
CTRL
(5) Any SCSI In Box, /proc/pci
or IDE hard Dell Diagnostics File Boot Install /proc/scsi
disk Library /proc/ide
(6) Any SCSI In Box, /proc/pci
or IDE Dell Diagnostics File Boot Install /proc/scsi
CDROM Library /proc/ide
(7) ATAPI ZIP In Box, /proc/pci,
100 or 250 Dell Diagnostics File /etc/fstab /proc/scsi,
Library /proc/ide
(8) Onboard In Box, pnpdump,
Crystal Dell Diagnostics File Sndconfig /etc/isapnp.conf,
CS4236/Audio Library /etc/conf.modules
(9) Onboard Dell Diagnostics or 3Com In Box, pnpdump,
3Com 3c90x Diagnostics File Snconfig /etc/isapnp.conf,
NIC Library /etc/conf.modules
(10) Onboard
ATI Rage In Box, /proc/pci,
Video for Dell Diagnostics File Xconfigurator /etc/X11/XF86Con
Optiplex Library fig
Precision WorkStations
(11) Permedia Diamond 8MB AGP File /proc/pci,
2 8MB video Diagnostics Library Xconfigurator /etc/X11/XF86Con
card WSDMDDIA.EXE fig
(12) Diamond TBD /proc/pci,
Viper 770D (Not RTSed at this time) TBD Xconfigurator /etc/X11/XF86Con
10
16MB video fig
card
(13) STB ?? ??
NVIDIA TNT Xconfigurator ??
16MB video
card
(14) any in Box, use
keyboard PS/2 Dell Diagnostics File Mouseconfig ??
library fig
(15) Microsoft In Box, ??
Intellimouse Dell Diagnostics File Mouseconfig use,
PS/2 Library /etc/X11/F86Con
fig
(16) Logitech In Box, /etc/sysconfig/mo
3 button Dell Diagnostics File Mouseconfig use,
mouse PS/2 Library /etc/X11/XF86Con
fig
(17) Logitech In Box, /etc/sysconfig/mo
Mouseman Dell Diagnostics File Mouseconfig use,
Wheel PS/2 Library /etc/X11/XF86Con
fig
(18) any 2 In Box, /etc/sysconfig/mo
button PS/2 Dell Diagnostics File Mouseconfig use,
mouse Library /etc/X11/XF86Con
fig
The current Linuxcare contact for technical support
is:
Name: Gaylen Brown
Electronic Mail: Gbrown@linuixcare.com
Facsimile:
Voice: 415-354-4878x337
11
[INTENTIONALLY LEFT BLANK]
12
SUPPLEMENT NO: 2
ESCALATION PROCEDURE MATRIX
ESCALATION PROCEDURES ARE OUTLINED AT:
http://www.Linuxcare.com/support_info/
--------------------------------------
13
[CHART OMITTED]
Login: dell
Password: dellway
14
SUPPLEMENT 3
GEOGRAPHICAL REGIONS SUPPORTED
United States
Canada
Mexico
South America
Europe
Japan
Asia Pacific
Australia
15