Volume Pricing Agreement - Brocade Communications Systems Inc. and Data General Corp.
VOLUME PRICING AGREEMENT 2085
VOLUME PRICING AGREEMENT NO. 2085
BUYER: DATA GENERAL CORPORATION
SUPPLIER: BROCADE COMMUNICATIONS SYSTEMS, INC.
TERM: Three (3) Years
MATERIAL: FIBRE CHANNEL SWITCHES ("SWITCHES") AND
GIGABIT INTERFACE CONVERTERS ("GBICs")
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VOLUME PRICING AGREEMENT 2085
VOLUME PRICING AGREEMENT
This Volume Pricing Agreement Number 2085 (the "Agreement") is made as of
October 1, 1998 (the "Effective Date") between Data General Corporation, a
Delaware (U.S.A.) corporation with a principal place of business at 4400
Computer Drive, Westboro, Massachusetts 01580 (U.S.A.) (hereinafter referred to
as "DGC") and Brocade Communications Systems, Inc., a Delaware corporation with
a principal place of business at 1901 Guadalupe Parkway, San Jose, CA 95131
(U.S.A.) (hereinafter referred to as "SUPPLIER" or "BCS")
In consideration of the mutual covenants contained herein and other
consideration, DGC and BCS agree to the following terms and conditions:
1. MATERIAL, ORDER ENTRY PERIOD AND METHOD OF ORDER
1.1 The "Order Entry Period" (period during which DGC is entitled to place
orders for MATERIAL) shall commence on the Effective Date of this
Agreement, and shall continue until September 30, 2001 unless earlier
terminated pursuant to [*] below. The Order Entry Period shall then
continue after such date unless and until either party terminates the
Order Entry Period by not less than [*] days' written notice. (Provided
that the Agreement is not terminated for material breach by DGC, such
termination shall not affect orders issued before the designated
termination date.)
1.2 BCS agrees to sell the MATERIAL listed in Attachment A (a) to DGC; (b)
to the Affiliated Companies (as defined in Section 1.6 below); (c) for
use solely in the course of manufacture of products for DGC, to DGC's
contract manufacturer(s), in satisfaction of purchase orders issued in
writing during the Order Entry Period, in accordance with the terms and
conditions of this Agreement. The hardware components of the MATERIAL
("Hardware") and the GBICs shall conform to all specifications
referenced in Attachment B and the software components of the MATERIAL
("Software") shall substantially conform to all specifications
referenced in Attachment B, including without limitation DGC's
Specifications for safety [*] and RF emissions and telecommunications
compliance [*]. Further, all MATERIAL shall be "Year 2000 Qualified".
For purposes of the foregoing, "Year 2000 Qualified" means that MATERIAL
will correctly process, calculate, compare and sequence date data from,
into and between the twentieth and the twenty-first centuries, including
leap year calculations, when used in accordance with the associated
product documentation; provided that all hardware, firmware and software
used in combination with MATERIAL properly exchange accurate date data
in appropriate Year 2000 format. Except as set forth herein, (i) neither
party may make any changes to the specifications set forth in the
attachments hereto without written consent of the other party, and (ii)
only DGC shall be entitled to request modifications to the MATERIAL
(excluding GBICs).
1.3 DGC shall order MATERIAL under this Agreement only by means of its
written purchase order(s). Telephone or facsimile communications will be
accepted to initiate order processing, subject to a written confirmation
by DGC on DGC's purchase order within [*] days thereof; in such case,
the time of order placement shall relate back to the initial
communication. Subject to the terms and conditions of this Agreement,
BCS agrees to accept all purchase orders issued in accordance with this
Agreement during the Order Entry Period. BCS agrees to notify DGC in
writing of any improper order, within [*] business days of receipt.
1.4 This Agreement shall apply to all orders for any MATERIAL listed in
Attachment A which are identified by DGC's Specification Number(s). Any
term of a Purchase Order which conflicts with or
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VOLUME PRICING AGREEMENT 2085
adds to the terms of this Agreement shall be of no force or effect; the
parties agree that Purchase Orders shall only serve to state the
MATERIAL ordered, the desired delivery date, method of shipment,
"Ship-To" address and taxability of order status. In addition, this
Agreement shall also apply to any other Replacements and Repair and
Refurbishment services, provided that DGC's purchase order includes the
following legend:
"This Purchase Order is placed under Volume Pricing Agreement
No. 2085 dated October 1, 1998, which shall exclusively govern
this Purchase Order."
1.5 DGC estimates that it will purchase an average quarterly quantity of
units of MATERIAL as listed on Attachment A of this Agreement during the
term of this Agreement. However, [*]. If the purchases for the previous
two (2) quarters fall below [*] percent of the average quarterly
quantity mentioned in this paragraph 1.5 and detailed in Attachment A,
upon which initial pricing is herein based, BCS has the right to adjust
prices on subsequent orders placed by DGC upon written notice to DGC.
BCS will allow DGC [*] days to place sufficient non-cancelable orders to
bring the actual quantities purchased in line with the forecast herein
stated. If DGC's actual purchases of MATERIAL are [*] or more above the
original forecast, DGC can request pricing be adjusted on subsequent new
orders.
1.6 Any DGC divisions, plants, and companies controlled by, controlling or
under common control with DGC (being DGC's "Affiliated Companies") may
purchase MATERIAL, Replacements and Repair and Refurbishment services,
all as otherwise provided in this Agreement.
2. PRICES, F.O.B. POINT, PAYMENT TERMS
2.1 Prices for MATERIAL purchased hereunder shall be as stated in Attachment
A, F.O.B. [*], Place of Shipment, at BCS's contract manufacturer's
U.S. facility (hereafter, the "F.O.B. Point"). Freight terms shall be
freight charges collect. DGC shall not be liable for damage due to
improper packaging of MATERIAL or for MATERIAL improperly [*], or for
any concealed damage at the time of tender at the F.O.B. Point.
2.2 Payment shall be due, against BCS's invoice delivered to DGC, [*] days
after the date of invoice. Unless otherwise agreed, invoices
shall not issue until delivery of the MATERIAL at the F.O.B. Point.
2.3 BCS agrees that the [*] will be [*] than the [*] by BCS to any of its
customers [*] products in [*] upon [*]. In the event that BCS offers [*]
or other [*] to other customers for [*] in [*] upon [*] during the term
of this Agreement, then BCS shall [*] similar [*] in [*] and [*] to DGC.
DGC and BCS will meet quarterly to review pricing and, if mutually
agreed in a signed writing, implement price adjustments based on the
current market conditions and other related factors. The revised
pricing, if any, will only apply to MATERIAL purchased from the review
date forward, or upon a date agreed to in writing by both parties, and
be in effect until the next pricing review or other pricing action. Upon
DGC receipt of any amended pricing schedule or other document reflecting
BCS's adjustments in price, pricing hereunder shall be deemed amended by
substitution of such amended pricing schedule / document.
2.4 DGC acknowledges that MATERIAL, including documentation and other
technical data, are subject
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VOLUME PRICING AGREEMENT 2085
to export controls imposed by the U.S. Export Administration
Regulations, and the laws of other countries worldwide (the "Export
Laws"). DGC warrants and represents to BCS that it will not export or
re-export (directly or indirectly) any MATERIAL, or documentation or
other technical data therefor, in whole or in part, in violation of the
Export Laws and the regulations thereunder. DGC, at its costs, shall
obtain all necessary export documentation, licenses and authorizations
for international shipments, and BCS agrees to use commercially
reasonable efforts to assist DGC in such effort.
3. LEAD TIME; DELIVERY- DEFINITIONS AND REQUIREMENTS
3.1 Timeliness of delivery of MATERIAL pursuant to the requirements of this
Agreement is of the essence. BCS will use commercially reasonable
efforts to cause MATERIAL to be delivered to DGC's designated "Ship-To"
location no later than the "Date Due" specified on the purchase order(s)
submitted pursuant to Section 1.4 above, provided that DGC allows no
less that the lead time(s) stated in Attachment A (for MATERIAL) and
Attachment D (for Replacements). For such purpose, lead time shall mean
the time between BCS's receipt of DGC's order and the "Date(s) Due"
specified for such order. BCS shall not deliver MATERIAL more than four
(4) days before the specified "Date Due". BCS shall use commercially
reasonable efforts to accommodate and accept orders allowing less than
the required lead time. BCS will provide written acknowledgement of
committed delivery dates for all DGC orders within 5 business days after
BCS's receipt of DGC's order.
3.2 By the tenth (10th) business day of each month, DGC shall provide BCS
with a written rolling 26-week forecast of its anticipated MATERIAL
requirements.
3.3 Except as provided in Section 4.2, orders not delivered in a timely
manner (as described in Section 3.1) shall be subject to rescheduling,
at DGC's option and without charge, and without limitation of DGC's
other remedies.
3.4 In the event that BCS determines that it may be unable to make timely
delivery of MATERIAL not later than the committed delivery dates, then
BCS shall promptly: (1) make commercially reasonable efforts (e.g., use
of overtime, expedited procurement of parts and components, and
expedited shipment (such as use of air freight)) to minimize the delay,
and (2) inform DGC of the situation, the actions so taken and to be
taken by BCS, and when BCS expects to be able to effect delivery. BCS is
responsible for all incremental costs arising from actions taken to
minimize late deliveries, including without limitation any incremental
freight charges associated with expedited shipments.
3.5 Except as expressly otherwise stated herein, and subject to each term
and condition of this Agreement, BCS will supply the MATERIAL described
in Attachment A throughout the stated term of this Agreement. BCS shall
provide [*] days' written notice of intent to discontinue the
manufacture, sale or distribution of any or all MATERIAL ("End of Life"
or "EOL"). DGC may place orders for any demand during the [*] days of
such notice for delivery of affected MATERIAL prior to the end of the
notice period. To the extent that such orders exceed DGC's previous
forecast in Section 3.2 for MATERIAL, the orders shall be
non-cancelable. Unless BCS agrees in writing to the contrary, BCS shall
accept only forecasted orders in the last [*] days of the stated notice
period, and such orders shall be (i) for delivery within four (4) months
after the date such orders are placed, and (ii) non-cancelable.
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VOLUME PRICING AGREEMENT 2085
4. RESCHEDULING; CANCELLATION; CHANGE OF DESTINATION
4.1 Rescheduling: Deferred Deliveries --- DGC may adjust the "Date Due" to a
later date specified by DGC in its notice, subject to the following
conditions and restrictions:
DEFERMENT SCHEDULE
------------------
NOTICE PERIOD RESCHEDULING CONDITIONS
------------- -----------------------
0-30 days before Date Due No rescheduling permitted
[*] days before Date Due MATERIAL can be rescheduled; rescheduled
date shall be no later than 90 days from
the Date Due stated on DGC's initial order
or the end of the current BCS Fiscal
Quarter, which whichever comes first.
[*] days or greater before Unlimited rescheduling permitted provided
Date Due that the MATERIAL is not identified in
Attachment A as DGC UNIQUE MATERIAL
4.2 Rescheduling: Accelerated or Less-Than-Leadtime Deliveries --- BCS shall
accommodate DGC's requests to accelerate the date(s) of deliveries
and/or to manufacture and deliver MATERIAL (specifically excluding GBICs
which are not integrated into SWITCHES) in a shorter period than the
applicable lead time, as follows:
ACCELERATION SCHEDULE
---------------------
NOTICE PERIOD CONDITIONS
------------- ----------
0- 30 days before Date Due BCS shall use commercially reasonable
efforts to satisfy DGC's requirements
[*] days before Date Due BCS shall accommodate DGC's requirements,
insofar as not exceeding [*] above Monthly
Forecasted Demand
[*] days before Date Due BCS shall accommodate DGC's requirements,
insofar as not exceeding [*] above Monthly
Forecasted Demand
[*] days or greater before BCS shall accommodate DGC's requirements,
Date Due, or prior to BCS's insofar as not exceeding [*] above Monthly
leadtime, whichever is Forecasted Demand. Further, BCS shall use
earlier its commercially reasonable efforts to
accommodate any requested increase/
acceleration above that level.
For these purposes, "Monthly Forecasted Demand" shall mean the average
of the last [*] months actual shipment quantities and the forecast for
the next 4 months, which forecast has been submitted to BCS pursuant to
Section 3.2 above no less than 30 days prior to the date of the request
for acceleration.
The parties agree that DGC shall not have the remedies set forth in
Section 3.3 above on account of BCS's failure to meet DGC's accelerated
Due Dates.
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VOLUME PRICING AGREEMENT 2085
4.3 Cancellation -- DGC may cancel any order, by notice given not later than
delivery of the MATERIAL to the F.O.B. Point. There shall be no
cancellation charges for orders canceled with a notice period greater
than the specified lead time for the MATERIAL being canceled, nor for
cancellation of any MATERIAL described below which is canceled with at
least the below-specified notice:
CANCELLATION SCHEDULE
NOTICE PERIOD CANCELLATION CHARGES
------------- --------------------
0-30 days before Date Due 100% of the Purchase Price
31-89 days before Date Due [*] of the Purchase Price
90 days or greater before Date No liability for cancellation
Due, or prior to the specified
leadtime, whichever is earlier
All other cancellations may be subject to cancellation charges to be
negotiated between the parties, which shall not exceed the lesser of (i)
BCS's direct damages, or (ii) [*]. Without limitation, if cancelled
MATERIAL is not customized for, or a proprietary product of, DGC, then
if BCS can find an alternate customer to purchase cancelled MATERIAL
within three (3) months after the date upon which DGC would have been
obliged to take delivery of such MATERIAL, BCS agrees that its
restocking charges, if asserted, will not exceed [*] of the Purchase
Price.
4.4 Change of Destination -- By written notice given not later than [*] days
before shipment of MATERIAL, DGC may change the "ship-to" destination
designated in DGC's orders. Non-domestic shipments shall require 30 days
written notice of such change.
5. WARRANTIES
5.1 BCS agrees that the warranty extended to DGC herein for the MATERIAL is
the same or better than that extended by BCS to any of its customers
purchasing comparable products (the "Standard Warranty"). In the event
that BCS offers more favorable standard warranty terms (e.g., extended
length of the warranty granted over standard BCS products) to other
customers purchasing comparable products during the term of this
Agreement, then BCS shall immediately extend similar terms to DGC and
its Affiliated Companies for MATERIAL ordered after the date upon which
such more favorable terms are granted.
5.2 All MATERIAL shall be new (except repaired or refurbished MATERIAL
provided to DGC under warranty service by BCS) and, in the case of
Hardware, in compliance with DGC's specifications as referenced in
Attachment B and, to the extent not inconsistent, BCS's specifications,
and in the case of Software, in substantial compliance with DGC's
specifications as referenced in Attachment B and, to the extent not
inconsistent, BCS's specifications. From time to time, BCS may issue
notice of "Mandatory Field Changes", which are changes to MATERIAL
required to satisfy governmental environmental, safety or other
standards, reliability concerns, or to guarantee a continuity of supply.
BCS will make commercially reasonable efforts to provide DGC with [*]
days' prior written notice of Mandatory Field Changes prior to
implementing such changes; however this period may be
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VOLUME PRICING AGREEMENT 2085
reduced if the change involves safety or reliability, or if otherwise
required by law. BCS shall issue Mandatory Field Change Orders ("MFCOs")
to effect such changes. The parties shall mutually agree on how DGC
shall implement the MFCOs. MFCOs shall include all documentation
necessary to properly define and implement any such change, and BCS
shall at its expense deliver to DGC kits of all parts and materials
necessary to effect MFCOs on all MATERIAL previously delivered as soon
as practical under the circumstances. BCS will reimburse DGC's actual
and reasonable costs incurred in implementing such MFCOs.
5.3 All Hardware shall be free from defects during the "Standard Warranty"
stated in Attachment A, and all Software shall be materially free of
defects during the Standard Warranty for Software stated in Attachment
A. BCS agrees to repair or replace all defective Hardware and Software
(as verified by BCS in its sole reasonable discretion) which is returned
to BCS during the Standard Warranty, and to return such Hardware or
Software to DGC within the "Warranty Cycle Time for MATERIAL" stated in
Attachment A or as specified under DGC's "Advanced Exchange" terms
stated below. In the event that Hardware or Software returned is not
defective, DGC will be responsible for freight costs for return shipment
to DGC. Defective Hardware or Software which is not repaired or
replaced, and returned, within the stated period shall be subject to
revocation of acceptance, whereupon BCS shall refund to DGC the
then-current purchase price (less any previous credits, refunds or
discounts) for such Hardware and Software. DGC shall comply with BCS's
reasonable Return Material Authorization ("RMA") procedures when making
returns under this Agreement; BCS shall use commercially reasonable
efforts to provide RMAs to DGC (or DGC's designated contractors) within
[*] of request. DGC shall be responsible for all charges arising from
return of warranty claims to BCS and BCS shall be responsible for
payment of all shipping charges relative to return of warranty claims to
DGC.
5.4 "Advanced Exchange" -- BCS agrees to support DGC's "Advanced Exchange"
requirements by delivering replacement MATERIAL prior to receipt of
defective MATERIAL from DGC. The parties acknowledge that such Advance
Exchange requests shall generally take between [*] and [*] calendar
days.
5.4.1 Notwithstanding the foregoing, upon written request from DGC for
"Expedited Next-Day Advanced Exchange", BCS will provide next business
day shipment of replacement MATERIAL for MATERIAL listed on Attachment A
of this Agreement that is covered by BCS's Standard Warranty to any DGC
designated U.S. or Canadian location (excepting only requests made on
weekends and holidays, which shall be delivered on the second business
day) for a [*] per incident charge, unless the necessity for exercising
Expedited Next-Day Advanced Exchange is attributable to delinquencies in
the delivery of MATERIAL or spare Field Replaceable Units ("FRUs"), or
of (normal) Advanced Exchange MATERIAL replacements, or of MATERIAL
serviced under BCS's warranty, to DGC by BCS.
5.5 BCS agrees to maintain an adequate inventory of replacement MATERIAL for
DGC to cover the estimated or actual annual replacement MATERIAL rate,
as stated in Attachment C of this Agreement.
5.6 Regardless of whether or not DGC avails itself of the Expedited Next-Day
Advance Exchange mechanism described in Section 5.4.1, DGC will be
required to return all defective MATERIAL to BCS no later than fifteen
(15) days after the replacement MATERIAL has been received by DGC. If
the defective MATERIAL are not returned by DGC within thirty (30) days
after receipt of the replacement MATERIAL, BCS will invoice DGC at the
then-current purchase price, with payment due no later than [*] days
after receipt of the invoice from BCS.
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VOLUME PRICING AGREEMENT 2085
5.7 Dead-on-Arrival ("DOA") MATERIAL and Catastrophic Failures of MATERIAL
5.7.1 Dead on Arrival: Insofar as requested by DGC in writing to meet its
business requirements, BCS agrees to use commercially reasonable efforts
to provide expedited assistance and replacement of MATERIAL found to be
defective upon initial inspection or use at DGC, in no event longer than
[*] days after receipt by BCS of the returned DOA MATERIAL.
5.7.2 "Catastrophic failures" are defined as MATERIAL demonstrating failure
rates materially in excess of [*] times those predicted by the
applicable specifications (under defect-per-million,
mean-time-between-failure and any other applicable parameters). BCS also
agrees that if a repair, recall or replacement is required, then BCS
will make commercially reasonable efforts and at its sole discretion to:
(A) provide sufficient replacement MATERIAL no later than [*] days after
repair, recall or replacement is initiated to retrofit DGC's installed
base, (B) repair, replace or accept for credit all affected MATERIAL in
a jointly agreeable manner, (C) reimburse DGC for all actual and [*] to
retrofit DGC's installed base, and (D) upon request, provide appropriate
technical and business support at DGC and DGC's customer sites. BCS will
reimburse DGC for all freight and freight related charges arising in
connection with verified catastrophic warranty claims on such MATERIAL.
5.8 Mutual Warranties. Each party certifies and represents to the other
party that as of the Effective Date, it has full power, right and
authority to execute this Agreement, to fulfill all its rights and
obligations herein.
5.9 Restrictions. The foregoing Standard Warranty shall not apply to
MATERIAL that have been (i) damaged by accident, Acts of God, shipment,
improper installation, abnormal physical or electrical stress, misuse or
misapplication, as determined by BCS in its sole reasonable discretion,
or (ii) modified without BCS's express written authorization.
5.10 GBICs. BCS warrants that the GBICs are new, and that the GBICs will
conform to the specifications established by the manufacturer of the
GBICs. Except as set forth herein, BCS makes no warranties of any kind
with respect to the performance of the GBICs that BCS may use in the
manufacture of MATERIAL. As a remedy for defective GBICs, BCS will
provide replacement parts as a service to DGC for verified GBICs
failures that occur within twelve (12) months of the date of shipment to
DGC, as set forth in Attachment A. Such replacements will be
administered in the same manner as warranty claims concerning Switches
(e.g., RMA process, Advanced Exchange capability, Warranty Cycle Time,
etc.).
5.11 Exclusive Remedy. DGC acknowledges and agrees that its sole and
exclusive remedy for breach of the Standard Warranty is as set forth in
this Section 5.
5.12 Disclaimer. EXCEPT AS STATED IN SECTION 7, THE FOREGOING WARRANTIES ARE
IN LIEU OF, AND BCS EXPRESSLY DISCLAIMS, ALL OTHER REPRESENTATIONS,
WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR PURPOSE.
5.13 Indemnification by DGC. DGC agrees to defend, indemnify and hold BCS
harmless from any and all losses, damages, liabilities, costs and
expenses (including but not limited to reasonable attorneys' fees and
costs of litigation) incurred by BCS as a result of any third party
claim, regardless of the form of action, arising from a modification:
(i) to MATERIAL made by BCS at the request of DGC for MATERIAL sold by
BCS to DGC or any DGC-affiliated entity entitled to purchase MATERIAL
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hereunder pursuant to Section 1.2 above, which claim would not have
arisen but for the modification requested, or (ii) by DGC of the
Documentation (as defined herein); provided that BCS promptly notifies
DGC of any such claim in writing, gives DGC sole control of the defense
and all related settlement negotiations, and cooperates with DGC in
defending or settling any such claim.
6. QUALITY
6.1 It is BCS's intention and commitment to deliver Hardware and GBICs to
DGC which is free of defects and Software which is materially free of
defects. To that end, BCS will take those actions and make those reports
to DGC as described in Attachment C ("Quality Requirements"). BCS shall
establish and maintain a documented quality system as a means to ensure
that all Hardware and GBICs processes and operations conform, and all
Software processes and operations substantially conform, to the
applicable specifications of this Agreement.
6.2 Product Changes/Concerns in MATERIAL Manufactured by or for BCS
(Specifically Excluding GBICs) -- BCS shall use commercially reasonable
efforts to provide DGC with [*] days' notice of changes to MATERIAL
(specifically excluding GBICs) that affect the form, fit or function of
such MATERIAL ("Engineering Change Order" or "ECO"). The ECO shall
contain the reason for the change and test data to support the change.
If requested, BCS shall concurrently make samples available for
evaluation. BCS shall also notify DGC promptly should a concern arise
regarding the quality of MATERIAL already delivered, e.g., any condition
which might impact substantial compliance with specification,
reliability, or safety, or increase the rate of defects. If DGC does not
respond to BCS in writing with respect to an ECO within fifteen (15)
business days following receipt of such ECO, the ECO will be deemed
accepted by DGC. In the event that DGC objects in writing to an ECO in
the stated time period, then DGC may provide BCS with written notice of
such objection, and shall be entitled to (in addition to placing orders
for the changed MATERIAL) submit purchase orders for the unchanged
MATERIAL prior to the effective date of the implementation of the ECO,
for delivery no more than ninety (90) days after the effective date of
such implementation and in quantities which do not exceed the total
quantity of such MATERIAL ordered by DGC in the six (6) months
immediately preceding the date of notice of ECO.
6.3 Required Quality Levels for Hardware -- Without limitation, the parties
shall evaluate quality by using Defect Per Million (DPM) statistics and
other pertinent methods. BCS warrants that the aggregate DPM of the
Hardware shall meet or exceed the threshold(s) stated in Attachment C.
BCS agrees to seek to make continuous improvement in DPM statistics
during each succeeding years of the term.
6.4 Non-Conforming MATERIAL -- DGC reserves the right to reject MATERIAL
which in its reasonable determination does not conform to the
specifications as referenced in Attachment B. DGC reserves the right to
defer inspection until time of actual use of MATERIAL by DGC or the end
user, as the case may be, but not longer than [*] days from shipment.
Returns of rejected MATERIAL shall be by BCS's standard RMA procedure,
with DGC shipping the MATERIAL prepaid to BCS's U.S. repair facility and
BCS shipping prepaid return to DGC's U.S. warehouse.
6.5 Corrective Actions: Performance Review -- In the event BCS is unable to
maintain the quality levels required herein, BCS will promptly initiate
corrective action pursuant to the terms and conditions of Attachment F
(Service and Support Requirements). A permanent process modification and
root cause analysis will be made available within thirty (30) days or
such other reasonable timeframe that is mutually agreed upon. Results of
the failure or root cause analysis shall be provided to DGC in a written
report detailing the results of the investigation and corrective actions
plans to prevent its
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recurrence. DGC agrees to limit requests for failure or root analysis in
situations where the results would be important to DGC's business or
DGC's customer satisfaction. DGC and BCS shall meet on a quarterly basis
to review BCS's performance.
6.6 SEE ARTICLE 8.3 and ATTACHMENT F
7. PROPRIETARY RIGHTS
7.1 Intellectual Property Rights Infringement Indemnification.
7.1.1 Hardware and Software. BCS warrants that no part of the MATERIAL
(specifically excluding the GBICs) infringes any patent established
under any of the [*] or any copyright or other proprietary right of any
third party. BCS shall defend at its expense all claims, and pay all
awards and damages, based on any claim that the MATERIAL (specifically
excluding the GBICs) or its sale or use infringes any patent established
under any of the [*] or any copyright or other proprietary right of any
third party, provided that DGC promptly notifies BCS of such claim,
provides its full cooperation and grants BCS control of its defense. DGC
shall have the right to be represented by its own counsel (at DGC's
expense). If use of MATERIAL (specifically excluding the GBICs) is
enjoined, BCS shall make commercially reasonable efforts at its expense
either (i) to gain rights to make, use and sell the MATERIAL
(specifically excluding the GBICs) as set forth herein, or (ii) to
modify the MATERIAL (specifically excluding the GBICs) so that it
becomes non-infringing while remaining in conformity in all material
respects with specifications. Otherwise, at DGC's option, DGC may return
the MATERIAL (specifically excluding the GBICs), and BCS shall refund
the [*] of MATERIAL (specifically excluding the GBICs) (less any
previous credits, refunds or discounts) and accept its return.
7.1.2 GBICs. In the event that the GBICs are found to infringe the proprietary
rights of any third party, BCS will use commercially reasonable efforts
to assist DGC in procuring non-infringing GBICs from any manufacturer
and/or vendor from which BCS procures GBICs. Further, BCS assigns to DGC
its rights to pursue (as subrogated party) any rights and remedies BCS
may have against the GBIC manufacturers and vendors from which BCS
procures GBICs sold hereunder solely with respect to those GBICs sold to
DGC by BCS hereunder.
7.2 Restrictions. BCS will not be obligated to defend or be liable for costs
and damages to the extent that infringement, or a claim thereof, arises
out of or is related to (a) a modification to MATERIAL (specifically
excluding the GBICs) requested by DGC or made to MATERIAL (specifically
excluding the GBICs) by DGC or a third party, (b) use or combination of
MATERIAL (specifically excluding the GBICs) with products or data not
provided by BCS if use of the MATERIAL (specifically excluding the
GBICs) alone would not have so infringed and if such combination was not
contemplated by BCS's written specifications or written product
descriptions for the MATERIAL (specifically excluding the GBICs), (c)
use of other than the latest unmodified release of MATERIAL
(specifically excluding the GBICs) made available to DGC by BCS if such
infringement would have been avoided by the use thereof.
7.3 Limitations. THE FOREGOING SECTIONS 7.1 AND 7.2 STATE THE ENTIRE
LIABILITY OF BCS FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT BY
MATERIAL OR GBICs FURNISHED UNDER THIS AGREEMENT.
7.4 Trademark License. Subject to the terms of this Agreement, BCS grants to
DGC a non-exclusive, non-transferable right and license to use those BCS
trademarks, service marks, and trade names
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 11
VOLUME PRICING AGREEMENT 2085
described in Exhibit I (herein "Trademarks") in DGC's marketing of
MATERIAL, provided that such use is in accordance with BCS's then
current guidelines for using the BCS Trademarks, as such guidelines may
be amended from time to time. Without limiting the foregoing, such use
must reference the Trademarks as being owned by BCS. Nothing in this
Agreement grants DGC ownership or any rights in or to use the
Trademarks, except in accordance with this Section. BCS will have the
exclusive right to own, use, hold, apply for registration for, and
register the Trademarks during the term of, and after the expiration or
termination of, this Agreement; provided, however, that nothing herein
shall limit DGC's ability to use any component part of any Trademark if
such component part is a word or term that is generic, descriptive or
otherwise not under proprietary control of BCS. DGC will neither take
nor authorize any activity inconsistent with such exclusive right. DGC
will not use any Trademark as part of DGC's trade name, service mark, or
trademark or other signifying mark, or in a manner that is confusingly
similar; provided, however, that nothing herein shall limit DGC's
ability to use any component part of any Trademark if such component
part is a word or term that is generic, descriptive or otherwise not
under proprietary control of BCS or in which BCS holds no enforceable
trademark rights. Upon request, but no less frequently than quarterly,
DGC shall regularly submit specimens of DGC's use of the Trademarks to
BCS, in no event less than quarterly, and DGC agrees to immediately
change or discontinue any improper Trademark use as requested by BCS,
and submit corrected specimens thereof for review by BCS.
7.5 Authorized Reseller. During the term of this Agreement, DGC may indicate
to End Users and to the public that it is an authorized reseller of
MATERIAL.
7.6 Ownership. Except for the specific licenses granted herein, the Software
and Documentation (as defined below) are and will remain the sole and
exclusive property of BCS and its suppliers, if any, including without
limitation all intellectual property rights of BCS in and to the
Software and the Documentation, and all modifications to, and derivative
works based upon, the Software and the Documentation, except as
expressly provided in Section 10.1.2.
8. FIELD SERVICE SUPPORT
8.1 REPLACEMENTS
8.1.1 BCS shall maintain at the stocking location(s) described in Attachment D
("Description of Replacements, Prices, Lead Times and Warranty Terms")
Replacements for all MATERIAL in reasonable quantities to service DGC's
routine and emergency requirements, including without limitation those
Replacements listed in Attachment D. BCS shall make Replacements for
MATERIAL available to DGC throughout the "Replacements Availability
Period" stated in Attachment D.
8.1.2 The provisions of this Agreement relative to MATERIAL shall also apply
in every respect to Replacements, except as otherwise stated.
8.1.3 Replacements for Hardware and Software (Specifically Excluding
GBICs)-BCS will sell Hardware Replacements to DGC for the price(s)
stated in Attachment D. All Hardware Replacements shall be new or equal
to new and shall conform to all applicable specifications hereunder,
including without limitation all packaging specifications, and be free
from defects for the "Period of Warranty for Replacements" stated in
Attachment D. BCS will sell Software Replacements to DGC for the
price(s) stated in Attachment D. All Software Replacements shall be new
or equal to new and shall substantially conform to all applicable
specifications hereunder, including without limitation all packaging
specifications, and be materially free from defects for the "Period of
Warranty for
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VOLUME PRICING AGREEMENT 2085
Replacements" stated in Attachment D. BCS agrees to repair or replace
all defective Replacements (as verified by BCS in its sole reasonable
discretion) which are returned to BCS during the relevant Replacements
warranty period, and to return such items to DGC within the "Warranty
Cycle Time for Replacements" stated in Attachment D.
8.1.4 GBICs Replacements. BCS will sell GBICs Replacements to DGC for the
price(s) stated in Attachment A. All GBICs Replacements shall be new.
BCS agrees to replace all defective GBICs Replacements (as verified by
BCS in its sole reasonable discretion) which are returned to BCS during
the relevant Replacements return period, and to replace such GBICs to
DGC within the "Warranty Cycle Time for Replacements" stated in
Attachment D.
8.2 OUT-OF-WARRANTY REPAIR AND REFURBISHMENT
8.2.1 BCS shall Repair and Refurbish MATERIAL and Replacements for DGC and
such third parties as DGC may from time to time designate in writing at
the rates stated in Attachment E ("Out-of Warranty Service Schedule").
"Repair" and "Refurbishment" shall have the meanings stated in
Attachment E, and shall be at no charge for MATERIAL and Replacements
covered by warranty.
8.2.2 BCS agrees to Repair or Refurbish MATERIAL and Replacements as ordered,
and to return items to DGC within the "cycle time" stated in Attachment
E. DGC shall be responsible for reimbursement of all shipping charges
relative to Repairs and Refurbishments. All Repairs and Refurbishments
shall be free from defects for the "Period of Warranty" stated in
Attachment E.
8.3 SERVICE AND SUPPORT REQUIREMENTS
8.3.1 BCS will make available to DGC appropriate training relative to the use,
installation, adjustment, operation, and maintenance of MATERIAL sold
hereunder per Attachment F.
8.3.2 BCS will provide DGC and DGC will provide its customers the support
defined in Attachment F.
9. DEFAULT AND TERMINATION
9.1 Default. The occurrence of any of the following acts or events shall
constitute default of this Agreement: (a) the failure by such party to
observe or perform any material covenant or obligation under this
Agreement, or (b) such party becomes insolvent, suffering the
appointment of a receiver, or making an assignment for the benefit of
creditors; or proceedings are commenced against such party under any
bankruptcy, insolvency or debtor's relief law, if such proceeding is not
vacated or set aside within sixty (60) days after the date of
commencement thereof;
9.2 Termination. In the case of default, if such default has not been cured
within thirty (30) days after a party has received written notice of
default from the other party, the party giving notice may give a second
(final) Notice of Intent to Terminate, directed in the case of notice to
DGC to its Vice President, Manufacturing, and in the case of BCS, to its
Vice President, Finance and Administration. In the event thereafter that
such default is not cured within five calendar days after the receipt of
such Notice of Intent to Terminate, the party giving notice may
terminate this Agreement by written notice at any time thereafter while
such default continues.
9.3 Effect of Termination. Upon the expiration or termination of this
Agreement, however arising: (a) DGC will cease holding itself out as an
authorized reseller of MATERIAL, but may continue to provide support
regarding MATERIAL to end users; (b) DGC will cease its use of the BCS
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VOLUME PRICING AGREEMENT 2085
Trademarks; and (c) each party will cease its use of the Confidential
Information of the other party, and will return or destroy, at the other
party's direction, all such Confidential Information and any copies or
portions thereof which are incorporated into documents or archives,
except that DGC may retain a mutually agreed number of copies of BCS's
Confidential Information which is reasonably required in order to carry
out its support obligations to its resellers and end users. DGC
expressly acknowledges that the provisions of Section 10.4 shall remain
in full force and effect after the termination of this Agreement,
however arising.
9.3.1 If BCS has terminated this Agreement due to DGC's material breach of the
terms of this Agreement, the parties agree that the timing for all
amounts owed by DGC to BCS as of the effective date of such expiration
or termination shall accelerate, and such payment shall become payable
as of such effective date, whether or not longer payment periods had
originally been established. Otherwise, DGC shall be entitled to the
full payment period for the payment of amounts due and payable as of the
effective date of termination.
9.3.2 After termination of this Agreement and provided that BCS has terminated
this Agreement due to DGC's material breach of the terms of this
Agreement, DGC may submit orders for MATERIAL, which orders are subject
to approval by BCS in its sole discretion, provided that DGC pays BCS
for such MATERIAL at the time such purchase ordered are accepted by BCS.
The parties agree that orders submitted as set forth in this Section
shall not be considered approved by BCS until and unless BCS has
notified DGC of its acceptance of such order in writing.
9.4 No Damages for Termination. NEITHER PARTY WILL BE LIABLE TO THE OTHER
FOR DAMAGES OF ANY KIND, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SOLELY ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS
AGREEMENT IN ACCORDANCE WITH ITS TERMS.
9.5 Nonexclusive Remedy. The exercise by either party of any remedy under
this Agreement will be without prejudice to its other remedies under
this Agreement or otherwise.
10. MISCELLANEOUS PROVISIONS
10.1 Documentation. Promptly following the Effective Date, BCS will provide
to DGC BCS's standard technical documentation ("Documentation")
including but not limited to data sheets, BCS Manuals (as defined below)
and other manuals distributed to resellers of MATERIAL (such as
technical manuals), all of which BCS will supply in electronic format,
relating to MATERIAL purchased by DGC for use as set forth herein.
Thereafter, during the term of this Agreement, BCS will provide all
updates and corrections thereto when first made commercially available.
10.1.1 Technical Documentation. Subject to the terms of this Agreement, BCS
hereby grants to DGC a nonexclusive, nontransferable worldwide license
to reproduce and use BCS's technical documentation provided to DGC by
BCS hereunder, solely for DGC's internal purposes in connection with the
marketing and support of MATERIAL. The foregoing license to technical
documentation shall not be transferable except by means of sublicense
to: (a) the Affiliated Companies, and the resellers of DGC and
Affiliated Companies, for use solely in the course of support of
MATERIAL; (b) DGC's contract manufacturer(s), for use solely in the
course of manufacture of products for DGC; (c) DGC's and Affiliated
Companies' service contractor(s) for use solely in the course of service
and support of MATERIAL on behalf of DGC or Affiliated Companies; (d) to
DGC's "Certified Maintenance Organizations" ("CMOs", being DGC customers
who have been qualified by DGC to be self-maintainers of DGC products
containing MATERIAL and to whom DGC is making disclosure of DGC's own
comparable technical DGC documentation), provided that such disclosure
of BCS technical documentation to such CMOs be upon no more
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VOLUME PRICING AGREEMENT 2085
liberal or favorable terms as the disclosure of DGC's comparable
technical documentation.
10.1.2 Manuals. Subject to the terms of this Agreement, BCS hereby grants to
DGC a nonexclusive, nontransferable license to modify the BCS End User
manual(s) (including manual text and layouts) for MATERIAL ("BCS
Manuals"), subject to BCS's approval as described below, and to
reproduce and distribute such revised versions of the BCS Manuals (the
"DGC Manuals") worldwide with DGC's products. BCS acknowledges that DGC
will own all right, title and interest in and to any such DGC
modifications of the BCS End User Manuals, subject to BCS' ownership of
the underlying BCS End User Manuals. BCS will review and approve the DGC
Manuals as to form and content with respect to MATERIAL prior to their
use or distribution. Such approval shall not be unreasonably withheld
and shall be made within seven (7) business days following BCS's receipt
of the proposed DGC Manuals.
10.1.3 Expenses. DGC is solely responsible for all expenses incurred by DGC in
modifying, reproducing, distributing and using the Documentation.
10.1.4 Warranty and Disclaimers of Warranty.
(a) Limitations. BCS grants the licenses in this Section 10.1 to DGC
hereunder solely on an "AS IS" basis.
(b) Limited Warranty. BCS warrants that no part of the Documentation
infringes any copyright of any third party.
(c) Disclaimer. EXCEPT AS STATED HEREIN, BCS DISCLAIMS ALL OTHER
REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR
STATUTORY, REGARDING THE DOCUMENTATION, INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF MERCHANT ABILITY, NON-INFRINGEMENT OF THIRD PARTY
RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE. The parties agree that BCS
shall have no liability for errors introduced by DGC into the
Documentation in the process of modifying, reproducing and using the
Documentation.
10.2 Software License Agreement. The Software is licensed to DGC as set forth
in Attachment G.
10.3 Diagnostic Support Tools, Information and Firmware -- BCS will maintain
and make available to DGC throughout the "Replacements Availability
Period" stated in Attachment D all diagnostic support tools and
information for the MATERIAL which do not require license key activation
for use, as may be reasonably requested by DGC for maintenance and
support of the MATERIAL provided under this Agreement and in support of
DGC's products. BCS shall provide to DGC all software bug fixes and
corrections thereto which do not require a paid license key activation
for use as soon as the same are commercially available. BCS grants and
provides to DGC hereunder a license (which DGC may sublicense to DGC's
Affiliated Companies, DGC's maintenance and service contractors, and
DGC's authorized third party CMOs) to use all tools, information and
firmware for such support and maintenance purpose.
10.4 Confidentiality -- All information relating to this Agreement or the
items or services to be sold hereunder, insofar as marked as being the
confidential or proprietary information of the disclosing party or
identified as such at the time of disclosure and confirmed as such in
writing within 30 days after disclosure, shall be protected according to
the terms of this Section. Each party receiving such confidential
information shall exercise such care as the receiving party uses with
respect to its own confidential information of a similar nature, not to
disclose any such information to any third party and to limit
dissemination of such information to its employees or contractors on a
need-to-know basis only; all such employees and contractors shall be
bound by written contract, enforceable by the
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VOLUME PRICING AGREEMENT 2085
disclosing party, to respect such confidences. The provisions of this
paragraph shall survive this Agreement in perpetuity for the Software
and Documentation, and for a period of [*] years for the Hardware,
but shall not apply to information: already known to the receiving party
at time of disclosure without breach of agreement or law, or
independently developed by the receiving party, or properly disclosed to
the receiving party by a third party without restriction or condition,
or available by lawful inspection of available goods or services. These
provisions shall not supersede any non-disclosure agreement(s) as may
otherwise bind the parties.
10.5 Advertising -- This Agreement aligns DGC and BCS in a strategic
relationship. Each party will permit a joint press announcement
following the execution of this Agreement or at another mutually agreed
upon time. The timing, nature and wording of all press announcements
relating to this relationship shall be only as mutually agreed by the
parties.
10.6 Subcontracting -- Except as to purchase of commodity supplies or
subassemblies for which no approval shall be required, BCS shall obtain
DGC's approval (not to be unreasonably withheld, delayed or conditioned)
before subcontracting to other than a BCS Affiliated Company (defined as
a company controlled by, controlling or under common control with BCS).
10.7 Equal Opportunity Clauses -- (A) When the MATERIAL, work or performance
furnished are for use in connection with a U.S. government contract or
subcontract, FAR 52.222-26 (Equal Opportunity, 41.CFR.60-1); FAR
52.222-35 (Affirmative Action for Special Disabled and Vietnam Era
Veterans, 41.CFR 60-250.5); and FAR 52.222-36 (Affirmative Action for
Individuals with Disabilities, 41.CFR 60-741.5) shall apply. Further BCS
shall, within 30 days of written request of DGC, furnish DGC with
appropriate certifications of compliance with such requirements. (B) BCS
hereby acknowledges notice of requirements for certification of
non-segregated facilities. Unless BCS is exempt from the provisions of
Executive Order 11246 concerning equal employment opportunities, BCS
shall not maintain any segregated facilities at any of its
establishments and shall complete a certification to the effect as
required by the May 9, 1967 Order of the Secretary of Labor of the
United States.
10.8 Survival of Terms -- The following provisions of this Agreement shall
survive the term of this Agreement: [*].
10.9 Notices -- Except as otherwise stated, all notices to be given under
this Agreement shall be in writing and shall be sufficient only if sent
by certified mail or air express, return receipt requested, or other
nationally-recognized delivery service providing proof of delivery, or
personally delivered to a party. Notice by mail or by personal delivery
shall be deemed received on actual receipt by the person to whose
attention it is directed, addressed as follows:
If to BCS: Attention: Chief Financial Officer
BROCADE COMMUNICATIONS SYSTEMS, INC.
1901 Guadalupe Parkway
San Jose, CA 95131
If to DGC: Attention: Director of Purchasing
DATA GENERAL CORPORATION
Technology Drive
Apex, NC. 27502
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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VOLUME PRICING AGREEMENT 2085
10.10 Limitation of Liability--
10.10.1 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION LOST PROFITS, LOST REVENUES, LOSS OF DATA OR INTERRUPTION OF
SERVICE, ARISING FROM BREACH OF THIS AGREEMENT.
10.10.2 WITH THE EXCEPTION OF DAMAGES PAYABLE BY BCS TO DGC UNDER SECTION 5
("WARRANTIES"), WHICH DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY
DGC TO BCS IN RESPECT OF THE AFFECTED MATERIAL IN THE WARRANTY PERIOD
IMMEDIATELY PRECEDING THE DATE LIABILITY IS IMPOSED, IN NO EVENT WILL
BCS's LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS, HOWEVER
CAUSED AND ON WHATEVER THEORY OF LIABILITY, EXCEED AN AMOUNT EQUAL TO
THE GREATER OF (i) TEN PERCENT (10%) OF THE AMOUNTS PAID TO BCS BY DGC
IN RESPECT OF THE AFFECTED MATERIAL IN THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES, OR (ii) TWO
MILLION DOLLARS ($2,000,000).
10.11 Whole Agreement; Amendment; Construction; Waiver -- This Agreement is
the exclusive statement of the contract between the parties concerning
the subject matter herein, and may be amended only in writing, duly
executed by each party. Captions are for convenience only and shall not
affect interpretation. This Agreement shall be construed according to
its terms, neither for or against either party, and under and governed
by the substantive laws of the State of [*] (U.S.A.), excluding its
conflict of law rules and the application of the UN Convention on the
International Sale of Goods. If any provision is declared invalid by any
tribunal, then this Agreement shall be deemed adjusted to conform to the
requirements for validity as declared at such time. Failure of either
party to insist in any instance upon performance by the other party
shall not be construed as a waiver.
10.12 "Year 2000" Assurance -- BCS agrees to take proper actions to anticipate
changes necessitated in its business by the transition to the next
millennium on January 1, 2000. Without limitation, BCS agrees that BCS's
performance of its obligations under this Agreement and provision of
MATERIAL to DGC will not be materially impaired or interrupted by causes
arising from such change of date, and that all MATERIAL shall be "Year
2000 Qualified" as stated in Section 1.2. BCS agrees to cooperate with
DGC relative to Year 2000 issues. BCS will keep DGC informed relative to
BCS's state of Year 2000 readiness and of any significant BCS concerns
that the foregoing assurances will not be fulfilled. BCS will use
reasonable commercial efforts to require that its contractors and
suppliers whose services or products are required by BCS in the
performance of its obligations under this Agreement, or in the
production of MATERIAL or Replacements for DGC hereunder, are
contractually bound by these undertakings.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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VOLUME PRICING AGREEMENT 2085
EXECUTED UNDER SEAL:
BROCADE COMMUNICATIONS
SYSTEMS, INC. DATA GENERAL CORPORATION
("BCS") ("DGC")
By: /s/ CHARLES SMITH By: /s/ WILLIAM F. O'NEILL
--------------------------------- --------------------------
Charles Smith William F. O'Neill
Vice President of Worldwide Sales Director, New Products and
Technology
Date: 8/4/99 Date: 7/29/99
------ -------
ATTACHMENTS:
A. Description of MATERIAL, Prices, Lead Times and Warranty Terms
B. Specifications
C. Quality Requirements
D. Description of Replacements, Prices, Lead Times and Warranty Terms
E. Out-of Warranty Service Schedule
F. Service and Support Requirements
G. Software License Agreement
H. Patent Coverage List
I. BCS Trademarks
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VOLUME PRICING AGREEMENT 2085
ATTACHMENT A
DESCRIPTION OF MATERIAL, PRICES, LEAD TIMES AND WARRANTY TERMS
A.1 Description of Hardware Components of MATERIAL and Prices:
DGC Average
Specification Vendor Part Quarterly
Number Number Description Price Volume
[*] B-1630-016 Silkworm 16 Port Fibre $ [*] *See Below
Channel Switch, with
[*]
[*] B-1630-008 Silkworm 8 Port Fibre $ [*] *See Below
Channel Switch, with
[*]
[*] BR-2802-0000 Silkworm 2800, 16 Port $ [*] *See Below
Fibre Channel Switch with
Dual Power Supply and
[*]
[*] BR-2402-0000 Silkworm 2400, 8 Port Fibre $ [*] *See Below
Channel Switch with Dual
Power Supply and [*]
TBD BR-2101-0000 SilkWorm 2100, 8 Port Fibre $ [*] *See Below
Channel Switch with single
power supply and
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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VOLUME PRICING AGREEMENT 2085
A.2. Description of Software Components of MATERIAL and Prices:
[*] and Version 1.1 [*] (as described in $[*]
[*] Exhibit A to Attachment G)
[*] and Version 2.1 [*] (as described in $[*]
[*] Exhibit A to Attachment G)
TBD SW-200008-01 [*] version 2.1 for $[*]
[*] (BR-2802-
0000) or [*]
(BR-2402-000)
TBD SW-200024-02 [*] for BR $[*]
2101-0000 (DG PN TBD)
A.3 Description of GBICs and Prices:
[*] X1017 GBICs Module Copper $ [*] Per switch
requirement
[*] X1006 GBICs Module S/W Optical $ [*] Per switch
requirement
A.4 Description of Extended Warranty and Prices:
TBD TBD [*] Warranty for $ [*]
118030714
TBD TBD [*] Warranty for $ [*]
118030715
TBD TBD Extended Warranty-per year [*] of the
MATERIAL
purchase price
*Average Quarterly Volume is [*] switches. The volume may be comprised of any
qty. of the 4 various switch types.
B. Minimum Lead Times: 90 days to F.O.B. point.
C. Standard Warranty (exclusive of GBICs; for GBICs see below): [*] months
after date of delivery to the F.O.B Point for Hardware, and [*] days for
the Software. An optional extended warranty of [*] years in duration may
be exercised by DGC within [*] from the date of purchase from BCS for
Hardware.
D. Warranty Cycle Time for MATERIAL: [*] days
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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VOLUME PRICING AGREEMENT 2085
E. GBICs: Defective GBICs shall be replaced for a period of twelve (12)
months after date of delivery to the F.O.B. Point.
F. No Trouble Found (NTF) Repair Charges: BCS may request NTF Evaluation
Charges, as stated below, for verified NTF MATERIAL in excess of [*] of
the total return of MATERIAL to BCS over the previous 2 quarter period.
The charge will not exceed the Repair Pricing shown on Attachment E of
this Agreement. In the event DGC is charged for a NTF that is returned
to DGC and that MATERIAL continues to fail, BCS agrees to re-verify the
failure in a similar configuration.
Part Number Description NTF Evaluation Charges
----------- ----------- ----------------------
[*](B-1630-008) 8 Port Switch [*]
[*](B-1630-016) 16 Port Switch [*]
[*](BR-2402-0000) 8 Port Switch [*]
[*](BR-2802-0000) 16 Port Switch [*]
*Or the repair pricing shown on Attachment E, whichever is less.
G. DGC UNIQUE MATERIAL: None.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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VOLUME PRICING AGREEMENT 2085
ATTACHMENT B
SPECIFICATIONS
DGC Specifications:
118026931
118029629
118029645
118029646
118030714
118030715
are referenced herein and made part of this Volume Pricing Agreement.
Additional applicable DGC Specifications shall be added to this reference page
as approved by mutual agreement of the parties in a signed writing.
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VOLUME PRICING AGREEMENT 2085
ATTACHMENT C
QUALITY REQUIREMENTS
A. QUALITY COMMITMENTS:
B.
DGC BCS Defects per Million
Part Number Part Number Description- (DPM) Target
-------------------------------------------------------------------------------------------
[*} B-1630-016 16 Port Switch [*]
[*] B-1630-008 8 Port Switch [*]
[*] BR-2402-0000 8 Port Switch [*]
[*] BR-2802-0000 16 Port Switch [*]
DGC BCS
Part Number Part Number Description- MTBF Target
-----------------------------------------------------------------------------------
[*] B-1630-016 16 Port Switch [*]
[*] B-1630-008 8 Port Switch [*]
[*] BR-2402-0000 8 Port Switch [*]
[*] BR-2802-0000 16 Port Switch [*]
DGC BCS Annual
Part Number Part Number Description- Replacement Rate
-----------------------------------------------------------------------------------------
[*] B-1630-016 16 Port Switch [*]
[*] B-1630-008 8 Port Switch [*]
[*] BR-2402-0000 8 Port Switch [*]
[*] BR-2802-0000 16 Port Switch [*]
DOA Rate: [*]
Plug & Play Rate: [*]
B. TRACKING: BCS's commitments relative to identification of MATERIAL and
Replacements (e.g. by serial number tracking or date codes):
Tracking shall be by BCS Model Number, Serial Number, Revision
Number and via barcode label on the MATERIAL.
C. ADMINISTRATION: BCS shall make reasonable efforts to report to DGC's
designated Quality Engineering group on a quarterly basis, pertinent
statistics relating to MATERIAL hereunder, including, without
limitation, the following:
MTBF data
Failure rates
Repair history
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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VOLUME PRICING AGREEMENT 2085
D. BCS's other pertinent data relative to MATERIAL and Replacement quality
data shall also be available to DGC, as and upon DGC's reasonable
requests from time to time. The initial reporting contact for purposes
of this paragraph (only) is
Attention: Director Purchasing
Data General Corporation
Technology Drive, P.O. Box 786,
Apex, NC 27502
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VOLUME PRICING AGREEMENT 2085
ATTACHMENT D
DESCRIPTION OF REPLACEMENTS,
PRICES, LEAD TIMES AND WARRANTY TERMS
A. For so long as MATERIAL is available for purchase hereunder,
Replacements Pricing shall be BCS's price as listed on Attachment A or D
below, of this Agreement for Replacements upon the date of purchase.
Thereafter, commencing upon the anniversary of the termination of the
last Order Entry Period, and upon 90 days' notice to DGC, BCS may
increase the price for any Replacement annually, by mutual agreement of
the parties reduced to a signed writing.
B. Period of Warranty for Replacements: Three (3) months after date of
delivery to the F.O.B. Point or the remainder of the original Standard
Warranty for the Hardware, whichever is longer; 90 days for Software.
C. Warranty Cycle Time for Replacements: [*] days
D. "Replacements Availability Period" shall mean the period commencing upon
the effective date of this Agreement and ending, for any Replacement,
[*] years after EOL notification to DGC of the MATERIAL to which
such Replacement relates.
E. U.S. Stocking location(s): BCS shall stock and deliver Replacements at
the following stocking locations: San Jose, California.
F. Replacements shall include, but not be limited to the items listed in
Exhibit RPL (being, as of the effective date, the "Recommended
Replacements List", attached hereto).
SilkWorm II Switches are Field Replaceable Units (FRUs) with no
replacement parts internal to the switch. The GBICs are FRUs. Pricing
for replacement GBICs is as listed on Attachment A.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 25
VOLUME PRICING AGREEMENT 2085
EXHIBIT RPL
RECOMMENDED REPLACEMENTS LIST
SilkWorm 2400 (118030714) and 2800 (118030715) have Field Replaceable Units
(FRU) and the pricing is as follows:
Part Number Description Pricing
----------- ----------- -------
XBR-000010 Power Supply $ [*]
XBR-000008 2400 Fan Tray $ [*]
XBR-000013 2800 Fan Tray $ [*]
XBR-000007 2400 Main Board $ [*]
XBR-000012 2800 Main Board $ [*]
XBR-000009 2400 Chassis $ [*]
XBR-000014 2800 Chassis $ [*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 26
VOLUME PRICING AGREEMENT 2085
ATTACHMENT E
OUT-OF-WARRANTY SERVICE SCHEDULE
--------------------------------
A. Cycle Time to effect Out-of-Warranty Repair or Refurbishment: [*] days
B. Period of Warranty for Repaired/Refurbished Material: [*] days.
C. Cost (price) for Repair and Refurbishment: All out-of-warranty MATERIAL
submitted for repair or Replacement will be returned with a DGC Purchase
Order referencing a BCS RMA number. The DGC Purchase Order will include
an evaluation charge of $ 500 per unit returned. This evaluation charge
will be applied toward the repair cost, which repair cost will be billed
at BCS's then-current rates for such out-of-warranty repair, except as
set forth below relative to NTE Repair Pricing. Upon return of all
out-of-warranty MATERIAL, BCS will evaluate and submit to DGC within 5
days of the receipt of MATERIAL, a "Cost to Repair Proposal." No repair
work will be initiated until formal written approval to proceed and
authorizing Purchase Order is received by BCS from DGC. The repair will
be completed and shipped back to DGC within 30 days of receipt of the
written approval.
At no time shall the Repair and Refurbishment NTE Repair Pricing for the
Mainboard assembly exceed the price listed below for the SilkWorm 1000
8-Port switch (118029629) or 16-Port switch (118029631).
Part Number Description NTE Repair Pricing
----------- ----------- ------------------
XDG-1001 Silkworm II Mainboard $[*]
At no time shall the Repair and Refurbishment NTE Repair Pricing for the
Mainboard assembly exceed the price listed below for the SilkWorm 2400
8-Port switch (118030714) or 2800 16-Port switch (118030715).
Part Number Description NTE Repair Pricing
----------- ----------- ------------------
XBR-000007 2400 Mainboard $[*]
XBR-000012 2800 Mainboard $[*]
BCS will use reasonable efforts to evaluate the reparability of the
mainboard in its sole discretion.
Should DGC decide not to Repair and Refurbish MATERIAL, DGC has the
option to scrap the MATERIAL at BCS.
D. Description of Repair and Refurbishment Activities: To effect
Repair/Refurbishment of any MATERIAL, BCS shall use commercially
reasonable efforts to achieve both Functional Repair as well as
Refurbishment, as described below:
1. Functional Repair:
All actions required to clean, repair and restore MATERIAL to
the form, fit, and function established by the specifications,
including:
Verify and repair functional failures Install all
ECO/FCOs which affect form, fit, or function to latest
DG authorized revision.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 26 of 45
<PAGE> 27
VOLUME PRICING AGREEMENT 2085
Replace any broken, chipped, dented, or cracked material
affecting form, fit or function.
Perform adjustments and alignments as required. Test and verify
functional performance.
Clean and remove dirt, dust, grease, and customer-installed
labels.
Provide functional failure/repair report.
Packaging and shipping of the repaired unit shall conform to
Specification for MATERIAL.
Exchange units or subassemblies in lieu of the original material
are acceptable.
2. Refurbishment:
Functional Repair, as well as all actions required to correct
cosmetic defects, blemishes, and discolorations.
Page 27 of 45
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VOLUME PRICING AGREEMENT 2085
ATTACHMENT F
A. SERVICE AND SUPPORT REQUIREMENTS
1.0 Service and Support Requirement
DGC will be responsible for working directly with the end users, and BCS
Support will work directly with DGC to support DGC personnel, as set
forth below. DGC represents and warrants that it is experienced in,
capable of, and staffed to provide, Level 1 and Level 2 support (as
defined below). BCS offers training programs to assist in attaining this
level of expertise on MATERIAL. BCS will accept calls only from DGC
level II engineers who have successfully completed courses 2 and 3 set
forth below and/or who have undergone formal DGC training on MATERIAL.
BCS will provide Level 3 support (as defined below).
2.0 Support Level Definitions
2.1 Level 1 Support: Level 1 support is the first line, direct end
user contact, most likely via a telephone call handling group
provided by DGC.
Level One support includes:
* First contact direct DGC/End User interaction
* Information collection and analysis
* Identification of whether the problem is known
and has a known solution
* Troubleshooting and problem reproduction
* Problem report administration and tracking
The parties agree that End Users shall not have the right to
contact BCS directly for questions related to the Products.
2.2 Level 2 Support: Level 2 support is "technical support" provided
by DGC personnel. Level 2 support is typically provided by
experts in the applicable Product and who serve as the
escalation point for Level 1. Level 2 support personnel are
expected to resolve all known problems, installation and
configuration issues, assist in firmware or driver updates at
the End User site, search BCS posted Technical Notes and other
technical information supplied that will assist in providing
problem resolutions. All pertinent data shall be entered in
DGC's problem tracking database.
Should the Level 2 analyst be unable to resolve a problem,
either because of lack of expertise, exhausted troubleshooting
knowledge, or expiration of the allotted Level 2 resolution
time, the Level 2 analyst may escalate the problem to Level 3
for resolution as set forth below. Level 2 personnel of DGC will
continue to diligently work with Level 3 personnel of BCS to
accomplish resolution. Level 2 personnel of DGC will communicate
all resolutions back to the End Users.
Escalations should be presented to BCS engineers in the form of
a problem tracking data base record with all pertinent
configuration detail and failure information or symptoms
documented in detail.
In an effort to maintain an efficient support organization and
crisp exchange of information, DGC will limit the number of
support personnel (Level 2) authorized to contact BCS (Level 3)
to approximately 5 (or their designated alternates).
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<PAGE> 29
VOLUME PRICING AGREEMENT 2085
2.3 Level 3 Support: Level 3 support is provided by BCS System
Engineers (SE) and/or Technical Support Engineers (TSE). Level 3
is the first point of contact for technical issues between BCS
and DGC. Once the parties mutually agree that a problem should
be escalated to Level 3, BCS will be responsible for resolution
and will utilize commercially reasonable resources to resolve
such problem.
Prior to escalating to Level 3, it is expected that DGC shall
provide the following information and documentation:
* Any error information from the device connected
to the switch and from the switch.
* All names and revisions of hardware equipment.
* All firmware revisions of the drivers.
* Any log files from the devices connected to the
switch.
* Any trace file from the devices connected to the
switch.
* The configuration information of the equipment
being used.
* Detailed definition of all steps taken to
reproduce and resolve this situation prior to
escalation to Level 3.
Assigned Level 3 support personnel (SE and/or TSE) can be
contacted via direct dial, email to an established "support"
alias, web site initiated input, and by calling BCS's
1-888-ATFIBRE support number. Direct access to BCS support
personnel will be possible during normal BCS business hours (8
AM to 5 PM PST, M-F). Emergency situations for Severity 1
problems are handled via 7 X 24 pager coverage at 1-888-ATFIBRE
(1-888-283-4273)
3.0 BCS Severity Definitions and Support Goals
The goal for initial response time to all telephone support
requests is thirty (30) minutes or less during normal BCS
working hours. For after hours telephone requests, the goal is
one (1) hour or less. The targeted response time for requests
submitted by other means, such as email, or fax, is four (4)
hours.
Severity Definition Service Objective Resolution Time
-------- ---------- ----------------- ---------------
1 BCS Product is completely non- Respond to initial request Less than 5 days,
functional, or deemed a safety hazard, within 30 minutes during using commercially
situation has high impact on normal BCS business hours, reasonable efforts
development or delivery efforts. and 1 hour for non-business
Installation problems. hours. Resources applied until
a solution or acceptable work-
around is found.
2 BCS Product is functionally impaired, Respond to initial request Less than 10 days
has substantially degraded performance within 1 (one) hour during
but is not completely dysfunctional. normal BCS business hours.
There are no available work-arounds. Resources applied
Situation has medium impact on DGC continuously, during business
activity hours, until a solution or
work-around is found.
3 BCS Product or advertised functionality Resources applied on a Next maintenance
may be slightly impaired but is priority basis, until a solution release.
operational, has low to no impact on or a work-around is found.
DGC activity, and there are work-
arounds available.
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VOLUME PRICING AGREEMENT 2085
4 Generic questions, and enhancement Answer generic questions or Commercially
requests. provide path to answers within reasonable efforts for
reasonable time frames. The generic questions.
BCS web site will be the Enhancement requests
prime repository for this type are processed on a
of information. Enhancement case by case basis.
requests will be reviewed and
implemented in the next major
release, where feasible, or
to meet specific commitments
made.
4.0 Firmware/Software Enhancements and Bug Fixes
BCS periodically releases new versions of firmware that provide enhancements to
functionality and fix bugs (Severity 1,2, and 3 in the foregoing table). In
addition, new firmware versions may enhance current features or enable new
features. BCS provides license keys to enable features (i.e., Webtools, Zoning,
SES, etc.). DGC will need to obtain a license key to enable new features.
Item 118029629 and 118029631 Per Copy or Per Incident
New Firmware Release on [*]
SilkWorm 1000 with Licensed
Feature
New Feature [*]
Item 118030714 and 118030715 Per Copy or Per Incident
New Firmware Release on [*]
Silkworm 1000 with Licensed
Feature
New Features for 118030714-2400 [*]
Switch BFOS*
New Features for 118030715-2800 [*]
Switch BFOS*
New Features for Software Bundle [*]
(Webtools, Zoning, and SES)
*BFOS = Brocade Fabric Operating System (all firmware and functionality that is
standard with each switch)
Note: [*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 31
VOLUME PRICING AGREEMENT 2085
B. TECHNICAL TRAINING PROGRAM
1. BCS TRAINING OUTLINE
COURSE DAYS COST
2 Switch intro & features: 3 $3,000
Audience: Sales/Marketing/SE's
3 Install/Config/Troubleshoot/Mgmt tools: 2 $3,000
Audience: SE's, Tech support
FULL COURSE (2 AND 3) 5 $6,000
Note: Includes non-reproducible copy of all course materials for each
person. Additional binders of training materials may be purchased from
BCS.
1.1 Courses will be offered at BCS's offices in San Jose, CA or at
such other facility notified to DGC from time to time. A minimum
of five (5) students will be required to attend, or the course
in question may, at BCS's sole option, be canceled. DGC agrees
that it shall pay any and all travel and lodging expenses
related to such training. BCS will make these courses available
to End User customers, on terms to be negotiated at BCS's
then-current rates for end user training courses.
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<PAGE> 32
VOLUME PRICING AGREEMENT 2085
ATTACHMENT G
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This Software License and Distribution Agreement (the "Software Agreement") is
entered into as October 1, 1999 ("Effective Date") by and between Brocade
Communications Systems, Inc., a corporation organized under the laws of the
state of California, U.S.A., and having its principal place of business at 1901
Guadalupe Parkway, San Jose, California 95131, ("BCS") and Data General
Corporation a Delaware corporation having its principal place of business at
4400 Computer Drive, Westboro, MA. 01580 ("DGC").
RECITALS
WHEREAS, DGC has agreed to purchase MATERIAL from BCS under Volume Pricing
Agreement No. 2085 ("VPA 2085"), including Software. (Unless otherwise
indicated, capitalized terms shall have the same meaning assigned in VPA 2085.)
WHEREAS, BCS and DGC desire to extend their original equipment manufacturer
relationship to include the Software, subject to the terms and conditions of
this Software Agreement.
NOW, THEREFORE, BCS and DGC enter into this Software Agreement on the following
terms and conditions:
1. Definitions.
1.1 Scope of Definitions. The definitions in this Section 1 shall
apply to this Software Agreement only. If a definition in this
Section 1 conflicts with a definition in VPA 2085, then the
definition in this Section 1 shall apply to this Software
Agreement, and the definition in VPA 2085 shall apply therein.
1.2 "Enhancements" shall mean new releases of Software with improved
features and capabilities for which a fee will be charged.
1.3 "DGC Products" shall mean DGC products, including but not
limited to servers, data storage, fibre channel interconnect
technology, total enterprise solutions, and any and all related
product information, programs or specifications.
1.4 "Hardware" shall mean BCS's hardware products and subassemblies,
as further described in VPA 2085, which are the subject of VPA
2085 and which DGC shall purchase under VPA 2085.
1.5 "Software" shall mean BCS's proprietary software for use with
the Hardware, as further described in Exhibit A hereto and as
may be amended from time to time by BCS in its usual course of
business.
1.6 "Updates" shall mean patches and bug fixes for which no fee will
be charged.
Page 32 of 45
<PAGE> 33
VOLUME PRICING AGREEMENT 2085
2. Prices.
2.1 Prices. The prices for licenses of Software and Enhancements to
DGC will be as set forth in Exhibit B hereto or provided to DGC
by BCS from time to time. DGC and BCS shall adjust such prices
for Software from time to time according to the schedule set
forth in VPA 2085.
2.2 Taxes. In addition to the prices shown on Exhibit B, DGC agrees
to pay any applicable federal, state, or local taxes which may
be levied on the license or use of Software or will provide BCS
with an appropriate reseller tax exemption certificate.
3. Terms for Licensing of Software
3.1 Controlling Terms. The terms and conditions of licenses set
forth in this Software Agreement apply to each order accepted or
fulfilled by BCS and will supersede the terms of DGC's purchase
order or other business forms notwithstanding BCS's acceptance
or acknowledgment of such business forms.
3.2 Supply and Activation. BCS shall pre-install Software on
Hardware to be shipped to DGC. DGC acknowledges that the
Software must be activated by loading the appropriate license
keys ("License Keys") onto the Software. DGC further
acknowledges that each License Key may be specific to a
particular Hardware unit and that separate License Keys may be
required to activate the same Software function on separate
Hardware units. Enhancements will also require License Keys.
Updates will be delivered to DGC in a manner mutually agreed by
the parties.
3.3 Prepaid License Keys. At BCS's sole discretion, DGC may order
License Keys by prepaying for a quantity of License Keys and
subsequently requesting License Keys for specific Hardware units
until the number of prepaid License Keys in DGC's prepaid
account is reduced to zero. BCS shall maintain records of the
License Keys (including their corresponding Hardware units)
charged against DGC's prepaid account. From time to time, DGC
may reasonably request BCS to provide a copy of such records to
DGC. Such records shall be deemed to be a correct and accurate
accounting of DGC's prepaid account unless DGC provides written
notification to BCS of an error in such records; DGC will use
commercially reasonable efforts promptly to review and report
any discrepancies noted therein. Any unused prepaid amounts are
not refundable.
3.4 Acceptance. All orders for License Keys are subject to
acceptance in writing by BCS and are not binding until written
acceptance or authorization of the License Keys, whichever is
earlier. In the case of acceptance by authorization, only the
portion of the order authorized shall be considered binding.
Notwithstanding the foregoing, each DGC purchase order will be
deemed accepted by BCS unless BCS provides written notice to DGC
of its decision to reject the purchase order within [*]
business days after BCS's receipt of that order.
3.5 Cancellation. BCS reserves the right to cancel any accepted
orders, or to refuse to deliver or delay delivery of authorized
License Keys, if DGC fails to meet the obligations of this
Software Agreement within the cure period set forth in Section
5.2 or if VPA 2085 is terminated due to DGC's breach.
3.6 Payment. All BCS invoices will be due and payable in U.S.
dollars within [*] calendar days of the date of the invoice, and
BCS will not send any invoice to DGC prior to the date of
acceptance covered by the invoice.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 33 of 45
<PAGE> 34
VOLUME PRICING AGREEMENT 2085
3.7 License Grant to DGC. Subject to the terms and conditions of
this Software Agreement, BCS grants to DGC a nonexclusive,
nontransferable, non-sublicensable license:
(i) to use the program modules or features of the Software
which have been activated by License Keys and for which
DGC has paid the requisite fees for the purpose of
manufacturing or testing DGC Products incorporating such
Software and Hardware;
(ii) to distribute the Software to DGC's customers only in
object code form as embedded in Hardware incorporated
into DGC Products sold or leased to such customers;
(iii) to distribute the Enhancements and Updates to DGC's
customers only in object form, including via electronic
means provided that DGC uses commercially reasonable
efforts to implement protections for the storage and
transmission of the Enhancements and Updates to ensure
that such electronic means are not circumvented by any
third party in contravention of the restrictions in this
Software Agreement.
3.8 Software Use by Second-Tier OEMs. Subject to the terms and
conditions of this Software Agreement, BCS grants to DGC a
nonexclusive, nontransferable, non-sublicensable license:
(i) to grant to DGC's OEMs ("Second-Tier OEMs") any of the
rights of Section 3.7 above or Section 3.9 below,
provided that any such use shall be governed by a
written agreement between DGC and Second-Tier OEM no
less favorable to and protective of BCS than the license
rights and restrictions of this Software Agreement; and
(ii) to distribute the Software to Second-Tier OEMs only in
object code form as embedded in Hardware incorporated
into DGC Products sold or leased to such Second-Tier
OEMs.
3.9 Software Use by DGC's Customers. Subject to the terms and
conditions of this Software Agreement, BCS grants to DGC a
limited right to distribute (i) the Software or Enhancements
which have been activated by License Keys and for which the
requisite fees have been paid to BCS, (ii) Updates, to (A) DGC
resellers with the right to further distribute to DGC customers,
and (B) DGC's customers, without the right to further to
distribute or sublicense, to use the program modules or
features; provided that any use by a customer shall be governed
by the End-User Software License Agreement attached hereto as
Exhibit C or a written sublicense agreement between DGC and
DGC's customer no less - favorable to and protective of BCS than
the End-User Software License Agreement attached hereto as
Exhibit C.
3.10 Provision of License Keys. Upon DGC's request, BCS and DGC shall
use reasonable efforts to mutually agree upon a procedure for
the distribution of License Keys from BCS to DGC's customers and
Second-Tier OEMs.
3.11 Limitations. Except as otherwise expressly provided under this
Software Agreement, DGC shall have no right, and DGC
specifically agrees not to remove the Software from the Hardware
in which it is embedded.
3.12 Ownership. DGC agrees that the foregoing licenses do not grant
any title or other right of ownership to the Software and that
BCS and/or its licensors shall continue to own all right, title
and interest in and to the Software.
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<PAGE> 35
VOLUME PRICING AGREEMENT 2085
3.13 Proprietary Notices. DGC agrees (i) not to remove or destroy any
copyright, trademark, patent, or other notice, legends or
markings of proprietary or confidential rights placed upon or
contained within the Software, and (ii) to place such notices,
legends and markings on and within the DGC product incorporating
the Software (the "DGC Product") or on or within the
documentation related to the DGC Product in accordance with the
reasonable written instructions of BCS.
3.14 Restrictions. DGC, on behalf of itself, the DGC Affiliated
Companies and the DGC contract manufacturer(s), agrees that it
will not: (a) disassemble, decompile, or reverse engineer any
Software; (b) except as authorized herein, copy or otherwise
reproduce any Software, in whole or in part; or (c) except as
set forth herein of in VPA 2085, create derivative works from,
adapt, modify, change or enhance Software without BCS's prior
written consent. DGC's rights in the Software will be limited to
those expressly granted in this Agreement. Notwithstanding the
foregoing, the parties agree that DGC shall have the right to
modify the Software as may be required in connection with DGC's
setup of the Software for a reseller or an end user, but shall
have no rights to otherwise modify the Software. All rights not
granted to DGC by BCS in the Software are reserved to BCS.
3.15 Restricted Rights. The Software shall be classified as
"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 Supplement (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 the Software is supplied for use by DoD,
the Software is delivered subject to the terms of this Software
Agreement and either (i) in accordance with DFARS 227.7202-1(a)
and 227.7202-3(a), or (ii) with restricted rights in accordance
with DFARS 253.227-7013(c)(1)(ii) (OCT 1988), as applicable. If
the Software is supplied for use by a Federal agency other than
DoD, the Software is restricted computer software delivered
subject to the terms of this Software Agreement and (i) FAR
13.212(a); (ii) FAR 53.227-19; or (iii) FAR 53.227-14(ALT III),
as applicable.
4. Limited Warranty; Limitations of Liability.
4.1 Limited Warranty. BCS warrants that the Software will
substantially conform to its published specifications for a
period of ninety (90) days from the later of receipt of the
Hardware containing the Software or receipt of access to the
Software. This limited warranty extends only to DGC as the
original licensee. DGC's sole and exclusive remedy and the
entire liability of BCS and its suppliers under this limited
warranty will be, at BCS or its service center's option, repair,
replacement, or, if neither repair nor replacement is
commercially practicable in BCS's sole discretion, refund of the
Software if reported (or, upon request, returned) to BCS or its
designee. BCS does not warrant that the Software is error free
or that DGC will be able to operate the Software without
problems or interruptions. This warranty does not apply if the
Software or the Hardware containing the Software (a) is licensed
for beta, evaluation, testing or demonstration purposes for
which BCS does not receive a license fee, (b) has been altered,
except by BCS, (c) has not been installed, operated, repaired,
or maintained in accordance with instructions supplied by BCS,
(d) has been subjected to abnormal physical or electrical
stress, misuse, negligence, or accident, or (e) is used in
ultrahazardous activities.
4.2 BCS warrants that all Software shall be "Year 2000 Qualified".
For purposes of the foregoing, "Year 2000 Qualified" Software
will correctly process, calculate, compare and
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VOLUME PRICING AGREEMENT 2085
sequence date data from, into and between the twentieth and the
twenty-first centuries, including leap year calculations, when
used in accordance with the associated product documentation and
provided that all hardware, firmware and software used in
combination with such products properly exchange accurate date
data in appropriate Year 2000 format. Neither party may make any
changes to specifications without written consent of the other
party.
4.3 Disclaimer of Warranty. BCS MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO PERFORMANCE OF THE SOFTWARE OR DGC
PRODUCTS, EXCEPT AS SET FORTH ABOVE. ALL IMPLIED WARRANTIES AND
CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND (EXCEPT AS
STATED BELOW) NONINFRINGEMENT, ARE HEREBY DISCLAIMED. EXCEPT AS
EXPRESSLY PROVIDED FOR IN THIS SECTION 4, THE SOFTWARE IS
PROVIDED "AS IS".
4.4 Limited Liability. THE LIABILITY OF BCS, IF ANY, FOR DAMAGES
RELATING TO OR ARISING OUT OF THIS SOFTWARE AGREEMENT OR THE
SUPPLY OF SOFTWARE HEREUNDER, WHETHER RESULTING FROM A TORT
(INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHER FORM OF
ACTION, SHALL BE LIMITED TO THE LIABILITY CAP SET FORTH IN
SECTION 10.10.2 OF THE VPA 2085, AND SHALL IN NO EVENT INCLUDE
LOSS OF PROFITS, COST OF PROCURING SUBSTITUTE GOODS OR SERVICES,
OR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY
KIND, EVEN IF BCS IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES,
AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY PROVIDED UNDER THIS SOFTWARE AGREEMENT.
4.5 Support and Service. DGC will provide service and support
directly to its resellers and customers for the Software,
Enhancements and Updates; BCS has no obligations to provide
support directly to DGC customers or resellers. BCS will provide
service and support for the Software, Enhancements and Updates
to DGC as set forth in Attachment F to VPA 2085.
4.6 Indemnity. The provisions of Section 7.1.1 of VPA 2085 are
incorporated herein by reference.
5. Term and Termination.
5.1 Term. The term of this Software Agreement shall be the same as
the term of VPA 2085.
5.2 Right to Terminate. Either party may terminate this Software
Agreement (i) immediately upon termination of VPA 2085; or (ii)
upon the occurrence of a default, as follows".
(1) The occurrence of any of the following acts or events shall
constitute default of this Agreement: (a) the failure by such
party to observe or perform any material covenant or obligation
under this Agreement, or (b) such party becomes insolvent,
suffers the appointment of a receiver, or makes an assignment
for the benefit of creditors; or proceedings are commenced
against such party under any bankruptcy, insolvency or debtor's
relief law, if such proceeding is not vacated or set aside
within sixty (60) days after the date of commencement thereof.
(2) In the case of default, if such default has not been cured
within thirty (30) days after a party has received written
notice of default from the other party, the party giving notice
may give a second (final) Notice of Intent to Terminate,
directed in the case of notice to DGC to its
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<PAGE> 37
VOLUME PRICING AGREEMENT 2085
Vice President, Manufacturing, and in the case of notice to BCS,
to its Vice President of Finance and Administration. In the
event thereafter that such default is not cured within five (5)
business days after the receipt of such Notice of Intent to
Terminate, the party giving notice may terminate this Agreement
by written notice at any time thereafter while such default
continues.
5.3 Effect of Termination for Default. In the event that BCS
terminates this Software Agreement on account of DGC's default,
BCS may: (i) declare all amounts owed by DGC to be immediately
due and payable and refuse to deliver any further License Keys
or ship any further Hardware under VPA 2085 until such amounts
have been paid; (ii) require C.O.D. payment; and (iii) pursue
any other remedies at law or in equity available to it.
Termination of the Software Agreement shall not terminate or
otherwise affect any licenses previously distributed by DGC
hereunder.
5.4 Liability for Termination. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER AS A RESULT OF THE EXPIRATION OR ANY TERMINATION OF THIS
SOFTWARE AGREEMENT, INCLUDING FOR ANY MONEYS EXPENDED, DAMAGES
SUFFERED OR LIABILITIES INCURRED BY EITHER IN THE CONDUCTING OR
PROMOTING OF THEIR BUSINESS, OR FOR LOST PROFITS OR
CONSEQUENTIAL DAMAGES OF ANY KIND.
5.5 Survival. DGC's obligations to pay BCS all amounts due
hereunder, as well as Sections 1, 3.9 - 3.12 (inclusive), 4, 5,
6, 7, and 8 shall survive the expiration and any termination of
this Software Agreement. The licenses under Sections 3.7, 3.8
and 3.9 and the warranties under Section 4 shall survive the
expiration and termination of this Software Agreement.
6. Confidentiality
The confidentiality obligations set forth in VPA 2085 shall apply
equally to information disclosed under this Software Agreement. (The
provisions entitled "Protection of Information" in Exhibit C shall not
apply to DGC).
7. General
The general provisions in VPA 2085 concerning the following subject
matter, if any, are incorporated herein by reference and shall apply
equally to this Software Agreement: Controlling or Governing Law, Venue,
Arbitration or Alternate Dispute Resolution (relative only to claims
solely between the parties and not involving third parties), Assignment,
Injunctive or Equitable Relief, Relationship of the Parties, Compliance
with Laws including Export Laws, Severability, Notices, Force Majeure,
Headings, Modification, and Waiver.
8. Conflict Provision.
8.1 Entire Agreement. This Agreement, the exhibits hereto, and the
relevant portions of VPA 2085 (which are fully incorporated
herein by this reference) constitute the entire agreement
between the parties pertaining to the subject matter hereof, and
supersede in their entirety any prior or contemporaneous written
or oral agreements between the parties.
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VOLUME PRICING AGREEMENT 2085
8.2 Conflicts. Except as expressly set forth herein, all other terms
and conditions of VPA 2085 shall remain in full force and
effect. In the event of conflict between this Software Agreement
and VPA 2085, the terms and conditions of this Software
Agreement shall apply to Software and the terms and conditions
of VPA 2085 shall apply to Hardware.
IN WITNESS WHEREOF, the parties have caused this Software License Agreement to
be executed by their duly authorized representatives.
BROCADE COMMUNICATIONS
SYSTEMS, INC. DATA GENERAL CORPORATION
("BCS") ("DGC")
By: /s/ Charles Smith By: /s/ William F. O'Neill
Charles Smith William F. O'Neill
Vice President of Worldwide Sales Director, New Products & Technology
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VOLUME PRICING AGREEMENT 2085
EXHIBIT A
DESCRIPTION OF SOFTWARE*
BCS Software Bundle I (Version 1.1) PN SW-0000000007-0002
BCS Software Bundle II (Version 2.1) PN SW-200007-02
QuickLoop PN SW-2000008-01
*Includes WebTools, Zoning, and SCSI Enclosure Services (SES)
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VOLUME PRICING AGREEMENT 2085
EXHIBIT B
PRICES
BCS Software Bundle I PN SW-0000000007-0002 $ [*] per license per switch
BCS Software Bundle II PN SW-200007-02 $ [*] per license per switch
QuickLoop PN SW-2000008-01 $ [*] per license per switch
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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VOLUME PRICING AGREEMENT 2085
EXHIBIT C
END-USER SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS END-USER SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE USING THE
SOFTWARE CONTAINED IN THIS EQUIPMENT.
BY USING THE EQUIPMENT THAT CONTAINS THIS Software, YOU ARE CONSENTING TO BE
BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS
AGREEMENT, PROMPTLY RETURN THE EQUIPMENT AND DO NOT USE THE Software.
SINGLE USER LICENSE. Subject to the terms and conditions of this Agreement,
Brocade Communications Systems, Inc. ("BCS") and its suppliers grant to Customer
("Customer") a nonexclusive license to use (a) BCS software which provides the
basic operating environment for BCS equipment, and (b) the specific BCS program
modules or features which have been enabled by software keys supplied by BCS or
its authorized distributors and for which Customer has paid any applicable
license fees (collectively, the "Software"), both of the foregoing in object
code form only: (i) solely as embedded in BCS equipment owned or leased by
Customer, and (ii) for key-enabled software, solely on the single central
processing unit corresponding to the software key(s) supplied by BCS and to the
license fees paid by Customer.
LIMITATIONS. Except as otherwise expressly provided under this Agreement,
Customer shall have no right, and Customer specifically agrees not to:
(i) make error corrections to or otherwise modify or adapt the Software nor
create derivative works based upon the Software, or to permit third
parties to do the same;
(ii) copy, in whole or in part, decompile, reverse engineer, disassemble or
otherwise reduce the Software to human-readable form; or
(iii) remove the Software from the equipment in which it is embedded.
Only to the extent required by law, if any, BCS shall provide Customer with the
interface information needed to achieve interoperability between the Software
and another independently created program, upon Customer's request and upon
payment of BCS's applicable fee. Customer shall observe strict obligations of
confidentiality with respect to such information.
UPGRADES AND ADDITIONAL COPIES. For purposes of this Agreement, "Software" shall
include (and the terms and conditions of this Agreement shall apply to) any
upgrades, updates, bug fixes or modified versions (collectively, "Upgrades") or
backup copies of the Software licensed or provided to Customer by BCS or an
authorized distributor for which Customer has paid the applicable license fees
and holds the corresponding software keys. NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY SUCH
ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH
COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE AND THE CORRESPONDING Software
KEYS TO THE ORIGINAL Software; AND (2) USE OF UPGRADES IS LIMITED TO BCS
EQUIPMENT FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR LESSEE.
NOTICES OF PROPRIETARY RIGHTS. Customer agrees to maintain and reproduce all
trademark, copyright, patent, and notices of other proprietary rights on all
copies, in any form, of the Software in the same form and manner that such
trademark, copyright, patent, and notices of other proprietary notices rights
are included on the Software. Except as expressly authorized in this Agreement,
Customer shall not make any copies or duplicates of any Software without the
prior written permission of BCS. Customer may make such backup copies of the
Software as may be necessary for Customer's lawful use, provided Customer
affixes to such copies all trademark, copyright, confidentiality, and patent,
and notices of other proprietary notices rights that appear on the original.
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VOLUME PRICING AGREEMENT 2085
PROTECTION OF INFORMATION. Customer agrees that aspects of the Software and
associated documentation, including the specific design and structure of
individual programs, constitute trade secrets and/or copyrighted material of
BCS. Customer shall not disclose, provide, or otherwise make available such
trade secrets or copyrighted material in any form to any third party without the
prior written consent of BCS. Customer shall implement reasonable security
measures to protect such trade secrets and copyrighted material. Title to
Software and documentation shall remain solely with BCS.
LIMITED WARRANTY. BCS warrants that the Software will substantially conform to
its published specifications for a period of ninety (90) days from the later of
receipt of the equipment containing the Software or receipt of access to the
Software. This limited warranty extends only to Customer as the original
licensee. Customer's sole and exclusive remedy and the entire liability of BCS
and its suppliers under this limited warranty will be, at BCS or its service
center's option, repair, replacement, or refund of the Software if reported (or,
upon request, returned) to BCS or its designee. Except as expressly granted in
this Agreement, the Software is provided AS IS. BCS does not warrant that the
Software is error free or that Customer will be able to operate the Software
without problems or interruptions.
This warranty does not apply if the Software or the BCS equipment in which the
Software is embedded (a) is licensed for beta, evaluation, testing or
demonstration purposes for which BCS does not receive a license fee, (b) has
been altered, except by BCS, (c) has not been installed, operated, repaired, or
maintained in accordance with instructions supplied by BCS, (d) has been
subjected to abnormal physical or electrical stress, misuse, negligence, or
accident, or (e) is used in ultrahazardous activities.
DISCLAIMER. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED
CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF
DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY
APPLICABLE LAW.
IN NO EVENT WILL BCS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR
DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES
HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE
OF OR INABILITY TO USE THE Software EVEN IF BCS OR ITS SUPPLIERS HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BCS'S OR ITS
SUPPLIERS' LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, EXCEED THE PRICE PAID BY CUSTOMER. THE FOREGOING
LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL
PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR
EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT
APPLY TO YOU.
TERM AND TERMINATION. This Agreement is effective until terminated. Customer's
license rights under this Agreement will terminate immediately without notice
from BCS if Customer fails to comply with any provision of this Agreement. Upon
termination, Customer must destroy all copies of Software and the corresponding
software keys in its possession or control.
CUSTOMER RECORDS. Customer grants to BCS and its independent accountants the
right to have conducted, through a mutually acceptable third party auditor,
under a suitable confidentiality agreement, an audit of Customer's books,
records and accounts during Customer's normal business hours to verify
compliance with this Agreement. In the event such audit discloses material
non-compliance with this Agreement, Customer shall promptly pay to BCS the
appropriate licensee fees.
EXPORT. SOFTWARE, including technical data, is subject to U.S. export control
laws, including the U.S. Export Administration Act and its associated
regulations, and may be subject to export or import regulations in other
countries. Customer agrees to comply strictly with all such regulations and
acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software.
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VOLUME PRICING AGREEMENT 2085
RESTRICTED RIGHTS. The Software shall be classified as "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 Supplement (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 the
Software is supplied for use by DoD, the Software is delivered subject to the
terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a)
and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS
252.227-7013(c)(1)(ii) (OCT 1988), as applicable. If the Software is supplied
for use by a Federal agency other than DoD, the Software is restricted computer
software delivered subject to the terms of this Agreement and (i) FAR 12.212(a);
(ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable.
GENERAL. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, United States of America, as if performed
wholly within the state and without giving effect to the principles of conflict
of law. If any portion hereof is found to be void or unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect.
This Agreement constitutes the entire agreement between the parties with respect
to the use of the Software
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VOLUME PRICING AGREEMENT 2085
EXHIBIT H
[*]
[*]
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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