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BROCADE/HP CONFIDENTIAL
OEM PURCHASE AGREEMENT
BY AND BETWEEN
HEWLETT-PACKARD COMPANY
AND
BROCADE COMMUNICATIONS SYSTEMS, INC.
<PAGE>
BROCADE/HP CONFIDENTIAL
OEM AGREEMENT
TABLE OF CONTENTS
1. SCOPE OF AGREEMENT........................................................1
1.1 General............................................................1
1.2 Eligible Purchasers................................................1
1.3 Term Of Agreement..................................................1
2. DEFINITIONS...............................................................1
3. ORDER AND SHIPMENT OF OEM PRODUCTS........................................3
3.1 Orders.............................................................3
3.2 Order Acknowledgment...............................................3
3.3 Emergency Orders...................................................3
3.4 Forecasts..........................................................4
3.5 Lead Time..........................................................4
3.6 Inventory Requirement..............................................4
3.7 Order Changes......................................................4
3.8 Shipment Requirements..............................................4
3.9 HP Option To Accept Overshipments..................................4
3.10 Meeting Shipment Dates.............................................5
3.11 No Advance Shipment................................................5
3.12 Title And Risk Of Loss.............................................5
3.13 Packing List.......................................................5
3.14 Packaging..........................................................5
3.15 Responsibility For Damage..........................................5
4. PRICES AND PAYMENT TERMS..................................................5
4.1 OEM Product Prices.................................................5
4.2 Changed Prices.....................................................6
4.3 Payment Procedure..................................................6
4.4 [*] Warranty.......................................................6
4.5 Sales Taxes And Duties.............................................6
5. NONCOMPLYING PRODUCTS.....................................................6
5.1 Repair or Replacement..............................................6
5.2 Replacement and Repair Period......................................6
6. RETURN OF PRODUCTS........................................................6
6.1 Return Materials Authorization.....................................6
6.2 Return Charges.....................................................7
6.3 Duty To Remove Marks Or Destroy Noncomplying Products..............7
7. ENGINEERING PROCESS OR DESIGN CHANGES.....................................7
7.1 Supplier Proposed Changes..........................................7
7.2 Request for Enhancement............................................7
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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BROCADE/HP CONFIDENTIAL
7.3 HP Proposed Changes................................................7
7.4 [*] to Proposed Changes............................................7
7.5 Safety Standard Changes............................................8
7.6 Technical Cooperation..............................................8
8. QUALITY...................................................................8
8.1 Quality Program....................................................8
8.2 HP's Right To [*]..................................................9
9. WARRANTIES................................................................9
9.1 Hardware Product Warranties........................................9
9.2 Product Software Warranties.......................................10
9.3 Survival Of Warranties............................................10
9.4 Epidemic Failure Warranty.........................................10
9.5 DISCLAIMER........................................................10
10. SUPPORT SERVICES.........................................................10
10.1 General...........................................................10
10.2 New HP Products...................................................11
10.3 HP Property.......................................................11
10.4 Substitute Products...............................................11
10.5 Failure Rate......................................................11
10.6 Class Failure Remedies............................................11
10.7 Survival Of Support Obligations...................................12
11. OBSOLESCENCE AND MANUFACTURING RIGHTS....................................12
11.1 Lifetime Buy Rights...............................................12
11.2 Consulting Services...............................................13
12. TRAINING.................................................................13
12.1 Technical Training................................................13
12.2 Presales Training.................................................13
12.3 HP's Rights in Training Classes and Materials.....................13
13. MARKETING AND LICENSING..................................................13
13.1 Marketing and Distribution........................................13
13.2 Distribution Rights...............................................14
13.3 No Rights In Marks................................................14
13.4 Private Labeling..................................................14
13.5 HP [*]............................................................14
13.6 Software License..................................................15
13.7 Documentation License.............................................15
14. INTELLECTUAL PROPERTY PROTECTION.........................................15
14.1 Supplier's [*]....................................................15
14.2 HP's Duty To Notify...............................................16
14.3 Remedies For Infringing Products..................................16
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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BROCADE/HP CONFIDENTIAL
14.4 Limitations.......................................................16
15. COUNTRY OF MANUFACTURE AND [*]...........................................16
15.1 Country Of Origin Certification...................................16
15.2 Country Of Origin Marking.........................................16
15.3 [*]...............................................................17
16. GOVERNMENTAL COMPLIANCE..................................................17
16.1 Duty to Comply....................................................17
16.2 Procurement Regulations...........................................17
16.3 Ozone Depleting Substances........................................17
17. FORCE MAJEURE EVENTS.....................................................17
17.1 Delaying Causes...................................................17
17.2 HP Option.........................................................18
17.3 [*] Of Agreement..................................................18
18. EVENTS OF DEFAULT........................................................18
18.1 Notice Of Breach..................................................18
18.2 Causes Of Breach..................................................18
18.3 [*] Rights Upon Breach............................................19
18.4 [*]...............................................................19
18.5 Escalated Resolution Process......................................19
19. CONFIDENTIAL INFORMATION.................................................19
19.1 Confidential Information..........................................19
19.2 Exclusions........................................................19
20. INSURANCE REQUIREMENTS...................................................20
20.1 Insurance Coverage................................................20
20.2 Claims Made Coverage..............................................20
20.3 Additional Requirements...........................................20
21. LIMITATION OF LIABILITY..................................................21
22. TERMINATION..............................................................21
22.1 Outstanding Orders................................................21
22.2 Return Of HP Property.............................................21
22.3 Surviving Provisions..............................................21
23. MISCELLANEOUS............................................................21
23.1 Notices...........................................................21
23.2 Exhibits..........................................................22
23.3 Independent Contractors...........................................22
23.4 Assignment........................................................22
23.5 No Waiver.........................................................22
23.6 Reference To Days.................................................22
23.7 Headings..........................................................22
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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BROCADE/HP CONFIDENTIAL
23.8 Publicity.........................................................22
23.9 Severability......................................................23
23.10 Subcontractors and Subsidiaries...................................23
23.11 Entire Agreement..................................................23
23.12 Governing Law.....................................................23
23.13 Exhibits..........................................................23
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BROCADE/HP CONFIDENTIAL
OEM PURCHASE AGREEMENT
THIS AGREEMENT is entered into between HEWLETT-PACKARD COMPANY, a Delaware
corporation ("HP") and BROCADE COMMUNICATIONS SYSTEMS, INC., a Delaware
corporation ("Supplier"), effective as of January 28, 2000, (the "Effective
Date"). The parties hereby agree as follows:
1. SCOPE OF AGREEMENT
1.1 General. This Agreement specifies the terms and conditions under
which Supplier will sell, license, and support the OEM Products
listed in Exhibit A to this Agreement. The OEM Products are
regarded as "Original Equipment Manufacturer" products that will
either be sold separately or incorporated into HP Products for
resale worldwide under the Supplier's label or under HP's
private label. The OEM Products and the HP Products will be
marketed, serviced, and supported by HP's field organization and
channel partners, subject to the marketing, service, and support
obligations of Supplier pursuant to this Agreement.
1.2 Eligible Purchasers. This Agreement enables HP, HP Subsidiaries,
and [*] to purchase OEM Products from Supplier under the terms
of this Agreement or any subsequent Product Addendum. The terms
and conditions of this Agreement will control and take
precedence over any conflicting terms in a Product Addendum
unless a Product Addendum specifically refers to and amends a
term of this Agreement.
1.3 Term Of Agreement. This Agreement will commence as of the
Effective Date and continue for a two-year period (the "Term"),
unless terminated earlier under the terms of this Agreement.
2. DEFINITIONS
The following capitalized terms will have these meanings throughout this
Agreement:
2.1 "Documentation" means the user and technical manuals and other
documentation that Supplier will make generally available with
the OEM Products.
2.2 "Eligible Purchasers" mean those parties authorized to purchase
OEM Products under this Agreement as listed in Exhibit B
attached hereto.
2.3 "Failure" means an instance where the product does not conform
to specifications in Exhibit A or contains a defect in
workmanship, materials, or design that prevents the OEM Product
from fully performing as set forth in Exhibit A.
2.4 "Forecast" means HP's estimate, submitted to Supplier in
writing, of its purchase requirements over a [*] period, or such
other period designated by the parties.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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BROCADE/HP CONFIDENTIAL
2.5 "HP Products" means the HP products or systems that will
incorporate the OEM Products and that will be marketed and sold
to end-user customers by HP and its distributors.
2.6 "HP Property" means all property, including without limitation,
models, tools, equipment, copies of designs and documentation
and other materials that may be furnished to Supplier by HP or
on HP's behalf or separately paid for by HP for use by Supplier
in connection with this Agreement.
2.7 "Intellectual Property Rights" means all rights in patents,
copyrights, moral rights, trade secrets, mask works, Marks, and
other similar rights.
2.8 "Lead Time" means the time between the date an Order is received
by Supplier and the Shipment Date.
2.9 "Marks" means the trademarks, service marks, trademark and
service mark applications, trade dress, trade names, logos,
insignia, symbols, designs or other marks identifying a party or
its products.
2.10 "Noncomplying Product" means any OEM Product received by HP that
does not comply with the [*] as set forth in Exhibit A of this
Agreement. Noncomplying Products include, without limitation,
dead-on-arrival products, overshipments, and early shipments.
[*] "OEM Products" means the products listed in Exhibit A, all
related Documentation, Parts, and other deliverables provided
pursuant to this Agreement. For purposes of this Agreement, OEM
Products shall not include any [*]
2.12 "Orders" means a written or electronic purchase order or release
issued by HP to Supplier for purchase of the OEM Products.
2.13 "Parts" means the replacement parts, components, consumables or
other products that may be supplied in conjunction with or as
additions to the OEM Products.
2.14 "Product Addendum" means an addendum to this Agreement entered
into between Supplier and an Eligible Purchaser naming
additional OEM Products and product specific requirements in
addition to those requirements specified in this Agreement.
2.15 "Shipment Date" means the date confirmed to HP by Supplier
regarding a particular Order for the shipment of OEM products by
Supplier to the destination required under the Order.
2.16 "Software" means any software or firmware included or bundled
with the OEM Products, as designated in the description of OEM
Products in Exhibit A.
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THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
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BROCADE/HP CONFIDENTIAL
2.17 "Specifications" means the technical and functional requirements
for the OEM Products as specified or referenced in Exhibit A or
as agreed to in writing by the parties.
2.18 "Subcontractor" means a third party listed in Exhibit B that may
purchase OEM Products under the terms of this Agreement on
behalf of HP.
2.19 "Subsidiary" means an entity controlled by or under common
control with a party to this Agreement, through ownership or
control of more than 50% of the voting power of the shares or
other means of ownership or control, provided that such control
continues to exist.
2.20 "Support" means ongoing maintenance and technical support for
the OEM Products provided by Supplier to HP as more fully
described in Exhibit D.
2.21 "Technical Information" means Supplier's information and
technology necessary to support OEM Products and to exercise any
other rights provided under this Agreement.
3. ORDER AND SHIPMENT OF OEM PRODUCTS
3.1 Orders. Each delivery of OEM Products will be initiated by an
Order issued to Supplier by HP. Each Order will include: (i)
unit quantity; (ii) unit price; (iii) shipping destination; (iv)
Shipment Date; and (v) other instructions or requirements
pertinent to the Order. HP may schedule regular intervals for
deliveries by an appropriate Order setting forth the intervals.
To the extent of any inconsistency between the terms of an Order
and the terms of this Agreement, the terms specified in this
Agreement will control and take precedence. Any additional terms
contained in Orders or Supplier's Order acknowledgements shall
not be binding unless accepted by the other party in writing.
3.2 Order Acknowledgment. An Order will be deemed to have been
placed as of the date of receipt of the Order by Supplier.
Supplier will promptly confirm the receipt of an Order
electronically or through facsimile to HP within [*]. Orders
within Forecasts and Lead Time requirements of this Agreement
will be deemed accepted upon receipt by Supplier. For Orders
exceeding Forecast, Supplier will have [*] in which to reject
the order with respect to the excess. If an HP Order exceeds the
Forecast or shortens the Lead Time, Supplier will use
commercially reasonable efforts to fill such excess or
accommodate such shorter Lead Time.
3.3 Emergency Orders. If HP deems it necessary, HP may order OEM
Products by facsimile on an emergency basis ("Emergency Order")
subject to the availability of such OEM Products in Supplier's
inventory. Supplier will use all reasonable efforts to ship the
Emergency Order to HP's designated Eligible Purchaser(s)
immediately upon receipt of such Emergency Order by Supplier.
Subject to HP's approval, HP will pay any additional expenses
related to such Emergency Orders.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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BROCADE/HP CONFIDENTIAL
3.4 Forecasts. HP will provide a [*] rolling Forecast [*] of its
projected Orders. Any quantities listed in any Forecast or other
correspondence between the parties are only estimates made as an
accommodation for planning purposes and do not constitute a
commitment on HP's part to purchase such quantity. HP may, [*]
revise any such Forecasts, provided that such revisions (i)
occur at least [*] prior to the projected Order Shipment Date,
and (ii) shall not result in an increase of its projected Orders
greater than [*] of the amount of Orders in the immediately
preceding Forecast. Quantities and Shipment Dates in Forecasts
and revisions thereof which are not provided to Supplier in
accordance with this Section 3.4 shall not be binding upon
Supplier for the purposes of Section 3.2 above.
3.5 Lead Time. Lead time for each OEM Product and FRU product will
be no more than [*] for forecasted demand and [*] unforecasted
demand [*].
3.6 Inventory Requirement. Supplier will maintain a [*] equal to [*]
to support Order changes for each OEM Product. If this inventory
is [*], Supplier will [*] as soon as reasonably possible after
[*] In addition, Supplier will [*] of OEM Products in inventory
[*] of inventory.
3.7 Order Changes. HP may [*], postpone, decrease, or reschedule any
Order subject to the [*] set forth immediately below. In the
event HP increases any Order, Supplier will use [*] reasonable
[*] to fulfill such Order for the Shipment Date requested by HP.
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[*] PERMISSIBLE [*] PERMISSIBLE [*] PERMISSIBLE [*]
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[*] [*] [*] [*]
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[*] [*] [*] [*]
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[*] [*] [*] [*]
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[*] [*] [*] [*]
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3.8 Shipment Requirements. All Order are required to be shipped
complete. Supplier will give HP [*] notice if it knows that it
cannot meet a Shipment Date or that only a portion of the OEM
Products will be available for shipment to meet a Shipment Date.
For partial shipments, Supplier will ship the available OEM
Products unless directed by HP to reschedule shipment. If
Supplier ships any OEM Product by a method other than as
specified in the corresponding Order, [*] any [*] in the [*] of
freight.
3.9 HP Option To Accept Overshipments. If Supplier ships more OEM
Products than ordered, the amount of the overshipment may [*]
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THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
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BROCADE/HP CONFIDENTIAL
[*] to Supplier pursuant to Article 6 below, [*] subject to the
payment procedures in Section 4.3.
3.10 Meeting Shipment Dates. If due to Supplier's failure to make a
timely shipment, the specified method of transportation would
not permit Supplier to meet the Shipment Date, the OEM Products
affected will be shipped by air transportation or other
expedient means acceptable to HP. [*] for any [*] in the freight
[*] over that which [*] by the specified method of
transportation.
3.11 No Advance Shipment. If OEM Products are shipped more than [*]
in advance of the Shipment Date, HP may [*] the OEM Products
pursuant to Article 6 below [*] with payment due as provided in
Section 4.3 below.
3.12 Title And Risk Of Loss. Shipments will be [*] point. Title to
OEM Product hardware and media ordered under this Agreement and
risk of loss or damage will pass from Supplier to HP [*],
subject to the provisions in Sections 3.12, 3.13, and 3.14
below.
3.13 Packing List. Each delivery of OEM Products to HP must include a
packing list that contains at least:
(a) The Order number and the HP part number;
(b) The quantity of OEM Products or Parts shipped; and,
(c) The date of shipment.
3.14 Packaging. Supplier must preserve, package, handle, and pack all
OEM Products as specified in Exhibit A.
3.15 Responsibility For Damage. [*] will be [*] for [*] due to its
[*] to [*] preserve, package, handle, or pack OEM Products in
accordance with Exhibit A. In order to assert a claim against
[*] under the provisions of this Section 3.15, [*] be required
to first assert any claims for such loss or damage against the
common carrier involved. Further, [*] be [*] for [*] due to a
release of chemicals or other hazardous materials to the
environment [*] release of the corresponding OEM Product to the
designated carrier.
4. PRICES AND PAYMENT TERMS
4.1 OEM Product Prices. Supplier's prices for the OEM Products and
Parts are listed in Exhibit C, payable in U.S. currency unless
otherwise agreed, and may not be increased without HP's consent.
Supplier and HP agree to review OEM Product prices [*].
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
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BROCADE/HP CONFIDENTIAL
4.2 Changed Prices. If during the Term changed prices or price
formulas are put in effect by mutual agreement of HP and
Supplier, [*] or price formulas are otherwise put in effect by
Supplier, such prices or price formulas (if resulting in [*]
than the [*] will apply to all Orders accepted by Supplier after
the effective date of such prices or price formulas and to all
unshipped Orders.
4.3 Payment Procedure. Payment for OEM Products will be [*] of the
applicable invoice from Supplier. Except as otherwise provided
in this Agreement, associated freight expenses and duties will
be paid directly by [*] related to or payments for unordered or
Nonconforming Products, provided that HP does not retain such
unordered or Nonconforming Products.
4.4 [*] Warranty. If during the term, Supplier provides [*] of OEM
Products [*], then Supplier agrees to [*] to HP [*] provided to
the [*]. Supplier agrees to fulfill its obligations in this
Section in good faith. In addition, HP may [*] due under this
Agreement [*] upon Supplier's [*] issued to HP, which such
Supplier [*] shall not be [*].
4.5 Sales Taxes And Duties. Prices are [*] of all [*] after delivery
to the designated destination (other than taxes levied on
Supplier's income) that Supplier may be required to collect or
pay upon shipment of the OEM Products. Any such [*] must appear
as a separate item on Supplier's invoice. [*] agrees [*] unless
[*]. Where applicable, [*]
5. NONCOMPLYING PRODUCTS
5.1 Repair or Replacement. HP may elect [*], subject to the
provisions of Article 18 below, return a Noncomplying Product
for replacement or repair [*] In addition, HP may return for
repair or replacement an entire lot of OEM Products if more than
[*] of that lot consists of Noncomplying Products. In the event
of an overshipment, HP may elect to keep the additional units,
subject to the payment procedures in Section 4.3.
5.2 Replacement and Repair Period. Supplier will return the
replacement or repaired OEM Products as soon as possible but in
no event later than [*] after receipt of the Noncomplying
Product from HP. Supplier's opportunity to cure any failure to
meet such deadline, pursuant to Article 18 below, will apply to
[*] during the Term.
6. RETURN OF PRODUCTS
6.1 Return Materials Authorization. All OEM Products returned by HP
to Supplier must be accompanied by a Return Materials
Authorization ("RMA"). Supplier will issue
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BROCADE/HP CONFIDENTIAL
an RMA for OEM Products which HP has verified Failure. Supplier
will supply an RMA [*] of HP's request.
6.2 Return Charges. All Noncomplying Products returned by HP to
Supplier within the respective warranty period for each OEM
Product, and all replacement or repaired OEM Products shipped by
Supplier to HP to replace Noncomplying Products, will [*].
6.3 Duty To Remove Marks Or Destroy Noncomplying Products. Supplier
agrees not to sell, transfer distribute or otherwise convey any
part, component, product or service bearing or incorporating HP
Marks, part numbers or other identifiers, including any HP
packaging, copyrights or code, to any party other than to
Eligible Purchasers. Supplier will remove from all rejected,
returned or unpurchased OEM Products any such HP Marks or
identifiers, even if such removal would require destruction of
the OEM Products. Supplier further agrees not to represent that
such OEM Products are built for HP or to HP specifications.
Supplier will defend and indemnify HP against any claims,
losses, liabilities, costs or expenses that HP may incur as a
result of Supplier's breach of this obligation.
7. ENGINEERING PROCESS OR DESIGN CHANGES
7.1 Supplier Proposed Changes. Supplier will not, other than in
accordance with this Article 7, make or incorporate in OEM
Products any [*].
7.2 Request for Enhancement. HP proposed changes and enhancement
requests will be reviewed, as appropriate, by the Software
Steering Committee and/or the Hardware Engineering core teams of
Supplier. Where feasible and mutually agreed by HP and Supplier,
such changes will be implemented in the [*] or as otherwise
specifically agreed.
7.3 HP Proposed Changes. HP may change HP-supplied drawings,
designs, or Specifications at any time prior to manufacture of
corresponding released OEM Products. Any such change will be [*]
If any such change reasonably and directly [*] of OEM Products,
an [*] will be made provided that Supplier makes a written claim
for an [*] within [*] from the date HP gives notice to Supplier
of the change and HP agrees in writing to the [*].
7.4 [*] Proposed Changes. In the event that HP [*] in writing to an
[*] in the stated time period on the basis that such [*]
materially affects its ability to timely deliver the OEM
Products or to fill outstanding orders, then HP may provide
Supplier with written [*] and shall be entitled to (in addition
to placing orders for the [*] submit purchase orders for the
unchanged OEM Product(s) prior to the effective date of the
implementation of the [*], for delivery no more
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BROCADE/HP CONFIDENTIAL
than [*] after the effective date of such implementation and in
quantities which do not exceed the total quantity of OEM
Product(s) ordered by HP in the [*] immediately preceding the
date of [*].
7.5 Safety Standard Changes. Supplier will promptly give notice to
HP if any upgrade, substitution, or other change to an OEM
Product is required to make that product meet applicable safety
standards or other governmental statutes, rules, orders, or
regulations, even those that are not defined as Engineering
Changes in Section 7.1 above. All affected OEM Products already
purchased by HP may [*] either be returned to Supplier for
upgrade to current revisions or upgraded by Supplier or HP in
the field pursuant to the procedures outlined in Section 10.4
below. If an OEM Product meets applicable safety standards and
other governmental requirements at the time of manufacture, HP
and Supplier will [*] the [*] of any subsequent upgrade,
substitution, or other required change required in an [*] based
on good faith discussions between the parties. If such
discussions render no [*], the parties may either mutually agree
to escalate the matter to their respective vice presidents or
general managers, as applicable, or in the alternative, [*] the
[*].
7.6 Technical Cooperation. Subject to the confidentiality provisions
in Article 19 below, during the term of the Agreement, the
parties will discuss architecture and explore the possibilities
for technically [*] Supplier and HP products. Each party will
designate a technical representative to lead these discussions
as well as to address other technical issues relating to the
product enhancements and [*]. Supplier agrees to [*] with HP
engineers the following for [*] (which such information [*]
(a) [*];
(b) [*] information sufficient for HP to (i) understand the
related architecture and to develop test suites for resolution
of potential problems, and (ii) to understand the implications
of such potential problems with the ability to implement meshed
configurations efficiently;
(c) [*] information on flow control/buffer allocation necessary
for HP to implement efficient meshed configurations free of any
significant performance problems;
(d) [*] and [*] for such items; and,
(e) [*] and [*].
8. QUALITY
8.1 Quality Program. Supplier agrees to maintain an objective
quality program for all OEM Products. Supplier's program will be
in accordance with the current version of
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BROCADE/HP CONFIDENTIAL
HP's Supplier Quality System as specified in Exhibit H and if
applicable, any additional or substitute quality requirements
agreed to by the parties in writing. Supplier will, upon HP's
request, provide to HP copies of Supplier's program and
supporting test documentation.
8.2 HP's Right To [*]. HP has the right to [*] at Supplier's [*] the
OEM Products and [*] may be [*] at any time during the Term.
HP's [*] may be for any reason [*] related to this Agreement,
including to [*] with HP's [*], HP's right of [*] will apply as
well to any [*] of Supplier. Supplier will inform [*] of HP's
right to [*], and, if necessary, use all [*] such rights for HP.
9. WARRANTIES
9.1 Hardware Product Warranties. Supplier warrants that, for a
period of [*] from the [*] for each OEM Product that all
hardware components of the OEM Products under this Agreement
will:
[*] Be manufactured, processed, and assembled by Supplier or
by companies under Supplier's direction, including,
without limitation, [*]
(2) Conform to the [*], and other criteria referred to in
this Agreement or agreed to by the parties in writing;
(3) Be new, except as otherwise provided by the parties;
(4) Conform strictly to the requirements as set forth under
the terms and conditions of this Agreement;
(5) Be free from defects in design, material and
workmanship;
(6) Be free and clear of all liens, encumbrances,
restrictions, and other claims against title or
ownership;
(7) Be "Year 2000 Compliant." Year 2000 Compliant products
will perform without error, loss of data or loss of
functionality arising from any failure to process,
calculate, compare or sequence date data accurately. In
addition, Year 2000 Compliant products will not cause
any associated products or systems in which they may be
used to fail in any of the ways described above. This
Year 2000 Compliance Warranty will remain in effect
through December 31, 2000, notwithstanding any other
warranty period specified in this Agreement;
(8) Notwithstanding the terms and conditions of Article 14
herein, not, to Supplier's reasonable knowledge, violate
or infringe any third party
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Intellectual Property Rights and Supplier warrants that
it is not aware of any facts upon which such claim could
be made. If Supplier learns of any claim or any facts
upon which claim could be made, it will [*] notify HP of
this information.
9.2 Product Software Warranties. Supplier warrants that, for a
period of [*] from the [*] for each OEM Product, all software
elements of the OEM Products under this Agreement will conform
to the Specifications and other criteria referred to in this
Agreement or agreed to by the parties in writing.
9.3 Survival Of Warranties. All warranties specified above will
survive any inspection, delivery, acceptance, or payment by HP
and be in effect for the longer of Supplier's normal warranty
period.
9.4 Epidemic Failure Warranty. In addition to the warranties
specified above, Supplier warrants all OEM Products against
epidemic failure for a period of [*] after the [*] of that OEM
Product. An epidemic failure means:
(a) Unit failures that (i) are caused by the same component
failure or defect, provided that such failure or defect is
attributable to Supplier, and (ii) occur at a rate equal to or
less than [*] over a [*], or;
(b) the occurrence of more than [*] classified as a [*] or
higher safety incident defined as (i) a marginal condition that
is likely to produce only minor bodily injury or property damage
and is likely to occur after a [*] event, or (ii) a
noncompliance event involving a safety-related standard,
license, or testing agency evaluation, or;
(c) any known problem which, in HP's reasonable opinion
subject to Supplier's concurrence (which such concurrence shall
not be unreasonably withheld or delayed) creates a significant
risk to the health or safety of individuals who operate the OEM
product or to the continuous business operations of companies or
organizations that employ the OEM product for an intended or
reasonably foreseeable use.
9.5 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
SUPPLIER EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
10. SUPPORT SERVICES
10.1 General. Supplier will provide trained HP support personnel with
Support for the OEM Products as specified in Exhibit D. Supplier
will maintain such number of qualified personnel as is necessary
to provide timely and knowledgeable maintenance and support
service in accordance with the terms and conditions of Exhibit
D.
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Supplier warrants that all Support will be provided in a
professional and workmanlike manner. HP will provide direct
maintenance and support to HP's customers with respect to the
use of the OEM product as distributed with HP Products. Supplier
and HP will maintain and support each OEM product distributed by
HP for at least [*] after the date of last shipment by Supplier
to HP of that OEM Product or end-of-life, whichever occurs
first. HP acknowledges that Supplier may independently offer and
provide support services to OEM Product customers. However, in
no event may Supplier use HP Confidential Information or HP
Property to direct or provide such support without HP's prior
consent. Response times and problem classification for the OEM
Products will be as set forth in Exhibit (D).
10.2 New HP Products. Upon request by HP, Supplier will use its
commercially reasonable efforts to provide HP with the OEM
Products adapted for use with new releases of HP Products [*]
and [*], if any, to be negotiated by the parties, provided that
HP makes available to Supplier such HP Property as may be
reasonably necessary for Supplier to develop any adaptation.
10.3 HP Property. HP may provide to Supplier HP Property under the
terms of an HP Equipment Loan Agreement attached as Exhibit E to
this Agreement, solely for use in Supplier's manufacturing,
testing, adapting and supporting the OEM Products. All HP
Property will be clearly segregated from Supplier's property and
identified as the sole property of HP. HP Property may not be
transferred, assigned, loaned or otherwise encumbered in any
way. HP Property may be provided to third parties for
fulfillment of Supplier's obligations hereunder only upon HP's
prior written consent. HP property will be returned to HP [*],
upon termination of this Agreement.
10.4 Substitute Products. If Supplier develops any generally
available products that are to replace the OEM Product(s) or
that are the same or substantially similar to the OEM Products
available under this Agreement, HP will have the right to
substitute the newer products at [*] as the substantially
similar OEM Products for all subsequent purchases under this
Agreement. Such substitute products must be compatible with the
current version of the OEM Products.
10.5 Failure Rate. Notwithstanding that the warranties given in
Section 9.1 above apply to [*] of the hardware components of OEM
Products, Supplier and HP acknowledge that a failure rate of [*]
per [*] units delivered over a [*] is expected. If the actual
failure rate for OEM Products exceeds this expected rate,
Supplier will provide additional engineering and technical
support needed to bring the actual failure rate within the
specified failure rate.
10.6 Class Failure Remedies. Upon the occurrence of any of the
following events: (i) a failure rate exceeding the rate
specified in Section 10.5 above; (ii) an epidemic failure as
described in Section 9.3; or (iii) a safety standard change
under Section 7.5 above (each referred to as a "Class Failure"),
HP will have the following additional remedies for a [*] period
commencing upon shipment by Supplier to HP of the OEM Product or
the corresponding HP Product:
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(1) In the event of a Class Failure, Supplier will use its
commercially reasonable efforts to provide an initial root
cause analysis, failure analysis, and [*] plan to HP no
later than [*] following the receipt of the Class Failure
part. HP will make available such information and
assistance as reasonably required to allow Supplier to
conduct its root cause analysis and provide its corrective
action plan.
(2) If, after review of the root cause analysis and [*] plan,
HP determines in its reasonable opinion that the Class
Failure necessitates a field stocking recall or customer
based recall or retrofit, then HP will notify Supplier of
its determination for such remedy. Supplier shall have [*]
from time of notice from HP to object to HP's
determination. In the event that Supplier either agrees
with or fails to notify HP of its objection, HP may then
elect to have the OEM products: (i) returned to Supplier
for repair or replacement; (ii) repaired or replaced by
Supplier in the field; or (iii) repaired or replaced by HP
in the field, including products in distributor inventory
and HP's installed base. If HP chooses to perform a field
repair, Supplier will provide the appropriate replacement
OEM products, spares, or upgrades [*] to HP and will,
within [*] after completion of the recalls or retrofits,
reimburse HP for [*] in performing such field repair.
Supplier will give such OEM products, spares, or upgrades
the [*].
(3) Except as provided in Section 7.5 above regarding safety
standard changes, Supplier will, within [*] after
completion of the recalls or retrofits, reimburse HP [*]
in performing such services.
10.7 Survival Of Support Obligations. Supplier's maintenance and
support obligations specified in this Article 10, and in the
Support Terms in Exhibit D will run for the Term and any
additional periods under Section 1.3 above and will continue for
a period of [*] after the date of Supplier's last shipment of
the applicable OEM Product to HP, or [*], whichever occurs
first. This obligation includes, without limitation, making
necessary Parts available to HP as further provided in the
Support Terms.
11. OBSOLESCENCE AND MANUFACTURING RIGHTS
11.1 Lifetime Buy Rights. Supplier acknowledges its obligation to
manufacture, supply and support the OEM Products without
interruption for the Term. If, however, after the [*] of
shipment of such products, Supplier seeks to discontinue the
supply or support of any OEM Product (a " Discontinued
Product"), Supplier will give notice to HP no less than [*] in
advance of the last date the Discontinued Product can be
ordered. After receipt of notice of discontinuance, HP may place
orders for any demand during the [*] of such notice for delivery
of Discontinued Products prior to the end of the notice period.
To the extent that such orders exceed HP's previous Forecast for
such Discontinued Products, the orders shall be [*]. Supplier
shall accept only forecasted orders in the [*]
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of the stated notice period, and such orders shall be [*]. In
addition, during such notice period, Supplier shall have the
right [*] to [*] for OEM Products from HP at the time such
Orders are submitted.
11.2 Consulting Services. In support of Technical Information
conveyed to HP, Supplier will provide:
(1) Up to [*] of consulting services, as required by HP,
provided that HP bears the cost of [*]; and
(2) Additional consulting services at the rate of [*] of
those so engaged.
12. TRAINING
12.1 Technical Training. Supplier will provide to HP, no later than
April 1, 2000 as provided in a schedule mutually agreed upon in
writing by the parties, Brocade [*] training for a minimum of
[*] HP technical personnel, such training to be made available
and completed before the scheduled HP ship-date of the OEM
Product. Such training will be provided to HP for a mutually
agreed upon [*] for the Term of the Agreement and Supplier's
support obligations. HP may further request and Supplier will
provide, for up to [*] HP technical personnel, additional
training [*] as reasonably necessary to inform HP personnel of
upgraded, enhanced or new versions of the OEM Products. Other
training will be provided upon mutually agreeable terms and
conditions.
12.2 Presales Training. Supplier will provide to HP presales training
sufficient to allow HP to become fully familiar with the OEM
Product and its market. Such training will be provided to HP for
a mutually agreed [*]. HP may further request and Supplier will
provide additional training as [*] to inform HP personnel of
upgraded, enhanced, or new versions of the OEM Products.
12.3 HP's Rights in Training Classes and Materials. HP may [*]
solely to internal trainees in training courses offered by HP
solely in conjunction with HP or HP's authorized resellers'
sale, service, and support of the OEM Products, all presales
training classes, methods, and materials supplied or developed
by Supplier under the Agreement. HP shall have [*] for the use
of or [*] this material. HP may [*] such materials provided
written authorization from Supplier is granted prior to
distribution or use. Such approval from Supplier shall not be
unreasonably withheld.
13. MARKETING AND LICENSING
13.1 Marketing and Distribution. HP will have the authority to market
the OEM Products and the HP Products containing the OEM Products
to the extent it deems appropriate,
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[*]. Without limiting the generality of the foregoing sentence,
nothing in this Agreement will be construed or interpreted to
place a [*] obligation upon HP with respect to marketing or
distributing the HP Products or OEM Products or preclude HP from
[*] any product which performs the same or similar function as
the OEM Products. HP will have the right to use its own business
and license terms for all marketing and distribution of the OEM
Products and HP Products.
13.2 Distribution Rights. For [*] from the Effective Date, Supplier
hereby agrees [*] the OEM Products [*], provided that nothing in
this Section 13.2 shall be construed to [*] Supplier from [*]
Supplier's current and future indirect channels of distribution
that are (i) resellers, service bureaus, third party
distributors and third party OEMs which in turn sell or
distribute the OEM Products [*], and (ii) any [*] to whom
Supplier has [*] any of its products [*] the Effective Date and
(iii) not controlled by or under common control with Supplier or
its permitted successive assignees or transferees, or (iv)
formed in connection with a merger, reorganization, transfer,
sale of assets or product lines, or change of control or
ownership of Supplier or its permitted successive assignees or
transferees. For purposes of this Section 13.2, an "[*].
13.3 No Rights In Marks. Except as otherwise specified in the private
labeling section below, nothing in this Agreement should be
construed to grant either party any rights in the Marks of the
other party. Supplier [*], that HP [*] the [*] and the [*] OEM
Products in [*] the OEM Products or the HP Products. The OEM
Products will be affixed with copyright notices sufficient to
give notice as to the rights of the parties in their respective
products.
13.4 Private Labeling. If HP elects during the Term to create HP
private label versions of the OEM Products, it is the intent of
the parties that the terms and conditions of this Agreement will
govern such private label version of the OEM Product.
Notwithstanding the above, the parties recognize the necessity
of renegotiating and amending the following sections of the
Agreement: Article 3, Article 4, Article 7, Section 10.5,
Exhibit A, Exhibit C, Exhibit D(6), and Exhibit H. The parties
agree that such renegotiation of the preceding sections shall be
in good faith and shall not be unreasonably delayed.
13.5 HP [*]. Supplier will ensure that the OEM Products [*] serial
number, format, and packaging [*] HP and [*] to the HP [*] as
set forth in Exhibit A (which will not require any material
change in form or dimensions of the OEM Products or require
commercially unreasonable actions). Except as provided herein,
Supplier will have [*].
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13.6 Software License.
(a) Supplier hereby grants to HP a nonexclusive, worldwide,
revocable (except as expressly provided in Section 13.6(d), [*]
right and license, under all copyrights, patents, patent
applications, trade secrets and other necessary Intellectual
Property Rights of Supplier, to: (i) use, execute, and display
the Software, in object code form, in conjunction with, or for
use with OEM Products; (ii) distribute or license the Software,
in object code form, as part of, in conjunction with, or for use
with OEM Products sold or leased by HP to end user customers;
and, (iii) authorize, license and sublicense third parties to do
any, some or all of the foregoing. HP shall distribute the
Software to end user customers pursuant to HP's end user license
agreement, attached hereto as Exhibit I, as updated by HP from
time to time.
(b) HP shall have no right to (i) modify or adapt the Software
for other products or create derivative works of the Software,
(ii) decompile, reverse engineer, or disassemble the Software
for purposes of designing similar products, or (iii) use or
distribute the Software other than in connection with the use or
distribution of the OEM Products.
(c) HP agrees that the foregoing licenses do not grant any title
or other right of ownership to the Software and that Supplier
owns and shall continue to own all right, title and interest in
and to the Software.
(d) Upon any termination or expiration of this Agreement, HP's
rights set forth in this Section 13.6 shall terminate except as
follows: (i) end user customers shall be permitted continued use
of the Software in conjunction with the operation of the OEM
Products so long as they are not in breach of HP's end user
license agreement attached hereto as Exhibit J, and (ii) HP
shall retain a nonexclusive, worldwide license to use and
execute the then-current version of the Software internally (in
object code form only) for the sole purpose of assisting end
user customers with the maintenance of the OEM Products
purchased from HP.
13.7 Documentation License. Supplier hereby grants HP a nonexclusive,
nontransferable, worldwide, [*] license to [*] in HP's [*]
all Documentation, and other information other than confidential
information furnished by Supplier under this Agreement. HP may
[*] such Documentation [*] of source, subject to affixing
copyright notices to all copies of Documentation. These rights
with respect to the Documentation will extend to HP Subsidiaries
and third party channels of distribution. Supplier shall have
[*] for [*] into the [*] due to [*].
14. INTELLECTUAL PROPERTY PROTECTION
14.1 Supplier's [*]. Except as provided in Section 14.4 below and
provided that HP has complied with the provisions of Section
14.2 below, Supplier will [*] from any
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[*], any combination of an OEM Product with an HP Product (to
the [*] any Software, Documentation, or a Supplier Mark, or any
product provided as part of Supplier's Support services
constitutes an unauthorized use or infringement of any patent
(domestic or foreign) or a copyright, trademark, or trade secret
of any third party. Supplier will [*] with respect to any such
[*].
14.2 HP's Duty To Notify. HP will give Supplier prompt notice of any
[*] will give Supplier the [*]. If Supplier does not [*] of the
[*] nor provide HP with [*] that it will [*], then HP may,
without in any way [*].
14.3 Remedies For Infringing Products. If the use or combination of
any product provided hereunder is enjoined (the "Infringing
Product"), Supplier will, [*], either:
[*]
[*]
(3) [*]
14.4 Limitations. Supplier will be relieved of its [*] under this
Article 14 to the extent that the [*] from Supplier's [*] with
an HP [*] provided that all implementations of that
[*] constitute an [*] of a third party [*].
15. COUNTRY OF MANUFACTURE AND [*]
15.1 Country Of Origin Certification. Upon HP's request, Supplier
will provide HP with an appropriate certification stating the
country of origin for OEM Products, sufficient to satisfy the
requirements of the customs authorities of the country of
receipt and any applicable export licensing regulations,
including those of the United States.
15.2 Country Of Origin Marking. Supplier will mark each OEM Product,
or the container if there is no room on the OEM Product, with
the country of origin. Supplier will, in marking OEM Products,
comply with the requirements of the customs authorities of the
country of receipt.
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15.3 [*]. If OEM Products delivered under this Agreement are
imported, Supplier will when possible allow HP to be the [*]. If
HP is not the [*] and Supplier obtains [*] rights to OEM
Products, Supplier will, upon HP's request, provide HP with
documents required by the [*] of the [*] of receipt to prove [*]
and to transfer [*] rights to HP.
16. GOVERNMENTAL COMPLIANCE
16.1 Duty to Comply. The parties shall in the performance of this
Agreement comply with all applicable laws, executive orders,
regulations, ordinances, rules, proclamations, demands, and
requisitions of all applicable state, local, national, or other
governmental authority which may now or hereafter govern
performance hereunder including, without limitation, all laws,
executive orders, regulations, ordinances, rules, and
proclamations regarding Equal Employment Opportunity, the
exporting of technology, and withholding for income taxes.
16.2 Procurement Regulations. The Software is "commercial computer
software" as defined in the applicable provisions of the Federal
Acquisition Regulation (the "FAR") and supplements thereto,
including the Department of Defense ("DoD") FAR Supplements (the
"DFARS"). The parties acknowledge that the Software was
developed entirely at private expense and that no part of the
Software was first produced in the performance of a Government
contract. If HP supplies the Software to a U.S. Government
agency, in accordance with FAR 12.212 and its successors or
DFARS 227.7202 and its successors, as applicable, HP shall
license the Software to the Government subject to the terms of
this Agreement.
16.3 Ozone Depleting Substances. Supplier hereby certifies that no
OEM Product nor any component of any OEM Product:
(1) Contains any "Class 1 Substance" or "Class 2 Substance",
as those term are defined in 42 USC Section 7671 and
implementing regulations of the United States
Environmental Protection Agency at 40 CFR Part 82, as
now in existence or hereafter amended; or,
(2) Has been manufactured with a process that uses any Class
1 or Class 2 Substance within the meaning of 42 USC
Section 7671 and implementing regulations of the United
States Environmental Protection Agency at 40 CFR Part
82, as now in existence or hereafter amended.
17. FORCE MAJEURE EVENTS
17.1 Delaying Causes. Subject to the provisions of this Article 17,
Supplier will not be liable for any delay in performance under
this Agreement caused by any "act of God" or other cause beyond
Supplier's control and without Supplier's fault or negligence (a
"delaying cause"). Notwithstanding the above, Supplier will not
be relieved of any liability for any delay or failure to perform
its defense obligations with respect to
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third party Intellectual Property Rights or furnish remedies for
Infringing Products as described in Article 14 above.
17.2 HP Option. Supplier will [*] give HP notice of any [*] and its
[*] of the expected duration of such cause. In the event of a
[*] which continues for a period of [*] HP may act in [*] to:
[*]
[*]
17.3 [*] Of Agreement. if HP elects to purchase other similar
products in the event of a [*] HP may [*] under this Agreement
once the [*] ceases and extend the [*] up to the length of time
the [*]. Unless HP gives [*] as provided above within [*] after
notice from supplier of the [*], HP will be deemed to have
elected to [*] this Agreement for the duration of the [*].
18. EVENTS OF DEFAULT
18.1 Notice Of Breach. If either party is in breach of any provision
of this Agreement, the nonbreaching party may, by written notice
to the breaching party, except as otherwise prohibited by the
United States bankruptcy laws, terminate the whole or any part
of this Agreement or any Order, unless the breaching party cures
the breach within [*] after receipt of such written notice.
18.2 Causes Of Breach. For purposes of Section 18.1 above, the term
"breach" includes without limitation any:
(1) Proceeding, whether voluntary or involuntary, in
bankruptcy or insolvency by or against a party;
(2) Appointment, with or without a party's consent, of a
receiver or an assignee for the benefit of creditors;
(3) Failure by Supplier to make a delivery of OEM Products
in accordance with the requirements of this Agreement or
any Order;
(4) Failure by Supplier to replace or repair Noncomplying
Products in a timely manner as required by Article 5
above; or
(5) Other failure by a party to comply with any material
provision of this Agreement with additional failure to
provide the nonbreaching party, upon written request,
with reasonable assurances of future performance.
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18.3 [*] Rights Upon Breach. In the event HP terminates this
Agreement in whole or in part as provided above, [*] provided HP
under this Agreement, HP may [*], upon [*] and in such [*] as
[*] deems [*] to the [*] as to which this Agreement is
terminated. Supplier agrees to [*] the [*] of this Agreement to
the [*] under the provisions of this Section.
18.4 [*]. If any Eligible Purchaser having the right to purchase an
OEM Product under this Agreement or under any other agreement
with Supplier [*] that an OEM Product is [*], then, irrespective
of any other rights provided HP hereunder, HP may implement a
[*] to [*] of such OEM Products [*]. Such [*] may be [*] if HP
[*] that Supplier has taken [*] the [*] or given sufficient
assurances that such [*] will be [*] within a [*].
18.5 Escalated Resolution Process. In the event of any dispute
arising from or regarding the subject matter of this Agreement,
the parties agree to negotiate in good faith an equitable
resolution of the disputed matter. If the parties are not able
to resolve the dispute within [*] of first written communication
of the dispute, then the parties agree to [*] process [*] as
designated in Exhibit G. The [*] shall meet within [*] of
escalation to resolve the disputed matter. If the dispute is not
resolved within an additional [*] period from the end of [*]
period set forth above, then either HP or Supplier may commence
legal, equitable, or other action upon providing the other party
not less than [*] prior written notice of such intent.
19. CONFIDENTIAL INFORMATION
19.1 Confidential Information. During the Term, a party (the
"Recipient") may receive or have access to certain information
of the other party (the "Discloser") that is marked as
"Confidential Information," including, though not limited to,
information or data concerning the Discloser's products or
product plans, business operations, strategies, customers and
related business information. The Recipient will protect the
confidentiality of Confidential Information with the same degree
of care as the Recipient uses for its own similar information,
but no less than a reasonable degree of care, under the terms of
the Confidential Disclosure Agreement attached as Exhibit F (the
"CDA"). To the extent any term of this Agreement conflicts with
any term in the CDA, the terms of this Agreement will control
and take precedence. Confidential Information may only be used
by those employees of the Recipient who have a need to know such
information for the purposes related to this Agreement. The
parties acknowledge that all Technical Information and Forecasts
are deemed Confidential Information to be protected for a term
of [*] from the date of disclosure.
19.2 Exclusions. The foregoing confidentiality obligations will not
apply to any information that is (a) already known by the
Recipient prior to disclosure,
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(b) independently developed by the Recipient prior to or
independent of the disclosure, (c) publicly available through no
fault of the Recipient, (d) rightfully received from a third
party with no duty of confidentiality, (e) disclosed by the
Recipient with the Discloser's prior written approval, or (f)
disclosed under operation of law. In the event that a party
becomes aware that disclosure is likely to be required by
operation of law, the party having knowledge of such possible
disclosure will provide the other with ample notice and
opportunity to seek a protective order.
20. INSURANCE REQUIREMENTS
20.1 Insurance Coverage. Supplier will maintain Comprehensive or
Commercial General Liability Insurance (including but not
limited to products and completed operations, broad form
contractual liability, broad form property damage and personal
injury liability) with a minimum limit of [*] combined single
limit per occurrence and [*] in the aggregate, for claims of
bodily injury, including death, and property damage that may
arise from use of the OEM Products or acts or omissions of
Supplier under this Agreement. Each policy obtained by Supplier
will name [*] in performing [*] herein) as additional insureds.
Such insurance will apply as [*] and no other insurance will be
called upon to contribute to a [*] thereunder. In addition, such
policies will permit Supplier to waive, on its own behalf and on
behalf of its insurers, any rights of subrogation against HP.
Such insurance policies will be written with appropriately
licensed and financially responsible insurer, and Supplier will
provide for a minimum of [*] written notice to HP of any
cancellation or reduction in coverage. Certificates of insurance
evidencing the required coverage and limits will be furnished to
HP before any work is commenced hereunder, and Supplier will
deliver copies of policies or certificates to the HP contact
listed in Exhibit G.
20.2 Claims Made Coverage. If any applicable Comprehensive or General
Liability policies have "claims made" coverage, Supplier will
maintain such coverage with [*] as an [*] for a minimum of three
years after termination of this Agreement. Any such coverage
must have a retroactive date no later than the date upon which
work commenced under this Agreement.
20.3 Additional Requirements. All deductibles on policies providing
coverage will be paid by Supplier. In the event Supplier is self
insured for matters described in Section 20.1, Supplier agrees
to respond to any claims or losses made against or incurred [*]
had been purchased with the [*] than what is generally available
to similar suppliers. In no event will the coverages or limits
of any insurance required under this Article, or the lack or
unavailability of any other insurance, be deemed to [*]
Supplier's [*] to HP under this Agreement.
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THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Page 20 of 24
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BROCADE/HP CONFIDENTIAL
21. LIMITATION OF LIABILITY
UNLESS OTHERWISE STATED HEREIN, EXCEPT AS TO BREACHES IN SECTION 19
ABOVE, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF THE
OTHER ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE
OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER
SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL
THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE ABOVE, SUPPLIER WILL BE RESPONSIBLE FOR ANY DAMAGES
OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM
UNDER ARTICLE 14 ABOVE.
EXCEPT WITH RESPECT TO OBLIGATIONS ARISING UNDER ARTICLES 9, 14, AND 19
HEREIN, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY UNDER THIS
AGREEMENT EXCEED THE GREATER OF (I) [*], OR (II) AN AMOUNT EQUAL TO THE
[*] BY SUPPLIER FROM HP DURING THE [*] IMMEDIATELY PRECEDING THE EVENTS
GIVING RISE TO THE IMPOSITION OF LIABILITY.
22. TERMINATION
22.1 Outstanding Orders. All accepted Orders issued prior to the
expiration of this Agreement must be fulfilled pursuant to and
subject to the terms of this Agreement, even if the Shipment
Dates are after expiration. Upon termination of this Agreement
for Supplier's breach, HP may cancel any outstanding Order or
require Orders to be fulfilled even if a Shipment Date is after
the date of termination.
22.2 Return Of HP Property. Supplier must return all HP Property to
HP upon expiration or termination. All such property must be in
good condition, normal wear and tear excepted. HP will determine
the [*] for [*] HP will [*] Otherwise, Supplier will [*].
22.3 Surviving Provisions. Notwithstanding the expiration or early
termination of this Agreement, the provisions regarding
Warranties in Article 9, Support in Article 10, Marketing and
Licensing in Article 13, Intellectual Property in Article 14,
Confidentiality in Article 19, Insurance Requirements in Article
20. Limitation of Liability in Article 21, and the Miscellaneous
provisions below will each survive in accordance with their
terms.
23. MISCELLANEOUS
23.1 Notices. All notices to be given under this Agreement must be in
writing addressed to the receiving party's designated recipient
specified in Exhibit G. Notices are validly given upon the
earlier of confirmed receipt by the receiving party or three
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Page 21 of 24
<PAGE>
BROCADE/HP CONFIDENTIAL
days after dispatch by courier or certified mail, postage
prepaid, properly addressed to the receiving party. Notices may
also be delivered by telefax and will be validly given upon oral
or written confirmation of receipt. Either party may change its
address for purposes of notice by giving notice to the other
party in accordance with these provisions.
23.2 Exhibits. Each Exhibit attached to this Agreement is deemed a
part of this Agreement and incorporated herein wherever
reference to it is made.
23.3 Independent Contractors. The relationship of the parties
established under this Agreement is that of independent
contractors and neither party is a partner, employee, agent or
joint-venturer of or with the other. Nothing in this Agreement
precludes either party from independently developing,
manufacturing, selling or supporting products similar to the OEM
Products.
23.4 Assignment. Neither party may, directly or indirectly, in whole
or in part, either by operation of law or otherwise, assign or
transfer this Agreement or delegate any of its obligations under
this Agreement without the other party's written consent. Any
attempted assignment, transfer, or delegation without such prior
written consent will be void. Notwithstanding the foregoing, HP
or its permitted successive assignees or transferees may assign
or transfer this Agreement or delegate any rights or obligations
hereunder without consent: (1) to any entity controlled by, or
under common control with, HP, or its permitted successive
assignees or transferees; or (2) in connection with a merger,
reorganization, transfer, sale of assets or product lines, or
change of control or ownership of HP, or its permitted
successive assignees or transferees. Without limiting the
foregoing, this agreement will be binding upon and inure to the
benefit of the parties and their permitted successors and
assigns.
23.5 No Waiver. The waiver of any term, condition, or provision of
this Agreement must be in writing and signed by an authorized
representative of the waiving party. Any such waiver will not be
construed as a waiver of any other term, condition, or provision
except as provided in writing, nor as a waiver of any subsequent
breach of the same term, condition, or provision.
23.6 Reference To Days. All references in this Agreement to "days"
will, unless otherwise specified herein, mean calendar days.
23.7 Headings. The Section headings used in this Agreement are for
convenience of reference only. They will not limit or extend the
meaning of any provision of this Agreement, and will not be
relevant in interpreting any provision of this Agreement.
23.8 Publicity. Subject to the terms and conditions of Article 19
above, neither party may publicize or disclose to any third
party, without the written consent of the other party, the terms
of this Agreement. Without limiting the generality of the
foregoing sentence, no press releases may be made without the
mutual written consent of each party.
Page 22 of 24
<PAGE>
BROCADE/HP CONFIDENTIAL
23.9 Severability. If any provision in this Agreement is held invalid
or unenforceable by a body of competent jurisdiction, such
provision will be construed, limited or, if necessary, severed
to the extent necessary to eliminate such invalidity or
unenforceability. The parties agree to negotiate in good faith a
valid, enforceable substitute provision that most nearly effects
the parties' original intent in entering into this Agreement or
to provide an equitable adjustment in the event no such
provision can be added. The other provisions of this Agreement
will remain in full force and effect.
23.10 Subcontractors and Subsidiaries. Each party unconditionally
guarantees to the other party the performance of all obligations
by any of its Subcontractors and Subsidiaries under the
Agreement (including, without limitation, payment obligations),
as amended from time to time, or any other obligation of any
Subcontractors or Subsidiary to the other party, now existing or
hereafter arising. If either party's Subcontractors or
Subsidiary does not perform such obligation, such party shall
immediately perform such obligation.
23.11 Entire Agreement. This Agreement comprises the entire
understanding between the parties with respect to its subject
matters and supersedes any previous or contemporaneous
communications, representations, or agreements, whether oral or
written. For purposes of construction, this Agreement will be
deemed to have been drafted by both parties. No modification of
this Agreement will be binding on either party unless in writing
and signed by an authorized representative of each party.
23.12 Governing Law. This Agreement shall be governed and interpreted
according to the laws of the State of California, exclusive of
its choice-of-law provisions, and the parties hereby personally
consent to the exclusive jurisdiction of the courts of the State
of California or the United States District Court for the
District of Northern California.
23.13 Exhibits. Each of the following Exhibits referred to in this
Agreement is incorporated in full in this Agreement wherever
reference to it is made:
EXHIBIT (A) OEM PRODUCTS AND SPECIFICATIONS
EXHIBIT (B) ELIGIBLE PURCHASERS
EXHIBIT (C) PRICING AND FEES
EXHIBIT (D) MAINTENANCE AND SUPPORT
EXHIBIT (E) HP EQUIPMENT LOAN AGREEMENT
EXHIBIT (F) CONFIDENTIAL DISCLOSURE AGREEMENT
EXHIBIT (G) RECIPIENTS FOR RECEIPT OF NOTICES
Page 23 of 24
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (H) HP SUPPLIER QUALITY SYSTEM REQUIREMENTS
EXHIBIT (I) HP END USER SOFTWARE LICENSE AGREEMENT
AGREED:
BROCADE COMMUNICATIONS HEWLETT-PACKARD COMPANY
SYSTEMS, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
Page 24 of 24
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A)
OEM PRODUCTS AND SPECIFICATIONS
A-1 SILKWORM 2400-2800 PRODUCT SPECIFICATION
A-2 CUSTOMER SPECIAL DEFINITION (CSD) PROCEDURE
A-3 FIBRE CHANNEL GIGABIT SWITCH CONFIGURATION SPECIFICATIONS DOCUMENT
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A-1)
SILKWORM 2400-2800 PRODUCT SPECIFICATION
This page is left intentionally blank; Exhibit (A-1) follows immediately after
this page.
EXHIBIT (A-1)
Page 1 of 1
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BROCADE/HP CONFIDENTIAL
SILKWORM(R) 2400 AND 2800
FIBRE CHANNEL FABRIC SWITCHES
[GRAPHIC IMAGE APPEARS HERE]
BROCADE fabric switches create the core infrastructure for constructing a
Storage or Server Area Network (SAN). The switches provide full fabric support,
true line-speed switching, and modular components to build a wide range of SAN
solutions.
The SilkWorm 2400 and SilkWorm 2800 create an intelligent connectivity
infrastructure, or Fabric, to support connectivity of a wide range of host and
storage types. Users share these resources efficiently in a SAN. Fabric services
are deployed automatically and transparently throughout the Fabric to assure it
is resilient to failures. The Fabric is scalable, expanding rapidly to
increasing demands by users for highly available, heterogeneous access to
growing storage pools.
SilkWorm switches provide the cornerstone for a wide range of SAN
configurations--from NT-based workgroups to large enterprise solutions. Fabric
switches have the capability to cascade, further increasing a Fabric's
scalability and resiliency. A multiple-switch Fabric can connect thousands of
Fibre Channel ports. SilkWorm switches meet the needs of a broad range of SAN
applications, including storage consolidation, enterprise backup, and clustering
environments.
Best-of-class products conforming to industry standards
- Each port (B for the SilkWorm 2400 and 16 for the SilkWorm 2800)
delivers 100 megabytes-per-second (MB/sec) line-speed. Universal ports
automatically determine the port type for a loop, point-to-point
devices, or an Inter-Switch Link (ISL).
- Non-blocking architecture guarantees full-speed data delivery
irrespective of traffic conditions. Cut-through routing guarantees
maximum latency of 2 microseconds across a switch.
- Buffer-pool management and use of mini-buffers for small frames optimize
overall performance.
- GBIC (Gigabit Interface Converter) -based modular design makes it easy
to hot-swap connections quickly. Copper and short-or long-wave-length
fiber cabling may be mixed on the same switch in any combination.
- Self-learning allows the Fabric to automatically discover and register
host and storage devices.
BROCADE's translative mode automatically registers private-loop devices
for Fabric-wide access.
[GRAPHIC IMAGE APPEARS HERE]
- Self-healing enables the Fabric to isolate a problem port and reroute
traffic onto alternate paths.
- Optional hardware-enforced Zoning secures data access among switch
ports.
MAXIMUM SCALABILITY TO PROTECT INVESTMENTS
- Multiple simultaneous conversations are supported, achieving higher
bandwidth than possible on a hub-based Fibre Channel loop.
- A SAN expands seamlessly to include thousands of ports by adding new
switches to the Fabric. ISLs are automatically detected. Fabric
information is updated to newly updated switches.
FABRIC OS(TM) TO SAFEGUARD MISSION-CRITICAL BUSINESS
- Simple Name Server registers information about the host and storage
devices in the SAN. Registered State Change Notification (RSCN) informs
the SAN when a device state changes.
- Alias Server supports the Multicast Service, which broadcasts data to
all members of a group.
- BROCADE ZONING (optional) limits access to data by selected ports or
devices.
- Services are distributed and managed across the entire Fabric, ensuring
simple management with no single point of failure.
- Routing software automatically configures the network, detects link
failure, and reconfigures without operator interaction.
- Software is upgradable for additional features and enhancements by
downloading the latest version of Fabric OS.
INDUSTRY-LEADING RELIABILITY AND SERVICEABILITY
- Front control panel on the SilkWorm 2800 simplifies administration.
- Power-On Self Test (POST) and online diagnostics allow monitoring and
thorough port-level testing while the switch is running Extensive
offline diagnostics assist in rapidly isolating a Field Replacable Unit
(FRU).
- Embedded port-monitoring facilities automatically disable failing ports
and restart them when the problem has cleared.
- Redundant cooling fans and an optional, redundant, hot swappable power
supply increase switch availability.
- Low parts count increases switch reliability.
<PAGE>
BROCADE/HP CONFIDENTIAL
SIMPLE MANAGEABILITY
- Support for industry-standard MIBs (Management Information Blocks) gives
standardized SNMP (Simple Network Management Protocol) access to switch
information
- Broad set of interfaces (Telnet, SNMP, Web, or SES) provide flexible
integration into the enterprise management infrastructure.
ADVANCED SAN CONFIGURATION CONTROL AND MANAGEMENT (OPTIONAL)
- BROCADE WEB TOOLS for online SAN management and switch administration.
- BROCADE SES (SCSI-3 Enclosure Services) for management without
implementing IP.
- BROCADE ZONING for finer segmentation of the Fabric to increase security
and configuration possibilities.
- QuickLoop(TM) for configuration of one or more logical loops in the
Fabric, and enhanced connectivity and management of private devices.
SILKWORM 2400 AND 2800 SWITCH SPECIFICATIONS
SYSTEM ARCHITECTURE
Fibre Channel Standards FC-AL Rev 4.5
FC-AL-2 Rev 7.0 (Draft)
FC-FLA Rev 2.7
FC-GS-2 Rev 5.3 (Draft)
FC-FG Rev 3.5
FC-PH Rev 4.3
FC-PH-2 Rev 7.4
FC-PH-3 Rev 9.4
FC-PLDA Rev 2.1
FC-SW Rev 3.3
FC-VI Rev 1.0 (Draft)
Fibre Channel ports 2400: 8 universal ports:
2800:16 universal ports
Scalability Architecture: 239 switches maximum
Certified maximum 32 switches, 7 hops. Larger
Fabrics to be certified as
required.
Interoperability SilkWorm II, SilkWorm Express, or
any SilkWorm 2000 Family Switch
Performance Full line-speed switching, 200
MB/sec per port, full-duplex
Switch bandwidth 2400: 8 Gb/sec end-to-end;
2800: 16 Gb/sec
Switch core Non-blocking
Fabric latency <2 [Greek mu]sec with no
contention, cut-through routing
Maximum frame size 2112-byte payload
Frame buffers 2400: 224 dynamically
allocated; 2800: 448,
dynamically allocated
Classes of Service Class 2, Class 3, Class F
(Interswitch Frames)
Port Types F_Port, FL_Port, and
E_Port. Self-discovery
based on connection type
Data traffic types Unicast, multicast (256
groups), and broadcast
Media Types Hot-pluggable,
industry-standard GBICs
Short-wave laser, up to 500
m (1.640 ft)
Long-wave laser, up to 10
km (6.2 mi)
Passive copper, up to 13 m
(43 ft)
Fabric Services Simple Name Server, Registered
State Change Notification (RSCN),
Alias Server (Multicast), BROCADE
ZONING (optional), and
QuickLoop(TM) (optional)
[GRAPHIC IMAGE APPEARS HERE]
Options Redundant power supply, GBICs, and
rack mount kit
MANAGEMENT
Management SNMP, Telnet, BROCADE SES
(optional), and BROCADE WEB TOOLS
(optional)
Management access Ethernet [R]-45,10/100BaseTX
(UTP)]. in-line over Fibre
Channel link, and front control
panel (2800)
Diagnostics POST and embedded online/offline
diagnostics
MECHANICAL SPECIFICATIONS
Enclosure Back-to-front airflow, power out
the front 2800: 20, 19-in-EIA
compliant
2400: 1u, 19-in.-EIA compliant
D: 45.0 cm (17.72 in.) D: 45.0 cm (17.72 in.)
Weight
Single power supply 2400: 6.36 kg (14 lbs):
2800: 11.59 kg (25.6 lbs)
Dual power supply 2400: 7.73 kg (17 lbs):
2800: 12.94 kg (28.5 lbs)
ENVIRONMENT
Temperature Operating 10(Degree)C-40(Degree)C
(50(Degree)F-104(Degree)F),
Nonoperating: -35(Degree)C
-65(Degree)C (-31(Degree)F
-147(Degree)F)
Humidity Operating: 5% - B5% noncondensing
@ 40(Degree)C (104(Degree)F)
Altitude Up to 3.000 m (9.800 ft)
Shock 5 g, 11 ms, half sine
Vibration Operating: 5, 5-500-5Hz@1.0
octave/min
Nonoperating: 10, 5-500-5Hz@1.0
octave/min
POWER
SUPPORTED POWER RANGE B5 - 265 VAC. 47 - 63 Hz
REGULATORY COMPLIANCE
Country Safety EMC
Canada CSA 950 3rd Ed ICES-003 Class A
United States UL 1950 3rd Ed FCC Part 15 Class A
Japan EN60950 A4 VCCI Class A
European community EN60950 A4 EN55022 Level A
EN55082-2 (Immunity)
Australia/New Zealand AS/NZS 3548
See the BROCADE web site for related hardware and software data sheet
<PAGE>
BROCADE/HP CONFIDENTIAL
<PAGE>
EXHIBIT (A-2)
CUSTOMER SPECIAL DEFINITION (CSD) PROCEDURE
This page is left intentionally blank; Exhibit (A-2) follows immediately after
this page.
EXHIBIT (A-2)
Page 1 of 1
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
1
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
SECTION IV CUSTOMER AUTHORIZATION
Your signature authorizes Brocade Communications Systems, Inc., to build the
special switch configuration according to your written product and purchase
specifications reviewed and accepted by Brocade Communications Systems, Inc.
Should changes be required to the special configuration referenced on this form,
customer shall provide written changes to Brocade.
/s/ Marilyn Edling
----------------------------------- -----------------------------------
Customer Signature Date
/s/ Charles Smith 2/16/00
----------------------------------- -----------------------------------
Sales Account Manager Date
2
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
CONFIGURATION REQUIREMENTS: HARDWARE, SOFTWARE, DOCUMENTATION (To include all
configurable items as outlined by Marketing; items listed below may not be
complete list depending on product. Samples requirements should be noted in
Comments)
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ITEM REQUIREMENT INCLUDE IN BOM? COMMENTS
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<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
SCRIPT REQUIREMENTS/DEFAULT PARAMETERS TABLE (TO BE FORMATTED PER CUSTOMER
SPECIFIC RQMTS)
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ADDITIONAL FUNCTIONALITY DESCRIPTION:
- [*]
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4
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
CUSTOMER CONFIGURATIONS (To include main switch configurables as appropriate for
products covered; format may be modified to fit specific customer requirements)
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# POWER
CUSTOMER PART # BROCADE PART # SUPPLIES [*] [*] [*] COMMENTS
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FRU CONFIGURATIONS: SILKWORM 2800 (Marketing to provide standard template for
each product)
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BROCADE
PART #
CUSTOMER PART (STANDARD REQUIRED UNIQUE BROCADE P/N
FRU ITEM # FRU) (YES/NO) REQUIREMENTS? (CUST. UNIQUE)
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<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
UNIQUE LABEL REQUIREMENTS (To include all customer unique label requirements,
placement, and specification source)
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POSITIONING (ON SWITCH,
CUSTOMER BROCADE PACKAGING, FRU
LABEL NAME SPEC # P/N COMPONENT, ETC) COMMENTS
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