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BROCADE / HP CONFIDENTIAL
OEM PURCHASE AGREEMENT
BY AND BETWEEN
HEWLETT-PACKARD COMPANY
AND
BROCADE COMMUNICATIONS SYSTEMS, INC.
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BROCADE / HP CONFIDENTIAL
OEM PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into between HEWLETT-PACKARD
COMPANY, a Delaware corporation ("HP") and BROCADE COMMUNICATIONS
SYSTEMS, INC., a Delaware corporation, having its principal place of
business at 1745 Technology Drive, San Jose, California 95110, and
Brocade Communications Switzerland SarL., a corporation organized under
the laws of Geneva, and having its principal place of business at 29-31
Route de l'Aeroport, CH-1205 Geneva, Switzerland, (collectively
"Supplier") ("Supplier"), effective as of April 20, 2001, (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 HP's private label or, at HP's sole
election, under Supplier's label, as set forth herein. 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.
After the initial Term, this Agreement will continue
automatically for additional one-year periods. This Agreement
may be terminated at the end of the initial Term or at the end
of any subsequent renewal period if one party provides the other
at least [*] prior written notice of its intent to terminate.
2. DEFINITIONS
The following capitalized terms will have these meanings throughout this
Agreement:
2.1 "Days" means business days.
2.2 "Delivery Date" means the date specified in an Order for the
delivery of OEM Products by Supplier to the destination required
under the Order.
* 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
2.3 "Documentation" means the user and technical manuals and other
documentation that Supplier will make available with the OEM
Products.
2.4 "Eligible Purchasers" mean those parties authorized to purchase
OEM Products under this Agreement as listed in Exhibit B
attached hereto.
2.5 "E-Room" means that secure, password-protected web application
accessible by Supplier and HP that indicates [*] of OEM Products
between Supplier and HP under this Agreement.
2.6 "Failure" means an instance where the OEM 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.
2.7 "Forecast" means HP's estimate, submitted to Supplier in
writing, of its stocking requirements for OEM Products
(including, without limitation, Parts) over a [*] period or such
other period designated by the parties.
2.8 " [*] " means HP's [*] and purchase of OEM Products from an [*]
to [*] inventory and the event upon which title to such
units passes to HP. [*] of OEM Product unit(s) is confirmed upon
[*] to the [*] of [*] movement-type transaction indicating such
unit [*].
2.9 "HP Products" means those products or systems that will
incorporate or be distributed in conjunction with the OEM
Products and that will be marketed and sold to end-user
customers by HP and its distributors.
2.10 "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.
2.11 "Intellectual Property Rights" means all rights in patents,
copyrights, moral rights, trade secrets, mask works, Marks, and
other similar rights.
2.12 "Lead Time" means the time between the date an Order is received
by Supplier and the Delivery Date.
2.13 "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.
2.14 "Noncomplying Product" means any OEM Product received by HP that
does not comply with the [*] as set forth in Exhibit (A) or does
not otherwise comply with the requirements of an accepted Order
as set forth in Section 3.1 herein, and the provisions of this
Agreement. Noncomplying Products include, without limitation,
dead-on-arrival products.
* 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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2.15 "OEM Products" means the products listed in Exhibit (A), all
related Documentation, Software licenses and media, Parts, and
other deliverables provided pursuant to this Agreement.
2.16 "Orders" means a written or electronic purchase order or release
issued by HP to Supplier for purchase of the OEM Products.
2.17 "Parts" means the replacement parts (FRUs), components,
consumables, or other products that are to be supplied under
this Agreement or that may be supplied in conjunction with or as
additions to the OEM Products.
2.18 "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.
2.19 "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.
2.20 " [*] " means those [*] as listed in Exhibit (B) to which
Supplier shall deliver OEM Products as ordered by HP under this
Agreement and more particularly in Exhibit (J) attached hereto.
2.21 "Software" means any software or firmware included, bundled, or
licensed in conjunction with the OEM Products, as listed in
Exhibit A. The Software described herein is licensed and not
sold.
2.22 "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.
2.23 "Stocking Level" means the actual [*] inventory stocking level
to be [*] at each designated [*] by Supplier for a given
planning period which shall be equal to the then-current
Forecast volume [*], subject to the limitation in Section 3.5
below.
2.24 "Subcontractor" means a third party listed in Exhibit B that may
purchase OEM Products under the terms of this Agreement on
behalf of HP.
2.25 "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.
2.26 "Support" means ongoing maintenance and technical support for
the OEM Products provided by Supplier to HP as more fully
described in Exhibit D.
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2.27 "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, SHIPMENT, AND INVENTORY OF OEM PRODUCTS
3.1 Orders. Each delivery of OEM Products to [*] will be initiated
by a non-binding blanket Order issued [*] to Supplier by HP.
Each Order will include: (i) unit quantity; (ii) shipping
destination; (iii) Delivery Date; and (iv) 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. At the end of each month, Supplier will
close each Order based on actual [*] of OEM Products from the
[*]).
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 either
electronically or by facsimile transmission within Forecasts and
Lead Time requirements of this Agreement either electronically
or by facsimile to HP within [*]. 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 its 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 its 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.
3.4 Forecasts. HP will provide a [*] rolling Forecast [*] of its
projected Orders per [*], to be provided to Supplier between
the [*] of the [*] applicable to such Forecast. 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, at its sole discretion, revise
any such Forecasts, provided that such revisions occur at least
[*] prior to the projected Order Shipment Date.
3.5 Lead Time. Lead Time for each OEM Product within the
then-current Forecast unit volume will be no more than [*]
without prior written consent from HP. Lead Time for FRU
products within the then-current Forecast unit volume from
Supplier to the designated HP global service support
organization will be no
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BROCADE / HP CONFIDENTIAL
more than [*].
3.6 Inventory Requirements. Subject to the terms and conditions of
this Article (3), Supplier will carry an inventory of the OEM
Products sufficient to accommodate HP's Order requirements as
defined by the most current HP Forecast. Supplier will [*]
inventory [*] to [*] the [*] outlined in Order changes. If this
inventory is depleted, Supplier will replenish the inventory as
soon as reasonable after depletion. Additionally, Supplier will
[*] its [*] of OEM Products in inventory to [*] the [*] of
inventory for each [*]. Supplier will ship ordered OEM Products
to HP-designated [*]. HP may request change drop locations.
3.7 Stocking Level Requirements. Supplier shall deliver the
then-current Stocking Level volumes to the respective [*]
locations as specified in the then-current Forecast by the [*]
for which the current Forecast shall apply (or the [*] as
specified in advance by HP). Supplier may make advance shipments
of OEM Products or ship excess units to the [*].
3.8 Product Supply Assurance. Supplier agrees that, during the Term
of the Agreement and specifically in the event of any allocated
OEM Product status initiated or experienced by Supplier,
Supplier will [*] order fulfillment and shipping [*] that given
to [*] OEM Products [*] basis between [*]
3.9 Inactive Inventory. (a) In the event any OEM Product unit(s)
shall remain within an [*] for greater than [*], then, upon
written notification from Supplier to HP of Supplier's request
to release such inactive units from the [*] inventory, HP will,
within [*] or receipt of Supplier's notice, elect to either
purchase such inactive units through [*] of such units from the
[*], or release the inactive units to Supplier for Supplier's
recall of the units from the [*] inventory, at Supplier's
option.
(b) In the event HP does not confirm its intent to purchase such
units within [*] of receipt of Supplier's notice, such units
shall be deemed released by HP for [*] by Supplier from the [*].
(c) [*] by Supplier of OEM Product units released by HP from the
[*] under this Section shall be at [*]
(d) In the event any OEM Product unit(s) remain within the
respective [*] greater than [*] due to lack of [*] will bear [*]
costs of upgrading such inventory units to any subsequent
Software revisions or upgrades if, in [*] determination, such
upgrade is required.
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BROCADE / HP CONFIDENTIAL
3.10 Order Changes. HP may, [*], postpone, decrease, or increase any
Order within Forecast, subject to the following Order increase
limitations: [*] permissible [*] in Forecast [*] permissible [*]
in Forecast [*] permissible [*] in Forecast. In the event HP
increases any Order, Supplier will use reasonable efforts to
fulfill such Order for the Delivery Date requested by HP.
3.11 Shipment Requirements. All Orders are required to be shipped
complete. Supplier will give HP [*] notice if it knows or
reasonably anticipates that it will not meet a Delivery Date or
that only a portion of the OEM Products will be available for
shipment to meet a Delivery 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. Upon mutual agreement by the
parties, HP may utilize drop shipment options to any
HP-designated delivery destination in the same manner as
delivered to an inventory location unless otherwise mutually
agreed by the parties. If HP designates a drop shipment location
outside the country in which the Order is placed, [*] associated
with the shipment.
3.12 Meeting Delivery Dates. If due to Supplier's failure to make a
timely shipment, the specified method of transportation would
not permit Supplier to meet the Delivery 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.
3.13 Title And Risk Of Loss. Title to OEM Product hardware and media
ordered under this Agreement and risk of loss or damage for each
OEM Product unit will pass from Supplier to HP [*] as more fully
described in Exhibit (J) attached hereto.
3.14 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.
3.15 Packaging. Supplier must preserve, package, handle, and pack all
OEM Products as specified in Exhibit A-3.
3.16 Responsibility For [*]. [*] 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 3.16, [*] 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
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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 [*].
4.2 Changed Prices. Subject to the terms and conditions of Section
4.4 below, if during the Term and any extensions thereof,
changed prices or price formulas are put in effect by mutual
agreement of HP and Supplier, or reduced prices or price
formulas are otherwise put in effect by Supplier, then 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 each
OEM Product unit(s) from an [*]. Except as otherwise provided in
this Agreement, associated freight expenses and duties will be
paid directly by [*] related to or payments for unordered or
Noncomplying Products provided that HP does not retain such
unordered or Noncomplying Product(s).
4.4 [*] Warranty. If during the Term or any extensions thereof,
Supplier provides [*] of OEM Products or newer OEM Products as
set forth in Section 10.3 herein [*] Supplier's most recent [*],
then Supplier agrees to [*] to HP [*] provided to the [*]
Supplier agrees to fulfill its obligations in this Section in
good faith and further agrees that it will not create any OEM
Product, purchasing programs, pricing formulas, or other
conditions that serve to deny HP the [*] In addition, HP may
credit any amounts due under this Agreement against future
invoices.
4.5 Sales Taxes And Duties. Prices are exclusive of all taxes or
duties imposed after [*] of the respective OEM Product units
(other than taxes levied on Supplier's income) that Supplier may
be required to collect or pay upon shipment of the OEM Products.
[*] shall be responsible for all such taxes or duties imposed on
OEM Products before [*]. Any taxes or duties applicable to HP
under this Section 4.5 must appear as a separate item on
Supplier's invoice. [*] agrees to pay such taxes or duties
unless [*] is exempt from such taxes or duties. Where
applicable, [*] will provide [*] with an exemption resale
certificate.
5. NONCOMPLYING PRODUCTS
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5.1 Repair Or Replacement. HP's acceptance of each OEM Product unit
shall occur upon [*] of such unit(s) unless HP notifies Supplier
in writing sent by mail, facsimile, or other electronic means
within [*] after [*] that such OEM Product unit is a
Noncomplying Product. Supplier shall repair or replace (at
Supplier's sole expense) each such Noncomplying Product pursuant
to the warranty provisions under Article (9) herein. HP may
elect [*], subject to the provisions of Article 18 below, to
return a Noncomplying Product for replacement or repair at [*].
Determination of whether to repair or replace such Noncomplying
Products shall be at Supplier's sole option. Additionally, HP
may return for repair or replacement an entire lot of OEM
Products if a tested sample (consisting of not less than [*] of
that lot contains greater than [*] 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 an RMA for OEM
Products for which HP has verified Failure [*] 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 (that are
human-readable and physically appear thereon) 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 that are Noncomplying 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 its obligations under this Section 6.3.
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7. ENGINEERING PROCESS OR DESIGN CHANGES
7.1 Supplier Proposed Changes. Supplier will not, without the prior
written consent of HP (which such consent shall not be
unreasonably withheld), make or incorporate in OEM Products any
of the following changes (collectively, "Engineering Changes"):
(1) [*];
(2) [*], or;
(3) [*] affecting: (a) the [*] form, fit, or function [*]
that affects form, fit, or function; and (b) the [*] of
OEM Products.
7.2 Notice Of Proposed Change. Supplier will give HP notice of any
proposed Engineering Change, and will provide [*] and other
appropriate information as specified by HP at least [*] prior to
the first scheduled release of any OEM products involving a
change to the respective firmware that would affect OEM Product
form, fit, or function, and at least [*] prior to the first
proposed shipment of any OEM Products involving any other
Engineering Change. Regardless of whether HP approves a proposed
Engineering Change, Lead Time will not be changed except as
provided in Section 3.4 above.
7.3 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.
7.4 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
[*]. and [*]. 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 [*]
7.5 Option To Terminate. If the parties are unable to agree, acting
reasonably and in good faith, upon an adjustment pursuant to
Section 7.3 above, HP may [*] terminate this Agreement as to any
OEM Products affected, subject to the terms and conditions of
Article (22) herein.
7.6 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,
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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, at HP's election, 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 [*].
7.7 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 integrating 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
share and review with HP engineers the following for current and
future products (which such information shall not be
unreasonably withheld or delayed):
(a) [*];
(b) [*] information necessary 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 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 Programs. Supplier agrees to maintain an objective
quality program for all OEM Products. Supplier's program will be
in accordance with the current version of 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.
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8.2 HP's Right To [*]. Supplier grants HP the right to [*] hours) at
Supplier's [*] and all associated [*] may be [*] any time during
the Term or any extensions thereof. HP's [*] may be for any
reason [*] related to this Agreement, [*]. HP's right of [*]
will apply as well to [*] of Supplier. Supplier will inform [*]
of HP's right to [*], and, if necessary, use all [*] such rights
for HP.
9. WARRANTIES
9.1 Product Warranties. Supplier warrants to HP that, for a period
of [*] from the date of [*] for each hardware OEM Product unit
(excluding [*]) and [*] for each Software and [*] hardware OEM
Product, that all OEM Products under this Agreement will:
(1) Be manufactured, processed, and assembled by Supplier or
by companies under Supplier's direction;
(2) Conform to the then-current Specifications 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 of all Orders 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) Subject to the terms and conditions of Article (14)
herein, not to Supplier's reasonable knowledge, violate
or infringe any third party 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 such information.
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9.2 Survival Of Warranties. All warranties specified above will
survive any inspection, delivery, acceptance, or payment by HP
and be in effect for the applicable warranty period for each OEM
Product.
9.3 Epidemic Failure Warranty. In addition to the warranties
specified above, Supplier warrants to HP all OEM Products at the
FRU level and system (unit) level against epidemic failure for a
period of [*] after [*] of such OEM Product unit. 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 [*] (as listed in Exhibit (H), Section 4.1), 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.
9.4 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
SUPPLIER EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, EITHER EXPRESS OR IMPLIED, REGARDING
ANY OEM PRODUCTS OR REGARDING THEIR 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. 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 [*] after the date of last Shipment
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Date by Supplier to an [*] of each OEM Product unit. 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
are as set forth in Exhibit D.
10.2 New HP Products. Upon request by HP, Supplier will use
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 New Product Supply [*]. Supplier agrees that, during the term of
the Agreement and any extensions thereof, any such newer
products will be made available to HP for shipment [*] shipment
date made [*] by Supplier [*] with [*] OEM Products [*] most
recent [*], and shall be made available [*] in [*] to [*] all HP
Orders within Forecast designating such newer products. In the
event of any allocated OEM product status initiated by Supplier,
Supplier will promptly give all HP Orders [*] that given [*] OEM
Products [*] Supplier's most recent [*], with such [*] to be
made on a [*] basis [*] HP and [*].
10.4 HP Property. HP may, at HP's sole election, 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, at [*], upon termination of this Agreement.
10.5 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.
10.6 Failure Rate. Notwithstanding that the warranties given in
Section 9.1 above apply to 100% of the hardware components of
OEM Products, Supplier and HP acknowledge that a failure rate
equivalent to the rates as measured [*] set forth in Section 4.1
of Exhibit (H) is expected. If the actual failure rate for OEM
Products exceeds this expected rate, Supplier will provide
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additional engineering and technical support needed to bring the
actual failure rate within the specified failure rate.
10.7 Class Failure Remedies. Upon the occurrence of any of the
following events: (i) a failure rate exceeding the rate
specified in Section 10.6 above; (ii) an epidemic failure as
described in Section 9.3 above; 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
[*] after [*] of such OEM Product unit:
(1) In the event of a Class Failure, Supplier will use its
reasonable efforts to provide an initial root cause
analysis, failure analysis, and corrective action 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
corrective action plan, HP determines in its reasonable
opinion that the Class Failure necessitates a field
stocking recall or customer based recall or retrofit, 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 7.6 above regarding safety
standard changes, Supplier will, [*] after completion of
the recalls or retrofits, reimburse HP for [*] in
performing such services.
10.8 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 last Shipment Date by Supplier
to an [*] of each OEM Product unit. 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,
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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 [*] of the stated notice period, and such orders shall be
non-cancelable. All shipments must be completed prior to the
end-of-life date stated in such notice by Supplier to HP above.
In addition, during such notice period, Supplier shall have the
right, in its sole discretion, to [*] for OEM Products from HP
at the time such Orders are submitted.
11.2 Alternative Supply Rights. In the event HP becomes entitled to
terminate this Agreement or any portion thereof in accordance
with Article (18) hereunder, then Supplier shall [*] purchase
orders from HP for such OEM Products at [*] and [*] until
Supplier can demonstrate to [*] that its performance is no
longer impaired. This Section is not intended to grant HP [*] a
royalty-free license to use, manufacture, sell or import the
Products. Instead, it is intended to permit HP to directly order
Products [*] in limited circumstances; under such circumstances,
HP will directly [*] the [*] set forth hereunder for the OEM
Products ordered pursuant to this Section.
11.3 Consulting Services. In support of Technical Information or
other services provided to HP herein, Supplier will, upon HP's
request, provide additional consulting services at the rate of
the lesser of either [*], or that rate [*] as mutually agreed.
12. TRAINING
12.1 Technical Training. Supplier will provide to HP [*] technical
training classes for HP technical personnel. The schedule for
such classes will be as mutually agreed in writing by the
parties, with the first of such training provided by Supplier no
later than May 15, 2001. Each class provided by Supplier under
this Section will accommodate at least [*] HP personnel, and
will be made available at Supplier's designated training site in
San Jose, California. At HP's sole election and upon not less
than [*] advance notice, after May 15, 2001, to Supplier,
Supplier will provide [*] to HP at HP's Roseville, California
site. All such training provided by Supplier will be [*] to HP
except for travel expenses of HP personnel. Supplier will
maintain a designated training contact for HP learning products
personnel, and will provide technical support to an HP trainer
for the [*] classes taught by HP utilizing
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the training provided hereunder by Supplier. HP may further
request and Supplier will provide, for up to [*] HP technical
personnel, additional training [*] as reasonably necessary to
inform HP personnel of each upgraded, enhanced, or new version
of the OEM Products. Other training (including without
limitation Supplier's Educational Services technical training)
will be provided upon mutually agreed terms and conditions.
12.2 Presales Training. Supplier will provide to HP no later than May
15, 2001, presales training at Supplier's San Jose, California
facility sufficient to cover up to [*] HP trainers in order to
allow HP to become fully familiar with the OEM Product and its
market. Such training will be [*] to HP. HP may further request
and Supplier will provide additional training [*] to inform up
to [*] HP personnel of each upgraded, enhanced, or new version
of the OEM Products.
12.3 HP's Rights in Training Classes and Materials. Subject to the
provisions of Article (19) herein, HP may [*] use, reproduce,
display, and perform, either internally or for HP's customers,
all training classes, methods, and materials supplied or
developed by Supplier under this Agreement (excluding Supplier's
Educational Services classes, methods, and materials). None of
the training materials provided [*] by Supplier to HP under this
Article (12) may be offered for resale by HP to HP's Customers.
Supplier will provide such presales training materials to HP no
later than May 1, 2001, and technical training materials no
later than May 15, 2001.
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 and in its sole discretion.
Without limiting the generality of the foregoing sentence,
nothing in this Agreement shall be construed or interpreted to
place a "best efforts" obligation upon HP with respect to
marketing or distributing the HP Products or OEM Products or to
preclude HP from independently developing, purchasing,
licensing, or marketing 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. HP will take
all reasonable steps to describe OEM Products accurately.
13.2 Distribution Rights. During the Term of this Agreement and any
extension(s) thereof, Supplier hereby agrees not to sell
directly to End Users the OEM Products or any other OEM products
that HP has distributed, provided that nothing in this Section
13.2 shall be construed to prevent Supplier from selling or
distributing through or to Supplier's current and future
indirect channels of distribution that are: (i) resellers,
service bureaus, third party distributors, or third party OEMs
(not owned or controlled in whole or in part by Supplier) which
in turn sell or distribute the OEM Products to End Users, or;
(ii) any End User to whom Supplier has directly sold OEM
Products or directly related precursor
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products prior to the Effective Date. For purposes of this
Section 13.2, an "End User" is any person or entity who
purchases the OEM Product solely for its own use and not for
reselling purposes.
13.3 Sales and Marketing Activity. During the Term of this Agreement
and any extension(s) thereof, Supplier shall, upon request of
HP, deliver to HP all sales, training, product, and marketing
collateral intended by Supplier for use in the distribution,
sale, or marketing of the OEM Products. All such collateral
content intended by Supplier for use with the OEM Products shall
be developed by Supplier and provided to HP in electronic form.
All such collateral and related sales activity from or by
Supplier, its employees, agents, and subcontractors (excluding
Supplier's current and future indirect channels of distribution
that are resellers, service bureaus, third party distributors,
or third party OEMs (any of which who are neither owned nor
controlled in whole or in part by Supplier) which in turn sell
or distribute the OEM Products to End Users), which is intended
by Supplier for current [*] shall be first coordinated through
the [*] contact as listed in Exhibit (G) attached hereto and
subject to HP's prior written approval, at HP's sole discretion,
before Supplier may [*] such collateral or sales activity to
[*].
13.4 Software License. Supplier hereby grants to HP, under Supplier's
intellectual property rights, a non-exclusive, worldwide,
license to use, display, distribute, import, and disclose the
Software both separately and in combination, in object code
format for use in conjunction with the support and distribution
of OEM Products or associated HP Products. Such use limitation
will not apply in the case of [*] purposes. The license grant
under this Section 13.4 includes the right of HP to sublicense
distributors, resellers, and other third parties to achieve the
foregoing. The rights granted to HP under this Section 13.4 also
include the right of End Users to continue use of the Software
in conjunction with the operation of the OEM Products so long as
they are not in breach of the HP End-User license agreement
issued with the particular OEM Product(s), and HP shall retain
the license set forth above for the sole purpose of assisting
End-Users with the maintenance and support of the OEM Products.
13.5 Device Object License. Supplier will use all reasonable efforts
to develop, test, and distribute to HP (at Supplier's sole
expense) a device object applicable to HP's OpenView Storage
software product according to the specifications and
requirements set forth in HP OpenView Storage Area Manager
Developer's Guide, Edition 1200, as referenced in Exhibit (A-6)
attached hereto. Supplier hereby grants to HP, under Supplier's
intellectual property rights, a non-exclusive, worldwide license
to use, reproduce, display, translate, import, disclose,
distribute, modify and prepare derivative works or compilations
of such device object as developed by Supplier, for use with OEM
Products and HP Products. These rights are exercisable in any
medium. Such license will include the right of HP to sublicense
distributors, resellers, and other third parties to achieve the
foregoing.
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13.6 License to the Documentation. Supplier hereby grants to HP,
under Supplier's intellectual property rights, a non-exclusive,
worldwide license to [*] of the [*] and [*] based upon the [*]
for use in conjunction with the support and distribution of
Software. These rights are exercisable in [*]. Such license will
include the right of HP to sublicense distributors, resellers,
and other third parties to achieve the foregoing. The right to
[*] is granted solely for the purposes of [*] of more than one
Software, condensing [*] on, and formatting and [*] for user
accessibility. The rights granted to HP under this Section 13.6
are subject to the payment obligations as generally set forth in
Article (4) above and more particularly in Exhibit (C) attached
hereto provided, however, that (a) End-Users shall be permitted
[*] of the [*] in conjunction with the operation of the OEM
Products so long as they are not in breach of the HP End-User
license agreement issued with the particular OEM Product(s),and
(b) HP shall retain the license set forth above for the purpose
of assisting End-Users with the maintenance and support of the
OEM Products.
13.7 License to [*]. Supplier hereby grants to HP, under Supplier's
intellectual property rights, a non-exclusive, worldwide license
to [*] if any, and to [*] solely in connection with HP's
marketing and support of the Software and training with respect
to the Software. Such license will include the right of HP to
[*] to achieve the foregoing. The rights granted to HP under
this Section 13.7 are subject to Supplier's right to review and
approve (which such approval shall not be unreasonably withheld
[*]) any [*] submitted by HP (excluding HP's standard
then-current trademarks, servicemarks, and logos), and the
payment obligations as generally set forth in Article (4) above
and more particularly in Exhibit (C) attached hereto.
13.8 Restrictions. HP will not decompile, reverse engineer,
disassemble, or otherwise modify any Software without written
authorization from Supplier, except as permitted by law.
13.9 Localized Versions. The licenses granted hereunder with respect
to the Software and associated Documentation will include all
localized versions thereof available from Supplier. In the event
HP reasonably requires a localized version of the Software, then
Supplier agrees to negotiate in good faith the commercial terms
and conditions under which such localized version would be
produced for HP. All of the licensing terms for such localized
version would be consistent with this Agreement.
13.10 Limited Right of Sublicense and License. The parties expressly
agree that no right of sublicense to the Software is hereby
granted under this Agreement by Supplier to HP except for the
right of HP to sublicense the Documentation and object code
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of the Software directly to End-User Customers. Based on
Supplier's representations herein, HP agrees that Supplier is
the owner of the Software and Documentation contained in the OEM
Products.
13.11 Localized Software. The licenses granted hereunder for the
Software and Documentation shall include any localized
version(s) thereof which Supplier publishes or makes generally
available during the Term of this Agreement and any extension(s)
thereof.
13.12 End User License Terms. Supplier hereby grants to HP the right
to use and HP will use its then-current standard form software
license terms for marketing and licensing Software under this
Agreement. Such terms will be substantially in the form of that
as set forth in Exhibit (I) attached hereto.
13.13 No Rights In Marks. Except as otherwise specified in this
Agreement, nothing in this Agreement should be construed to
grant either party any rights in the Marks of the other party.
HP and Supplier acknowledge, however, that HP may use the name
of Supplier and the name of the OEM Products in advertising and
marketing 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.
13.14 HP Marks. Supplier will ensure that the OEM Products contain the
HP Marks, serial number, format, and packaging specified by HP
and conforming to the HP specifications as set forth in Exhibit
A. Except as provided herein, Supplier will have no other right
or license in any HP Marks.
14. INTELLECTUAL PROPERTY PROTECTION
14.1 Supplier's Duty To Defend. Except as provided in Section 14.4
below and provided that HP has complied with the provisions of
Section 14.2 below, Supplier will defend and hold harmless HP
and its Subsidiaries, subcontractors, and customers from any
claim that any OEM Product, any combination of an OEM Product
with an HP Product (to the extent damages asserted from such
claim(s) are attributable to Supplier or the OEM Products), 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 third party's
Intellectual Property Rights. Supplier will pay [*] incurred by
HP, its Subsidiaries, subcontractors or customers and will pay
[*] with respect to any such claim or agreed to in any
settlement of that claim.
14.2 HP's Duty To Notify. HP will give Supplier prompt notice of any
such claim or action, and will give Supplier the authority,
information, and reasonable assistance (at Supplier's expense)
necessary to defend. If Supplier does not diligently pursue
resolution of the claim nor provide HP with reasonable
assurances that it will diligently pursue resolution, then HP
may, without in any way limiting its other rights and remedies,
defend the claim.
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14.3 Remedies For Infringing Products. If the use or combination of
any product provided hereunder is enjoined (the "Infringing
Product"), Supplier will, [*] either:
(1) Procure for HP and its customers the right to continue
using or combining the Infringing Product; or,
(2) Replace the Infringing Product with a non-infringing
product of equivalent function and performance; or,
(3) Modify the Infringing Product to be non-infringing,
without detracting from function or performance.
14.4 Limitations. Supplier will be relieved of its indemnification
obligations under this Article 14 to the extent that the claim
arises solely and directly from Supplier's compliance with an HP
Specification provided that all implementations of that
Specification constitute an unauthorized use or infringement of
a third party Intellectual Property Right.
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.
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
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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 third party Intellectual
Property Rights or furnish remedies for Infringing Products as
described in Article 14 above.
17.2 HP Option. Supplier will immediately give HP notice of any
delaying cause and its best estimate of the expected duration of
such cause. In the event of a delaying cause which continues for
a period of [*], HP may act in [*] to
(1) Terminate this Agreement or any part hereof as to OEM
Products not shipped or,
(2) Suspend this Agreement in whole or in part for the
duration of the delaying cause, buy similar products
elsewhere, and deduct from any
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quantities specified under this Agreement the quantity so
purchased.
17.3 Resumption Of Agreement. If HP elects to purchase other similar
products in the event of a delaying cause, HP may resume
performance under this Agreement once the delaying cause ceases
and extend the Term up to the length of time the delaying cause
endured. Unless HP gives notice of termination as provided above
within [*] after notice from Supplier of the delaying cause, HP
will be deemed to have elected to suspend this Agreement for the
duration of the delaying cause.
18. EVENTS OF DEFAULT
18.1 Notice Of Breach. If either party is in breach of any provision
of this Agreement, the non-breaching 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 accepted 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 non-breaching party, upon written request,
with reasonable assurances of future performance.
18.3 HP's Rights Upon Breach. In the event HP terminates this
Agreement in whole or in part as provided above for a material
breach by Supplier, in [*] provided HP under this Agreement, HP
may [*] upon [*] and in such [*] as [*] deems [*] to the [*] and
[*] as to which this Agreement is terminated. Supplier agrees to
[*] the [*] of this Agreement to the [*] under the provisions of
this Section.
[*] [*]. If any Eligible Purchaser having the right to purchase an
OEM Product under this Agreement or under any other agreement
with Supplier
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[*] 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 [*] 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 escalate such
resolution 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 [*] day period
from the end of the [*] 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," subject to a nondisclosure or
confidentiality agreement between the parties, or otherwise by
its very nature reasonably and clearly considered 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, (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
* 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.
-23-
<PAGE>
BROCADE/HP CONFIDENTIAL
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 [*] ([*] in performing [*] or [*] herein) as [*]. Such
insurance will apply as [*] and no other [*] 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 [*]
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
coverage or limits of any insurance required under this Article,
or the lack or unavailability of any other insurance, be deemed
to limit or diminish Supplier's obligations or liability to HP
under this Agreement. Supplier's obligations under this Article
(20) shall also include those as set forth in Exhibit (J)
attached hereto.
21. LIMITATION OF LIABILITY
UNLESS OTHERWISE STATED HEREIN, NEITHER PARTY WILL BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
PROFITS) OF THE OTHER ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT
OR IN FURTHERANCE OF THE
* 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
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, THE PARTIES WILL BE RESPONSIBLE FOR ANY DAMAGES OF ANY KIND
INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM UNDER ARTICLES
9, 14, OR 19 ABOVE. EXCEPT FOR THE PARTIES' RESPECTIVE OBLIGATIONS UNDER
SECTIONS 14 OR 19 ABOVE, THE PARTIES' RESPECTIVE AGGREGATE LIABILITY
UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (i) [*], OR (ii)
THE [*] BY SUPPLIER FROM HP UNDER THIS AGREEMENT 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 Delivery
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 Delivery Date is after
the date of termination. If this Agreement is terminated due to
HP's breach, then HP will reimburse Supplier for [*] OEM Product
units within the [*] back to Supplier's standard product, as
described in Exhibit (A-1) attached hereto. Such reimbursement
costs shall specifically [*] used in connection with the
customization of OEM Products.
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. [*] 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
days after dispatch by courier or certified mail, postage
prepaid, properly addressed to the receiving party. Notices may
also be delivered by
* 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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<PAGE>
BROCADE/HP CONFIDENTIAL
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, which
such consent shall not be unreasonably withheld or untimely
delayed. 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. Other than as
expressly agreed herein, all remedies of a party provided
herein, together with all remedies available at law or in
equity, shall be cumulative.
23.6 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.
23.7 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
existence or terms of this Agreement except as required under
applicable federal securities laws. In the event that Supplier
becomes aware that disclosure is likely to be required by
operation of law, Supplier shall promptly provide HP with ample
notice and opportunity to seek a protective order. Supplier
agrees that in the event that disclosure to the SEC is likely,
Supplier will file a request for confidential treatment. Such
request for confidential treatment
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BROCADE/HP CONFIDENTIAL
will include a request that, at a minimum, Exhibits C, D, F, H,
and J to this Agreement be deemed confidential. Without limiting
the generality of the foregoing sentence, no press releases may
be made without the prior mutual written consent of each party.
23.8 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.
23.9 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.
23.10 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.
23.11 Governing Law. This Agreement shall be governed and interpreted
according to the laws of the State of New York, exclusive of its
choice-of-law provisions.
23.12 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
(A-1) Supplier Product Specifications
(A-2) HP Configuration Specification Document
(A-3) Packaging
(A-4) Documentation
(A-5) HP OpenView SDK Developers' Guide
(A-6) OEM Product Interoperability Requirements
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
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BROCADE/HP CONFIDENTIAL
EXHIBIT (H) HP SUPPLIER QUALITY SYSTEM REQUIREMENTS
EXHIBIT (I) HP END USER SOFTWARE LICENSE AGREEMENT
EXHIBIT (J) SUPPLIER-MANAGED INVENTORY REQUIREMENT
AGREED:
BROCADE COMMUNICATIONS HEWLETT-PACKARD COMPANY
SYSTEMS, INC.
By: By:
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
BROCADE COMMUNICATIONS
SWITZERLAND, SARL.
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
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<PAGE>
BROCADE/HP CONFIDENTIAL
[GRAPHIC IMAGE APPEARS HERE]
EXHIBIT A-1 - Supplier Product Specification
HIGHLIGHTS
- The SilkWorm 6400 Integrated Fabric delivers a high-density port,
rack-ready solution to drive cost-effective SANs.
- The product simplifies the deployment of large SANs by providing high
port density and integrated cable management to facilitate SAN
implementation and administration.
- Modular design consists of six switch modules preconfigured in a highly
available, networked switch fabric enclosed in a well-designed cabinet.
- The Integrated Fabric is fully networkable for "pay-as-you-grow"
migration to larger SAN environments.
- With no single point of failure within the overall Fabric, the SilkWorm
6400 offers a highly available platform for mission-critical
SAN-designed applications.
- The product offers proven forward and backward compatibility with all
Brocade SilkWorm switches.
- Brocade Fabric Manager(TM) offers a centralized view of the SilkWorm
6400 switch modules to simplify SAN administration and maintenance.
- The included Brocade Fabric OS(TM) provides distributed intelligence for
the switch modules.
The SilkWorm 6400 enterprise-class Fibre Channel Integrated Fabric extends the
Brocade SilkWorm intelligent storage networking infrastructure for Storage Area
Networks (SANs) by providing a cost-effective means of meeting the
large-port-count requirements of workgroups and enterprises. The product
comprises six integrated switch modules in an enclosure with a removable steel
door that represents the latest thinking in industrial design. With
preconfigured switch interconnection and management software, the SilkWorm 6400
significantly simplifies the deployment and management of SAN fabrics. The 64
user ports of the SilkWorm 6400 can be managed as a single switch entity in the
SAN Fabric. The SilkWorm 6400 Integrated Fabric supports business-critical SAN
applications, such as LAN-free backup, server and storage consolidation, remote
mirroring and data replication, high-availability clustering configurations, and
new SAN-enabled applications such as dynamic storage resource and volume
management.
SEAMLESS UPGRADES AND COST-EFFECTIVE MIGRATION
This product provides a seamless upgrade path for customers. The SilkWorm 6400
offers proven backward and forward compatibility with the entire Brocade
SilkWorm family. It is fully per-workable in larger SANs, enabling a
cost-effective
SilkWorm(R) 6400
High-Port-Count Fibre Channel Integrated Fabric
[GRAPHIC IMAGE APPEARS HERE]
The SilkWorm 6400
Integrated Fabric
"pay-as-you-grow" migration to more advanced SAN environments while reducing the
need to configure and integrate multiple low-port-count switches.
EASE OF CONFIGURATION AND HIGH AVAILABILITY
The integrated design of the SilkWorm 6400 Integrated Fabric accelerates the
configuration of the cables and ISL (InterSwitch Link) GBICs (Gigabit Interface
Converters) that make up the fabric with 32 pre-installed and wired ISLs and
associated cable management. The 64-port SilkWorm 6400 Integrated Fabric
delivers high-density connectivity for large SAN fabrics and simplifies the task
of designing and building high-availability enterprise SANs.
With the proven reliability of the Brocade SilkWorm family and its integrated
fabric foundation, the SilkWorm 6400 modules combine to deliver a SAN fabric
with built-in redundancy and no single point of failure within the overall
Fabric. Based on Brocade tests, the MTBF (mean time between failures) of the
individual components of the SilkWorm 6400 is estimated to be more than 50
years, and the MTTR (mean time to repair) is estimated at less than one hour.
The modular architecture of the SilkWorm 6400 Integrated Fabric results in an
overall availability greater than 99.999 percent.
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<PAGE>
BROCADE/HP CONFIDENTIAL
SOFTWARE FOR SIMPLIFIED MANAGEMENT
The SilkWarm 6400 Integrated Fabric supports scalability and simplifies
management by networking multiple switches under Brocade Fabric OS, the embedded
real-time operating system of the industry-leading SilkWarm switch family. This
enables heterogeneous device connectivity, automatic data routing and rerouting,
self-healing, and scalable connectivity. The product leverages the distributed
intelligence in Brocade SANs to enable more feature-rich SAN applications.
The product includes the Brocade Fabric Manager, a portable, Java-based
management application that is easy to install on a Windows management station.
Fabric Manager makes it easy to view the status of all switch modules, drill
down to individual switch modules, and access the Brocade WEB TOOLS GUI
(graphical user interface). Brocade Fabric Watch(TM) enables pro-active SAN
monitoring and intelligent integration with SNMP Enterprise Management Consoles.
The SilkWorm 6400 also offers both hardware- and software-enforced SAN zoning,
to give SAN administrators comprehensive control over data. Brocade
QuickLoop(TM) provides for connection of legacy Fibre Channel arbitrated loop
devices to the SilkWorm 6400 and enables them to participate fully as members of
the fabric.
BEST-OF-CLASS PRODUCTS FOR ENTERPRISE SAN FABRICS
- All 64 user parts deliver 100 MB/sec in each direction (full duplex) to
meet the most demanding bandwidth requirements for enterprise
applications.
- Universal parts automatically determine the part type for a loop,
point-to-point devices, or an ISL to provide flexible connectivity with
a wide variety of host, storage, and other switch types.
- Buffer-pool management and use of mini-buffers for small frames optimize
overall performance.
- Hardware-enforced Brocade Zoning(TM) secures data access among switch
parts to prevent unauthorized access to important data.
- Services are distributed across the entire Fabric, which means there is
no single point of failure.
INDUSTRY-LEADING RELIABILITY AND SERVICEABILITY
- ISLs are prewired and installed with 32 short-wave-length (SWL) GBICs
and cable management harnesses to make the unit easier to install,
upgrade, and manage.
[GRAPHIC IMAGE APPEARS HERE]
- GBIC based modular design makes it easy to hot-swap connections quickly.
Media may be mixed on the same switch in any combination.
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BROCADE/HP CONFIDENTIAL
- Highly reliable components, continuous monitoring of environmental
components (fan status and temperature), and extremely durable
construction all maximize MTBF to reduce service costs.
- POST (Power-On Self-Test) and online diagnostics enable administrators
to monitor and test parts while the switch is in operation.
- Per-part statistics help administrators diagnose and isolate problem
parts for ease of service. The switch will continue to operate even when
individual parts have been removed.
- Embedded port-monitoring facilities automatically disable failing parts
and restart them when the problem has cleared, reducing administrative
overhead.
- Swappable switch modules in an integrated switch fabric provide
redundancy. With host-based failover support, automatic rerouting across
switch modules ensures continued operation if one module fails.
- Color-coded ISL cable diagrams and cables, along with the ability to
replace a single switch module, reduce service costs and minimize
downtime in the event of a failure.
ADVANCED SAN CONTROL AND MANAGEMENT
- The Brocade Fabric Manager software enables the switch to be defined and
viewed as a single entity to simplify administration.
- The Fabric OS API (application programming interface) supports
feature-rich SAN applications and management capabilities, including
VERITAS SANPoint Control.
- Support for industry-standard MIBs (Management Information Bases)
enables SNMP (Simple Network Management Protocol)-based interfaces to
access switch information.
- Network administrators can manage switch configuration using a
command-line interface or the Web-based administrative capability
offered by Brocade WEB TOOLS(TM) and Brocade Zoning.
- Self-healing feature enables the fabric to isolate a problem switch
module or part and reroute traffic onto alternate paths to ensure
availability with enterprise applications.
- Brocade Fabric Watch, a time-based threshold-monitoring feature, allows
advanced management of the SAN Fabric, including monitoring of the
internal ISLs for congestion.
- Self-learning feature allows the fabric to automatically discover and
register host and storage devices.
- Brocade QuickLoop enables enhanced connectivity and management of private
devices.
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<PAGE>
BROCADE/HP CONFIDENTIAL
SILKWORM 6400 INTEGRATED FABRIC SPECIFICATIONS
FIBRE CHANNEL STANDARDS
STANDARD REVISION
FC-AL Rev. 4.5*
FC-AL-2 Rev. 7.0
FC-FLA Rev 2.7*
FC-GS-2 Rev 5.3*
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 1.5
IPFC RFC 2625
* Indicates an approved standard
SYSTEMS ARCHITECTURE
FIBRE CHANNEL 64 user ports
PARTS
SCALABILITY Full Fabric Architecture:
239 switches maximum
CERTIFIED MAXIMUM 32 switches, 7 hops. Larger
Fabrics certified as
required
INTEROPERABILITY SilkWorm II, SilkWorm
Express, or any SilkWorm
2000 Family switch
PERFORMANCE 1.0625 Gb/sec line speed,
full duplex
SWITCH BANDWIDTH 64 Gb/sec end to end
SWITCH MODULES Nonblocking
FABRIC LATENCY <2 (micro)sec within each module,
cut-through routing
MAXIMUM FRAME SIZE 2112-byte payload
FRAME BUFFERS Each switch module contains
448 dynamically allocated
CLASSES OF SERVICE Class 2, Class 3, Class F
(InterSwitch Frames)
PORT TYPES FL_Port, F_Port, and
E_Port. Self-discovery
based on switch type
(U_Port)
DATA TRAFFIC TYPES Fabric switches support
unicast, multi-cast (256
groups), and broadcast
MEDIA TYPES Hot-pluggable,
industry-standard GBICs.
SWL, up to 500 m (1,640
ft). Longwave laser (LWL),
up to 10 km (6.2 mi).
Passive copper, up to 13 m
(43 ft).
FABRIC SERVICES Simple Name Server,
Registered State Change
Notification (RSN), Alias
Server, multicast); and
Brocade Zoning, WEB TOOLS.
Fabric Watch, QuickLoop,
Extended Fabrics(TM) Remote
Switch(TM)
OPTIONS User port GBICs
MANAGEMENT
MANAGEMENT Telnet, SNMP, Brocade WEB
TOOLS, Brocade Zoning,
Brocade SES (optional),
Fabric Watch, Extended
Fabrics, Remote Switch
MANAGEMENT ACCESS 10/100 Ethernet (RJ-45),
in-band over a Fibre Channel
(requires Fabric), Fabric
Manager
DIAGNOSTICS POST and embedded
online/off-line diagnostics
MECHANICAL SPECIFICATIONS
MOUNTING Rack mountable in a standard
19 in. EIA rack with
removable door
ENCLOSURE Rear panel-to-door airflow,
power from rear panel
SIZE 44.5 cm (17.5 in.) width,
62.2 cm (24.5 in.) height,
62.2 cm (24.5 in.) depth
WEIGHT 81.6-90.7 kg (180-200 lb)
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%-85%
noncondensing @40(Degree)C
(104(Degree)F)
ALTITUDE *Up to 3,000 m (9,800 ft)
SHOCK 4 G, 11 ms_sine low impulse
VIBRATION Operating: 5 G, 0-3 kHz
Nonoperating: 10 G, 0-5 kHz
POWER
SUPPORTED POWER Nominal: 100-230 VAC contiguous
RANGE Operational: 85-264 VAC
FREQUENCY 47-63 Hz
REGULATORY COMPLIANCE
SAFETY EMC
CANADA CSA 950 ICES-003 Class A
UNITED STATES UL 1950 FCC Part 15 Class A
JAPAN IEC60950 A4 VCCI Class A
EUROPEAN EN60950 EN55022 Level A
COMMUNITY TUV, NEMKO EN55082-2
(Immunity)
AUSTRALIA/ AS/NZS 3548
-3-
<PAGE>
BROCADE/HP CONFIDENTIAL
NEW ZEALAND
INTERNATIONAL EC 60950 CISPR 22
-4-
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT A-2
[BROCADE(R) LOGO]
Brocade Communications Systems, Inc.
WWW.BROCADE.COM
Corporate Headquarters European Headquarters Asia-Pacific Headquarters
1745 Technology Drive 400 Thames Valley Park Drive Level 21, 201 Miller Street
San Jose, CA 95110 Thames Valley Park, Reading North Sydney, NSW 2060
T 408 487-8000 United Kingdom, RG6 1PT Australia
F 408-487-8101 T +44 (0) 118 965 3419 T +61 2 9025 3766
info@brocade.com F +44 (0) 118 965 3519 F +61 2 9521 6995
europe-info@brocade.com
(C) 2000 by Brocade Communications Systems, Inc. All Rights Reserved. 10/00
GA-DS-070-00
Brocade, SilkWorm, Extended Fabrics. Remote Switch, Fabric Aware, Fabric CS
Fabric Watch. QuickLoop, WEB TOOLS, and Zoning are Trademarks or registered
trademarks of Brocade Communications Systems Inc. In the United States and/or in
other countries. All other brands, products, or service names are or may be
trademarks or service marks of and are used to identify, products of services of
their respective owners.
Notice: This document is for informational purposes only and does not set forth
any warranty expressed or implied, concerning any equipment, equipment feature
or service offered or to be offered by Brocade. Brocade reserves the right to
make changes to this document at any time without notice and assumes no
responsibility for its use. This information document describes features that
may not be currently available. Contact a Brocade sales office for information
on feature and product availability.
Export or technical data contained in this document may feature on export
license from the United States Government.
EXHIBIT (A-2)
Page 1 of 5
<PAGE>
EXHIBIT A-2
HP CONFIGURATION SPECIFICATION DOCUMENT
This document describes the customizations that BROCADE will perform for HP for
the SW-6400 Integrated Fabric product.
PHYSICAL CUSTOMIZATION
The product will conform to HP standard customization requirements including but
not limited to the following.
1. The front door will be painted HP Quartz Gray.
2. Additionally there will be a HP Logo Jewel on the front door, defined,
designed and provided by HP.
3. There will be an extra copy of the serial number (numeric and bar code)
placed on the rear cover
4. [*] will provide mounting Rail kit for HP Rose Bowl cabinets.
5. FRUs will not be labeled with HP part numbers, though both packaging and
the VPD will have HP numbers. (see below)
6. The chassis and AC power distribution assembly will remain BROCADE color
VITAL PRODUCT DATA (VPD) CUSTOMIZATION
1. FRU HP Part numbers
FRU Description BROCADE# HP Number # in full VPD
unit
Sw-2250 switch XBR-000057 Y
Front door XBR-000059 N
Rack Mount Kit XBR-000061 N
2. OEM Identifier: "HP"
3. Chassis Serial Number: Range provided by HP.
4. System VPD Model Identifier: "pending final identifier from HP".
SOFTWARE CUSTOMIZATION
5. Integrated Fabric Model Number: [pending final determination from HP]
6. Splash screen: Provided by HP
7. Screen Headers: [pending final determination of HP] AS MUTUALLY AGREED.
8. Create Fabric Manager agent for SAN management device manager.
9. Help screens to be consistent with HP branding as mutually agreed.
PACKAGING
10. FRU Packaging Labeling: FRU packing material will be labeled with
the HP part members and the BROCADE part number.
11. Unit Packaging Labeling: Units will be shipped in the standard brown
shipping box. without BROCADE identification on the box. HP product
identification will be placed outside the box in much the same
EXHIBIT (A-2)
Page 2 of 5
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manner as the FRU labeling. HP, for field installed units, may provide
and apply HP color stickers to packaging.
DOCUMENTATION
Documentation [*] covered in reference A-4.
ENVIRONMENTAL/TRANSPORTATION REQUIREMENTS
The following is a summary of HP's internal environmental specifications for our
products. It is expected that these tests or ones that provide the same results
are performed on the product being considered. A joint effort where possible,
will be used to complete the following tests. HP will be responsible for any
tests not able to be completed by Supplier. Supplier has indicated their test
specifications below as a reference point. For details on the testing, contact
HP Quality Engineering.
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