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[DELL LOGO] EXHIBIT 10.07
Confidential Treatment Requested
STRATEGIC ALLIANCE AGREEMENT
Between
Dell Marketing L.P. ▇▇▇▇▇▇▇▇.▇▇▇ Inc.
One Dell Way and ▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
"Dell" "Neoforma"
Customer No. _____________
A. INTRODUCTION
This Strategic Alliance Agreement (the "Agreement") between Dell
Marketing L.P. and ▇▇▇▇▇▇▇▇.▇▇▇ Inc. is a nonexclusive relationship
under which both parties wish to identify and, as appropriate, undertake
activities to enhance the market for each of their respective products
and services throughout the world.
In this Agreement, Dell refers to itself as "Dell", but all rights and
obligations under this Agreement are those of Dell Marketing L.P.
regardless of the reference. The date on which Dell signs this Agreement
is the Effective Date.
B. MARKETING ACTIVITIES AND PUBLICITY
1. Marketing Activities. The parties will cooperate to establish in writing
a Marketing Development Plan to be implemented by the parties that will
promote the alliance. The Marketing Development Plan may include, but
not be limited to, developing complementary marketing programs between
Dell and Neoforma that promote the brand image of the parties and their
respective products. The Marketing Development Plan will include the
following activities: Neoforma and Dell will establish hyperlinks
between their respective commercial Internet Web sites and agree to work
together with the goal (i.e., making available for viewing by users of
the Internet) of establishing such links prior to April 30, 2000. In the
case of Neoforma's link on Dell's Web site, Neoforma acknowledges and
agrees that its link will fall within Dell's healthcare Internet site
and not within Dell's existing Direct Effect program or Strategic Web
Page program. If Neoforma migrates to a NT platform for its Internet
data center, Neoforma agrees that all of its web pages will carry the
"Powered by Dell" logo and that, subject to the parties' mutual
agreement, all of its advertising, publicity, web pages, trade shows and
related materials will carry the "Powered by Dell" logo.
Each party's ability to link to the other party's Web site will be
subject to such additional conditions and restrictions (including
appropriate licenses and other additional contractual terms and
conditions), as the party operating the site on which the link resides
may reasonably require. Once established, the links will be continuously
maintained during the term of this Agreement. The parties will negotiate
in good faith and finalize, within sixty (60) days of the Effective Date
of this Agreement, the Marketing Development Plan upon which the parties
have mutually agreed.
2. Publicity. Except as otherwise provided herein, neither party will issue
a press release or initiate any publicity, or make or cause to be made
any news release or other public announcement, relating to this
Agreement or the transactions contemplated hereby without the prior
approval of the other party, which approval shall be timely and shall
not be unreasonably withheld. This obligation will not prohibit release
of any information to the extent required by law or by the rules of any
stock exchange or recognized quotation system on which any securities of
either party or any of its affiliates are publicly traded, provided that
the releasing party gives the other party prior written notice of the
same and the opportunity to limit and/or correct such release.
3. Marketing and Publicity Practices. Each party represents and warrants
that (i) it shall not engage in any deceptive, misleading or illegal
practices; (ii) it shall comply with all applicable federal, state
regulations with
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respect to the marketing and advertising materials and information it
supplies; and (iii) it shall not make any misrepresentations or material
omissions of fact to the other party or the other party's customers
regarding their respective products and services. Neither party will
disparage or discredit the other party or, by words, actions or
inaction, otherwise willfully or negligently damage the reputation of
the other party or its products and services.
C. DELL AS NEOFORMA'S EXCLUSIVE SUPPLIER AND EXCLUSIVE COMPUTER EQUIPMENT
AUCTION PROVIDER
Neoforma hereby designates Dell as, and Dell will have the status of,
its exclusive supplier of desktops, portables, workstations, and servers
and storage devices (the "Preferred Products"), unless the Preferred
Products do not meet Neoforma's reasonable technical requirements or the
Preferred Products are not at reasonably competitive prices. Neoforma
will evaluate migrating to a NT platform in their Internet data center;
Dell will be Neoforma's preferred provider of Internet and storage
consulting services as provided for in Section D, below, unless Dell is
not able to meet Neoforma's commercially reasonable technical needs.
For Neoforma customers who wish to purchase used computer equipment and
accessories, Neoforma will direct its customers only to Dell's auction
site by providing a link from Neoforma's partner page to Dell's auction
site. This provision does not, however, apply to used computer equipment
and accessories used in connection with specialized medical equipment
(e.g., a computer that is configured to be used in connection with an
ultrasound machine) that Neoforma itself offers on its auction site.
Except for the designation of Dell as the preferred supplier as provided
for in this section, the relationships established by this Agreement are
not exclusive in any way.
D. NEOFORMA'S PURCHASE OF PRODUCTS AND SERVICES FROM DELL AND PREFERRED
COMPUTER EQUIPMENT AUCTION PROVIDER
Dell will offer to (i) sell Dell-branded products and services,
including consulting services, to Neoforma, its employees and its
customers that is being bought for business and professional use; and
(ii) provide to Neoforma and its customers related services. Neoforma
agrees to purchase from Dell either by itself or through its employees
and customers at least $5 million of Preferred Products upon a mutually
agreeable roll-out schedule. By December 31, 2000, Neoforma agrees to
purchase from Dell, for itself, at least $100,000 of data center
consulting services for evaluation of migrating its website platform and
internal infrastructure needs. The sale of the Dell-branded products and
services to Neoforma is subject to the terms of a customer purchase
agreement to be signed by Neoforma and Dell Marketing L.P. or, in the
absence of the customer purchase agreement, Dell's standard invoice
terms and conditions of sales to commercial accounts. The sale of
Dell-branded products and services to Neoforma's employees and customers
is subject to Dell's standard terms and conditions of sale. Neoforma and
Dell Marketing L.P. will negotiate in good faith and finalize, within 30
days of the Effective Date of this Agreement, Dell's Key Customer
Purchase Agreement or similar agreement [*].
For Neoforma customers who wish to purchase used computer equipment and
accessories, Neoforma will provide a link on its current partner web
page to direct its customers to Dell's auction site. Such referrals will
also be counted against Neoforma's purchase and referral commitment in
this Section D.
Dell Financial Services L.P. ("DFS") will be one of Neoforma's preferred
providers of leasing services. Neoforma will contract directly with DFS.
E. EXPENSES
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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Unless otherwise agreed to in writing by the parties, each party will bear
its own expenses in connection with this Agreement and any project
undertaken pursuant to this Agreement. Each party will be responsible for
any taxes imposed on it in connection with this Agreement or any such
project.
F. INDEPENDENT CONTRACTOR STATUS
Each of the parties is an independent contractor and neither party nor
any of its affiliates or employees will be eligible for any employee
benefits from the other party.
For all purposes of this Agreement, each party will be and act as an
independent contractor. Nothing contained in this Agreement will be
construed to imply a partnership, joint venture, principal-agent, or
employer-employee relationship between the parties. In the absence of
express written authorization, neither party will have any power to
create any obligation, express or implied, on behalf of the other party.
The parties understand and agree that use of the terms "joint venture,"
"partner," "partnership," "alliance," or similar terms, if used to
describe the relationship between the parties under this Agreement,
refer to the spirit of cooperation between the parties, are informal
references only, and do not describe or expressly or by implication
create, a legal partnership or joint venture, any responsibility by one
party for the actions of the other, or any fiduciary or other duty owed
by one party to the other.
G. CONFIDENTIALITY
The written nondisclosure agreement existing between Dell and Neoforma,
effective October 5, 1999, Dell NDA #99100519 will control and will
apply according to its terms and conditions to all confidential
information the parties exchange.
H. REPRESENTATIONS AND WARRANTIES
1. In addition to the representations and warranties found elsewhere in
this Agreement, each party represents and warrants to the other party
that (i) it has full corporate power and authority to enter into and
perform this Agreement, (ii) its execution, delivery and performance of
this Agreement has been duly authorized by all necessary corporate
action, and (iii) its execution, delivery and performance of this
Agreement does not constitute a breach or violation of, or a default
under, or an event which with the passage of time, the giving of notice,
or both, would result in a breach or violation of or default under, or
otherwise conflict with, the organizational documents of such party or
any contract or agreement to which it is a party or by which it is bound
(including any agreements relating to the confidential or proprietary
information of a third party).
2. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION H (1) OF THIS
AGREEMENT, AND EXCEPT FOR ANY OTHER WARRANTIES EXPRESSLY SET FORTH IN
OTHER WRITTEN AGREEMENTS SUBSEQUENTLY EXECUTED BY THE PARTIES WITH
RESPECT TO THIS AGREEMENT, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,
WHETHER EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR
ANY PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED HEREUNDER, INCLUDING
WITHOUT LIMITATION ANY AND ALL WARRANTIES OR MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS.
WITHOUT LIMITATION OF THE FOREGOING, THE PARTIES DO NOT WARRANT,
GUARANTY OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS
OF THE USE, OF ANY PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED
HEREUNDER, AND EXPRESSLY DISCLAIM ANY WARRANTIES THAT ANY SUCH PRODUCTS
WILL RUN UNINTERRUPTED OR WILL BE ERROR FREE.
I. INDEMNIFICATION
Each party shall indemnify and hold the other, and any of such other
party's subsidiaries or affiliates, and their respective officers,
directors, employees, representatives and agents (collectively the
"Indemnitee"), harmless from and against any and all third party claims
and damages (i) arising out of its breach of its covenants and
warranties under this Agreement; and (ii) arising out of its failure to
perform an obligation to its customers. The indemnifying party shall
have no obligation under this Section unless (a) the Indemnitee notifies
the
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indemnifying party within ten (10) days of receiving a claim for which
the Indemnitee is seeking indemnification; (b) the indemnifying party
has sole control of the defense and all related settlement negotiations;
and (c) the Indemnitee provides the indemnifying party with reasonable
assistance, information and authority necessary to perform its
obligations under this Section. Reasonable out of pocket expenses
incurred by the Indemnitee in providing such assistance will be
reimbursed by the indemnifying party.
J. LIMITATION OF LIABILITY
Except for either party's violation of the other's intellectual property
rights, breach of the confidentiality provisions, or their indemnity
obligations, neither party shall be liable for any indirect, incidental,
special or consequential damages, or damages for lost profits, revenue,
data or use, incurred by either party or any third party, whether in an
action in contract or tort, even if the other party or any other person
has been advised of the possibility of such damages. In no event shall
either party's liability of damages under this Strategic Alliance
Agreement exceed one million dollars ($1,000,000).
▇. COMPLIANCE WITH LAW
Each party represents and warrants that it shall comply with all
applicable laws, rules, regulations and orders of the United States and
any other government with jurisdiction over it or its activities in
performance of its obligations under this Agreement, including all
applicable import or export regulations and all licenses or permitting
requirements.
L. INTELLECTUAL PROPERTY RIGHTS
1. Nothing in this Agreement will grant either party any rights with
respect to any patents, copyrights, moral rights, author's rights,
rights of publicity, mask work rights, trademarks, service marks, trade
names, trade secrets, know-how, contract rights, licensing rights or
other proprietary or intellectual property rights under the laws of any
jurisdiction, whether now existing or hereafter arising (collectively
"Intellectual Property Rights") of the other party or any of its
affiliates; any such grant will be made, if at all, by one or more
subsequent written agreements of the parties. Without limitation of the
foregoing, (i) neither party will use in any way any of the corporate
names, trade names, trademarks, service marks, or other proprietary
designations of the other party or any of its affiliates (collectively
"Marks") without the prior written consent of the other party; and (ii)
neither party will be deemed by anything contained in this Agreement or
done pursuant to it to acquire any right, title, or interest in or to
any Marks of the other party or its affiliates, or any portion thereof.
2. Prior Ownership. Each party acknowledges and agrees that neither shall
acquire, directly or by implication, any rights in the copyrights,
patents, trade secrets, inventions and intellectual property of the
other, which existed in a protectable form prior to the date of this
Agreement.
3. Unilateral Development. During the term of and in connection with the
Agreement, if any software, copyrights, patents, trade secrets,
intellectual property, including inventions, whether patentable or
unpatentable, (each an "Invention") are made by either party or by the
employees or contractors of such party, exclusive title to each such
Invention and to any resulting patent shall be in the party on whose
behalf the employees and/or contractors made the Invention. Such party
shall be responsible for the costs of preparing, filing, and prosecuting
any resulting patent or copyright applications.
4. Joint Development. If during the term of and in connection with the
Agreement, any Invention is jointly made by the parties or by the
employees or contractors of the parties, then title to each such joint
Invention and to any resulting patents shall be jointly owned, and each
party shall be free to use, reproduce, modify the Invention for any
purpose whatsoever, without any obligation of accounting or payment of
royalties.
N. TERM AND TERMINATION
1. Term. This Agreement is in effect for an initial term of one year,
beginning on the Effective Date, and will thereafter renew automatically
for successive periods of one year.
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2. Termination. Either party may terminate this Agreement at any time for
any reason (with or without cause) by providing at least thirty days'
prior written notice. If either party breaches its obligations under
this Agreement, the other party may terminate it immediately by giving
written notice. Upon termination: (a) all links required or permitted by
this Agreement shall be removed from the parties' respective web sites
and (b) all obligations between the parties under this Agreement shall
cease, except those obligations contained in Sections E through O.
O. MISCELLANEOUS
1. Notices. To give notice under this Agreement, the notice must be in
writing and will be effective when delivered to the other party at the
addresses listed at the beginning of this Agreement. For notices to
Dell, Neoforma will also send a copy to Dell Marketing L.P., Attn:
Contracts Manager, ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. Any change of
address must be sent to the other party in writing.
2. General Assignments and Assignment for Third Party Leasing. Either party
without the express written consent of the other may not assign this
Agreement, except that no consent shall be required for any assignments
by either party to its affiliates or subsidiaries and such consent shall
not be unreasonably withheld. With Dell's prior approval, for the
purpose of leasing Products, Customer may assign its rights to purchase
Products under this Agreement to a third party on the terms listed in
the Revocable Assignment for Third Party Leasing. Customer may obtain
the Revocable Assignment for Third Party Leasing from its sales
representative.
3. Independence of Parties. No provision of this Agreement will or shall be
deemed to create a partnership, joint venture or other combination
between Dell and Neoforma.
4. Entire Agreement. This Agreement is the entire agreement between Dell
and Neoforma with respect to its subject matter and supersedes all prior
verbal and written understandings, communications or agreements between
Dell and Neoforma. No amendment to or modification of this Agreement, in
whole or part, will be valid or binding unless it is in writing and
executed by authorized representatives of both parties.
5. Severability. If any provision of this Agreement is void or
unenforceable, the remainder of this Agreement will remain in full force
and will not be terminated.
6. Events Beyond Either Party's Control. Neither party will be liable for
any delays resulting from circumstances or causes beyond the party's
reasonable control.
7. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas, exclusive of any
provisions of the United Nations Convention on International Sale of
Goods and without regard to principles of conflicts of laws.
DELL MARKETING L.P. ▇▇▇▇▇▇▇▇.▇▇▇ INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Printed Name ▇▇▇▇▇ ▇. ▇▇▇▇▇ Printed Name ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------ ----------------------------
Title VP, Sr. Deputy General Counsel Title Chief Financial Officer
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Date 10-11-99 Date 10-7-99
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[DELL LOGO] NDA# 99100519
STANDARD NON-DISCLOSURE AGREEMENT
In order to protect certain Confidential Information (as defined below), DELL
COMPUTER CORPORATION, for itself and its subsidiaries and affiliates ("Dell"),
and ▇▇▇▇▇▇▇▇.▇▇▇, for itself and its subsidiaries and affiliates
("PARTICIPANT"), individually referred to as a "Party" and collectively referred
to as the "Parties", agree that:
1. The Effective Date of this Non-Disclosure Agreement ("Agreement") is
10/05/1999.
2. The Agreement shall apply to all Confidential Information disclosed
between the Parties.
3. In addition to this Agreement, the parties may agree to additional
matters in the form of Addenda that incorporate the terms of this
Agreement (e.g. Product Evaluation).
4.A. The Confidential Information disclosed under this Agreement
("Confidential Information") is described generally as any and all
current and future product information, roadmap, technical or financial
information, customer names, addresses, and related data, contracts,
practices, services, procedures, and other business information
including, but not limited to software, reports, methods, strategies,
plans, documents, drawings, machines, tools, models, inventions, patent
disclosures, samples, materials, and Request For Proposals that may be
disclosed between the parties whether in written, oral, electronic,
website-based, or other form. This Agreement also includes Confidential
Information acquired during any facilities tours.
4.B. Additionally, both parties agree not to issue or release any articles,
advertising, publicity or other matter relating to any Confidential
Information (including the fact that a meeting or discussion has taken
place between the parties) or mentioning or implying the name of the
other party, except as may be required by law and then only after
providing the other party with an opportunity to review and comment
thereon.
5. This Agreement shall remain in effect until it is terminated by either
Party with thirty (30) days prior written notice. The terms and
conditions of this Agreement shall survive any such termination with
respect to Confidential Information that is disclosed prior to the
effective date of termination. The Parties receiving Confidential
Information (each, a "Recipient") will use the Confidential Information
only for the purpose and in connection with the Parties business
relationship.
6. Unless the Parties otherwise agree in writing, a Recipient's duty to
protect Confidential Information expires three (3) years from the date
of disclosure. A Recipient, upon Discloser's written request, will
promptly return all Confidential Information received from the
Discloser, together with all copies, or certify in writing that all such
Confidential Information and copies thereof have been destroyed.
7. A Recipient will use the same degree of care, but no less than a
reasonable degree of care, as the Recipient uses with respect to its own
similar information to protect the Confidential Information and to
prevent (a) any use of Confidential Information not authorized in this
Agreement, (b) dissemination of Confidential Information to any employee
of Recipient without a need to know, (c) communication of Confidential
Information to any third party or (d) publication of Confidential
Information.
8. A Recipient will have a duty to protect Confidential Information (a) if
it is marked or accompanied by documents clearly and conspicuously
designating them as "confidential" or the equivalent; (b) or if it is
identified by the Discloser as confidential before, during or promptly
after the presentation or communication.
9. This Agreement imposes no obligation upon a Recipient with respect to
Confidential Information which (a) was known to the Recipient before
receipt from the Discloser; (b) is or becomes publicly available through
no fault of the Recipient; (c) is rightfully received by the Recipient
from a third party without a duty of confidentiality; (d) is disclosed
by the Discloser to a third party without a duty of confidentiality on
the third party; (e) is independently developed by the Recipient without
a breach of this Agreement; or (f) is disclosed by the Recipient with
the Discloser's prior written approval. If a Recipient is required by a
government body or court of law to disclose Confidential Information,
the Recipient agrees to give the Discloser reasonable advance notice so
that Discloser may contest the disclosure or seek a protective order.
10. Each Discloser warrants that it has the right to disclose its
Confidential Information.
11. This Agreement imposes no obligation on a Party to exchange Confidential
Information or to purchase, sell, license, transfer or otherwise make
use of any technology, services or products.
12. A Recipient will adhere to all applicable laws and regulations of the
U.S. Export Administration and will not export or re-export any
technical data or products received from a Discloser, or the direct
product of such technical data, to any proscribed person or country
listed in the U.S. Export Administration regulations unless properly
authorized by the U.S. government.
13. No Party acquires any intellectual property rights under this Agreement
except the limited rights necessary to carry out the purposes as set
forth in this Agreement. Subject to the obligations of this Agreement,
no Party will be precluded from independently developing technology or
pursuing business opportunities similar to those covered by this
Agreement. Each Party retains sole discretion to assign or reassign the
job responsibilities of its employees.
14. Each Party acknowledges that damages for improper disclosure of
Confidential Information may be irreparable; therefore, the injured
Party is entitled to seek equitable relief, including injunction and
preliminary injunction, in addition to all other remedies.
15. The obligations and duties imposed by this Agreement with respect to any
Confidential Information may be enforced by the Discloser of such
Confidential Information against any and all Recipients of such
Confidential Information.
16. THIS AGREEMENT IS MADE UNDER, AND WILL BE CONSTRUED ACCORDING TO, THE
LAWS OF THE STATE OF TEXAS.
17. This Agreement does not create any agency or partnership relationship.
This Agreement will not be assignable or transferable without the prior
written consent of the other Party. All additions or modifications to
this Agreement must be made in writing and must be signed by all
Parties.
DELL COMPUTER CORPORATION ▇▇▇▇▇▇▇▇.▇▇▇
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
TITLE: VP, Sr. Deputy General Counsel TITLE: Chief Financial Officer
ADDRESS: One Dell Way ADDRESS: ▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇.
CITY, STATE, ZIP: Round Rock, CITY, STATE, ZIP: Santa ▇▇▇▇▇,
Texas 78682-2244 California 95054
DATE: 10/11/99 DATE: 10/7/99