OEM Purchase Agreement - Hewlett-Packard Co. and Brocade Communications Systems Inc.
BROCADE/HP CONFIDENTIAL
OEM PURCHASE AGREEMENT
BY AND BETWEEN
HEWLETT-PACKARD COMPANY
AND
BROCADE COMMUNICATIONS SYSTEMS, INC.
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BROCADE/HP CONFIDENTIAL
OEM AGREEMENT
TABLE OF CONTENTS
1. SCOPE OF AGREEMENT........................................................1
1.1 General............................................................1
1.2 Eligible Purchasers................................................1
1.3 Term Of Agreement..................................................1
2. DEFINITIONS...............................................................1
3. ORDER AND SHIPMENT OF OEM PRODUCTS........................................3
3.1 Orders.............................................................3
3.2 Order Acknowledgment...............................................3
3.3 Emergency Orders...................................................3
3.4 Forecasts..........................................................4
3.5 Lead Time..........................................................4
3.6 Inventory Requirement..............................................4
3.7 Order Changes......................................................4
3.8 Shipment Requirements..............................................4
3.9 HP Option To Accept Overshipments..................................4
3.10 Meeting Shipment Dates.............................................5
3.11 No Advance Shipment................................................5
3.12 Title And Risk Of Loss.............................................5
3.13 Packing List.......................................................5
3.14 Packaging..........................................................5
3.15 Responsibility For Damage..........................................5
4. PRICES AND PAYMENT TERMS..................................................5
4.1 OEM Product Prices.................................................5
4.2 Changed Prices.....................................................6
4.3 Payment Procedure..................................................6
4.4 [*] Warranty.......................................................6
4.5 Sales Taxes And Duties.............................................6
5. NONCOMPLYING PRODUCTS.....................................................6
5.1 Repair or Replacement..............................................6
5.2 Replacement and Repair Period......................................6
6. RETURN OF PRODUCTS........................................................6
6.1 Return Materials Authorization.....................................6
6.2 Return Charges.....................................................7
6.3 Duty To Remove Marks Or Destroy Noncomplying Products..............7
7. ENGINEERING PROCESS OR DESIGN CHANGES.....................................7
7.1 Supplier Proposed Changes..........................................7
7.2 Request for Enhancement............................................7
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7.3 HP Proposed Changes................................................7
7.4 [*] to Proposed Changes............................................7
7.5 Safety Standard Changes............................................8
7.6 Technical Cooperation..............................................8
8. QUALITY...................................................................8
8.1 Quality Program....................................................8
8.2 HP's Right To [*]..................................................9
9. WARRANTIES................................................................9
9.1 Hardware Product Warranties........................................9
9.2 Product Software Warranties.......................................10
9.3 Survival Of Warranties............................................10
9.4 Epidemic Failure Warranty.........................................10
9.5 DISCLAIMER........................................................10
10. SUPPORT SERVICES.........................................................10
10.1 General...........................................................10
10.2 New HP Products...................................................11
10.3 HP Property.......................................................11
10.4 Substitute Products...............................................11
10.5 Failure Rate......................................................11
10.6 Class Failure Remedies............................................11
10.7 Survival Of Support Obligations...................................12
11. OBSOLESCENCE AND MANUFACTURING RIGHTS....................................12
11.1 Lifetime Buy Rights...............................................12
11.2 Consulting Services...............................................13
12. TRAINING.................................................................13
12.1 Technical Training................................................13
12.2 Presales Training.................................................13
12.3 HP's Rights in Training Classes and Materials.....................13
13. MARKETING AND LICENSING..................................................13
13.1 Marketing and Distribution........................................13
13.2 Distribution Rights...............................................14
13.3 No Rights In Marks................................................14
13.4 Private Labeling..................................................14
13.5 HP [*]............................................................14
13.6 Software License..................................................15
13.7 Documentation License.............................................15
14. INTELLECTUAL PROPERTY PROTECTION.........................................15
14.1 Supplier's [*]....................................................15
14.2 HP's Duty To Notify...............................................16
14.3 Remedies For Infringing Products..................................16
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14.4 Limitations.......................................................16
15. COUNTRY OF MANUFACTURE AND [*]...........................................16
15.1 Country Of Origin Certification...................................16
15.2 Country Of Origin Marking.........................................16
15.3 [*]...............................................................17
16. GOVERNMENTAL COMPLIANCE..................................................17
16.1 Duty to Comply....................................................17
16.2 Procurement Regulations...........................................17
16.3 Ozone Depleting Substances........................................17
17. FORCE MAJEURE EVENTS.....................................................17
17.1 Delaying Causes...................................................17
17.2 HP Option.........................................................18
17.3 [*] Of Agreement..................................................18
18. EVENTS OF DEFAULT........................................................18
18.1 Notice Of Breach..................................................18
18.2 Causes Of Breach..................................................18
18.3 [*] Rights Upon Breach............................................19
18.4 [*]...............................................................19
18.5 Escalated Resolution Process......................................19
19. CONFIDENTIAL INFORMATION.................................................19
19.1 Confidential Information..........................................19
19.2 Exclusions........................................................19
20. INSURANCE REQUIREMENTS...................................................20
20.1 Insurance Coverage................................................20
20.2 Claims Made Coverage..............................................20
20.3 Additional Requirements...........................................20
21. LIMITATION OF LIABILITY..................................................21
22. TERMINATION..............................................................21
22.1 Outstanding Orders................................................21
22.2 Return Of HP Property.............................................21
22.3 Surviving Provisions..............................................21
23. MISCELLANEOUS............................................................21
23.1 Notices...........................................................21
23.2 Exhibits..........................................................22
23.3 Independent Contractors...........................................22
23.4 Assignment........................................................22
23.5 No Waiver.........................................................22
23.6 Reference To Days.................................................22
23.7 Headings..........................................................22
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23.8 Publicity.........................................................22
23.9 Severability......................................................23
23.10 Subcontractors and Subsidiaries...................................23
23.11 Entire Agreement..................................................23
23.12 Governing Law.....................................................23
23.13 Exhibits..........................................................23
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BROCADE/HP CONFIDENTIAL
OEM PURCHASE AGREEMENT
THIS AGREEMENT is entered into between HEWLETT-PACKARD COMPANY, a Delaware
corporation ("HP") and BROCADE COMMUNICATIONS SYSTEMS, INC., a Delaware
corporation ("Supplier"), effective as of January 28, 2000, (the "Effective
Date"). The parties hereby agree as follows:
1. SCOPE OF AGREEMENT
1.1 General. This Agreement specifies the terms and conditions under
which Supplier will sell, license, and support the OEM Products
listed in Exhibit A to this Agreement. The OEM Products are
regarded as "Original Equipment Manufacturer" products that will
either be sold separately or incorporated into HP Products for
resale worldwide under the Supplier's label or under HP's
private label. The OEM Products and the HP Products will be
marketed, serviced, and supported by HP's field organization and
channel partners, subject to the marketing, service, and support
obligations of Supplier pursuant to this Agreement.
1.2 Eligible Purchasers. This Agreement enables HP, HP Subsidiaries,
and [*] to purchase OEM Products from Supplier under the terms
of this Agreement or any subsequent Product Addendum. The terms
and conditions of this Agreement will control and take
precedence over any conflicting terms in a Product Addendum
unless a Product Addendum specifically refers to and amends a
term of this Agreement.
1.3 Term Of Agreement. This Agreement will commence as of the
Effective Date and continue for a two-year period (the "Term"),
unless terminated earlier under the terms of this Agreement.
2. DEFINITIONS
The following capitalized terms will have these meanings throughout this
Agreement:
2.1 "Documentation" means the user and technical manuals and other
documentation that Supplier will make generally available with
the OEM Products.
2.2 "Eligible Purchasers" mean those parties authorized to purchase
OEM Products under this Agreement as listed in Exhibit B
attached hereto.
2.3 "Failure" means an instance where the product does not conform
to specifications in Exhibit A or contains a defect in
workmanship, materials, or design that prevents the OEM Product
from fully performing as set forth in Exhibit A.
2.4 "Forecast" means HP's estimate, submitted to Supplier in
writing, of its purchase requirements over a [*] period, or such
other period designated by the parties.
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2.5 "HP Products" means the HP products or systems that will
incorporate the OEM Products and that will be marketed and sold
to end-user customers by HP and its distributors.
2.6 "HP Property" means all property, including without limitation,
models, tools, equipment, copies of designs and documentation
and other materials that may be furnished to Supplier by HP or
on HP's behalf or separately paid for by HP for use by Supplier
in connection with this Agreement.
2.7 "Intellectual Property Rights" means all rights in patents,
copyrights, moral rights, trade secrets, mask works, Marks, and
other similar rights.
2.8 "Lead Time" means the time between the date an Order is received
by Supplier and the Shipment Date.
2.9 "Marks" means the trademarks, service marks, trademark and
service mark applications, trade dress, trade names, logos,
insignia, symbols, designs or other marks identifying a party or
its products.
2.10 "Noncomplying Product" means any OEM Product received by HP that
does not comply with the [*] as set forth in Exhibit A of this
Agreement. Noncomplying Products include, without limitation,
dead-on-arrival products, overshipments, and early shipments.
[*] "OEM Products" means the products listed in Exhibit A, all
related Documentation, Parts, and other deliverables provided
pursuant to this Agreement. For purposes of this Agreement, OEM
Products shall not include any [*]
2.12 "Orders" means a written or electronic purchase order or release
issued by HP to Supplier for purchase of the OEM Products.
2.13 "Parts" means the replacement parts, components, consumables or
other products that may be supplied in conjunction with or as
additions to the OEM Products.
2.14 "Product Addendum" means an addendum to this Agreement entered
into between Supplier and an Eligible Purchaser naming
additional OEM Products and product specific requirements in
addition to those requirements specified in this Agreement.
2.15 "Shipment Date" means the date confirmed to HP by Supplier
regarding a particular Order for the shipment of OEM products by
Supplier to the destination required under the Order.
2.16 "Software" means any software or firmware included or bundled
with the OEM Products, as designated in the description of OEM
Products in Exhibit A.
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2.17 "Specifications" means the technical and functional requirements
for the OEM Products as specified or referenced in Exhibit A or
as agreed to in writing by the parties.
2.18 "Subcontractor" means a third party listed in Exhibit B that may
purchase OEM Products under the terms of this Agreement on
behalf of HP.
2.19 "Subsidiary" means an entity controlled by or under common
control with a party to this Agreement, through ownership or
control of more than 50% of the voting power of the shares or
other means of ownership or control, provided that such control
continues to exist.
2.20 "Support" means ongoing maintenance and technical support for
the OEM Products provided by Supplier to HP as more fully
described in Exhibit D.
2.21 "Technical Information" means Supplier's information and
technology necessary to support OEM Products and to exercise any
other rights provided under this Agreement.
3. ORDER AND SHIPMENT OF OEM PRODUCTS
3.1 Orders. Each delivery of OEM Products will be initiated by an
Order issued to Supplier by HP. Each Order will include: (i)
unit quantity; (ii) unit price; (iii) shipping destination; (iv)
Shipment Date; and (v) other instructions or requirements
pertinent to the Order. HP may schedule regular intervals for
deliveries by an appropriate Order setting forth the intervals.
To the extent of any inconsistency between the terms of an Order
and the terms of this Agreement, the terms specified in this
Agreement will control and take precedence. Any additional terms
contained in Orders or Supplier's Order acknowledgements shall
not be binding unless accepted by the other party in writing.
3.2 Order Acknowledgment. An Order will be deemed to have been
placed as of the date of receipt of the Order by Supplier.
Supplier will promptly confirm the receipt of an Order
electronically or through facsimile to HP within [*]. Orders
within Forecasts and Lead Time requirements of this Agreement
will be deemed accepted upon receipt by Supplier. For Orders
exceeding Forecast, Supplier will have [*] in which to reject
the order with respect to the excess. If an HP Order exceeds the
Forecast or shortens the Lead Time, Supplier will use
commercially reasonable efforts to fill such excess or
accommodate such shorter Lead Time.
3.3 Emergency Orders. If HP deems it necessary, HP may order OEM
Products by facsimile on an emergency basis ("Emergency Order")
subject to the availability of such OEM Products in Supplier's
inventory. Supplier will use all reasonable efforts to ship the
Emergency Order to HP's designated Eligible Purchaser(s)
immediately upon receipt of such Emergency Order by Supplier.
Subject to HP's approval, HP will pay any additional expenses
related to such Emergency Orders.
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3.4 Forecasts. HP will provide a [*] rolling Forecast [*] of its
projected Orders. Any quantities listed in any Forecast or other
correspondence between the parties are only estimates made as an
accommodation for planning purposes and do not constitute a
commitment on HP's part to purchase such quantity. HP may, [*]
revise any such Forecasts, provided that such revisions (i)
occur at least [*] prior to the projected Order Shipment Date,
and (ii) shall not result in an increase of its projected Orders
greater than [*] of the amount of Orders in the immediately
preceding Forecast. Quantities and Shipment Dates in Forecasts
and revisions thereof which are not provided to Supplier in
accordance with this Section 3.4 shall not be binding upon
Supplier for the purposes of Section 3.2 above.
3.5 Lead Time. Lead time for each OEM Product and FRU product will
be no more than [*] for forecasted demand and [*] unforecasted
demand [*].
3.6 Inventory Requirement. Supplier will maintain a [*] equal to [*]
to support Order changes for each OEM Product. If this inventory
is [*], Supplier will [*] as soon as reasonably possible after
[*] In addition, Supplier will [*] of OEM Products in inventory
[*] of inventory.
3.7 Order Changes. HP may [*], postpone, decrease, or reschedule any
Order subject to the [*] set forth immediately below. In the
event HP increases any Order, Supplier will use [*] reasonable
[*] to fulfill such Order for the Shipment Date requested by HP.
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3.8 Shipment Requirements. All Order are required to be shipped
complete. Supplier will give HP [*] notice if it knows that it
cannot meet a Shipment Date or that only a portion of the OEM
Products will be available for shipment to meet a Shipment Date.
For partial shipments, Supplier will ship the available OEM
Products unless directed by HP to reschedule shipment. If
Supplier ships any OEM Product by a method other than as
specified in the corresponding Order, [*] any [*] in the [*] of
freight.
3.9 HP Option To Accept Overshipments. If Supplier ships more OEM
Products than ordered, the amount of the overshipment may [*]
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[*] to Supplier pursuant to Article 6 below, [*] subject to the
payment procedures in Section 4.3.
3.10 Meeting Shipment Dates. If due to Supplier's failure to make a
timely shipment, the specified method of transportation would
not permit Supplier to meet the Shipment Date, the OEM Products
affected will be shipped by air transportation or other
expedient means acceptable to HP. [*] for any [*] in the freight
[*] over that which [*] by the specified method of
transportation.
3.11 No Advance Shipment. If OEM Products are shipped more than [*]
in advance of the Shipment Date, HP may [*] the OEM Products
pursuant to Article 6 below [*] with payment due as provided in
Section 4.3 below.
3.12 Title And Risk Of Loss. Shipments will be [*] point. Title to
OEM Product hardware and media ordered under this Agreement and
risk of loss or damage will pass from Supplier to HP [*],
subject to the provisions in Sections 3.12, 3.13, and 3.14
below.
3.13 Packing List. Each delivery of OEM Products to HP must include a
packing list that contains at least:
(a) The Order number and the HP part number;
(b) The quantity of OEM Products or Parts shipped; and,
(c) The date of shipment.
3.14 Packaging. Supplier must preserve, package, handle, and pack all
OEM Products as specified in Exhibit A.
3.15 Responsibility For Damage. [*] will be [*] for [*] due to its
[*] to [*] preserve, package, handle, or pack OEM Products in
accordance with Exhibit A. In order to assert a claim against
[*] under the provisions of this Section 3.15, [*] be required
to first assert any claims for such loss or damage against the
common carrier involved. Further, [*] be [*] for [*] due to a
release of chemicals or other hazardous materials to the
environment [*] release of the corresponding OEM Product to the
designated carrier.
4. PRICES AND PAYMENT TERMS
4.1 OEM Product Prices. Supplier's prices for the OEM Products and
Parts are listed in Exhibit C, payable in U.S. currency unless
otherwise agreed, and may not be increased without HP's consent.
Supplier and HP agree to review OEM Product prices [*].
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4.2 Changed Prices. If during the Term changed prices or price
formulas are put in effect by mutual agreement of HP and
Supplier, [*] or price formulas are otherwise put in effect by
Supplier, such prices or price formulas (if resulting in [*]
than the [*] will apply to all Orders accepted by Supplier after
the effective date of such prices or price formulas and to all
unshipped Orders.
4.3 Payment Procedure. Payment for OEM Products will be [*] of the
applicable invoice from Supplier. Except as otherwise provided
in this Agreement, associated freight expenses and duties will
be paid directly by [*] related to or payments for unordered or
Nonconforming Products, provided that HP does not retain such
unordered or Nonconforming Products.
4.4 [*] Warranty. If during the term, Supplier provides [*] of OEM
Products [*], then Supplier agrees to [*] to HP [*] provided to
the [*]. Supplier agrees to fulfill its obligations in this
Section in good faith. In addition, HP may [*] due under this
Agreement [*] upon Supplier's [*] issued to HP, which such
Supplier [*] shall not be [*].
4.5 Sales Taxes And Duties. Prices are [*] of all [*] after delivery
to the designated destination (other than taxes levied on
Supplier's income) that Supplier may be required to collect or
pay upon shipment of the OEM Products. Any such [*] must appear
as a separate item on Supplier's invoice. [*] agrees [*] unless
[*]. Where applicable, [*]
5. NONCOMPLYING PRODUCTS
5.1 Repair or Replacement. HP may elect [*], subject to the
provisions of Article 18 below, return a Noncomplying Product
for replacement or repair [*] In addition, HP may return for
repair or replacement an entire lot of OEM Products if more than
[*] of that lot consists of Noncomplying Products. In the event
of an overshipment, HP may elect to keep the additional units,
subject to the payment procedures in Section 4.3.
5.2 Replacement and Repair Period. Supplier will return the
replacement or repaired OEM Products as soon as possible but in
no event later than [*] after receipt of the Noncomplying
Product from HP. Supplier's opportunity to cure any failure to
meet such deadline, pursuant to Article 18 below, will apply to
[*] during the Term.
6. RETURN OF PRODUCTS
6.1 Return Materials Authorization. All OEM Products returned by HP
to Supplier must be accompanied by a Return Materials
Authorization ("RMA"). Supplier will issue
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an RMA for OEM Products which HP has verified Failure. Supplier
will supply an RMA [*] of HP's request.
6.2 Return Charges. All Noncomplying Products returned by HP to
Supplier within the respective warranty period for each OEM
Product, and all replacement or repaired OEM Products shipped by
Supplier to HP to replace Noncomplying Products, will [*].
6.3 Duty To Remove Marks Or Destroy Noncomplying Products. Supplier
agrees not to sell, transfer distribute or otherwise convey any
part, component, product or service bearing or incorporating HP
Marks, part numbers or other identifiers, including any HP
packaging, copyrights or code, to any party other than to
Eligible Purchasers. Supplier will remove from all rejected,
returned or unpurchased OEM Products any such HP Marks or
identifiers, even if such removal would require destruction of
the OEM Products. Supplier further agrees not to represent that
such OEM Products are built for HP or to HP specifications.
Supplier will defend and indemnify HP against any claims,
losses, liabilities, costs or expenses that HP may incur as a
result of Supplier's breach of this obligation.
7. ENGINEERING PROCESS OR DESIGN CHANGES
7.1 Supplier Proposed Changes. Supplier will not, other than in
accordance with this Article 7, make or incorporate in OEM
Products any [*].
7.2 Request for Enhancement. HP proposed changes and enhancement
requests will be reviewed, as appropriate, by the Software
Steering Committee and/or the Hardware Engineering core teams of
Supplier. Where feasible and mutually agreed by HP and Supplier,
such changes will be implemented in the [*] or as otherwise
specifically agreed.
7.3 HP Proposed Changes. HP may change HP-supplied drawings,
designs, or Specifications at any time prior to manufacture of
corresponding released OEM Products. Any such change will be [*]
If any such change reasonably and directly [*] of OEM Products,
an [*] will be made provided that Supplier makes a written claim
for an [*] within [*] from the date HP gives notice to Supplier
of the change and HP agrees in writing to the [*].
7.4 [*] Proposed Changes. In the event that HP [*] in writing to an
[*] in the stated time period on the basis that such [*]
materially affects its ability to timely deliver the OEM
Products or to fill outstanding orders, then HP may provide
Supplier with written [*] and shall be entitled to (in addition
to placing orders for the [*] submit purchase orders for the
unchanged OEM Product(s) prior to the effective date of the
implementation of the [*], for delivery no more
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than [*] after the effective date of such implementation and in
quantities which do not exceed the total quantity of OEM
Product(s) ordered by HP in the [*] immediately preceding the
date of [*].
7.5 Safety Standard Changes. Supplier will promptly give notice to
HP if any upgrade, substitution, or other change to an OEM
Product is required to make that product meet applicable safety
standards or other governmental statutes, rules, orders, or
regulations, even those that are not defined as Engineering
Changes in Section 7.1 above. All affected OEM Products already
purchased by HP may [*] either be returned to Supplier for
upgrade to current revisions or upgraded by Supplier or HP in
the field pursuant to the procedures outlined in Section 10.4
below. If an OEM Product meets applicable safety standards and
other governmental requirements at the time of manufacture, HP
and Supplier will [*] the [*] of any subsequent upgrade,
substitution, or other required change required in an [*] based
on good faith discussions between the parties. If such
discussions render no [*], the parties may either mutually agree
to escalate the matter to their respective vice presidents or
general managers, as applicable, or in the alternative, [*] the
[*].
7.6 Technical Cooperation. Subject to the confidentiality provisions
in Article 19 below, during the term of the Agreement, the
parties will discuss architecture and explore the possibilities
for technically [*] Supplier and HP products. Each party will
designate a technical representative to lead these discussions
as well as to address other technical issues relating to the
product enhancements and [*]. Supplier agrees to [*] with HP
engineers the following for [*] (which such information [*]
(a) [*];
(b) [*] information sufficient for HP to (i) understand the
related architecture and to develop test suites for resolution
of potential problems, and (ii) to understand the implications
of such potential problems with the ability to implement meshed
configurations efficiently;
(c) [*] information on flow control/buffer allocation necessary
for HP to implement efficient meshed configurations free of any
significant performance problems;
(d) [*] and [*] for such items; and,
(e) [*] and [*].
8. QUALITY
8.1 Quality Program. Supplier agrees to maintain an objective
quality program for all OEM Products. Supplier's program will be
in accordance with the current version of
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HP's Supplier Quality System as specified in Exhibit H and if
applicable, any additional or substitute quality requirements
agreed to by the parties in writing. Supplier will, upon HP's
request, provide to HP copies of Supplier's program and
supporting test documentation.
8.2 HP's Right To [*]. HP has the right to [*] at Supplier's [*] the
OEM Products and [*] may be [*] at any time during the Term.
HP's [*] may be for any reason [*] related to this Agreement,
including to [*] with HP's [*], HP's right of [*] will apply as
well to any [*] of Supplier. Supplier will inform [*] of HP's
right to [*], and, if necessary, use all [*] such rights for HP.
9. WARRANTIES
9.1 Hardware Product Warranties. Supplier warrants that, for a
period of [*] from the [*] for each OEM Product that all
hardware components of the OEM Products under this Agreement
will:
[*] Be manufactured, processed, and assembled by Supplier or
by companies under Supplier's direction, including,
without limitation, [*]
(2) Conform to the [*], and other criteria referred to in
this Agreement or agreed to by the parties in writing;
(3) Be new, except as otherwise provided by the parties;
(4) Conform strictly to the requirements as set forth under
the terms and conditions of this Agreement;
(5) Be free from defects in design, material and
workmanship;
(6) Be free and clear of all liens, encumbrances,
restrictions, and other claims against title or
ownership;
(7) Be "Year 2000 Compliant." Year 2000 Compliant products
will perform without error, loss of data or loss of
functionality arising from any failure to process,
calculate, compare or sequence date data accurately. In
addition, Year 2000 Compliant products will not cause
any associated products or systems in which they may be
used to fail in any of the ways described above. This
Year 2000 Compliance Warranty will remain in effect
through December 31, 2000, notwithstanding any other
warranty period specified in this Agreement;
(8) Notwithstanding the terms and conditions of Article 14
herein, not, to Supplier's reasonable knowledge, violate
or infringe any third party
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Intellectual Property Rights and Supplier warrants that
it is not aware of any facts upon which such claim could
be made. If Supplier learns of any claim or any facts
upon which claim could be made, it will [*] notify HP of
this information.
9.2 Product Software Warranties. Supplier warrants that, for a
period of [*] from the [*] for each OEM Product, all software
elements of the OEM Products under this Agreement will conform
to the Specifications and other criteria referred to in this
Agreement or agreed to by the parties in writing.
9.3 Survival Of Warranties. All warranties specified above will
survive any inspection, delivery, acceptance, or payment by HP
and be in effect for the longer of Supplier's normal warranty
period.
9.4 Epidemic Failure Warranty. In addition to the warranties
specified above, Supplier warrants all OEM Products against
epidemic failure for a period of [*] after the [*] of that OEM
Product. An epidemic failure means:
(a) Unit failures that (i) are caused by the same component
failure or defect, provided that such failure or defect is
attributable to Supplier, and (ii) occur at a rate equal to or
less than [*] over a [*], or;
(b) the occurrence of more than [*] classified as a [*] or
higher safety incident defined as (i) a marginal condition that
is likely to produce only minor bodily injury or property damage
and is likely to occur after a [*] event, or (ii) a
noncompliance event involving a safety-related standard,
license, or testing agency evaluation, or;
(c) any known problem which, in HP's reasonable opinion
subject to Supplier's concurrence (which such concurrence shall
not be unreasonably withheld or delayed) creates a significant
risk to the health or safety of individuals who operate the OEM
product or to the continuous business operations of companies or
organizations that employ the OEM product for an intended or
reasonably foreseeable use.
9.5 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
SUPPLIER EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
10. SUPPORT SERVICES
10.1 General. Supplier will provide trained HP support personnel with
Support for the OEM Products as specified in Exhibit D. Supplier
will maintain such number of qualified personnel as is necessary
to provide timely and knowledgeable maintenance and support
service in accordance with the terms and conditions of Exhibit
D.
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Supplier warrants that all Support will be provided in a
professional and workmanlike manner. HP will provide direct
maintenance and support to HP's customers with respect to the
use of the OEM product as distributed with HP Products. Supplier
and HP will maintain and support each OEM product distributed by
HP for at least [*] after the date of last shipment by Supplier
to HP of that OEM Product or end-of-life, whichever occurs
first. HP acknowledges that Supplier may independently offer and
provide support services to OEM Product customers. However, in
no event may Supplier use HP Confidential Information or HP
Property to direct or provide such support without HP's prior
consent. Response times and problem classification for the OEM
Products will be as set forth in Exhibit (D).
10.2 New HP Products. Upon request by HP, Supplier will use its
commercially reasonable efforts to provide HP with the OEM
Products adapted for use with new releases of HP Products [*]
and [*], if any, to be negotiated by the parties, provided that
HP makes available to Supplier such HP Property as may be
reasonably necessary for Supplier to develop any adaptation.
10.3 HP Property. HP may provide to Supplier HP Property under the
terms of an HP Equipment Loan Agreement attached as Exhibit E to
this Agreement, solely for use in Supplier's manufacturing,
testing, adapting and supporting the OEM Products. All HP
Property will be clearly segregated from Supplier's property and
identified as the sole property of HP. HP Property may not be
transferred, assigned, loaned or otherwise encumbered in any
way. HP Property may be provided to third parties for
fulfillment of Supplier's obligations hereunder only upon HP's
prior written consent. HP property will be returned to HP [*],
upon termination of this Agreement.
10.4 Substitute Products. If Supplier develops any generally
available products that are to replace the OEM Product(s) or
that are the same or substantially similar to the OEM Products
available under this Agreement, HP will have the right to
substitute the newer products at [*] as the substantially
similar OEM Products for all subsequent purchases under this
Agreement. Such substitute products must be compatible with the
current version of the OEM Products.
10.5 Failure Rate. Notwithstanding that the warranties given in
Section 9.1 above apply to [*] of the hardware components of OEM
Products, Supplier and HP acknowledge that a failure rate of [*]
per [*] units delivered over a [*] is expected. If the actual
failure rate for OEM Products exceeds this expected rate,
Supplier will provide additional engineering and technical
support needed to bring the actual failure rate within the
specified failure rate.
10.6 Class Failure Remedies. Upon the occurrence of any of the
following events: (i) a failure rate exceeding the rate
specified in Section 10.5 above; (ii) an epidemic failure as
described in Section 9.3; or (iii) a safety standard change
under Section 7.5 above (each referred to as a "Class Failure"),
HP will have the following additional remedies for a [*] period
commencing upon shipment by Supplier to HP of the OEM Product or
the corresponding HP Product:
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(1) In the event of a Class Failure, Supplier will use its
commercially reasonable efforts to provide an initial root
cause analysis, failure analysis, and [*] plan to HP no
later than [*] following the receipt of the Class Failure
part. HP will make available such information and
assistance as reasonably required to allow Supplier to
conduct its root cause analysis and provide its corrective
action plan.
(2) If, after review of the root cause analysis and [*] plan,
HP determines in its reasonable opinion that the Class
Failure necessitates a field stocking recall or customer
based recall or retrofit, then HP will notify Supplier of
its determination for such remedy. Supplier shall have [*]
from time of notice from HP to object to HP's
determination. In the event that Supplier either agrees
with or fails to notify HP of its objection, HP may then
elect to have the OEM products: (i) returned to Supplier
for repair or replacement; (ii) repaired or replaced by
Supplier in the field; or (iii) repaired or replaced by HP
in the field, including products in distributor inventory
and HP's installed base. If HP chooses to perform a field
repair, Supplier will provide the appropriate replacement
OEM products, spares, or upgrades [*] to HP and will,
within [*] after completion of the recalls or retrofits,
reimburse HP for [*] in performing such field repair.
Supplier will give such OEM products, spares, or upgrades
the [*].
(3) Except as provided in Section 7.5 above regarding safety
standard changes, Supplier will, within [*] after
completion of the recalls or retrofits, reimburse HP [*]
in performing such services.
10.7 Survival Of Support Obligations. Supplier's maintenance and
support obligations specified in this Article 10, and in the
Support Terms in Exhibit D will run for the Term and any
additional periods under Section 1.3 above and will continue for
a period of [*] after the date of Supplier's last shipment of
the applicable OEM Product to HP, or [*], whichever occurs
first. This obligation includes, without limitation, making
necessary Parts available to HP as further provided in the
Support Terms.
11. OBSOLESCENCE AND MANUFACTURING RIGHTS
11.1 Lifetime Buy Rights. Supplier acknowledges its obligation to
manufacture, supply and support the OEM Products without
interruption for the Term. If, however, after the [*] of
shipment of such products, Supplier seeks to discontinue the
supply or support of any OEM Product (a " Discontinued
Product"), Supplier will give notice to HP no less than [*] in
advance of the last date the Discontinued Product can be
ordered. After receipt of notice of discontinuance, HP may place
orders for any demand during the [*] of such notice for delivery
of Discontinued Products prior to the end of the notice period.
To the extent that such orders exceed HP's previous Forecast for
such Discontinued Products, the orders shall be [*]. Supplier
shall accept only forecasted orders in the [*]
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of the stated notice period, and such orders shall be [*]. In
addition, during such notice period, Supplier shall have the
right [*] to [*] for OEM Products from HP at the time such
Orders are submitted.
11.2 Consulting Services. In support of Technical Information
conveyed to HP, Supplier will provide:
(1) Up to [*] of consulting services, as required by HP,
provided that HP bears the cost of [*]; and
(2) Additional consulting services at the rate of [*] of
those so engaged.
12. TRAINING
12.1 Technical Training. Supplier will provide to HP, no later than
April 1, 2000 as provided in a schedule mutually agreed upon in
writing by the parties, Brocade [*] training for a minimum of
[*] HP technical personnel, such training to be made available
and completed before the scheduled HP ship-date of the OEM
Product. Such training will be provided to HP for a mutually
agreed upon [*] for the Term of the Agreement and Supplier's
support obligations. HP may further request and Supplier will
provide, for up to [*] HP technical personnel, additional
training [*] as reasonably necessary to inform HP personnel of
upgraded, enhanced or new versions of the OEM Products. Other
training will be provided upon mutually agreeable terms and
conditions.
12.2 Presales Training. Supplier will provide to HP presales training
sufficient to allow HP to become fully familiar with the OEM
Product and its market. Such training will be provided to HP for
a mutually agreed [*]. HP may further request and Supplier will
provide additional training as [*] to inform HP personnel of
upgraded, enhanced, or new versions of the OEM Products.
12.3 HP's Rights in Training Classes and Materials. HP may [*]
solely to internal trainees in training courses offered by HP
solely in conjunction with HP or HP's authorized resellers'
sale, service, and support of the OEM Products, all presales
training classes, methods, and materials supplied or developed
by Supplier under the Agreement. HP shall have [*] for the use
of or [*] this material. HP may [*] such materials provided
written authorization from Supplier is granted prior to
distribution or use. Such approval from Supplier shall not be
unreasonably withheld.
13. MARKETING AND LICENSING
13.1 Marketing and Distribution. HP will have the authority to market
the OEM Products and the HP Products containing the OEM Products
to the extent it deems appropriate,
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[*]. Without limiting the generality of the foregoing sentence,
nothing in this Agreement will be construed or interpreted to
place a [*] obligation upon HP with respect to marketing or
distributing the HP Products or OEM Products or preclude HP from
[*] any product which performs the same or similar function as
the OEM Products. HP will have the right to use its own business
and license terms for all marketing and distribution of the OEM
Products and HP Products.
13.2 Distribution Rights. For [*] from the Effective Date, Supplier
hereby agrees [*] the OEM Products [*], provided that nothing in
this Section 13.2 shall be construed to [*] Supplier from [*]
Supplier's current and future indirect channels of distribution
that are (i) resellers, service bureaus, third party
distributors and third party OEMs which in turn sell or
distribute the OEM Products [*], and (ii) any [*] to whom
Supplier has [*] any of its products [*] the Effective Date and
(iii) not controlled by or under common control with Supplier or
its permitted successive assignees or transferees, or (iv)
formed in connection with a merger, reorganization, transfer,
sale of assets or product lines, or change of control or
ownership of Supplier or its permitted successive assignees or
transferees. For purposes of this Section 13.2, an "[*].
13.3 No Rights In Marks. Except as otherwise specified in the private
labeling section below, nothing in this Agreement should be
construed to grant either party any rights in the Marks of the
other party. Supplier [*], that HP [*] the [*] and the [*] OEM
Products in [*] the OEM Products or the HP Products. The OEM
Products will be affixed with copyright notices sufficient to
give notice as to the rights of the parties in their respective
products.
13.4 Private Labeling. If HP elects during the Term to create HP
private label versions of the OEM Products, it is the intent of
the parties that the terms and conditions of this Agreement will
govern such private label version of the OEM Product.
Notwithstanding the above, the parties recognize the necessity
of renegotiating and amending the following sections of the
Agreement: Article 3, Article 4, Article 7, Section 10.5,
Exhibit A, Exhibit C, Exhibit D(6), and Exhibit H. The parties
agree that such renegotiation of the preceding sections shall be
in good faith and shall not be unreasonably delayed.
13.5 HP [*]. Supplier will ensure that the OEM Products [*] serial
number, format, and packaging [*] HP and [*] to the HP [*] as
set forth in Exhibit A (which will not require any material
change in form or dimensions of the OEM Products or require
commercially unreasonable actions). Except as provided herein,
Supplier will have [*].
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13.6 Software License.
(a) Supplier hereby grants to HP a nonexclusive, worldwide,
revocable (except as expressly provided in Section 13.6(d), [*]
right and license, under all copyrights, patents, patent
applications, trade secrets and other necessary Intellectual
Property Rights of Supplier, to: (i) use, execute, and display
the Software, in object code form, in conjunction with, or for
use with OEM Products; (ii) distribute or license the Software,
in object code form, as part of, in conjunction with, or for use
with OEM Products sold or leased by HP to end user customers;
and, (iii) authorize, license and sublicense third parties to do
any, some or all of the foregoing. HP shall distribute the
Software to end user customers pursuant to HP's end user license
agreement, attached hereto as Exhibit I, as updated by HP from
time to time.
(b) HP shall have no right to (i) modify or adapt the Software
for other products or create derivative works of the Software,
(ii) decompile, reverse engineer, or disassemble the Software
for purposes of designing similar products, or (iii) use or
distribute the Software other than in connection with the use or
distribution of the OEM Products.
(c) HP agrees that the foregoing licenses do not grant any title
or other right of ownership to the Software and that Supplier
owns and shall continue to own all right, title and interest in
and to the Software.
(d) Upon any termination or expiration of this Agreement, HP's
rights set forth in this Section 13.6 shall terminate except as
follows: (i) end user customers shall be permitted continued use
of the Software in conjunction with the operation of the OEM
Products so long as they are not in breach of HP's end user
license agreement attached hereto as Exhibit J, and (ii) HP
shall retain a nonexclusive, worldwide license to use and
execute the then-current version of the Software internally (in
object code form only) for the sole purpose of assisting end
user customers with the maintenance of the OEM Products
purchased from HP.
13.7 Documentation License. Supplier hereby grants HP a nonexclusive,
nontransferable, worldwide, [*] license to [*] in HP's [*]
all Documentation, and other information other than confidential
information furnished by Supplier under this Agreement. HP may
[*] such Documentation [*] of source, subject to affixing
copyright notices to all copies of Documentation. These rights
with respect to the Documentation will extend to HP Subsidiaries
and third party channels of distribution. Supplier shall have
[*] for [*] into the [*] due to [*].
14. INTELLECTUAL PROPERTY PROTECTION
14.1 Supplier's [*]. Except as provided in Section 14.4 below and
provided that HP has complied with the provisions of Section
14.2 below, Supplier will [*] from any
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[*], any combination of an OEM Product with an HP Product (to
the [*] any Software, Documentation, or a Supplier Mark, or any
product provided as part of Supplier's Support services
constitutes an unauthorized use or infringement of any patent
(domestic or foreign) or a copyright, trademark, or trade secret
of any third party. Supplier will [*] with respect to any such
[*].
14.2 HP's Duty To Notify. HP will give Supplier prompt notice of any
[*] will give Supplier the [*]. If Supplier does not [*] of the
[*] nor provide HP with [*] that it will [*], then HP may,
without in any way [*].
14.3 Remedies For Infringing Products. If the use or combination of
any product provided hereunder is enjoined (the "Infringing
Product"), Supplier will, [*], either:
[*]
[*]
(3) [*]
14.4 Limitations. Supplier will be relieved of its [*] under this
Article 14 to the extent that the [*] from Supplier's [*] with
an HP [*] provided that all implementations of that
[*] constitute an [*] of a third party [*].
15. COUNTRY OF MANUFACTURE AND [*]
15.1 Country Of Origin Certification. Upon HP's request, Supplier
will provide HP with an appropriate certification stating the
country of origin for OEM Products, sufficient to satisfy the
requirements of the customs authorities of the country of
receipt and any applicable export licensing regulations,
including those of the United States.
15.2 Country Of Origin Marking. Supplier will mark each OEM Product,
or the container if there is no room on the OEM Product, with
the country of origin. Supplier will, in marking OEM Products,
comply with the requirements of the customs authorities of the
country of receipt.
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15.3 [*]. If OEM Products delivered under this Agreement are
imported, Supplier will when possible allow HP to be the [*]. If
HP is not the [*] and Supplier obtains [*] rights to OEM
Products, Supplier will, upon HP's request, provide HP with
documents required by the [*] of the [*] of receipt to prove [*]
and to transfer [*] rights to HP.
16. GOVERNMENTAL COMPLIANCE
16.1 Duty to Comply. The parties shall in the performance of this
Agreement comply with all applicable laws, executive orders,
regulations, ordinances, rules, proclamations, demands, and
requisitions of all applicable state, local, national, or other
governmental authority which may now or hereafter govern
performance hereunder including, without limitation, all laws,
executive orders, regulations, ordinances, rules, and
proclamations regarding Equal Employment Opportunity, the
exporting of technology, and withholding for income taxes.
16.2 Procurement Regulations. The Software is "commercial computer
software" as defined in the applicable provisions of the Federal
Acquisition Regulation (the "FAR") and supplements thereto,
including the Department of Defense ("DoD") FAR Supplements (the
"DFARS"). The parties acknowledge that the Software was
developed entirely at private expense and that no part of the
Software was first produced in the performance of a Government
contract. If HP supplies the Software to a U.S. Government
agency, in accordance with FAR 12.212 and its successors or
DFARS 227.7202 and its successors, as applicable, HP shall
license the Software to the Government subject to the terms of
this Agreement.
16.3 Ozone Depleting Substances. Supplier hereby certifies that no
OEM Product nor any component of any OEM Product:
(1) Contains any "Class 1 Substance" or "Class 2 Substance",
as those term are defined in 42 USC Section 7671 and
implementing regulations of the United States
Environmental Protection Agency at 40 CFR Part 82, as
now in existence or hereafter amended; or,
(2) Has been manufactured with a process that uses any Class
1 or Class 2 Substance within the meaning of 42 USC
Section 7671 and implementing regulations of the United
States Environmental Protection Agency at 40 CFR Part
82, as now in existence or hereafter amended.
17. FORCE MAJEURE EVENTS
17.1 Delaying Causes. Subject to the provisions of this Article 17,
Supplier will not be liable for any delay in performance under
this Agreement caused by any "act of God" or other cause beyond
Supplier's control and without Supplier's fault or negligence (a
"delaying cause"). Notwithstanding the above, Supplier will not
be relieved of any liability for any delay or failure to perform
its defense obligations with respect to
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third party Intellectual Property Rights or furnish remedies for
Infringing Products as described in Article 14 above.
17.2 HP Option. Supplier will [*] give HP notice of any [*] and its
[*] of the expected duration of such cause. In the event of a
[*] which continues for a period of [*] HP may act in [*] to:
[*]
[*]
17.3 [*] Of Agreement. if HP elects to purchase other similar
products in the event of a [*] HP may [*] under this Agreement
once the [*] ceases and extend the [*] up to the length of time
the [*]. Unless HP gives [*] as provided above within [*] after
notice from supplier of the [*], HP will be deemed to have
elected to [*] this Agreement for the duration of the [*].
18. EVENTS OF DEFAULT
18.1 Notice Of Breach. If either party is in breach of any provision
of this Agreement, the nonbreaching party may, by written notice
to the breaching party, except as otherwise prohibited by the
United States bankruptcy laws, terminate the whole or any part
of this Agreement or any Order, unless the breaching party cures
the breach within [*] after receipt of such written notice.
18.2 Causes Of Breach. For purposes of Section 18.1 above, the term
"breach" includes without limitation any:
(1) Proceeding, whether voluntary or involuntary, in
bankruptcy or insolvency by or against a party;
(2) Appointment, with or without a party's consent, of a
receiver or an assignee for the benefit of creditors;
(3) Failure by Supplier to make a delivery of OEM Products
in accordance with the requirements of this Agreement or
any Order;
(4) Failure by Supplier to replace or repair Noncomplying
Products in a timely manner as required by Article 5
above; or
(5) Other failure by a party to comply with any material
provision of this Agreement with additional failure to
provide the nonbreaching party, upon written request,
with reasonable assurances of future performance.
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18.3 [*] Rights Upon Breach. In the event HP terminates this
Agreement in whole or in part as provided above, [*] provided HP
under this Agreement, HP may [*], upon [*] and in such [*] as
[*] deems [*] to the [*] as to which this Agreement is
terminated. Supplier agrees to [*] the [*] of this Agreement to
the [*] under the provisions of this Section.
18.4 [*]. If any Eligible Purchaser having the right to purchase an
OEM Product under this Agreement or under any other agreement
with Supplier [*] that an OEM Product is [*], then, irrespective
of any other rights provided HP hereunder, HP may implement a
[*] to [*] of such OEM Products [*]. Such [*] may be [*] if HP
[*] that Supplier has taken [*] the [*] or given sufficient
assurances that such [*] will be [*] within a [*].
18.5 Escalated Resolution Process. In the event of any dispute
arising from or regarding the subject matter of this Agreement,
the parties agree to negotiate in good faith an equitable
resolution of the disputed matter. If the parties are not able
to resolve the dispute within [*] of first written communication
of the dispute, then the parties agree to [*] process [*] as
designated in Exhibit G. The [*] shall meet within [*] of
escalation to resolve the disputed matter. If the dispute is not
resolved within an additional [*] period from the end of [*]
period set forth above, then either HP or Supplier may commence
legal, equitable, or other action upon providing the other party
not less than [*] prior written notice of such intent.
19. CONFIDENTIAL INFORMATION
19.1 Confidential Information. During the Term, a party (the
"Recipient") may receive or have access to certain information
of the other party (the "Discloser") that is marked as
"Confidential Information," including, though not limited to,
information or data concerning the Discloser's products or
product plans, business operations, strategies, customers and
related business information. The Recipient will protect the
confidentiality of Confidential Information with the same degree
of care as the Recipient uses for its own similar information,
but no less than a reasonable degree of care, under the terms of
the Confidential Disclosure Agreement attached as Exhibit F (the
"CDA"). To the extent any term of this Agreement conflicts with
any term in the CDA, the terms of this Agreement will control
and take precedence. Confidential Information may only be used
by those employees of the Recipient who have a need to know such
information for the purposes related to this Agreement. The
parties acknowledge that all Technical Information and Forecasts
are deemed Confidential Information to be protected for a term
of [*] from the date of disclosure.
19.2 Exclusions. The foregoing confidentiality obligations will not
apply to any information that is (a) already known by the
Recipient prior to disclosure,
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(b) independently developed by the Recipient prior to or
independent of the disclosure, (c) publicly available through no
fault of the Recipient, (d) rightfully received from a third
party with no duty of confidentiality, (e) disclosed by the
Recipient with the Discloser's prior written approval, or (f)
disclosed under operation of law. In the event that a party
becomes aware that disclosure is likely to be required by
operation of law, the party having knowledge of such possible
disclosure will provide the other with ample notice and
opportunity to seek a protective order.
20. INSURANCE REQUIREMENTS
20.1 Insurance Coverage. Supplier will maintain Comprehensive or
Commercial General Liability Insurance (including but not
limited to products and completed operations, broad form
contractual liability, broad form property damage and personal
injury liability) with a minimum limit of [*] combined single
limit per occurrence and [*] in the aggregate, for claims of
bodily injury, including death, and property damage that may
arise from use of the OEM Products or acts or omissions of
Supplier under this Agreement. Each policy obtained by Supplier
will name [*] in performing [*] herein) as additional insureds.
Such insurance will apply as [*] and no other insurance will be
called upon to contribute to a [*] thereunder. In addition, such
policies will permit Supplier to waive, on its own behalf and on
behalf of its insurers, any rights of subrogation against HP.
Such insurance policies will be written with appropriately
licensed and financially responsible insurer, and Supplier will
provide for a minimum of [*] written notice to HP of any
cancellation or reduction in coverage. Certificates of insurance
evidencing the required coverage and limits will be furnished to
HP before any work is commenced hereunder, and Supplier will
deliver copies of policies or certificates to the HP contact
listed in Exhibit G.
20.2 Claims Made Coverage. If any applicable Comprehensive or General
Liability policies have "claims made" coverage, Supplier will
maintain such coverage with [*] as an [*] for a minimum of three
years after termination of this Agreement. Any such coverage
must have a retroactive date no later than the date upon which
work commenced under this Agreement.
20.3 Additional Requirements. All deductibles on policies providing
coverage will be paid by Supplier. In the event Supplier is self
insured for matters described in Section 20.1, Supplier agrees
to respond to any claims or losses made against or incurred [*]
had been purchased with the [*] than what is generally available
to similar suppliers. In no event will the coverages or limits
of any insurance required under this Article, or the lack or
unavailability of any other insurance, be deemed to [*]
Supplier's [*] to HP under this Agreement.
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BROCADE/HP CONFIDENTIAL
21. LIMITATION OF LIABILITY
UNLESS OTHERWISE STATED HEREIN, EXCEPT AS TO BREACHES IN SECTION 19
ABOVE, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF THE
OTHER ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE
OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER
SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL
THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE ABOVE, SUPPLIER WILL BE RESPONSIBLE FOR ANY DAMAGES
OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM
UNDER ARTICLE 14 ABOVE.
EXCEPT WITH RESPECT TO OBLIGATIONS ARISING UNDER ARTICLES 9, 14, AND 19
HEREIN, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY UNDER THIS
AGREEMENT EXCEED THE GREATER OF (I) [*], OR (II) AN AMOUNT EQUAL TO THE
[*] BY SUPPLIER FROM HP DURING THE [*] IMMEDIATELY PRECEDING THE EVENTS
GIVING RISE TO THE IMPOSITION OF LIABILITY.
22. TERMINATION
22.1 Outstanding Orders. All accepted Orders issued prior to the
expiration of this Agreement must be fulfilled pursuant to and
subject to the terms of this Agreement, even if the Shipment
Dates are after expiration. Upon termination of this Agreement
for Supplier's breach, HP may cancel any outstanding Order or
require Orders to be fulfilled even if a Shipment Date is after
the date of termination.
22.2 Return Of HP Property. Supplier must return all HP Property to
HP upon expiration or termination. All such property must be in
good condition, normal wear and tear excepted. HP will determine
the [*] for [*] HP will [*] Otherwise, Supplier will [*].
22.3 Surviving Provisions. Notwithstanding the expiration or early
termination of this Agreement, the provisions regarding
Warranties in Article 9, Support in Article 10, Marketing and
Licensing in Article 13, Intellectual Property in Article 14,
Confidentiality in Article 19, Insurance Requirements in Article
20. Limitation of Liability in Article 21, and the Miscellaneous
provisions below will each survive in accordance with their
terms.
23. MISCELLANEOUS
23.1 Notices. All notices to be given under this Agreement must be in
writing addressed to the receiving party's designated recipient
specified in Exhibit G. Notices are validly given upon the
earlier of confirmed receipt by the receiving party or three
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Page 21 of 24
<PAGE>
BROCADE/HP CONFIDENTIAL
days after dispatch by courier or certified mail, postage
prepaid, properly addressed to the receiving party. Notices may
also be delivered by telefax and will be validly given upon oral
or written confirmation of receipt. Either party may change its
address for purposes of notice by giving notice to the other
party in accordance with these provisions.
23.2 Exhibits. Each Exhibit attached to this Agreement is deemed a
part of this Agreement and incorporated herein wherever
reference to it is made.
23.3 Independent Contractors. The relationship of the parties
established under this Agreement is that of independent
contractors and neither party is a partner, employee, agent or
joint-venturer of or with the other. Nothing in this Agreement
precludes either party from independently developing,
manufacturing, selling or supporting products similar to the OEM
Products.
23.4 Assignment. Neither party may, directly or indirectly, in whole
or in part, either by operation of law or otherwise, assign or
transfer this Agreement or delegate any of its obligations under
this Agreement without the other party's written consent. Any
attempted assignment, transfer, or delegation without such prior
written consent will be void. Notwithstanding the foregoing, HP
or its permitted successive assignees or transferees may assign
or transfer this Agreement or delegate any rights or obligations
hereunder without consent: (1) to any entity controlled by, or
under common control with, HP, or its permitted successive
assignees or transferees; or (2) in connection with a merger,
reorganization, transfer, sale of assets or product lines, or
change of control or ownership of HP, or its permitted
successive assignees or transferees. Without limiting the
foregoing, this agreement will be binding upon and inure to the
benefit of the parties and their permitted successors and
assigns.
23.5 No Waiver. The waiver of any term, condition, or provision of
this Agreement must be in writing and signed by an authorized
representative of the waiving party. Any such waiver will not be
construed as a waiver of any other term, condition, or provision
except as provided in writing, nor as a waiver of any subsequent
breach of the same term, condition, or provision.
23.6 Reference To Days. All references in this Agreement to "days"
will, unless otherwise specified herein, mean calendar days.
23.7 Headings. The Section headings used in this Agreement are for
convenience of reference only. They will not limit or extend the
meaning of any provision of this Agreement, and will not be
relevant in interpreting any provision of this Agreement.
23.8 Publicity. Subject to the terms and conditions of Article 19
above, neither party may publicize or disclose to any third
party, without the written consent of the other party, the terms
of this Agreement. Without limiting the generality of the
foregoing sentence, no press releases may be made without the
mutual written consent of each party.
Page 22 of 24
<PAGE>
BROCADE/HP CONFIDENTIAL
23.9 Severability. If any provision in this Agreement is held invalid
or unenforceable by a body of competent jurisdiction, such
provision will be construed, limited or, if necessary, severed
to the extent necessary to eliminate such invalidity or
unenforceability. The parties agree to negotiate in good faith a
valid, enforceable substitute provision that most nearly effects
the parties' original intent in entering into this Agreement or
to provide an equitable adjustment in the event no such
provision can be added. The other provisions of this Agreement
will remain in full force and effect.
23.10 Subcontractors and Subsidiaries. Each party unconditionally
guarantees to the other party the performance of all obligations
by any of its Subcontractors and Subsidiaries under the
Agreement (including, without limitation, payment obligations),
as amended from time to time, or any other obligation of any
Subcontractors or Subsidiary to the other party, now existing or
hereafter arising. If either party's Subcontractors or
Subsidiary does not perform such obligation, such party shall
immediately perform such obligation.
23.11 Entire Agreement. This Agreement comprises the entire
understanding between the parties with respect to its subject
matters and supersedes any previous or contemporaneous
communications, representations, or agreements, whether oral or
written. For purposes of construction, this Agreement will be
deemed to have been drafted by both parties. No modification of
this Agreement will be binding on either party unless in writing
and signed by an authorized representative of each party.
23.12 Governing Law. This Agreement shall be governed and interpreted
according to the laws of the State of California, exclusive of
its choice-of-law provisions, and the parties hereby personally
consent to the exclusive jurisdiction of the courts of the State
of California or the United States District Court for the
District of Northern California.
23.13 Exhibits. Each of the following Exhibits referred to in this
Agreement is incorporated in full in this Agreement wherever
reference to it is made:
EXHIBIT (A) OEM PRODUCTS AND SPECIFICATIONS
EXHIBIT (B) ELIGIBLE PURCHASERS
EXHIBIT (C) PRICING AND FEES
EXHIBIT (D) MAINTENANCE AND SUPPORT
EXHIBIT (E) HP EQUIPMENT LOAN AGREEMENT
EXHIBIT (F) CONFIDENTIAL DISCLOSURE AGREEMENT
EXHIBIT (G) RECIPIENTS FOR RECEIPT OF NOTICES
Page 23 of 24
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (H) HP SUPPLIER QUALITY SYSTEM REQUIREMENTS
EXHIBIT (I) HP END USER SOFTWARE LICENSE AGREEMENT
AGREED:
BROCADE COMMUNICATIONS HEWLETT-PACKARD COMPANY
SYSTEMS, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
Page 24 of 24
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A)
OEM PRODUCTS AND SPECIFICATIONS
A-1 SILKWORM 2400-2800 PRODUCT SPECIFICATION
A-2 CUSTOMER SPECIAL DEFINITION (CSD) PROCEDURE
A-3 FIBRE CHANNEL GIGABIT SWITCH CONFIGURATION SPECIFICATIONS DOCUMENT
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A-1)
SILKWORM 2400-2800 PRODUCT SPECIFICATION
This page is left intentionally blank; Exhibit (A-1) follows immediately after
this page.
EXHIBIT (A-1)
Page 1 of 1
<PAGE>
BROCADE/HP CONFIDENTIAL
SILKWORM(R) 2400 AND 2800
FIBRE CHANNEL FABRIC SWITCHES
[GRAPHIC IMAGE APPEARS HERE]
BROCADE fabric switches create the core infrastructure for constructing a
Storage or Server Area Network (SAN). The switches provide full fabric support,
true line-speed switching, and modular components to build a wide range of SAN
solutions.
The SilkWorm 2400 and SilkWorm 2800 create an intelligent connectivity
infrastructure, or Fabric, to support connectivity of a wide range of host and
storage types. Users share these resources efficiently in a SAN. Fabric services
are deployed automatically and transparently throughout the Fabric to assure it
is resilient to failures. The Fabric is scalable, expanding rapidly to
increasing demands by users for highly available, heterogeneous access to
growing storage pools.
SilkWorm switches provide the cornerstone for a wide range of SAN
configurations--from NT-based workgroups to large enterprise solutions. Fabric
switches have the capability to cascade, further increasing a Fabric's
scalability and resiliency. A multiple-switch Fabric can connect thousands of
Fibre Channel ports. SilkWorm switches meet the needs of a broad range of SAN
applications, including storage consolidation, enterprise backup, and clustering
environments.
Best-of-class products conforming to industry standards
- Each port (B for the SilkWorm 2400 and 16 for the SilkWorm 2800)
delivers 100 megabytes-per-second (MB/sec) line-speed. Universal ports
automatically determine the port type for a loop, point-to-point
devices, or an Inter-Switch Link (ISL).
- Non-blocking architecture guarantees full-speed data delivery
irrespective of traffic conditions. Cut-through routing guarantees
maximum latency of 2 microseconds across a switch.
- Buffer-pool management and use of mini-buffers for small frames optimize
overall performance.
- GBIC (Gigabit Interface Converter) -based modular design makes it easy
to hot-swap connections quickly. Copper and short-or long-wave-length
fiber cabling may be mixed on the same switch in any combination.
- Self-learning allows the Fabric to automatically discover and register
host and storage devices.
BROCADE's translative mode automatically registers private-loop devices
for Fabric-wide access.
[GRAPHIC IMAGE APPEARS HERE]
- Self-healing enables the Fabric to isolate a problem port and reroute
traffic onto alternate paths.
- Optional hardware-enforced Zoning secures data access among switch
ports.
MAXIMUM SCALABILITY TO PROTECT INVESTMENTS
- Multiple simultaneous conversations are supported, achieving higher
bandwidth than possible on a hub-based Fibre Channel loop.
- A SAN expands seamlessly to include thousands of ports by adding new
switches to the Fabric. ISLs are automatically detected. Fabric
information is updated to newly updated switches.
FABRIC OS(TM) TO SAFEGUARD MISSION-CRITICAL BUSINESS
- Simple Name Server registers information about the host and storage
devices in the SAN. Registered State Change Notification (RSCN) informs
the SAN when a device state changes.
- Alias Server supports the Multicast Service, which broadcasts data to
all members of a group.
- BROCADE ZONING (optional) limits access to data by selected ports or
devices.
- Services are distributed and managed across the entire Fabric, ensuring
simple management with no single point of failure.
- Routing software automatically configures the network, detects link
failure, and reconfigures without operator interaction.
- Software is upgradable for additional features and enhancements by
downloading the latest version of Fabric OS.
INDUSTRY-LEADING RELIABILITY AND SERVICEABILITY
- Front control panel on the SilkWorm 2800 simplifies administration.
- Power-On Self Test (POST) and online diagnostics allow monitoring and
thorough port-level testing while the switch is running Extensive
offline diagnostics assist in rapidly isolating a Field Replacable Unit
(FRU).
- Embedded port-monitoring facilities automatically disable failing ports
and restart them when the problem has cleared.
- Redundant cooling fans and an optional, redundant, hot swappable power
supply increase switch availability.
- Low parts count increases switch reliability.
<PAGE>
BROCADE/HP CONFIDENTIAL
SIMPLE MANAGEABILITY
- Support for industry-standard MIBs (Management Information Blocks) gives
standardized SNMP (Simple Network Management Protocol) access to switch
information
- Broad set of interfaces (Telnet, SNMP, Web, or SES) provide flexible
integration into the enterprise management infrastructure.
ADVANCED SAN CONFIGURATION CONTROL AND MANAGEMENT (OPTIONAL)
- BROCADE WEB TOOLS for online SAN management and switch administration.
- BROCADE SES (SCSI-3 Enclosure Services) for management without
implementing IP.
- BROCADE ZONING for finer segmentation of the Fabric to increase security
and configuration possibilities.
- QuickLoop(TM) for configuration of one or more logical loops in the
Fabric, and enhanced connectivity and management of private devices.
SILKWORM 2400 AND 2800 SWITCH SPECIFICATIONS
SYSTEM ARCHITECTURE
Fibre Channel Standards FC-AL Rev 4.5
FC-AL-2 Rev 7.0 (Draft)
FC-FLA Rev 2.7
FC-GS-2 Rev 5.3 (Draft)
FC-FG Rev 3.5
FC-PH Rev 4.3
FC-PH-2 Rev 7.4
FC-PH-3 Rev 9.4
FC-PLDA Rev 2.1
FC-SW Rev 3.3
FC-VI Rev 1.0 (Draft)
Fibre Channel ports 2400: 8 universal ports:
2800:16 universal ports
Scalability Architecture: 239 switches maximum
Certified maximum 32 switches, 7 hops. Larger
Fabrics to be certified as
required.
Interoperability SilkWorm II, SilkWorm Express, or
any SilkWorm 2000 Family Switch
Performance Full line-speed switching, 200
MB/sec per port, full-duplex
Switch bandwidth 2400: 8 Gb/sec end-to-end;
2800: 16 Gb/sec
Switch core Non-blocking
Fabric latency <2 [Greek mu]sec with no
contention, cut-through routing
Maximum frame size 2112-byte payload
Frame buffers 2400: 224 dynamically
allocated; 2800: 448,
dynamically allocated
Classes of Service Class 2, Class 3, Class F
(Interswitch Frames)
Port Types F_Port, FL_Port, and
E_Port. Self-discovery
based on connection type
Data traffic types Unicast, multicast (256
groups), and broadcast
Media Types Hot-pluggable,
industry-standard GBICs
Short-wave laser, up to 500
m (1.640 ft)
Long-wave laser, up to 10
km (6.2 mi)
Passive copper, up to 13 m
(43 ft)
Fabric Services Simple Name Server, Registered
State Change Notification (RSCN),
Alias Server (Multicast), BROCADE
ZONING (optional), and
QuickLoop(TM) (optional)
[GRAPHIC IMAGE APPEARS HERE]
Options Redundant power supply, GBICs, and
rack mount kit
MANAGEMENT
Management SNMP, Telnet, BROCADE SES
(optional), and BROCADE WEB TOOLS
(optional)
Management access Ethernet [R]-45,10/100BaseTX
(UTP)]. in-line over Fibre
Channel link, and front control
panel (2800)
Diagnostics POST and embedded online/offline
diagnostics
MECHANICAL SPECIFICATIONS
Enclosure Back-to-front airflow, power out
the front 2800: 20, 19-in-EIA
compliant
2400: 1u, 19-in.-EIA compliant
D: 45.0 cm (17.72 in.) D: 45.0 cm (17.72 in.)
Weight
Single power supply 2400: 6.36 kg (14 lbs):
2800: 11.59 kg (25.6 lbs)
Dual power supply 2400: 7.73 kg (17 lbs):
2800: 12.94 kg (28.5 lbs)
ENVIRONMENT
Temperature Operating 10(Degree)C-40(Degree)C
(50(Degree)F-104(Degree)F),
Nonoperating: -35(Degree)C
-65(Degree)C (-31(Degree)F
-147(Degree)F)
Humidity Operating: 5% - B5% noncondensing
@ 40(Degree)C (104(Degree)F)
Altitude Up to 3.000 m (9.800 ft)
Shock 5 g, 11 ms, half sine
Vibration Operating: 5, 5-500-5Hz@1.0
octave/min
Nonoperating: 10, 5-500-5Hz@1.0
octave/min
POWER
SUPPORTED POWER RANGE B5 - 265 VAC. 47 - 63 Hz
REGULATORY COMPLIANCE
Country Safety EMC
Canada CSA 950 3rd Ed ICES-003 Class A
United States UL 1950 3rd Ed FCC Part 15 Class A
Japan EN60950 A4 VCCI Class A
European community EN60950 A4 EN55022 Level A
EN55082-2 (Immunity)
Australia/New Zealand AS/NZS 3548
See the BROCADE web site for related hardware and software data sheet
<PAGE>
BROCADE/HP CONFIDENTIAL
<PAGE>
EXHIBIT (A-2)
CUSTOMER SPECIAL DEFINITION (CSD) PROCEDURE
This page is left intentionally blank; Exhibit (A-2) follows immediately after
this page.
EXHIBIT (A-2)
Page 1 of 1
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
1
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
SECTION IV CUSTOMER AUTHORIZATION
Your signature authorizes Brocade Communications Systems, Inc., to build the
special switch configuration according to your written product and purchase
specifications reviewed and accepted by Brocade Communications Systems, Inc.
Should changes be required to the special configuration referenced on this form,
customer shall provide written changes to Brocade.
/s/ Marilyn Edling
----------------------------------- -----------------------------------
Customer Signature Date
/s/ Charles Smith 2/16/00
----------------------------------- -----------------------------------
Sales Account Manager Date
2
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
CONFIGURATION REQUIREMENTS: HARDWARE, SOFTWARE, DOCUMENTATION (To include all
configurable items as outlined by Marketing; items listed below may not be
complete list depending on product. Samples requirements should be noted in
Comments)
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ITEM REQUIREMENT INCLUDE IN BOM? COMMENTS
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OMITTED PORTIONS.
3
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
SCRIPT REQUIREMENTS/DEFAULT PARAMETERS TABLE (TO BE FORMATTED PER CUSTOMER
SPECIFIC RQMTS)
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ADDITIONAL FUNCTIONALITY DESCRIPTION:
- [*]
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OMITTED PORTIONS.
4
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
CUSTOMER CONFIGURATIONS (To include main switch configurables as appropriate for
products covered; format may be modified to fit specific customer requirements)
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# POWER
CUSTOMER PART # BROCADE PART # SUPPLIES [*] [*] [*] COMMENTS
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*]
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FRU CONFIGURATIONS: SILKWORM 2800 (Marketing to provide standard template for
each product)
-----------------------------------------------------------------------------------------------------
BROCADE
PART #
CUSTOMER PART (STANDARD REQUIRED UNIQUE BROCADE P/N
FRU ITEM # FRU) (YES/NO) REQUIREMENTS? (CUST. UNIQUE)
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OMITTED PORTIONS.
5
<PAGE>
BROCADE
CUSTOMER SPECIAL DEFINITION (CSD)
PROCEDURE
UNIQUE LABEL REQUIREMENTS (To include all customer unique label requirements,
placement, and specification source)
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POSITIONING (ON SWITCH,
CUSTOMER BROCADE PACKAGING, FRU
LABEL NAME SPEC # P/N COMPONENT, ETC) COMMENTS
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AGENCY CERTIFICATION REQUIREMENTS (Marketing to provide Standard Agency Certs
for each product; unique customer requirements should be listed and highlighted)
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COUNTRY SAFETY EMC
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USA, Canada, Japan Please see Brocade label & HP Please see attached label
label in attached specification specification
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Terms and conditions in the Corporate Purchase Agreement will supersede this
document.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
6
<PAGE>
** HP CONFIDENTIAL **
EXHIBIT (A-3)
FIBRE CHANNEL GIGABIT SWITCH CONFIGURATION SPECIFICATIONS DOCUMENT
HEWLETT-PACKARD CO.
This page provides a running history of changes for a multi-page
drawing. List all changes below, referencing page number and section
number, if applicable. Be concise when describing changes. If extensive
revisions have been made, a general statement that the document has been
"revised and redrawn" is permissible.
--------------------------------------------------------------------------------
INITIALS
LTR. REVISIONS DATE CM ENGINEER
--------------------------------------------------------------------------------
A First Draft 10/20/99 [*]
B As Issued. 11/5/99 [*]
C As Issued. 11/11/99 [*]
D As Issued. 11/18/99 [*]
E As Issued 11/23/99 [*]
F As Issued 12/2/99 [*]
G As Issued 12/14/99 [*]
H As Issued 12/15/99 [*]
I As Issued 12/21/99 [*]
J As Issued 1/28/00 [*]
--------------------------------------------------------------------------------
[GRAPHIC IMAGE APPEARS HERE]
This document is the property of Hewlett-Packard Company (HP) and
contains confidential and proprietary information of HP. Neither it, nor
the information contained herein shall be disclosed to others, or
duplicated, or used by other except as authorized by HP writing.
--------------------------------------------------------------------------------
ASSEMBLY #: N/A HP P/N: N/A
--------------------------------------------------------------------------------
DATE: JANUARY 28, 1999 DESCRIPTION: FIBRE CHANNEL GIGABIT SWITCH
--------------------------------------------------------------------------------
[*] CONFIGURATION SPECIFICATIONS DOCUMENT
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[*] [*]
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* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
[GRAPHIC IMAGE APPEARS HERE]
FIBRE CHANNEL GIGABIT SWITCH
CONFIGURATION SPECIFICATIONS
DOCUMENT
[*]
Supplier: Brocade
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DOCUMENT REVISION HISTORY
Revision # Date Description
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FIBRE CHANNEL GIGABIT SWITCH CONFIGURATION
SPECIFICATIONS DOCUMENT
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[*] [*]
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* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
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OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
TABLE OF CONTENT Page
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1. SCOPE OF THE DOCUMENT...............................................................4
2. PART-NUMBER CROSS REFERENCE AND REVISION............................................4
2.1. HP-ESBU PURCHASED PARTS.............................................................4
2.2. HP-HSDSL PURCHASED PARTS............................................................4
3. PART SHIPMENT CONFIGURATION.........................................................4
3.1. HP-ESBU PURCHASED PARTS.............................................................5
3.2. HP-HSDSL PURCHASED PARTS............................................................5
4. LABELING............................................................................6
4.1. GENERAL.............................................................................6
4.1.1. Label Material and Tests.....................................................6
4.1.2. Location.....................................................................6
4.1.3. Regulatory Markings..........................................................6
4.2. SWITCH ENCLOSURE LABELING...........................................................7
4.2.1. HP Product/Regulatory Label..................................................7
4.2.2. Manufacturing Identification Label................ERROR! BOOKMARK NOT DEFINED.
4.2.3. Dual Power Supply Caution Label...................ERROR! BOOKMARK NOT DEFINED.
4.2.4. Packaging Label.............................................................11
4.3. HP-HSDSL PURCHASED PARTS LABELING..................................................14
4.4. SERIAL NUMBER REQUIREMENTS.........................................................22
4.4.1. HP Serial Number............................................................22
4.4.2. Other Serial Numbers........................................................22
4.5. BAR CODE REQUIREMENTS:.............................................................22
5. SPECIFICATIONS.....................................................................22
5.1. FIRMWARE REVISION AND EPL INFO.....................................................22
5.2. HP COLOR AND TEXTURE INFORMATION...................................................23
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FIBRE CHANNEL GIGABIT SWITCH CONFIGURATION
SPECIFICATIONS DOCUMENT
[*] File Name:
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* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
1. SCOPE OF THE DOCUMENT
This document describes the parts, devices and/or subsystems PURCHASED
by [*] at the time of Release of the Products. It defines WHAT & HOW
(i.e. OEM Customization) we will buy the parts, devices and/or
subsystems that will be delivered to HP-ESBU.
This document supersedes any specifications described in the Supplier's
Product Specifications Document(s). The typical areas covered in this
document are:
- Part. Device or Subsystem Part Numbering &
Cross-Reference;
- Part. Device or Subsystem Configuration and revision:
- Part. Device or Subsystem Labeling:
- Packaging Labeling:
- Box Content / Size, etc. ...
2. PART-NUMBER CROSS REFERENCE AND REVISION
2.1. [*] PURCHASED PARTS
---------------------------------------------------------------------------------------------
PART DESCRIPTION HP PURCHASED P/N HP-ESBU MODEL # SUPPLIER P/N SUPPLIER REVISION
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
2.2. [*] PURCHASED PARTS
---------------------------------------------------------------------------------------------
HP EXCHANGE P/N HP REPLACEMENT P/N SUPPLIER P/N
PART DESCRIPTION (REPAIRED PART) (NEW PART) (NEW PART) SUPPLIER REVISION
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
[*]
---------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
NOTE:
- "*" FRUS TO BE ORDERED FROM BROCADE
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
3. PART SHIPMENT CONFIGURATION
3.1. [*] PURCHASED PARTS
-------------------------------------------------------------------------------------------------
PURCHASE PACKAGING
PART DESCRIPTION PART NUMBER REQUIREMENTS PACKAGE CONTENTS
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
3.2. [*] PURCHASED PARTS
Parts purchased by [*] are for use in the HP installed base. These
parts must be shipped [*] with the appropriate labeling. A Failure Data
Sheet must be included in every box (HP Technical Marketing to define
content of sheet). See the below for labeling information.
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<PAGE>
** HP CONFIDENTIAL **
4. LABELING
4.1. GENERAL
4.1.1. LABEL MATERIAL AND TESTS
The label material and adhesive shall be suitable for use on the
material it is to be applied (e.g. plastic or metal...). Also,
the label must be "permanent" in that it will be destroyed or
made unserviceable if removed (UL and CSA approved label systems
meet this criteria).
- CSA label identification logo on each label or bulk
labeled if there is no printing on the label
- UL Recognized label system (bulk marking for labels)
Rub label for 15 seconds with water and another 15 seconds with
kerosene (or other petroleum spirits). All markings shall be
legible. It shall not be easy to remove the label from the
applied surface without damage to the label and the information
shall be legible.
4.1.2. LOCATION
The label must be in an area visible to the operator. This is the
front, sides or rear of the unit and on the bottom if the product
is light. The label must also be on a permanent part (attached by
screws is OK) of the unit and not on a part that is likely to be
discarded.
4.1.3. REGULATORY MARKINGS
Proof of certification by any agency is the approval agencies
symbol and number, typically on the product. Unless otherwise
noted, the information must be legible with no minimum size. Also
included are other markings required for agency approval.
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<PAGE>
** HP CONFIDENTIAL **
4.2. SWITCH ENCLOSURE LABELING
4.2.1. BROCADE REGULATORY LABEL & HP PRODUCT LABEL
BROCADE REGULATORY LABEL
----------------------------------------------------------------------------------------
ITEM HUMAN READABLE BAR CODE
----------------------------------------------------------------------------------------
Product Description "16 Port Fibre Channel Switch" NA
----------------------------------------------------------------------------------------
Serial number "Serial: DN00XXXXXXX" Yes
(see section 4.4/below for See Below
requirements)
----------------------------------------------------------------------------------------
Internal Manufacturing "INTERNAL HP Mfg Part Number: Yes
Part Number A5624-62001" See Below
----------------------------------------------------------------------------------------
Regulatory Markings -UL Listing logo plus fle
number, ITE and the work Listed
(or other NRTL agency)
-CSA label manufacturers code
-TUV logo with GS mark(or other
European mark)
-CE mark
-USA FCC Notice
-Canadian Class A Notice
-Japan VCCI-A Notice
-"Made in" statement
----------------------------------------------------------------------------------------
Electrical Ratings Voltage: 100-240V
Information AC/DC: 47-63Hz
Current: 1.5A
----------------------------------------------------------------------------------------
LABEL PLACEMENT: The label must be placed on the bottom front of the
switch chassis.
LABEL SIZE: 3.91" Wide X 2.71" High
LABEL MATERIAL TYPE: .002" heavy coat chrome mylar base stock with .002"
permanent adhesive
Brocade Regulatory Label
[GRAPHIC IMAGE APPEARS HERE]
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<PAGE>
** HP CONFIDENTIAL **
Brocade Regulatory Label Placement
[GRAPHIC IMAGE APPEARS HERE]
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
HP PRODUCT LABEL (INCLUDES HP REGULATORY LABEL)
-------------------------------------------------------------------------------------------
BAR CODE
ITEM HUMAN READABLE (BARCODE=CODE 3 OF 9)
-------------------------------------------------------------------------------------------
HP Logo HP Logo N/A
-------------------------------------------------------------------------------------------
HP Model Number "A5624A/AZ" N/A
-------------------------------------------------------------------------------------------
Product Description "16 Port Fibre Channel Switch" NA
-------------------------------------------------------------------------------------------
Serial number "Serial: DN00XXXXXXX" Yes
(see section 4.4/below for requirements) See Below
-------------------------------------------------------------------------------------------
Internal Manufacturing "INTERNAL HP Mfg Part Number: Yes
Part Number A5624-62001" See Below
-------------------------------------------------------------------------------------------
Regulatory Markings Australian Ctic mark Yes
Class 1 Laser Product
Taiwan EMI license number
Taiwan BCIQ notice
GOST label
-------------------------------------------------------------------------------------------
LABEL PLACEMENT: The label must be placed on the top center of
chassis, readable from front side
LABEL SIZE: 2.9" Wude X 2.9" High with .06" Radius Rounded
Corners (Bay Area Labels Die #234-FR)
LABEL MATERIAL TYPE: .002" white heavy coat mylar base stock with
.002" thick permanent acrylic adhesive.
Laminate: .001" transparent matte mylar.
COLOR: Background, White
GRAPHICS & TEXT: Black
BARCODE: Barcode shall be code 3 of 9
HP Product Label (includes HP regulatory label)
[GRAPHIC IMAGE APPEARS HERE]
NOTE: BROCADE WILL PLACE "S/N LABEL" AS SHOWN ABOVE
HP Product Label Placement (includes HP regulatory label)
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<PAGE>
** HP CONFIDENTIAL **
[GRAPHIC IMAGE APPEARS HERE]
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
4.2.2. PACKAGING LABEL
BROCADE SHIPPING LABEL
Label Content:
----------------------------------------------------------------------------------------------
BAR CODE
ITEM HUMAN READABLE (BARCODE=CODE 3 OF 9)
----------------------------------------------------------------------------------------------
Product Description "16 Port Fibre Channel Switch" NA
----------------------------------------------------------------------------------------------
Serial number "Serial: DN00XXXXXXX" Yes
(see section 4.4/below for requirements) See Below
----------------------------------------------------------------------------------------------
Internal Manufacturing "INTERNAL HP Mfg Part Number: Yes
Part Number A5624-62001" See Below
----------------------------------------------------------------------------------------------
Regulatory Marking CE. See below for CE Label/Regulatory None.
Marking.
----------------------------------------------------------------------------------------------
LABEL PLACEMENT: Enclosure Packaging labels should go on the
OUTSIDE of the container box. Two (1) labels should be
printed and placed on the container box. The label
should be placed in the UPPER RIGHT HAND CORNER on
opposite sides of the switch packing box (SEE BELOW FOR
PLACEMENT). This label should ALWAYS BE VISIBLE when
viewing a corner.
LABEL SIZE: 3.5"-4" Wide X 4.8"-6" High. NOTE: "CE" label size is
2"W X 2"High +/- .5"
LABEL MATERIAL: Brady THT-25-402-1
RIBBON: Brady R6107 Thermal Transfer
Brocade Shipping Label
[GRAPHIC IMAGE APPEARS HERE]
Brocade Shipping Label Placement
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
[GRAPHIC IMAGE APPEARS HERE]
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[*]
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<PAGE>
** HP CONFIDENTIAL **
HP SHIPPING LABEL
LABEL CONTENT:
------------------------------------------------------------------------------------------
BAR CODE
ITEM HUMAN READABLE BARCODE=CODE 3 OF 9)
------------------------------------------------------------------------------------------
HP Logo Yes, per HP Corporate Standards NA
------------------------------------------------------------------------------------------
Product Description "16 Port Fibre Channel Switch" NA
------------------------------------------------------------------------------------------
Model number "Model: A5624A/AZ" Yes
See Below
------------------------------------------------------------------------------------------
Serial number "Serial: DN00XXXXXXX" Yes
(see section 4.4/below for requirements) See Below
------------------------------------------------------------------------------------------
"Made In" statement "Made in USA with Domestic and Foreign NA
Components"
------------------------------------------------------------------------------------------
Regulatory Marking Chinese Address Label NA
NOTE: Chinese Address label to be added on
3/1/99 at HP/One Site Solution on shipments to
China only.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
4.3. [*] FRU PURCHASED PARTS PACKAGING LABELING
The table below describes the appropriate labeling for the product itself and
for the packaging label for the products packaging. Note: The standard Brocade
serial number format is acceptable for the [*] supplied parts.
-------------------------------------------------------------------------------------------------
SUPPLIER PART
NUMBER INFORMATION REQUIRED ON INFORMATION REQUIRED ON
PART DESCRIPTION (NEW PART) PRODUCT LABEL PACKAGING LABEL
-------------------------------------------------------------------------------------------------
HP P/N SERIAL NUMBER HP P/N SERIAL NUMBER
(NEW PART) (NEW PART)
(HUMAN READABLE (HUMAN READABLE (HUMAN READABLE
& BAR CODE) & BAR CODE) & BAR CODE)
SEE NOTES BELOW SEE NOTES BELOW SEE NOTES BELOW
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Notes:
- FOR "NEW" PARTS SHIPPED TO [*], THE PRODUCT LABEL AND PACKAGING LABEL
MUST INCLUDE THE PART'S REPLACEMENT("NEW") PART NUMBER (SEE SECTION
2.2).
- FOR "REPAIRED" PARTS SHIPPED TO HP-HSDSL, THE PRODUCT LABEL AND
PACKAGING LABEL MUST INCLUDE THE PART'S EXCHANGE ("REPAIRED") PART
NUMBER (SEE SECTION 2.2).
- BARCODE = CODE 3 OF 9
- "*" FRUS TO BE ORDERED FROM BROCADE
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
FRU SHIPPING LABEL & PLACEMENT
LABEL PLACEMENT: Enclosure Packaging labels should go on the OUTSIDE
of the container box. One (1) label should be printed and
placed on the container box. The label should be placed on the
RIGHT SIDE OF THE BOX/UPPER RIGHT HAND CORNER (SEE BELOW FOR
PLACEMENT).
This label should ALWAYS BE VISIBLE when viewing a corner.
LABEL SIZE: 3.5" -4" Wide X 4.8" -6" High
LABEL MATERIAL: Brady THT-25-402-1
RIBBON: Brady R6107 Thermal Transfer
FRU SHIPPING LABEL (NEW PART)
[GRAPHIC IMAGE APPEARS HERE]
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
FRU SHIPPING LABEL (REPAIRED PART)
[GRAPHIC IMAGE APPEARS HERE]
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
FRU SHIPPING LABEL PLACEMENT (NEW PART)
FAN ASSEMBLY
[GRAPHIC IMAGE APPEARS HERE]
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
FRU LABEL (NEW PART)
[GRAPHIC IMAGE APPEARS HERE]
FRU LABEL (REPAIRED PART)
[GRAPHIC IMAGE APPEARS HERE]
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
FRU PART NUMBER LABEL PLACEMENT(NEW PARTS/Fan Assembly & Power Supply are not
repaired)
FAN ASSEMBLY/POWER SUPPLY
[GRAPHIC IMAGE APPEARS HERE]
[GRAPHIC IMAGE APPEARS HERE]
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<PAGE>
** HP CONFIDENTIAL **
FRU PART NUMBER LABEL PLACEMENT(NEW AND REPAIRED PARTS)
MOTHERBOARD
[GRAPHIC IMAGE APPEARS HERE]
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
FRU PART NUMBER LABEL PLACEMENT(NEW PARTS/Chassis is not repaired)
CHASSIS
[GRAPHIC IMAGE APPEARS HERE]
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
SERIAL NUMBER REQUIREMENTS
4.3.1. BROCADE SERIAL NUMBER
Each switch (A5624-62001) shall have a unique Brocade serial
number. The serial number consists of a four-digit prefix and a
seven-digit sequential suffix. The serial number will comply with
the Brocade format described below.
SERIAL NUMBER FORMAT: CCCC 1234567
CCCC defines the Product Code for [*]
The product code for [*] is "DN00"
1234567 is a sequential counter. (Alphanumeric)
This serial number will be generated by Brocade who will make
sure to use all numbers of the sequential counter and prevent any
double use of a number. Also, each hardware/software change to
the product will have to be approved by the HP-ESBU Materials
Engineer. Traceability is mandatory with this serial number.
BROCADE serial number will appear in two places
-BROCADE regulatory label (see section 4.2.1 for label placement)
-HP product label (see section 4.2.1 for label placement)
4.3.2. OTHER SERIAL NUMBERS
Brocade shall ensure that any other serial numbers applied to
components are unique and are traceable to the top level assembly
(A5624-62001) serial number.
4.4. BAR CODE REQUIREMENTS:
a. The bar code symbol bar shall be Code 39 (also known as "Code 3
of 9") as specified by the AIM Uniform Symbology Specification
Code 39.
b. The symbol bar shall start with a minimum "Quiet Zone" of .25
inches and an asterisk "Start" character ( * in Code 39). The
symbol shall end in the asterisk followed again by a minimum .25
inches of "Quiet Zone".
c. The bar code height shall be .125 inches (minimum).
5. SPECIFICATIONS
Firmware Revision and EPL Info
a. The fibre channel gigabit switch shall have the firmware revision
2.1.2 as of December 2, 1999.
b. Brocade shall enable EPL mode in all switches shipped to HP.
--------------------------------------------------------------------------------
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<PAGE>
** HP CONFIDENTIAL **
5.1. HP COLOR AND TEXTURE INFORMATION
SHEET METAL CHASSIS
a. The fibre channel gigabit switch shall have the WARM GREY
color per Brocade standard part number "CARDINAL PAINT, [*]".
b. The texture shall be [*] per Brocade part number [*]
c. The following parts of the switch shall have the color and
texture specifications above:
- Top cover assembly
- Switch chassis
PLASTIC BEZELS
a. The plastic color shall have the color per Brocade standard part
number [*]
b. The plastic molds shall be textured per Brocade standard part
number "[*]
c. The plastic shall be per Brocade standard part number [*].
d. The following plastic bezels that are molded in color (plastic)
shall have the color and texture specifications above:
- Display Bezel
- Power Supply Bezel
- Mainboard Bezel
--------------------------------------------------------------------------------
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<PAGE>
EXHIBIT (B)
ELIGIBLE PURCHASERS
HP Boeblingen Computer
Manufacturing Operation Division
Herrenberger Strasse 130
71034 Boeblingen Germany
Hewlett-Packard
8000 Foothills Blvd.
Roseville, CA 95747
HP Global Support Logistics
Product Support Division
1731 Aviation BLVD
BLDG L7
Lincoln, CA 95648
EXHIBIT (B)
Page 1 of 1
<PAGE>
EXHIBIT (C)
PRICING AND FEES
OEM PRODUCT PRICING.
Subject to the terms and conditions of Agreement the per-unit pricing for OEM
Product and Parts made available by Supplier to HP under this Agreement is as
follows:
Brocade pricing is [*] for the 2802 and [*] for the 2401. There will be a [*]
per switch Brocade [*] offered in the event [*].
Brocade 2802 Brocade 2401 Power
[*] 16 Port Switch 8 Port Switch Supply
--- -------------- ------------- ------
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*]
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EXHIBIT (C)
Page 1 of 1
<PAGE>
EXHIBIT (D)
MAINTENANCE AND SUPPORT
1. GENERAL TERMS
1.1. Scope. Supplier will provide maintenance and support services to
HP as specified in these Support Terms to allow HP to provide
effective service to end-user customers of the Programs
("Customers"). Unless otherwise agreed, HP will serve as the
primary support contact with Customers, and Supplier shall have
no direct end-user customer support obligations except as
otherwise provided herein. The obligations of each party are
specified below.
1.2. Definitions. The following capitalized terms will have these
meanings when used in these Support Terms:
1.2.1. "Action Plan" means the initial plan to be created and
implemented by Supplier in response to an HP Problem
Resolution or Escalation request. At a minimum, the
Action Plan must contain the following:
[*]
1.2.2. "Escalation" is the process described in Article 4 below
through which HP declares that a Customer situation
requires immediate action. Under this process, the
nature and severity of the problem is raised in each
party's organization and additional resources are
allocated as specified in these Support Terms toward
solving the problem.
1.2.3. "Fix" means a change in a Program that removes a problem
in that product. A Fix must be designed and tested so
that it can be distributed to all Customers. A Fix may
be temporary or permanent. A temporary Fix may be a
patch or bug fix that temporarily modifies a Program or
any software in the product without rebuilding that
product. A permanent Fix provides a permanent solution
to the problem, agreed upon by both HP and the Supplier.
1.2.4. "Problem Resolution" is the process described in Article
3 below through which HP submits a Request for Technical
Assistance to notify Supplier when a problem (such as a
fault or defect) is suspected in a Product. Under this
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EXHIBIT (D)
Page 1 of 11
<PAGE>
process, HP confirms the problem diagnosis with
Supplier, and the parties cooperate to resolve the
problem.
1.2.5. "Support Information" means Program Service Information
and a Knowledge Data Base of known problems related to
Supplier's support of Programs.
1.2.6. "Status Update" means Supplier's summary of the problem,
describing the possible cause and the incremental work
to be performed to reach resolution, including the
Action Plan and the availability date of a Fix.
1.2.7. "Technical Assistance" is the process described in
Article 2 below through which HP obtains assistance from
Supplier in the support of Customers. Technical
Assistance includes the exchange of information, such as
product configuration, product operation, or other
necessary answers or assistance to support questions.
1.2.8. "Tracking System" means an electronic database to be
maintained by the parties for updating and communicating
information pertaining to Service Requests, Technical
Assistance, Problem Resolution and Escalation. The
particular type of Tracking System will be mutually
determined, as more particularly described in Section
1.7 below.
1.2.9. "Workaround" means a temporary solution or temporary Fix
that restores operational capability for the Product,
without severely compromising the performance of that
product, until a permanent Fix is available. A
Workaround can be a change in the configuration or a
change in Customer documentation.
1.3. General Obligations. Each party agrees to the following general
terms:
1.3.1. For each Program, Supplier will provide a product
support plan incorporating HP's support planning
processes and support recommendations.
1.3.2. Unless expressly authorized under these Support Terms,
neither party will commit resources of the other to
Customers.
1.3.3. Both parties will provide such information to each other
as is needed to implement these Support Terms, subject
to the confidentiality and licensing provisions of this
Agreement. Unless otherwise specified, all such
information will be used by the other party solely for
its internal use to fulfill its obligations under these
Support Terms.
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (D)
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<PAGE>
[*]
1.4. Strategic And Technical Support Contacts. Supplier and HP have
each designated in Appendix I a Strategic Support Contact and a
Technical Support Contact, which may be one and the same person.
The Strategic Support Contacts will be the focal points for
general relationship and process issues and will be responsible
for managing the overall relationship of the parties. The
Technical Support Contacts will be the focal points for Customer
technical issues, including Technical Assistance, Problem
Resolution and Escalation. Technical and Strategic Support
Contacts may be changed at any time upon written notice to the
other party.
1.5. Status Review Meetings. Supplier and HP Strategic Support
Contacts or their designees will meet on a regular basis for the
purpose of reviewing the effectiveness of their support
relationship, suggesting changes, implementing improvements and
sharing technical information. Meetings will take place at least
[*] in the [*] of the Agreement, and at least [*] thereafter.
1.6. Communications Between Parties. Any support-related
communications required or permitted to be given under these
Support Terms will be made by telephone, or by electronic mail
("e-mail") in a standard format agreed to by the parties, to the
appropriate contact.
1.7. Problem Tracking System. The parties agree to implement and
maintain a problem tracking database (the "Tracking System") for
inputting, accessing and updating information on Requests for
Technical Assistance, Problem Resolution and Escalation.
1.8. Response Times. Supplier agrees to respond to HP requests for
Technical Assistance, Problem Resolution and Escalation as soon
as possible after receipt of the request, but in no event later
than the response times specified in Appendix II to these
Support Terms, in accordance with the problem classification
listings in that Appendix.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (D)
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2. TECHNICAL ASSISTANCE
2.1. HP Request For Technical Assistance.
2.1.1. When making a request for Technical Assistance, HP will
provide the following information to Supplier: (a)
description of the situation; (b) the HP assigned call
classification and the HP identification number; and (c)
the call back phone number if different from the
Technical Support Contact phone number listed in
Appendix I.
1. Collect the following information for analysis
- [*]
2. Provide information for Brocade to be able to
reproduce the problem: step by step procedure
used to recreate the problem.
3. System configuration information:
- HOST : All OS platforms and versions; HBA type and driver version
- Storage: Disk subsystem type (i.e: RAID, JBOD, public, private),
manufacturer and firmware version.
- Software Applications on host and storage
- Switch topology: Describe the network configuration. Provide SAN
diagram if possible.
- Is the switch in a cascaded environment?
- How many switches are in the configuration?
- Are there parallel fabrics? Dual host, storage connections
[*] Effective as of the date of [*] of the Program, Supplier
will make its Technical Support Contacts available to
receive Technical Assistance requests from HP through
the designated telephone number (1-888-AT FIBRE)
established by Supplier for HP [*]
2.1.3. Supplier will take all necessary steps to resolve the
Technical Assistance request and provide HP with the
resolution and all available information as soon as it
is available but no later than the response times
specified in Appendix II.
2.1.4. HP agrees that the support engineers that contact
Supplier for Technical Assistance have previously
received a substantial level of training on the Product.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
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2.2. Technical Assistance Records.
Supplier will keep a record of all Technical Assistance requests
in Supplier's Tracking System and update their current status.
As soon as possible after final resolution, Supplier will input
a detailed description of the Technical Assistance request and
resolution in Supplier's Tracking System.
2.2.1. Technical Assistance records will include, at a minimum,
the following information:
1. HP call identification number and Supplier call
tracking number.
2. Date of initial call.
3. Names of call participants.
4. Times and dates of subsequent calls to HP.
5. Model, version and serial number of Program(s)
involved; and version of HP operating system
involved.
6. Steps taken to diagnose and remedy the problem.
7. Any Action Plan required for follow-up or
resolution.
8. Date of resolution.
2.3. Closing Technical Assistance Request. After a Technical
Assistance request is resolved and the resolution information is
communicated to HP and documented in the Tracking System, HP
will contact Supplier to close the request.
3. PROBLEM RESOLUTION
3.1. Requesting Problem Resolution Service.
3.1.1. HP will receive defect reports, inquiries and problem
calls about Programs from HP's Customers. If HP is
unable to resolve a problem after Technical Assistance
and after reasonable efforts, HP may provide Supplier a
Request for Technical Assistance.
3.1.2. When making a Request for Technical Assistance, HP will
provide the following information in addition to the
information required when requesting Technical
Assistance listed in Section 2.1.1 & 2.2.2 above:
1. HP call identification number and Supplier call
tracking number.
2. Problem description.
3. Description of diagnostic work performed and
data collected by HP.
EXHIBIT (D)
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<PAGE>
4. Action being requested (e.g. remedying or
assisting in isolating the fault)
5. Problem classification pursuant to the
definitions in Appendix II.
3.2. Problem Resolution Process.
3.2.1. After Supplier receives a Request for Technical
Assistance, it will acknowledge receipt and then confirm
HP's diagnosis of the problem, and when it is mutually
deemed necessary, [*] contact may be established.
Supplier will take appropriate corrective action on the
Request for Technical Assistance to resolve the problem
as soon as possible, but in no event later than the
response times specified in Appendix II, according to
the classification of the problem.
3.2.2. In the event that neither HP nor Supplier is able to
isolate and resolve a Critical or Serious situation, HP
may request that Supplier assist HP in dialing into the
Customer's system directly to assist HP in analyzing and
troubleshooting the problem. Supplier will provide any
necessary diagnostic tools to troubleshoot the problem
on site. HP will provide Supplier access through telnet
or web tools.
3.2.3. Supplier will provide an Action Plan within the response
times listed in Appendix II, based on HP's
classification of the problem. An Action Plan may
require Supplier to: (a) reprioritize its other
activities in order to meet the commitment to solve a
Customer problem; (b) increase resources to address the
problem; (c) assist HP with remote dial into a Customer
system for direct observation.
3.2.4. Supplier will notify HP upon resolution of the problem
or upon the availability of a Fix or Workaround. If a
permanent resolution cannot be achieved within the
response times specified in Appendix II, Supplier will
notify HP of any modification to the original Action
Plan and the anticipated availability of a permanent
problem resolution.
3.2.5. Supplier will enter in the Supplier's Tracking System,
all Status Updates, Action Plans and other
communications requested by HP's Technical Support
Contact.. Supplier may request additional information
from the HP Technical Support Contact in order to meet
the response times specified in Appendix II.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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3.3. Problem Resolution Records.
3.3.1. Supplier will keep records of all Requests for Technical
Assistance in the Supplier's Tracking System and update
their current status. Supplier will also be responsible
for accessing, reviewing, and updating defect
information related to the Programs.
3.3.2. Escalation records will include, at a minimum, the items
listed in Sections 2.2.2 and 3.1.2 above along with the
following information:
1. Summary of the problem as finally diagnosed.
2. Detailed description of the causes and symptoms.
3. Actions taken to resolve the situation.
4. Date of Problem Resolution request and final
resolution.
5. Likelihood of problem recurring and recommended
action in the event of a recurrence.
6. Supplier and HP Service Request numbers for
cross reference purposes.
7. Fix or Workaround implemented and how and when
available.
8. Tests performed on the Fix or Workaround.
9. If only temporary Fix or Workaround is
available, the Action Plan for permanent Fix.
3.4. Closing Problem Resolution Request.
3.4.1. After problem resolution has been communicated to HP and
verified by agreement of HP and the Customer, HP will
notify Supplier that HP is closing the Problem
Resolution and Request for Technical Assistance.
4. ESCALATION
4.1. Requesting An Escalation.
4.1.1. If HP determines that [*] are needed to resolve a
Customer situation or to [*] may request an Escalation.
Supplier will cooperate with HP by following the
Escalation procedures set forth below.
4.1.2. When requesting Escalation, in addition to the
information required under Problem Resolution in Section
3.1.2 above, HP will provide:
1. Caller's location.
2. Any currently installed Fixes or Workarounds.
3. Reason for escalation.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
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OMITTED PORTIONS.
EXHIBIT (D)
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4. Steps taken to resolve problem.
5. Any Requests for Technical Assistance (RTA)
issued with respect to the problem.
[*] Response To Escalations. Supplier will continue to cooperate
with HP until the Escalation is resolved, or until HP and
Supplier mutually agree that all reasonable means of resolution
have been exhausted. Effective as of the date of first customer
shipment, Supplier will respond to an Escalation from HP
[*]
4.3. Escalation Process. HP's Technical Support Contact may contact
Supplier's Technical Support Contact to request Escalation. HP
will follow-up by e-mail with any additional information
available at the time. Supplier will have primary responsibility
to resolve the Escalation, and when mutually deemed necessary,
[*] contact may be established. If Service Requests are produced
as a result of the Escalation, the procedure defined above for
Problem Resolution must be followed.
4.4. Escalation Records.
4.4.1. Supplier will keep a record of all Escalation requests
in the Supplier's Tracking System and update their
current status.
4.4.2. Escalation records will include, at a minimum, the items
listed in Section 3.3.2 above along with the following
information:
6. [*].
4.5. The Role Of Technical Support Contact During Escalations. The
Supplier's Technical Support Contact will prepare an Action Plan
as quickly as possible [*] request for Escalation. This Action
Plan may be modified by mutual agreement of the parties.
[*] Monitor Phase. A Monitor Phase may be implemented by HP to
evaluate the situation over a period of time to verify that the
problem has been resolved to the Customer's satisfaction. The
Monitor Phase starts after a resolution is provided to the
Customer. When the problem has been resolved to the Customer's
satisfaction, the Monitor Phase is terminated and the Escalation
is closed by HP. Both HP and
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
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Supplier will coordinate monitoring activities [*] will
determine the [*]
4.7. Closing An Escalation. When HP and the Customer agree that the
problem has been resolved satisfactorily or the situation no
longer requires Escalation, the Escalation will be closed by HP
at the end of the Monitor Phase. The Tracking System will then
be updated as necessary by Supplier to record the results of the
Monitor Phase, including any actions taken, results of those
actions, likelihood of problem reoccurrence and recommended
future actions.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (D)
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APPENDIX I
STRATEGIC AND TECHNICAL SUPPORT CONTACTS
Initial calls for Brocade's Technical Assistance need to go through:
Phone: 1-888-ATFIBRE
Email: hp-support@brocade.com
The following persons are designated to serve as Strategic Support Contacts:
Supplier: HP:
Name: [*] Name: [*]
Address: Brocade Communications Systems, Inc. Address: Hewlett Packard Company
1901 Guadalupe Parkway 8000 Foothills Blvd.
San Jose, CA 95131 Roseville, CA 95747
Phone: [*] Phone: [*]
Fax: [*] Fax: [*]
Email: [*] Email: [*]
The following persons are designated as Technical Support Contacts:
Supplier: HP:
Name: [*] Name: Don Roeder
Address: Brocade Communications Systems, Inc Address: Hewlett Packard Company
1901 Guadalupe Parkway 8000 Foothills Blvd.
San Jose, CA 95131 Roseville, CA 95747
Phone: [*] Phone: [*]
Fax: [*] Fax: [*]
Email: [*] Email: [*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (D)
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APPENDIX II
RESPONSE TIMES
Initial
Acknowledge Problem Action Permanent Fix
HP Call/Problem receipt; Engineer Plan/Status Fix, or or long term Action
Classification assigned Update Workaround to HP for a permanent Fix
--------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
CLASSIFICATION OF PROBLEM SITUATION.
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (D)
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EXHIBIT (E)
HP EQUIPMENT LOAN AGREEMENT
THIS HP EQUIPMENT LOAN AGREEMENT ("Equipment Loan Agreement") is
made ____________, 2000, (the "Effective Date") by and between
Hewlett-Packard Company ("HP") and Brocade Communications
Systems, Inc. (SUPPLIER) as follows:
1. LOAN. HP hereby loans to SUPPLIER, for the applicable Term, the HP-owned
equipment, which may consist of hardware and software (collectively, "HP
Equipment") described in the HP Equipment Schedule attached as
Attachment (A). HP may, from time to time, add, upgrade, or remove HP
Equipment from SUPPLIER's site during the Term. All HP Equipment
received by SUPPLIER during the Term shall be described in an amended HP
Equipment Schedule signed by SUPPLIER and appended to this Equipment
Loan Agreement. SUPPLIER agrees, by its receipt of HP Equipment, that
all HP Equipment is subject to the provisions of this Equipment Loan
Agreement.
2. TERM. This Equipment Loan Agreement shall be for a Term of [*] after the
Effective Date (the "Term") of this Agreement, unless earlier terminated
by HP or SUPPLIER upon [*] written notice to the other. HP may m writing
extend the Term, or establish a separate Term with respect to particular
items of HP Equipment.
3. USE. SUPPLIER may use the HP Equipment solely for testing and developing
OEM Products under this Agreement. SUPPLIER shall not move any HP
Equipment from the location set forth in the HP Equipment Schedule
without the prior written consent of HP. SUPPLIER's right to use the HP
Equipment is non-transferable. SUPPLIER assumes all risk for the use of
the HP Equipment.
4. SOFTWARE. All software provided with the HP Equipment or for test and
development of the OEM Products shall be licensed under the then current
HP Software License Terms, the current form of which is attached as
Attachment (B). The type of license to use for any particular software
is stated in the HP Equipment Schedule.
5. OWNERSHIP. HP retains all right, title, and ownership to the HP
Equipment, unless any such HP Equipment is purchased by SUPPLIER.
SUPPLIER hereby nominates and appoints HP as its attorney-in-fact for
the sole purpose of executing on SUPPLIER's behalf UCC-1 financing
statements (and any appropriate amendments thereto) under the provisions
of the Uniform Commercial Code for the HP Equipment loaned to SUPPLIER
hereunder. If requested by HP, SUPPLIER shall affix any label or marking
supplied by HP evidencing HP's ownership of the HP Equipment. HP may,
from time to time, inspect the HP Equipment. SUPPLIER shall not encumber
the HP Equipment in any manner.
6. WARRANTY DISCLAIMER. ALL HP EQUIPMENT IS FURNISHED "AS IS", WITHOUT
WARRANTY OF ANY KIND, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SUPPLIER understands that some newly manufactured HP
Equipment may contain remanufactured parts equivalent to new in
performance.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (E)
Page 1 of 5
<PAGE>
7. MAINTENANCE. During the Term, SUPPLIER will maintain all HP Equipment in
good operating order and condition. All maintenance must be provided by
personnel authorized by HP. HP will provide standard support and
maintenance for the HP Equipment [*] to SUPPLIER during the Term;
however, [*] due to SUPPLIER's negligence shall be borne by SUPPLIER.
SUPPLIER shall be responsible for providing HP personnel ready and safe
access to the HP Equipment for such maintenance and support.
8. RISK OF LOSS. SUPPLIER shall bear [*] risk of loss with respect to the
HP Equipment from receipt thereof until such HP Equipment is returned to
HP. All HP Equipment returned to HP must include the same components as
received by SUPPLIER, and must be in good operating order and condition.
Charges may be imposed by HP if SUPPLIER fails to return the HP
Equipment in such condition or within the return timeframe set forth
herein.
9. SHIPPING COSTS. Unless otherwise agreed in writing by HP SUPPLIER shall
be responsible for and pay [*] with respect to the delivery or return of
any HP Equipment hereunder.
10. LIMITATION OF LIABILITY. HP SHALL NOT BE LIABLE FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON
CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF THIS EQUIPMENT
LOAN AGREEMENT OR SUPPLIER'S USE OF THE HP EQUIPMENT.
11. TERMINATION. Upon expiration or earlier termination of the Term,
SUPPLIER shall (i) return to HP all HP Equipment [*] or (ii) purchase
the HP Equipment pursuant to Section 12 below. In the event that
SUPPLIER fails to return the HP Equipment to HP upon expiration of the
Term within such [*] SUPPLIER shall be deemed to have elected to
purchase the HP Equipment, and HP will invoice SUPPLER accordingly.
12. PURCHASE OPTION. Upon expiration of the Term, SUPPLIER may elect to
purchase the HP Equipment from HP under HP's then current standard terms
and conditions, provided that such HP Equipment shall not be purchased
for resale. Upon purchase, such HP Equipment will be provided with HP's
then current standard warranty provisions for used equipment. The
purchase price for HP Equipment purchased under this Section 12 will be
the [*] less any mutually agreed discount. No other promotional or
purchase discounts will apply. Such purchase will not qualify for any
stock rotation or price protection under any other agreement which
SUPPLIER may have with HP.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (E)
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<PAGE>
13. GENERAL PROVISIONS.
(i) This Equipment Loan Agreement may not be assigned by SUPPLIER.
(ii) This Equipment Loan Agreement and any attachments constitute the
entire agreement between the parties relating to transactions
hereunder and will supersede any previous communication,
representation or agreement by either party, whether oral or
written. Any modifications or amendments must be in writing and
signed by both parties
(iii) This Equipment Loan Agreement shall be governed by and construed
in accordance with the laws of the State of California, exclusive
of its choice-of-law provisions.
BROCADE COMMUNICATIONS HEWLETT-PACKARD COMPANY
SYSTEMS, INC.
By: /s/ Charles Smith By: /s/ Marilyn Edling
-------------------------------- --------------------------------
Name: Charles Smith Name: Marilyn Edling
Title: Vice President, WW Sales Title: General Manager, ESBU
EXHIBIT (E)
Page 3 of 5
<PAGE>
ATTACHMENT (A)
HP EQUIPMENT SCHEDULE
EQUIPMENT LOANED TO BROCADE COMMUNICATIONS SYSTEMS:
[*]
NOTE: Contact at Supplier regarding all loaned equipment is Chris Beauchamp
#(408) 487-8166.
SOFTWARE: LICENSE TYPE:
LOCATION(S):
ACKNOWLEDGED:
BROCADE COMMUNICATIONS HEWLETT-PACKARD COMPANY
SYSTEMS, INC.
By: /s/ Charles Smith By: /s/ Marilyn Edling
-------------------------------- --------------------------------
Name: Charles Smith Name: Marilyn Edling
------------------------------ ------------------------------
Title: Vice-President, WW Sales Title: General Manager, ESBU
----------------------------- -----------------------------
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (E)
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<PAGE>
ATTACHMENT (B)
HP SOFTWARE LICENSE TERMS
NOTICE
USE OF THE SOFTWARE IS SUBJECT TO THE HP SOFTWARE LICENSE TERMS SET FORTH BELOW.
USING THE SOFTWARE INDICATES SUPPLIER'S ACCEPTANCE OF THESE LICENSE TERMS. IF
SUPPLIER DOES NOT ACCEPT THESE LICENSE TERMS, SUPPLIER MAY RETURN THE SOFTWARE
FOR A FULL REFUND. IF THE SOFTWARE IS BUNDLED WITH ANOTHER PRODUCT, SUPPLIER MAY
RETURN THE ENTIRE UNUSED PRODUCT FOR A FULL REFUND.
HP SOFTWARE LICENSE TERMS
The following License Terms govern SUPPLIER's use of the accompanying Software
unless SUPPLIER has a separate written agreement with HP.
LICENSE GRANT. HP grants SUPPLIER a license to Use one copy of the Software.
"Use" means storing, loading, installing, executing or displaying the Software.
SUPPLIER may not modify the Software or disable any licensing or control
features of the Software. If the Software is licensed for "concurrent use",
SUPPLIER may not allow more than the maximum number of authorized users to Use
the Software concurrently.
OWNERSHIP. The Software is owned and copyrighted by HP or its third party
suppliers. SUPPLIER's license confers no title or ownership in the Software and
is not a sale of any rights in the Software. HP's third party suppliers may
protect their rights in the event of any violation of these License Terms.
COPIES AND ADAPTATIONS. SUPPLIER may only make copies or adaptations of the
Software for archival purposes or when copying or adaptation is an essential
step in the authorized Use of the Software. SUPPLIER must reproduce all
copyright notices in the original Software on all copies or adaptations.
SUPPLIER may not copy the Software onto any bulletin board or similar system.
NO DISASSEMBLY OR DECRYPTION. SUPPLIER may not disassemble or decompile the
Software unless HP's prior written consent is obtained. In some jurisdictions,
HP's consent may not be required for limited disassembly or decompilation. Upon
request, SUPPLIER will provide HP with reasonably detailed information regarding
any disassembly or decompilation. SUPPLIER may not decrypt the Software unless
decryption is a necessary part of the operation of the Software.
TRANSFER. SUPPLIER's license will automatically terminate upon any transfer of
the Software. Upon transfer, SUPPLIER must deliver the Software, including any
copies and related documentation, to the transferee. The transferee must accept
these License Terms as a condition to the transfer.
TERMINATION. HP may terminate SUPPLIER's license upon notice for failure to
comply with any of these License Terms. Upon termination, SUPPLIER must
immediately destroy the Software, together with all copies, adaptations and
merged portions in any form.
EXPORT REQUIREMENTS. SUPPLIER may not export or re-export the Software or any
copy or adaptation in violation of any applicable laws or regulations.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DEARS
252.227-7013 (Oct 1988), DEARS 252.211-7015 (May 1991) or DEARS 252.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "Restricted
computer software" as defined in FAR 52.227-19 (Jun 1987)(or any equivalent
agency regulation or contract clause), whichever is applicable. SUPPLIER have
only those rights provided for such Software and any accompanying documentation
by the applicable FAR or DEARS clause or the HP standard software agreement for
the product involved.
EXHIBIT (E)
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<PAGE>
EXHIBIT (F)
CONFIDENTIAL DISCLOSURE AGREEMENT
This page is intentionally left blank, with a copy of all current HP / Brocade
Confidential Disclosure Agreements inserted immediately following this page.
EXHIBIT (F)
<PAGE>
--------------------------------------------------------------------------------
[GRAPHIC IMAGE APPEARS HERE] CONFIDENTIAL DISCLOSURE
AGREEMENT
--------------------------------------------------------------------------------
Effective Date: 4/15/99
In order to protect certain confidential information, Hewlett-Packard Company
and its corporate affiliates ("HP"), and the "Participants" identified below,
agree that:
1. DISCLOSING PARTY: The parties disclosing confidential information
("Discloser") are: Hewlett Packard (ESBU) 8000 Foothills Blvd, Roseville, CA
95747; Brocade Communications Systems, Inc. 1901 Guadalupe Parkway, San Jose, CA
95131 ("Participant").
2. PRIMARY REPRESENTATIVE: Each party's representative for coordinating
disclosure or receipt of confidential information is:
HP: [*]
PARTICIPANT: [*]; Brocade Communications Inc.
3. DESCRIPTION OF CONFIDENTIAL INFORMATION: The confidential information
disclosed under this Agreement is described as:
HP: [*]
PARTICIPANT: [*]
4. USE OF CONFIDENTIAL INFORMATION: The party receiving confidential information
("Recipient") shall make use of the confidential information only for the
following purpose (e.g., "evaluation and testing for a make/buy decision on
project xyz.") Recipient shall only disclose the discloser's Confidential
Information to those employees who have a need to know for the purpose
authorized under Section 4."
HP: [*]
BROCADE: [*].
5. CONFIDENTIALITY PERIOD: This Agreement and Recipient's duty to hold
confidential information in confidence expire on: [*]
6. DISCLOSURE PERIOD: This Agreement pertains to confidential information that
is disclosed between the Effective Date and [*]
7. STANDARD OF CARE: Recipient's shall protect the disclosed confidential
information by using the same degree of care, but no less than a reasonable
degree of care, to prevent the unauthorized use, dissemination, or publication
of the confidential information as Recipient uses to protect its own
confidential information of a like nature. Without limiting the foregoing,
Recipient shall not disclose the disclosed confidential information to any
affiliate or other person or entity.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (F)
<PAGE>
8. MARKING: Recipient's obligations shall only extend to confidential
information that is described in paragraph 3, and that: (a) comprises specific
materials individually listed in paragraph 3; or, (b) is marked as confidential
at the time of disclosure; or, (c) is unmarked (e.g. orally disclosed) but
treated as confidential at the time of disclosure, and is designated as
confidential in a written memorandum sent to Recipient's primary representative
within thirty days of disclosure, summarizing the confidential information
sufficiently for identification.
9. EXCLUSIONS: This Agreement imposes no obligation upon Recipient with respect
to information that: (a) was in Recipient's possession before receipt from
Discloser; (b) is or becomes a matter of public knowledge through no fault of
Recipient; (c) is rightfully received by Recipient from a third party without a
duty of confidentiality; (d) is disclosed by Discloser to a third party without
a duty of confidentiality on the third party; (e) is independently developed by
Recipient; (f) is disclosed under operation of law; or (g) is disclosed by
Recipient with Discloser's prior written approval.
10. WARRANTY: Each Discloser warrants that it has the right to make the
disclosures under this Agreement. NO OTHER WARRANTIES ARE MADE BY ANY PARTY
UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED
"AS IS".
11. RIGHTS: No party acquires any intellectual property rights under this
Agreement except the limited rights necessary to carry out the purposes set
forth in paragraph 4.
MISCELLANEOUS
12. This Agreement imposes no obligation on any party to purchase, sell,
license, transfer or otherwise dispose of any technology, services or products.
13. This Agreement does not create any agency or partnership relationship.
14. All additions or modifications to this Agreement must be made in writing and
must be signed by all parties.
15. This Agreement is made under, and shall be construed according to, the laws
of the State of California, U.S.A.
[*]
HEWLETT-PACKARD COMPANY PARTICIPANT
Entity: Enterprise Storage Company: Brocade Communications
Business Unit Systems, Inc.
Address: 8000 Foothills Blvd., Address: 1901 Guadalupe Parkway,
Roseville, CA. 95747 San Jose, CA 95131
By: /s/ Rod Bean By: /s/ Charles Smith
-------------------------------- --------------------------------
(Functional Manager's Signature) (Authorized Signature)
Name: Rod Bean Name: Charles Smith
Title: Materials Manager Title: VP Worldwide Sales
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
EXHIBIT (G)
RECIPIENTS FOR RECEIPT OF NOTICES
FOR HP:
Business contact:
[*]
8000 Foothills Blvd
[*]
FOR SUPPLIER:
Business contact:
[*] [*]
1901 Guadalupe Pkwy 1901 Guadalupe Pkwy
San Jose, CA 95131 San Jose, CA 95131
[*] [*]
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT (G)
Page 1 of 1
<PAGE>
EXHIBIT (H)
HP SUPPLIER QUALITY SYSTEM REQUIREMENTS
-- HEWLETT-PACKARD CO. --
[*]
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INITIALS
LTR. REVISIONS DATE CM ENGINEER
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A First Draft 10/20/99 [*]
B As Issued. 11/5/99 [*]
C As Issued. 11/12/99 [*]
D As Issued. 12/6/99 [*]
E As Issued. 12/21/99 [*]
F As Issued. 12/22/99 [*]
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[GRAPHIC IMAGE APPEARS HERE]
HP PROPRIETARY
This document is the property of Hewlett-Packard Company (HP) and contains
confidential and proprietary information of HP. Neither it, nor the information
contained herein shall be disclosed to others, or duplicated, or used by other
except as authorized by HP writing.
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
--------------------------------------------------------------------------------
ASSEMBLY #: N/A HP P/N: N/A
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DATE: DECEMBER 22, 1999 DESCRIPTION:
FIBRE CHANNEL GIGABIT SWITCH SUPPLIER
QUALITY/ RELIABILITY REQUIREMENTS
DOCUMENT
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[*]
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[*] [*]
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[*]
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THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
[*] FC SWITCH
SUPPLIER QUALITY/RELIABILITY
REQUIREMENTS DOCUMENT
[*]
Supplier: Brocade
--------------------------------------------------------------------------------
DOCUMENT REVISION HISTORY
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REVISION # DATE DESCRIPTION
--------------------------------------------------------------------------------
00 10/20/99 - First Draft
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01 11/5/99 - Updated 5 X 5 p/n for [*] switch & section 4.1, 5.2
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02 11/9/99 - Added the FRU replacement/exchange number (4.1)
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03 12/6/99 - Added the drawing number [*] & changed [*]
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04 12/21/99 - Updated HP incoming inspection audit (2.0), OOBA
Lot Sample & Inspection at BROCADE (3.0), Field
Quality/Reliability where [*] Quality Data
expectations (5.0), Communications Expectations
(6.0), Supplier Quality System (7.0)
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05 12/22/99 - Updated AFR from [*]
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[*]
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OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
TABLE OF CONTENTS
[*] PURPOSE.............................................................................5
2. DEFECTIVE PRODUCT...................................................................5
2.1. [*]:.......................................................................5
2.2. [*]........................................................................5
2.3. HP INCOMING [*]............................................................6
3. IN-PROCESS QUALITY .................................................................7
3.1. IN-PROCESS FAILURE RATE....................................................7
3.2. IN PROCESS FAILURE ANALYSIS EXPECTATIONS...................................7
4. FIELD QUALITY / RELIABILITY.........................................................8
4.1. AFR (ANNUALIZED FAILURE RATE)..............................................8
4.2. FIELD FAILURE ANALYSIS EXPECTATIONS.......................................10
5. QUALITY DATA EXPECTATIONS..........................................................10
5.1. HP'S RESPONSIBILITY.......................................................10
5.2. SUPPLIER'S RESPONSIBILITY.................................................10
5.2.1 QUARTERLY REPORTING.............................................10
5.2.2 MONTHLY REPORTING...............................................11
5.2.3 WEEKLY REPORTING.................................................8
5.2.4 OTHER REPORTING..................................................8
6. COMMUNICATION EXPECTATIONS.........................................................12
6.1. PRODUCT CHANGES REQUIRING HP APPROVAL.....................................12
6.2. PROCESS CHANGES REQUIRING HP APPROVAL.....................................12
6.3. SHIPMENT HOLD NOTIFICATION................................................12
6.4. WEEKLY PHONE CONFERENCE...................................................12
7. SUPPLIER QUALITY SYSTEM ............................................................9
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
1. PURPOSE
The purpose of this Quality/Reliability Requirements Document is
to establish an understanding and agreement between
Hewlett-Packard (HP) and Seller with regard to quality and
reliability expectations and responsibilities. The terms Supplier
and Seller are used interchangeably in this Quality/Reliability
Requirements Document.
It is HP's objective to receive Product of the [*]. The Product
must consistently [*] the requirements of this document and the
individual specifications applicable to each Product. It is HP's
expectation that Supplier shall strive to ship defect-free, fully
tested Product as measured at the first operational test at HP.
Repaired units are subject to the same Product Specifications as
when originally shipped.
HP's objective is to work in close cooperation with Supplier to
resolve any quality issue, and expects the Supplier to work
diligently to resolve any quality issue.
2. DEFECTIVE PRODUCT:
HP shall inform Supplier of any units or lots that fail, and
provide Supplier with yield percentages. Defective units or lots
will be shipped to Supplier's facility as instructed by Supplier.
Supplier shall test and verify all mutually a-reed upon failed
units, and provide the data of failure symptoms observed or NTF
(No Trouble Found), on all units returned from HP worldwide
manufacturing sites.
[*]
2.2 DOCK-TO-STOCK
In general, material is received directly to stock, unless a [*] is
required (see Section 2.3, HP [*] & Section 3 In-Process Quality Audit
at BROCADE). All new products must go through a [*] HP-ESBU. In
addition, all new suppliers must demonstrate relevant process control
through a quality system [*] Provided both conditions are successfully
fulfilled, the subsequent shipments will not be inspected as they are
received by HP-ESBU.
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
[*]
[*] HP Incoming [*]
HP shall [*] the [*] units received from the Supplier. If there
are four functional failures, ten cosmetic failures, or a combination of both
totaling ten, HP shall [*]. A manufacturing team consisting of at least the
materials and product engineers shall perform the [*].
All failures require a [*] report completed by the Supplier [*] days after
notification. If the Supplier needs the [*] unit to determine the root cause,
the Supplier shall complete a [*] report within [*] after receipt of the [*] The
report shall contain detailed explanation of the root cause and [*](s)
performed. HP shall [*] the report during the [*].
[*]
The criteria to be used by HP on the [*] are referenced in the following
standard documentation:
--------------------------------------------------------------------------------
DRAWING NUMBER DESCRIPTION
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] [*]
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[*] [*]
--------------------------------------------------------------------------------
[*] [*]
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[*] [*]
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[*] [*]
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[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
c) [*]
3. OOBA LOT SAMPLE INSPECTION AT BROCADE
3.1 OOBA LOT SAMPLE INSPECTION
OOBA is performed after a [*] on the Brocade manufacturing line. If
there is going to be an error on the line it will be gross error that
would be seen in all the units. This is what OOBA is designed to catch.
The focus of OOBA, therefore, is to screen for gross failures, rectify
and, lots with problems, and implement [*] based on the observed
failures.
The In-Process Lot Sample Inspection has been established at the levels
specified in the following chart for each part number. The In-Process
Lot Sample Inspection shall be used when determining the Q1 score for
the TQRDC/E review.
-------------------------------------------------------------------------
PART DESCRIPTION PART NUMBER DPM UPPER LIMIT
-------------------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------------------
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
[*]
I. [*]
3.2 FAILURE ANALYSIS EXPECTATIONS
Supplier shall test and verify all unit failures returned by lip
worldwide manufacturing organizations, HP field or found in BROCADE's
manufacturing line.
The supplier shall promptly institute the [*] report and [*] that may be
required to prevent any further rejects for such cause.
PLEASE SEE THE FOLLOWING SECTION FOR REPORTING EXPECTATIONS.
4. FIELD QUALITY / RELIABILITY
4.1 AFR (ANNUAL FAILURE RATE)
AFR CALCULATION FORMULA
[*]
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
The AFR Limits and Stretch Goals are defined in the following AFR Chart.
The Field Failure Rate (AFR) Limit shall be used when determining the Q2
score for the TQRDC/E review.
--------------------------------------------------------------------------------
HP FIELD FAILURE RATE
PART DESCRIPTION PART NUMBER (AFR) LIMIT
--------------------------------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
These number do not include [*]
These numbers do no include [*]
4.2 FIELD FAILURE ANALYSIS EXPECTATIONS
[*]
5. QUALITY DATA EXPECTATIONS
Quality data supplied by Supplier shall include, but not be limited to, [*],
detailed incident reports by serial number, and [*] regarding failures.
5.1 HP'S RESPONSIBILITY
HP shall inform Supplier of In-Process Failures that occur at
ESBU-Roseville on a [*] basis.
5.2 SUPPLIER'S RESPONSIBILITY
5.2.1 [*] REPORTING
Supplier shall provide the following reports to HP-ESBU's
Materials Engineer on a [*] basis:
[*]
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
5.2.2 [*] REPORTING
Supplier shall provide the following reports to HP-ESBU's Mass
Storage basis:
- [*].
---------------------------------------------------------------------------------------------------
IMPLEMENTATION
DATA
(ECO BROCADE DESCRIPTION DESCRIPTION
BROCADE RELEASED TO S/N P/N, F/W OF F/W H/W OF H/W
ECO# MFG) RANGE REVISION VERSION CHANGE VERSION CHANGE
---------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------------------------------------------------
5.2.3 WEEKLY REPORTING
Supplier shall provide the following reports to HP Fibre Channel
Materials Engineer on a [*] basis:
- [*]
5.2.4 OTHER REPORTING
Supplier shall provide the following additional information to
the HP Fibre Channel Materials Engineer.
- Failure Analysis (FA) Report upon completion.
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
6. COMMUNICATION EXPECTATIONS
6.1 PRODUCT CHANGES REQUIRING HP APPROVAL
The evaluation period for changes is covered in the HP/BROCADE Purchase
Agreement. The intent is to allow HP [*] to review the proposed change
and Supplier [*] and to perform [*] if necessary. Supplier must [*] of
upcoming changes in order to assure a smooth implementation. Changes
must be communicated in writing in the form of an Engineering Change
Request (ECR) document and sent to the Materials Engineer. Changes that
must be communicated in writing are:
[*] 3. [*].
6.2 PROCESS CHANGES REQUIRING HP APPROVAL
Supplier shall notify HP of any major changes to the manufacturing
process in writing [*] prior to proposed implementation. These include:
l. [*]
6.3 SHIPMENT HOLD NOTIFICATION
Supplier shall notify HP verbally of any line-down or ship hold
situations that will adversely affect HP shipments or HP's installed
base within [*] of such situation occurring. A written analysis of HP's
inventory exposure and a recovery plan, if applicable, shall be provided
within [*] of such situation occurring.
6.4 [*]
Supplier will maintain a [*] with HP to address all open issues and will
[*]
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
7. SUPPLIER QUALITY SYSTEM
A. [*]
[*]
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
** HP CONFIDENTIAL **
EXHIBIT (I)
HP END USER SOFTWARE LICENSE AGREEMENT
NOTICE
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE HP SOFTWARE LICENSE TERMS
CONTAINED IN THE ACCOMPANYING DOCUMENTATION. USING THE SOFTWARE INDICATES YOUR
ACCEPTANCE OF THESE LICENSE TERMS. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, YOU
MAY RETURN THE SOFTWARE FOR A FULL REFUND. IF THE SOFTWARE IS BUNDLED WITH
ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE UNUSED PRODUCT FOR A FULL REFUND.
<PAGE>
** HP CONFIDENTIAL **
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE HP SOFTWARE LICENSE TERMS SET
FORTH BELOW. USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE LICENSE
TERMS. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, YOU MAY RETURN THE SOFTWARE FOR
A FULL REFUND. IF THE SOFTWARE IS BUNDLED WITH ANOTHER PRODUCT, YOU MAY RETURN
THE ENTIRE UNUSED PRODUCT FOR A FULL REFUND.
HP SOFTWARE LICENSE TERMS
The following License Terms govern your use of the accompanying Software unless
you have a separate written agreement with HP.
LICENSE GRANT. HP grants you a license to Use one copy of the Software. "Use"
means storing, loading, installing, executing or displaying the Software. You
may not modify the Software or disable any licensing or control features of the
Software. If the Software is licensed for "concurrent use", you may not allow
more than the maximum number of authorized users to Use the Software
concurrently.
OWNERSHIP. The Software is owned and copyrighted by HP or its third party
suppliers. Your license confers no title or ownership and is not a sale of any
rights in the Software, its documentation or the media on which they are
recorded or printed. Third party suppliers may protect their rights in the
Software in the event of any infringement.
COPIES AND ADAPTATIONS. You may only make copies or adaptations of the Software
for archival purposes or when copying or adaptation is an essential step in the
authorized Use of the Software on a backup product, provided that copies and
adaptations are used in no other manner and provided further that Use on the
backup product is discontinued when the original or replacement product becomes
operable. You must reproduce all copyright notices in the original Software on
all copies or adaptations. You may not copy the Software onto any public or
distributed network.
NO DISASSEMBLY OR DECRYPTION. You may not disassemble or decompile the Software
without HP's prior written consent. Where you have other rights under statute,
you will provide HP with reasonably detailed information regarding any intended
disassembly or decompilation. You may not decrypt the Software unless necessary
for the legitimate use of the Software.
TRANSFER. Your license will automatically terminate upon any transfer of the
Software. Upon transfer, you must deliver the Software, including any copies and
related documentation, to the transferee. The transferee must accept these
License Terms as a condition to the transfer.
TERMINATION. HP may terminate your license upon notice for failure to comply
with any of these License Terms. Upon termination, you must immediately destroy
the Software, together with all copies, adaptations and merged portions in any
form.
EXPORT REQUIREMENTS. You may not export or re-export the Software or any copy or
adaptation in violation of any applicable laws or regulations.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DFARS
252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "Restricted
computer software" as defined in FAR 52.337-19 (Jun 1987) (or any equivalent
agency regulation or contract clause), whichever is applicable. You have only
those rights provided for such Software and any accompanying documentation by
the applicable FAR or DFARS clause or the HP standard software agreement for the
product involved.