OEM Purchase Agreement - Brocade Communications Systems Inc. and Hewlett-Packard Co.
BROCADE / HP CONFIDENTIAL
OEM PURCHASE AGREEMENT
BY AND BETWEEN
HEWLETT-PACKARD COMPANY
AND
BROCADE COMMUNICATIONS SYSTEMS, INC.
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BROCADE / HP CONFIDENTIAL
OEM PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into between HEWLETT-PACKARD
COMPANY, a Delaware corporation ("HP") and BROCADE COMMUNICATIONS
SYSTEMS, INC., a Delaware corporation, having its principal place of
business at 1745 Technology Drive, San Jose, California 95110, and
Brocade Communications Switzerland SarL., a corporation organized under
the laws of Geneva, and having its principal place of business at 29-31
Route de l'Aeroport, CH-1205 Geneva, Switzerland, (collectively
"Supplier") ("Supplier"), effective as of April 20, 2001, (the
"Effective Date"). The parties hereby agree as follows:
1. SCOPE OF AGREEMENT
1.1 General. This Agreement specifies the terms and conditions under
which Supplier will sell, license, and support the OEM Products
listed in Exhibit (A) to this Agreement. The OEM Products are
regarded as "Original Equipment Manufacturer" products that will
either be sold separately or incorporated into HP Products for
resale worldwide under HP's private label or, at HP's sole
election, under Supplier's label, as set forth herein. The OEM
Products and the HP Products will be marketed, serviced, and
supported by HP's field organization and channel partners,
subject to the marketing, service, and support obligations of
Supplier pursuant to this Agreement.
1.2 Eligible Purchasers. This Agreement enables HP, HP Subsidiaries,
and [*] to purchase OEM Products from Supplier under the terms
of this Agreement or any subsequent Product Addendum. The terms
and conditions of this Agreement will control and take
precedence over any conflicting terms in a Product Addendum
unless a Product Addendum specifically refers to and amends a
term of this Agreement.
1.3 Term Of Agreement. This Agreement will commence as of the
Effective Date and continue for a two-year period (the "Term"),
unless terminated earlier under the terms of this Agreement.
After the initial Term, this Agreement will continue
automatically for additional one-year periods. This Agreement
may be terminated at the end of the initial Term or at the end
of any subsequent renewal period if one party provides the other
at least [*] prior written notice of its intent to terminate.
2. DEFINITIONS
The following capitalized terms will have these meanings throughout this
Agreement:
2.1 "Days" means business days.
2.2 "Delivery Date" means the date specified in an Order for the
delivery of OEM Products by Supplier to the destination required
under the Order.
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2.3 "Documentation" means the user and technical manuals and other
documentation that Supplier will make available with the OEM
Products.
2.4 "Eligible Purchasers" mean those parties authorized to purchase
OEM Products under this Agreement as listed in Exhibit B
attached hereto.
2.5 "E-Room" means that secure, password-protected web application
accessible by Supplier and HP that indicates [*] of OEM Products
between Supplier and HP under this Agreement.
2.6 "Failure" means an instance where the OEM Product does not
conform to specifications in Exhibit (A) or contains a defect in
workmanship, materials, or design that prevents the OEM Product
from fully performing as set forth in Exhibit A.
2.7 "Forecast" means HP's estimate, submitted to Supplier in
writing, of its stocking requirements for OEM Products
(including, without limitation, Parts) over a [*] period or such
other period designated by the parties.
2.8 " [*] " means HP's [*] and purchase of OEM Products from an [*]
to [*] inventory and the event upon which title to such
units passes to HP. [*] of OEM Product unit(s) is confirmed upon
[*] to the [*] of [*] movement-type transaction indicating such
unit [*].
2.9 "HP Products" means those products or systems that will
incorporate or be distributed in conjunction with the OEM
Products and that will be marketed and sold to end-user
customers by HP and its distributors.
2.10 "HP Property" means all property, including without limitation,
models, tools, equipment, copies of designs and documentation
and other materials that may be furnished to Supplier by HP or
on HP's behalf or separately paid for by HP for use by Supplier
in connection with this Agreement.
2.11 "Intellectual Property Rights" means all rights in patents,
copyrights, moral rights, trade secrets, mask works, Marks, and
other similar rights.
2.12 "Lead Time" means the time between the date an Order is received
by Supplier and the Delivery Date.
2.13 "Marks" means the trademarks, service marks, trademark and
service mark applications, trade dress, trade names, logos,
insignia, symbols, designs, or other marks identifying a party
or its products.
2.14 "Noncomplying Product" means any OEM Product received by HP that
does not comply with the [*] as set forth in Exhibit (A) or does
not otherwise comply with the requirements of an accepted Order
as set forth in Section 3.1 herein, and the provisions of this
Agreement. Noncomplying Products include, without limitation,
dead-on-arrival products.
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2.15 "OEM Products" means the products listed in Exhibit (A), all
related Documentation, Software licenses and media, Parts, and
other deliverables provided pursuant to this Agreement.
2.16 "Orders" means a written or electronic purchase order or release
issued by HP to Supplier for purchase of the OEM Products.
2.17 "Parts" means the replacement parts (FRUs), components,
consumables, or other products that are to be supplied under
this Agreement or that may be supplied in conjunction with or as
additions to the OEM Products.
2.18 "Product Addendum" means an addendum to this Agreement entered
into between Supplier and an Eligible Purchaser naming
additional OEM Products and product specific requirements in
addition to those requirements specified in this Agreement.
2.19 "Shipment Date" means the date confirmed to HP by Supplier
regarding a particular Order for the shipment of OEM Products by
Supplier to the destination required under the Order.
2.20 " [*] " means those [*] as listed in Exhibit (B) to which
Supplier shall deliver OEM Products as ordered by HP under this
Agreement and more particularly in Exhibit (J) attached hereto.
2.21 "Software" means any software or firmware included, bundled, or
licensed in conjunction with the OEM Products, as listed in
Exhibit A. The Software described herein is licensed and not
sold.
2.22 "Specifications" means the technical and functional requirements
for the OEM Products as specified or referenced in Exhibit A or
as agreed to in writing by the parties.
2.23 "Stocking Level" means the actual [*] inventory stocking level
to be [*] at each designated [*] by Supplier for a given
planning period which shall be equal to the then-current
Forecast volume [*], subject to the limitation in Section 3.5
below.
2.24 "Subcontractor" means a third party listed in Exhibit B that may
purchase OEM Products under the terms of this Agreement on
behalf of HP.
2.25 "Subsidiary" means an entity controlled by or under common
control with a party to this Agreement, through ownership or
control of more than 50% of the voting power of the shares or
other means of ownership or control, provided that such control
continues to exist.
2.26 "Support" means ongoing maintenance and technical support for
the OEM Products provided by Supplier to HP as more fully
described in Exhibit D.
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2.27 "Technical Information" means Supplier's information and
technology necessary to support OEM Products and to exercise any
other rights provided under this Agreement.
3. ORDER, SHIPMENT, AND INVENTORY OF OEM PRODUCTS
3.1 Orders. Each delivery of OEM Products to [*] will be initiated
by a non-binding blanket Order issued [*] to Supplier by HP.
Each Order will include: (i) unit quantity; (ii) shipping
destination; (iii) Delivery Date; and (iv) other instructions or
requirements pertinent to the Order. HP may schedule regular
intervals for deliveries by an appropriate Order setting forth
the intervals. To the extent of any inconsistency between the
terms of an Order and the terms of this Agreement, the terms
specified in this Agreement will control and take precedence.
Any additional terms contained in Orders or Supplier's Order
acknowledgements shall not be binding unless accepted by the
other party in writing. At the end of each month, Supplier will
close each Order based on actual [*] of OEM Products from the
[*]).
3.2 Order Acknowledgment. An Order will be deemed to have been
placed as of the date of receipt of the Order by Supplier.
Supplier will promptly confirm the receipt of an Order either
electronically or by facsimile transmission within Forecasts and
Lead Time requirements of this Agreement either electronically
or by facsimile to HP within [*]. For Orders exceeding
Forecast, Supplier will have [*] in which to reject the Order
with respect to the excess. If an HP Order exceeds the Forecast
or shortens the Lead Time, Supplier will use its reasonable
efforts to fill such excess or accommodate such shorter Lead
Time.
3.3 Emergency Orders. If HP deems it necessary, HP may order OEM
Products by facsimile on an emergency basis ("Emergency Order")
subject to the availability of such OEM Products in Supplier's
inventory. Supplier will use its reasonable efforts to ship the
Emergency Order to HP's designated Eligible Purchaser(s)
immediately upon receipt of such Emergency Order by Supplier.
Subject to HP's approval, HP will pay any additional expenses
related to such Emergency Orders.
3.4 Forecasts. HP will provide a [*] rolling Forecast [*] of its
projected Orders per [*], to be provided to Supplier between
the [*] of the [*] applicable to such Forecast. Any quantities
listed in any Forecast or other correspondence between the
parties are only estimates made as an accommodation for planning
purposes and do not constitute a commitment on HP's part to
purchase such quantity. HP may, at its sole discretion, revise
any such Forecasts, provided that such revisions occur at least
[*] prior to the projected Order Shipment Date.
3.5 Lead Time. Lead Time for each OEM Product within the
then-current Forecast unit volume will be no more than [*]
without prior written consent from HP. Lead Time for FRU
products within the then-current Forecast unit volume from
Supplier to the designated HP global service support
organization will be no
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more than [*].
3.6 Inventory Requirements. Subject to the terms and conditions of
this Article (3), Supplier will carry an inventory of the OEM
Products sufficient to accommodate HP's Order requirements as
defined by the most current HP Forecast. Supplier will [*]
inventory [*] to [*] the [*] outlined in Order changes. If this
inventory is depleted, Supplier will replenish the inventory as
soon as reasonable after depletion. Additionally, Supplier will
[*] its [*] of OEM Products in inventory to [*] the [*] of
inventory for each [*]. Supplier will ship ordered OEM Products
to HP-designated [*]. HP may request change drop locations.
3.7 Stocking Level Requirements. Supplier shall deliver the
then-current Stocking Level volumes to the respective [*]
locations as specified in the then-current Forecast by the [*]
for which the current Forecast shall apply (or the [*] as
specified in advance by HP). Supplier may make advance shipments
of OEM Products or ship excess units to the [*].
3.8 Product Supply Assurance. Supplier agrees that, during the Term
of the Agreement and specifically in the event of any allocated
OEM Product status initiated or experienced by Supplier,
Supplier will [*] order fulfillment and shipping [*] that given
to [*] OEM Products [*] basis between [*]
3.9 Inactive Inventory. (a) In the event any OEM Product unit(s)
shall remain within an [*] for greater than [*], then, upon
written notification from Supplier to HP of Supplier's request
to release such inactive units from the [*] inventory, HP will,
within [*] or receipt of Supplier's notice, elect to either
purchase such inactive units through [*] of such units from the
[*], or release the inactive units to Supplier for Supplier's
recall of the units from the [*] inventory, at Supplier's
option.
(b) In the event HP does not confirm its intent to purchase such
units within [*] of receipt of Supplier's notice, such units
shall be deemed released by HP for [*] by Supplier from the [*].
(c) [*] by Supplier of OEM Product units released by HP from the
[*] under this Section shall be at [*]
(d) In the event any OEM Product unit(s) remain within the
respective [*] greater than [*] due to lack of [*] will bear [*]
costs of upgrading such inventory units to any subsequent
Software revisions or upgrades if, in [*] determination, such
upgrade is required.
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3.10 Order Changes. HP may, [*], postpone, decrease, or increase any
Order within Forecast, subject to the following Order increase
limitations: [*] permissible [*] in Forecast [*] permissible [*]
in Forecast [*] permissible [*] in Forecast. In the event HP
increases any Order, Supplier will use reasonable efforts to
fulfill such Order for the Delivery Date requested by HP.
3.11 Shipment Requirements. All Orders are required to be shipped
complete. Supplier will give HP [*] notice if it knows or
reasonably anticipates that it will not meet a Delivery Date or
that only a portion of the OEM Products will be available for
shipment to meet a Delivery Date. For partial shipments,
Supplier will ship the available OEM Products unless directed by
HP to reschedule shipment. If Supplier ships any OEM Product by
a method other than as specified in the corresponding Order, [*]
any [*] in the [*] of freight. Upon mutual agreement by the
parties, HP may utilize drop shipment options to any
HP-designated delivery destination in the same manner as
delivered to an inventory location unless otherwise mutually
agreed by the parties. If HP designates a drop shipment location
outside the country in which the Order is placed, [*] associated
with the shipment.
3.12 Meeting Delivery Dates. If due to Supplier's failure to make a
timely shipment, the specified method of transportation would
not permit Supplier to meet the Delivery Date, the OEM Products
affected will be shipped by air transportation or other
expedient means acceptable to HP. [*] for any [*] in the freight
[*] over that which [*] by the specified method of
transportation.
3.13 Title And Risk Of Loss. Title to OEM Product hardware and media
ordered under this Agreement and risk of loss or damage for each
OEM Product unit will pass from Supplier to HP [*] as more fully
described in Exhibit (J) attached hereto.
3.14 Packing List. Each delivery of OEM Products to HP must include a
packing list that contains at least:
(a) The Order number and the HP part number;
(b) The quantity of OEM Products or Parts shipped; and,
(c) The date of shipment.
3.15 Packaging. Supplier must preserve, package, handle, and pack all
OEM Products as specified in Exhibit A-3.
3.16 Responsibility For [*]. [*] will be [*] for [*] due to its [*]
to [*] preserve, package, handle, or pack OEM Products in
accordance with Exhibit A. In order to assert a claim against
[*] under the provisions of this Section 3.16, [*] be required
to first assert any claims for such loss or damage against the
common carrier involved. Further, [*] be [*] for [*] due to a
release of chemicals or other hazardous materials to the
environment [*] release of the corresponding
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OEM Product to the designated carrier.
4. PRICES AND PAYMENT TERMS
4.1 OEM Product Prices. Supplier's prices for the OEM Products and
Parts are listed in Exhibit C, payable in U.S. currency unless
otherwise agreed, and may not be increased without HP's consent.
Supplier and HP agree to review OEM Product prices [*].
4.2 Changed Prices. Subject to the terms and conditions of Section
4.4 below, if during the Term and any extensions thereof,
changed prices or price formulas are put in effect by mutual
agreement of HP and Supplier, or reduced prices or price
formulas are otherwise put in effect by Supplier, then such
prices or price formulas (if resulting in [*] than the [*])
will apply to all Orders accepted by Supplier after the
effective date of such prices or price formulas and to all
unshipped Orders.
4.3 Payment Procedure. Payment for OEM Products will be [*] of each
OEM Product unit(s) from an [*]. Except as otherwise provided in
this Agreement, associated freight expenses and duties will be
paid directly by [*] related to or payments for unordered or
Noncomplying Products provided that HP does not retain such
unordered or Noncomplying Product(s).
4.4 [*] Warranty. If during the Term or any extensions thereof,
Supplier provides [*] of OEM Products or newer OEM Products as
set forth in Section 10.3 herein [*] Supplier's most recent [*],
then Supplier agrees to [*] to HP [*] provided to the [*]
Supplier agrees to fulfill its obligations in this Section in
good faith and further agrees that it will not create any OEM
Product, purchasing programs, pricing formulas, or other
conditions that serve to deny HP the [*] In addition, HP may
credit any amounts due under this Agreement against future
invoices.
4.5 Sales Taxes And Duties. Prices are exclusive of all taxes or
duties imposed after [*] of the respective OEM Product units
(other than taxes levied on Supplier's income) that Supplier may
be required to collect or pay upon shipment of the OEM Products.
[*] shall be responsible for all such taxes or duties imposed on
OEM Products before [*]. Any taxes or duties applicable to HP
under this Section 4.5 must appear as a separate item on
Supplier's invoice. [*] agrees to pay such taxes or duties
unless [*] is exempt from such taxes or duties. Where
applicable, [*] will provide [*] with an exemption resale
certificate.
5. NONCOMPLYING PRODUCTS
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5.1 Repair Or Replacement. HP's acceptance of each OEM Product unit
shall occur upon [*] of such unit(s) unless HP notifies Supplier
in writing sent by mail, facsimile, or other electronic means
within [*] after [*] that such OEM Product unit is a
Noncomplying Product. Supplier shall repair or replace (at
Supplier's sole expense) each such Noncomplying Product pursuant
to the warranty provisions under Article (9) herein. HP may
elect [*], subject to the provisions of Article 18 below, to
return a Noncomplying Product for replacement or repair at [*].
Determination of whether to repair or replace such Noncomplying
Products shall be at Supplier's sole option. Additionally, HP
may return for repair or replacement an entire lot of OEM
Products if a tested sample (consisting of not less than [*] of
that lot contains greater than [*] Noncomplying Products. In the
event of an overshipment, HP may elect to keep the additional
units, subject to the payment procedures in Section 4.3.
5.2 Replacement and Repair Period. Supplier will return the
replacement or repaired OEM Products as soon as possible but in
no event later than [*] after receipt of the Noncomplying
Product from HP. Supplier's opportunity to cure any failure to
meet such deadline, pursuant to Article 18 below, will apply to
[*] during the Term.
6. RETURN OF PRODUCTS
6.1 Return Materials Authorization. All OEM Products returned by HP
to Supplier must be accompanied by a Return Materials
Authorization ("RMA"). Supplier will issue an RMA for OEM
Products for which HP has verified Failure [*] of HP's request.
6.2 Return Charges. All Noncomplying Products returned by HP to
Supplier within the respective warranty period for each OEM
Product, and all replacement or repaired OEM Products shipped by
Supplier to HP to replace Noncomplying Products will [*].
6.3 Duty To Remove Marks Or Destroy Noncomplying Products. Supplier
agrees not to sell, transfer, distribute, or otherwise convey
any part, component, product, or service bearing or
incorporating HP Marks, part numbers, or other identifiers,
including any HP packaging, copyrights, or code (that are
human-readable and physically appear thereon) to any party other
than to Eligible Purchasers. Supplier will remove from all
rejected, returned, or unpurchased OEM Products any such HP
Marks or identifiers, even if such removal would require
destruction of the OEM Products. Supplier further agrees not to
represent that such OEM Products that are Noncomplying Products
are built for HP or to HP specifications. Supplier will defend
and indemnify HP against any claims, losses, liabilities, costs,
or expenses that HP may incur as a result of Supplier's breach
of its obligations under this Section 6.3.
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7. ENGINEERING PROCESS OR DESIGN CHANGES
7.1 Supplier Proposed Changes. Supplier will not, without the prior
written consent of HP (which such consent shall not be
unreasonably withheld), make or incorporate in OEM Products any
of the following changes (collectively, "Engineering Changes"):
(1) [*];
(2) [*], or;
(3) [*] affecting: (a) the [*] form, fit, or function [*]
that affects form, fit, or function; and (b) the [*] of
OEM Products.
7.2 Notice Of Proposed Change. Supplier will give HP notice of any
proposed Engineering Change, and will provide [*] and other
appropriate information as specified by HP at least [*] prior to
the first scheduled release of any OEM products involving a
change to the respective firmware that would affect OEM Product
form, fit, or function, and at least [*] prior to the first
proposed shipment of any OEM Products involving any other
Engineering Change. Regardless of whether HP approves a proposed
Engineering Change, Lead Time will not be changed except as
provided in Section 3.4 above.
7.3 Request for Enhancement. HP proposed changes and enhancement
requests will be reviewed, as appropriate, by the Software
Steering Committee and/or the Hardware Engineering core teams of
Supplier. Where feasible and mutually agreed by HP and Supplier,
such changes will be implemented in the [*] or as otherwise
specifically agreed.
7.4 HP Proposed Changes. HP may change HP-supplied drawings,
designs, or Specifications at any time prior to manufacture of
corresponding released OEM Products. Any such change will be
[*]. and [*]. If any such change reasonably and directly [*]
of OEM Products, an [*] will be made provided that Supplier
makes a written claim for an [*] within [*] from the date HP
gives notice to Supplier of the change and HP agrees in writing
to the [*]
7.5 Option To Terminate. If the parties are unable to agree, acting
reasonably and in good faith, upon an adjustment pursuant to
Section 7.3 above, HP may [*] terminate this Agreement as to any
OEM Products affected, subject to the terms and conditions of
Article (22) herein.
7.6 Safety Standard Changes. Supplier will promptly give notice to
HP if any upgrade, substitution, or other change to an OEM
Product is required to make that product meet applicable safety
standards or other governmental statutes, rules,
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orders, or regulations, even those that are not defined as
Engineering Changes in Section 7.1 above. All affected OEM
Products already purchased by HP may, at HP's election, either
be returned to Supplier for upgrade to current revisions or
upgraded by Supplier or HP in the field pursuant to the
procedures outlined in Section 10.4 below. If an OEM Product
meets applicable safety standards and other governmental
requirements at the time of manufacture, HP and Supplier will
[*] the [*] of any subsequent upgrade, substitution, or other
required change required in an [*] based on good faith
discussions between the parties. If such discussions render no
[*], the parties may either mutually agree to escalate the
matter to their respective vice presidents or general managers,
as applicable, or in the alternative, [*] the [*].
7.7 Technical Cooperation. Subject to the confidentiality provisions
in Article 19 below, during the term of the Agreement, the
parties will discuss architecture and explore the possibilities
for technically integrating Supplier and HP products. Each party
will designate a technical representative to lead these
discussions as well as to address other technical issues
relating to the product enhancements and [*]. Supplier agrees to
share and review with HP engineers the following for current and
future products (which such information shall not be
unreasonably withheld or delayed):
(a) [*];
(b) [*] information necessary for HP to (i) understand the
related architecture and to develop test suites for resolution
of potential problems, and (ii) to understand the implications
of such potential problems with the ability to implement meshed
configurations efficiently;
(c) [*] information necessary for HP to implement efficient
meshed configurations free of any significant performance
problems;
(d) [*] and [*] for such items, and;
(e) [*] and [*].
8. QUALITY
8.1 Quality Programs. Supplier agrees to maintain an objective
quality program for all OEM Products. Supplier's program will be
in accordance with the current version of HP's Supplier Quality
System as specified in Exhibit H and if applicable, any
additional or substitute quality requirements agreed to by the
parties in writing. Supplier will, upon HP's request, provide to
HP copies of Supplier's program and supporting test
documentation.
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8.2 HP's Right To [*]. Supplier grants HP the right to [*] hours) at
Supplier's [*] and all associated [*] may be [*] any time during
the Term or any extensions thereof. HP's [*] may be for any
reason [*] related to this Agreement, [*]. HP's right of [*]
will apply as well to [*] of Supplier. Supplier will inform [*]
of HP's right to [*], and, if necessary, use all [*] such rights
for HP.
9. WARRANTIES
9.1 Product Warranties. Supplier warrants to HP that, for a period
of [*] from the date of [*] for each hardware OEM Product unit
(excluding [*]) and [*] for each Software and [*] hardware OEM
Product, that all OEM Products under this Agreement will:
(1) Be manufactured, processed, and assembled by Supplier or
by companies under Supplier's direction;
(2) Conform to the then-current Specifications and other
criteria referred to in this Agreement or agreed to by
the parties in writing;
(3) Be new, except as otherwise provided by the parties;
(4) Conform strictly to the requirements of all Orders as
set forth under the terms and conditions of this
Agreement;
(5) Be free from defects in design, material, and
workmanship;
(6) Be free and clear of all liens, encumbrances,
restrictions, and other claims against title or
ownership;
(7) Be "Year 2000 Compliant." Year 2000 Compliant products
will perform without error, loss of data or loss of
functionality arising from any failure to process,
calculate, compare or sequence date data accurately. In
addition, Year 2000 Compliant products will not cause
any associated products or systems in which they may be
used to fail in any of the ways described above. This
Year 2000 Compliance Warranty will remain in effect
through December 31, 2000, notwithstanding any other
warranty period specified in this Agreement;
(8) Subject to the terms and conditions of Article (14)
herein, not to Supplier's reasonable knowledge, violate
or infringe any third party Intellectual Property Rights
and Supplier warrants that it is not aware of any facts
upon which such claim could be made. If Supplier learns
of any claim or any facts upon which claim could be
made, it will [*] notify HP of such information.
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9.2 Survival Of Warranties. All warranties specified above will
survive any inspection, delivery, acceptance, or payment by HP
and be in effect for the applicable warranty period for each OEM
Product.
9.3 Epidemic Failure Warranty. In addition to the warranties
specified above, Supplier warrants to HP all OEM Products at the
FRU level and system (unit) level against epidemic failure for a
period of [*] after [*] of such OEM Product unit. An epidemic
failure means:
(a) unit failures that (i) are caused by the same component
failure or defect, provided that such failure or defect is
attributable to Supplier, and (ii) occur at a rate equal to or
less than [*] (as listed in Exhibit (H), Section 4.1), over a
[*], or;
(b) the occurrence of more than [*] classified as a [*] or
higher safety incident defined as (i) a marginal condition that
is likely to produce only minor bodily injury or property damage
and is likely to occur after a [*] event, or (ii) a
noncompliance event involving a safety-related standard,
license, or testing agency evaluation, or;
(c) any known problem which, in HP's reasonable opinion subject
to Supplier's concurrence (which such concurrence shall not be
unreasonably withheld or delayed) creates a significant risk to
the health or safety of individuals who operate the OEM Product
or to the continuous business operations of companies or
organizations that employ the OEM Product for an intended or
reasonably foreseeable use.
9.4 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
SUPPLIER EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, EITHER EXPRESS OR IMPLIED, REGARDING
ANY OEM PRODUCTS OR REGARDING THEIR MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS.
10. SUPPORT SERVICES
10.1 General. Supplier will provide trained HP support personnel with
Support for the OEM Products as specified in Exhibit D. Supplier
will maintain such number of qualified personnel as is necessary
to provide timely and knowledgeable maintenance and support
service in accordance with the terms and conditions of Exhibit
D. Supplier warrants that all Support will be provided in a
professional and workmanlike manner. HP will provide direct
maintenance and support to HP's customers with respect to the
use of the OEM Product as distributed with HP Products. Supplier
and HP will maintain and support each OEM Product distributed by
HP for [*] after the date of last Shipment
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Date by Supplier to an [*] of each OEM Product unit. HP
acknowledges that Supplier may independently offer and provide
support services to OEM Product customers; however, in no event
may Supplier use HP Confidential Information or HP Property to
direct or provide such support without HP's prior consent.
Response times and problem classification for the OEM Products
are as set forth in Exhibit D.
10.2 New HP Products. Upon request by HP, Supplier will use
reasonable efforts to provide HP with the OEM Products adapted
for use with new releases of HP Products [*] and [*], if any, to
be negotiated by the parties, provided that HP makes available
to Supplier such HP Property as may be reasonably necessary for
Supplier to develop any adaptation.
10.3 New Product Supply [*]. Supplier agrees that, during the term of
the Agreement and any extensions thereof, any such newer
products will be made available to HP for shipment [*] shipment
date made [*] by Supplier [*] with [*] OEM Products [*] most
recent [*], and shall be made available [*] in [*] to [*] all HP
Orders within Forecast designating such newer products. In the
event of any allocated OEM product status initiated by Supplier,
Supplier will promptly give all HP Orders [*] that given [*] OEM
Products [*] Supplier's most recent [*], with such [*] to be
made on a [*] basis [*] HP and [*].
10.4 HP Property. HP may, at HP's sole election, provide to Supplier
HP Property under the terms of an HP Equipment Loan Agreement
attached as Exhibit E to this Agreement, solely for use in
Supplier's manufacturing, testing, adapting and supporting the
OEM Products. All HP Property will be clearly segregated from
Supplier's property and identified as the sole property of HP.
HP Property may not be transferred, assigned, loaned or
otherwise encumbered in any way. HP Property may be provided to
third parties for fulfillment of Supplier's obligations
hereunder only upon HP's prior written consent. HP property will
be returned to HP, at [*], upon termination of this Agreement.
10.5 Substitute Products. If Supplier develops any generally
available products that are to replace the OEM Product(s) or
that are the same or substantially similar to the OEM Products
available under this Agreement, HP will have the right to
substitute the newer products at [*] as the substantially
similar OEM Products for all subsequent purchases under this
Agreement. Such substitute products must be compatible with the
current version of the OEM Products.
10.6 Failure Rate. Notwithstanding that the warranties given in
Section 9.1 above apply to 100% of the hardware components of
OEM Products, Supplier and HP acknowledge that a failure rate
equivalent to the rates as measured [*] set forth in Section 4.1
of Exhibit (H) is expected. If the actual failure rate for OEM
Products exceeds this expected rate, Supplier will provide
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additional engineering and technical support needed to bring the
actual failure rate within the specified failure rate.
10.7 Class Failure Remedies. Upon the occurrence of any of the
following events: (i) a failure rate exceeding the rate
specified in Section 10.6 above; (ii) an epidemic failure as
described in Section 9.3 above; or (iii) a safety standard
change under Section 7.5 above (each referred to as a "Class
Failure"), HP will have the following additional remedies for a
[*] after [*] of such OEM Product unit:
(1) In the event of a Class Failure, Supplier will use its
reasonable efforts to provide an initial root cause
analysis, failure analysis, and corrective action plan
to HP no later than [*] following the receipt of the
Class Failure part. HP will make available such
information and assistance as reasonably required to
allow Supplier to conduct its root cause analysis and
provide its corrective action plan.
(2) If, after review of the root cause analysis and
corrective action plan, HP determines in its reasonable
opinion that the Class Failure necessitates a field
stocking recall or customer based recall or retrofit, HP
may then elect to have the OEM Products: (i) returned to
Supplier for repair or replacement; (ii) repaired or
replaced by Supplier in the field; or (iii) repaired or
replaced by HP in the field, including products in
distributor inventory and HP's installed base. If HP
chooses to perform a field repair, Supplier will provide
the appropriate replacement OEM Products, spares, or
upgrades [*] to HP and will, within [*] after completion
of the recalls or retrofits, reimburse HP for [*] in
performing such field repair. Supplier will give such
OEM products, spares, or upgrades the [*].
(3) Except as provided in Section 7.6 above regarding safety
standard changes, Supplier will, [*] after completion of
the recalls or retrofits, reimburse HP for [*] in
performing such services.
10.8 Survival Of Support Obligations. Supplier's maintenance and
support obligations specified in this Article 10, and in the
Support Terms in Exhibit D will run for the Term and any
additional periods under Section 1.3 above and will continue for
a period of [*] after the date of last Shipment Date by Supplier
to an [*] of each OEM Product unit. This obligation includes,
without limitation, making necessary Parts available to HP as
further provided in the Support Terms.
11. OBSOLESCENCE AND MANUFACTURING RIGHTS
11.1 Lifetime Buy Rights. Supplier acknowledges its obligation to
manufacture, supply and support the OEM Products without
interruption for the Term. If, however,
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after the [*] of shipment of such products, Supplier seeks to
discontinue the supply or support of any OEM Product (a
"Discontinued Product"), Supplier will give notice to HP no less
than [*] in advance of the last date the Discontinued Product
can be ordered. After receipt of notice of discontinuance, HP
may place orders for any demand during the [*] of such notice
for delivery of Discontinued Products prior to the end of the
notice period. To the extent that such orders exceed HP's
previous Forecast for such Discontinued Products, the orders
shall be [*]. Supplier shall accept only forecasted orders in
the [*] of the stated notice period, and such orders shall be
non-cancelable. All shipments must be completed prior to the
end-of-life date stated in such notice by Supplier to HP above.
In addition, during such notice period, Supplier shall have the
right, in its sole discretion, to [*] for OEM Products from HP
at the time such Orders are submitted.
11.2 Alternative Supply Rights. In the event HP becomes entitled to
terminate this Agreement or any portion thereof in accordance
with Article (18) hereunder, then Supplier shall [*] purchase
orders from HP for such OEM Products at [*] and [*] until
Supplier can demonstrate to [*] that its performance is no
longer impaired. This Section is not intended to grant HP [*] a
royalty-free license to use, manufacture, sell or import the
Products. Instead, it is intended to permit HP to directly order
Products [*] in limited circumstances; under such circumstances,
HP will directly [*] the [*] set forth hereunder for the OEM
Products ordered pursuant to this Section.
11.3 Consulting Services. In support of Technical Information or
other services provided to HP herein, Supplier will, upon HP's
request, provide additional consulting services at the rate of
the lesser of either [*], or that rate [*] as mutually agreed.
12. TRAINING
12.1 Technical Training. Supplier will provide to HP [*] technical
training classes for HP technical personnel. The schedule for
such classes will be as mutually agreed in writing by the
parties, with the first of such training provided by Supplier no
later than May 15, 2001. Each class provided by Supplier under
this Section will accommodate at least [*] HP personnel, and
will be made available at Supplier's designated training site in
San Jose, California. At HP's sole election and upon not less
than [*] advance notice, after May 15, 2001, to Supplier,
Supplier will provide [*] to HP at HP's Roseville, California
site. All such training provided by Supplier will be [*] to HP
except for travel expenses of HP personnel. Supplier will
maintain a designated training contact for HP learning products
personnel, and will provide technical support to an HP trainer
for the [*] classes taught by HP utilizing
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the training provided hereunder by Supplier. HP may further
request and Supplier will provide, for up to [*] HP technical
personnel, additional training [*] as reasonably necessary to
inform HP personnel of each upgraded, enhanced, or new version
of the OEM Products. Other training (including without
limitation Supplier's Educational Services technical training)
will be provided upon mutually agreed terms and conditions.
12.2 Presales Training. Supplier will provide to HP no later than May
15, 2001, presales training at Supplier's San Jose, California
facility sufficient to cover up to [*] HP trainers in order to
allow HP to become fully familiar with the OEM Product and its
market. Such training will be [*] to HP. HP may further request
and Supplier will provide additional training [*] to inform up
to [*] HP personnel of each upgraded, enhanced, or new version
of the OEM Products.
12.3 HP's Rights in Training Classes and Materials. Subject to the
provisions of Article (19) herein, HP may [*] use, reproduce,
display, and perform, either internally or for HP's customers,
all training classes, methods, and materials supplied or
developed by Supplier under this Agreement (excluding Supplier's
Educational Services classes, methods, and materials). None of
the training materials provided [*] by Supplier to HP under this
Article (12) may be offered for resale by HP to HP's Customers.
Supplier will provide such presales training materials to HP no
later than May 1, 2001, and technical training materials no
later than May 15, 2001.
13. MARKETING AND LICENSING
13.1 Marketing and Distribution. HP will have the authority to market
the OEM Products and the HP Products containing the OEM Products
to the extent it deems appropriate and in its sole discretion.
Without limiting the generality of the foregoing sentence,
nothing in this Agreement shall be construed or interpreted to
place a "best efforts" obligation upon HP with respect to
marketing or distributing the HP Products or OEM Products or to
preclude HP from independently developing, purchasing,
licensing, or marketing any product which performs the same or
similar function as the OEM Products. HP will have the right to
use its own business and license terms for all marketing and
distribution of the OEM Products and HP Products. HP will take
all reasonable steps to describe OEM Products accurately.
13.2 Distribution Rights. During the Term of this Agreement and any
extension(s) thereof, Supplier hereby agrees not to sell
directly to End Users the OEM Products or any other OEM products
that HP has distributed, provided that nothing in this Section
13.2 shall be construed to prevent Supplier from selling or
distributing through or to Supplier's current and future
indirect channels of distribution that are: (i) resellers,
service bureaus, third party distributors, or third party OEMs
(not owned or controlled in whole or in part by Supplier) which
in turn sell or distribute the OEM Products to End Users, or;
(ii) any End User to whom Supplier has directly sold OEM
Products or directly related precursor
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products prior to the Effective Date. For purposes of this
Section 13.2, an "End User" is any person or entity who
purchases the OEM Product solely for its own use and not for
reselling purposes.
13.3 Sales and Marketing Activity. During the Term of this Agreement
and any extension(s) thereof, Supplier shall, upon request of
HP, deliver to HP all sales, training, product, and marketing
collateral intended by Supplier for use in the distribution,
sale, or marketing of the OEM Products. All such collateral
content intended by Supplier for use with the OEM Products shall
be developed by Supplier and provided to HP in electronic form.
All such collateral and related sales activity from or by
Supplier, its employees, agents, and subcontractors (excluding
Supplier's current and future indirect channels of distribution
that are resellers, service bureaus, third party distributors,
or third party OEMs (any of which who are neither owned nor
controlled in whole or in part by Supplier) which in turn sell
or distribute the OEM Products to End Users), which is intended
by Supplier for current [*] shall be first coordinated through
the [*] contact as listed in Exhibit (G) attached hereto and
subject to HP's prior written approval, at HP's sole discretion,
before Supplier may [*] such collateral or sales activity to
[*].
13.4 Software License. Supplier hereby grants to HP, under Supplier's
intellectual property rights, a non-exclusive, worldwide,
license to use, display, distribute, import, and disclose the
Software both separately and in combination, in object code
format for use in conjunction with the support and distribution
of OEM Products or associated HP Products. Such use limitation
will not apply in the case of [*] purposes. The license grant
under this Section 13.4 includes the right of HP to sublicense
distributors, resellers, and other third parties to achieve the
foregoing. The rights granted to HP under this Section 13.4 also
include the right of End Users to continue use of the Software
in conjunction with the operation of the OEM Products so long as
they are not in breach of the HP End-User license agreement
issued with the particular OEM Product(s), and HP shall retain
the license set forth above for the sole purpose of assisting
End-Users with the maintenance and support of the OEM Products.
13.5 Device Object License. Supplier will use all reasonable efforts
to develop, test, and distribute to HP (at Supplier's sole
expense) a device object applicable to HP's OpenView Storage
software product according to the specifications and
requirements set forth in HP OpenView Storage Area Manager
Developer's Guide, Edition 1200, as referenced in Exhibit (A-6)
attached hereto. Supplier hereby grants to HP, under Supplier's
intellectual property rights, a non-exclusive, worldwide license
to use, reproduce, display, translate, import, disclose,
distribute, modify and prepare derivative works or compilations
of such device object as developed by Supplier, for use with OEM
Products and HP Products. These rights are exercisable in any
medium. Such license will include the right of HP to sublicense
distributors, resellers, and other third parties to achieve the
foregoing.
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13.6 License to the Documentation. Supplier hereby grants to HP,
under Supplier's intellectual property rights, a non-exclusive,
worldwide license to [*] of the [*] and [*] based upon the [*]
for use in conjunction with the support and distribution of
Software. These rights are exercisable in [*]. Such license will
include the right of HP to sublicense distributors, resellers,
and other third parties to achieve the foregoing. The right to
[*] is granted solely for the purposes of [*] of more than one
Software, condensing [*] on, and formatting and [*] for user
accessibility. The rights granted to HP under this Section 13.6
are subject to the payment obligations as generally set forth in
Article (4) above and more particularly in Exhibit (C) attached
hereto provided, however, that (a) End-Users shall be permitted
[*] of the [*] in conjunction with the operation of the OEM
Products so long as they are not in breach of the HP End-User
license agreement issued with the particular OEM Product(s),and
(b) HP shall retain the license set forth above for the purpose
of assisting End-Users with the maintenance and support of the
OEM Products.
13.7 License to [*]. Supplier hereby grants to HP, under Supplier's
intellectual property rights, a non-exclusive, worldwide license
to [*] if any, and to [*] solely in connection with HP's
marketing and support of the Software and training with respect
to the Software. Such license will include the right of HP to
[*] to achieve the foregoing. The rights granted to HP under
this Section 13.7 are subject to Supplier's right to review and
approve (which such approval shall not be unreasonably withheld
[*]) any [*] submitted by HP (excluding HP's standard
then-current trademarks, servicemarks, and logos), and the
payment obligations as generally set forth in Article (4) above
and more particularly in Exhibit (C) attached hereto.
13.8 Restrictions. HP will not decompile, reverse engineer,
disassemble, or otherwise modify any Software without written
authorization from Supplier, except as permitted by law.
13.9 Localized Versions. The licenses granted hereunder with respect
to the Software and associated Documentation will include all
localized versions thereof available from Supplier. In the event
HP reasonably requires a localized version of the Software, then
Supplier agrees to negotiate in good faith the commercial terms
and conditions under which such localized version would be
produced for HP. All of the licensing terms for such localized
version would be consistent with this Agreement.
13.10 Limited Right of Sublicense and License. The parties expressly
agree that no right of sublicense to the Software is hereby
granted under this Agreement by Supplier to HP except for the
right of HP to sublicense the Documentation and object code
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of the Software directly to End-User Customers. Based on
Supplier's representations herein, HP agrees that Supplier is
the owner of the Software and Documentation contained in the OEM
Products.
13.11 Localized Software. The licenses granted hereunder for the
Software and Documentation shall include any localized
version(s) thereof which Supplier publishes or makes generally
available during the Term of this Agreement and any extension(s)
thereof.
13.12 End User License Terms. Supplier hereby grants to HP the right
to use and HP will use its then-current standard form software
license terms for marketing and licensing Software under this
Agreement. Such terms will be substantially in the form of that
as set forth in Exhibit (I) attached hereto.
13.13 No Rights In Marks. Except as otherwise specified in this
Agreement, nothing in this Agreement should be construed to
grant either party any rights in the Marks of the other party.
HP and Supplier acknowledge, however, that HP may use the name
of Supplier and the name of the OEM Products in advertising and
marketing the OEM Products or the HP Products. The OEM Products
will be affixed with copyright notices sufficient to give notice
as to the rights of the parties in their respective products.
13.14 HP Marks. Supplier will ensure that the OEM Products contain the
HP Marks, serial number, format, and packaging specified by HP
and conforming to the HP specifications as set forth in Exhibit
A. Except as provided herein, Supplier will have no other right
or license in any HP Marks.
14. INTELLECTUAL PROPERTY PROTECTION
14.1 Supplier's Duty To Defend. Except as provided in Section 14.4
below and provided that HP has complied with the provisions of
Section 14.2 below, Supplier will defend and hold harmless HP
and its Subsidiaries, subcontractors, and customers from any
claim that any OEM Product, any combination of an OEM Product
with an HP Product (to the extent damages asserted from such
claim(s) are attributable to Supplier or the OEM Products), any
Software, Documentation or a Supplier Mark, or any product
provided as part of Supplier's Support services constitutes an
unauthorized use or infringement of any third party's
Intellectual Property Rights. Supplier will pay [*] incurred by
HP, its Subsidiaries, subcontractors or customers and will pay
[*] with respect to any such claim or agreed to in any
settlement of that claim.
14.2 HP's Duty To Notify. HP will give Supplier prompt notice of any
such claim or action, and will give Supplier the authority,
information, and reasonable assistance (at Supplier's expense)
necessary to defend. If Supplier does not diligently pursue
resolution of the claim nor provide HP with reasonable
assurances that it will diligently pursue resolution, then HP
may, without in any way limiting its other rights and remedies,
defend the claim.
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14.3 Remedies For Infringing Products. If the use or combination of
any product provided hereunder is enjoined (the "Infringing
Product"), Supplier will, [*] either:
(1) Procure for HP and its customers the right to continue
using or combining the Infringing Product; or,
(2) Replace the Infringing Product with a non-infringing
product of equivalent function and performance; or,
(3) Modify the Infringing Product to be non-infringing,
without detracting from function or performance.
14.4 Limitations. Supplier will be relieved of its indemnification
obligations under this Article 14 to the extent that the claim
arises solely and directly from Supplier's compliance with an HP
Specification provided that all implementations of that
Specification constitute an unauthorized use or infringement of
a third party Intellectual Property Right.
15. COUNTRY OF MANUFACTURE AND [*]
15.1 Country Of Origin Certification. Upon HP's request, Supplier
will provide HP with an appropriate certification stating the
country of origin for OEM Products, sufficient to satisfy the
requirements of the customs authorities of the country of
receipt and any applicable export licensing regulations,
including those of the United States.
15.2 Country Of Origin Marking. Supplier will mark each OEM Product,
or the container if there is no room on the OEM Product, with
the country of origin. Supplier will, in marking OEM Products,
comply with the requirements of the customs authorities of the
country of receipt.
15.3 [*]. If OEM Products delivered under this Agreement are
imported, Supplier will when possible allow HP to be the [*]. If
HP is not the [*] and Supplier obtains [*] rights to OEM
Products, Supplier will, upon HP's request, provide HP with
documents required by the [*] of the [*] of receipt to prove [*]
and to transfer [*] rights to HP.
16. GOVERNMENTAL COMPLIANCE
16.1 Duty to Comply. The parties shall in the performance of this
Agreement comply with all applicable laws, executive orders,
regulations, ordinances, rules, proclamations, demands, and
requisitions of all applicable state, local, national, or other
governmental authority which may now or hereafter govern
performance
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hereunder including, without limitation, all laws, executive
orders, regulations, ordinances, rules, and proclamations
regarding Equal Employment Opportunity, the exporting of
technology, and withholding for income taxes.
16.2 Procurement Regulations. The Software is "commercial computer
software" as defined in the applicable provisions of the Federal
Acquisition Regulation (the "FAR") and supplements thereto,
including the Department of Defense ("DoD") FAR Supplements (the
"DFARS"). The parties acknowledge that the Software was
developed entirely at private expense and that no part of the
Software was first produced in the performance of a Government
contract. If HP supplies the Software to a U.S. Government
agency, in accordance with FAR 12.212 and its successors or
DFARS 227.7202 and its successors, as applicable, HP shall
license the Software to the Government subject to the terms of
this Agreement.
16.3 Ozone Depleting Substances. Supplier hereby certifies that no
OEM Product nor any component of any OEM Product:
(1) Contains any "Class 1 Substance" or "Class 2 Substance",
as those term are defined in 42 USC Section 7671 and
implementing regulations of the United States
Environmental Protection Agency at 40 CFR Part 82, as
now in existence or hereafter amended; or,
(2) Has been manufactured with a process that uses any Class
1 or Class 2 Substance within the meaning of 42 USC
Section 7671 and implementing regulations of the United
States Environmental Protection Agency at 40 CFR Part
82, as now in existence or hereafter amended.
17. FORCE MAJEURE EVENTS
17.1 Delaying Causes. Subject to the provisions of this Article 17,
Supplier will not be liable for any delay in performance under
this Agreement caused by any "act of God" or other cause beyond
Supplier's control and without Supplier's fault or negligence (a
"delaying cause"). Notwithstanding the above, Supplier will not
be relieved of any liability for any delay or failure to perform
its defense obligations with respect to third party Intellectual
Property Rights or furnish remedies for Infringing Products as
described in Article 14 above.
17.2 HP Option. Supplier will immediately give HP notice of any
delaying cause and its best estimate of the expected duration of
such cause. In the event of a delaying cause which continues for
a period of [*], HP may act in [*] to
(1) Terminate this Agreement or any part hereof as to OEM
Products not shipped or,
(2) Suspend this Agreement in whole or in part for the
duration of the delaying cause, buy similar products
elsewhere, and deduct from any
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quantities specified under this Agreement the quantity so
purchased.
17.3 Resumption Of Agreement. If HP elects to purchase other similar
products in the event of a delaying cause, HP may resume
performance under this Agreement once the delaying cause ceases
and extend the Term up to the length of time the delaying cause
endured. Unless HP gives notice of termination as provided above
within [*] after notice from Supplier of the delaying cause, HP
will be deemed to have elected to suspend this Agreement for the
duration of the delaying cause.
18. EVENTS OF DEFAULT
18.1 Notice Of Breach. If either party is in breach of any provision
of this Agreement, the non-breaching party may, by written
notice to the breaching party, except as otherwise prohibited by
the United States bankruptcy laws, terminate the whole or any
part of this Agreement or any Order, unless the breaching party
cures the breach within [*] after receipt of such written
notice.
18.2 Causes Of Breach. For purposes of Section 18.1 above, the term
"breach" includes without limitation any:
(1) Proceeding, whether voluntary or involuntary, in
bankruptcy or insolvency by or against a party;
(2) Appointment, with or without a party's consent, of a
receiver or an assignee for the benefit of creditors;
(3) Failure by Supplier to make a delivery of OEM Products
in accordance with the requirements of this Agreement or
any accepted Order;
(4) Failure by Supplier to replace or repair Noncomplying
Products in a timely manner as required by Article 5
above; or
(5) Other failure by a party to comply with any material
provision of this Agreement with additional failure to
provide the non-breaching party, upon written request,
with reasonable assurances of future performance.
18.3 HP's Rights Upon Breach. In the event HP terminates this
Agreement in whole or in part as provided above for a material
breach by Supplier, in [*] provided HP under this Agreement, HP
may [*] upon [*] and in such [*] as [*] deems [*] to the [*] and
[*] as to which this Agreement is terminated. Supplier agrees to
[*] the [*] of this Agreement to the [*] under the provisions of
this Section.
[*] [*]. If any Eligible Purchaser having the right to purchase an
OEM Product under this Agreement or under any other agreement
with Supplier
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[*] that an OEM Product is [*], then, irrespective of any other
rights provided HP hereunder, HP may implement a [*] to [*] of
such OEM Products [*] Such [*] may be [*] if HP [*] that
Supplier has taken [*] the [*] or given [*] that such [*] will
be [*] within a [*]
18.5 Escalated Resolution Process. In the event of any dispute
arising from or regarding the subject matter of this Agreement,
the parties agree to negotiate in good faith an equitable
resolution of the disputed matter. If the parties are not able
to resolve the dispute within [*] of first written communication
of the dispute, then the parties agree to escalate such
resolution process [*] as designated in Exhibit G. The [*] shall
meet within [*] of escalation to resolve the disputed matter. If
the dispute is not resolved within an additional [*] day period
from the end of the [*] period set forth above, then either HP
or Supplier may commence legal, equitable, or other action upon
providing the other party not less than [*] prior written notice
of such intent.
19. CONFIDENTIAL INFORMATION
19.1 Confidential Information. During the Term, a party (the
"Recipient") may receive or have access to certain information
of the other party (the "Discloser") that is marked as
"Confidential Information," subject to a nondisclosure or
confidentiality agreement between the parties, or otherwise by
its very nature reasonably and clearly considered as
confidential information, including, though not limited to,
information or data concerning the Discloser's products or
product plans, business operations, strategies, customers and
related business information. The Recipient will protect the
confidentiality of Confidential Information with the same degree
of care as the Recipient uses for its own similar information,
but no less than a reasonable degree of care, under the terms of
the Confidential Disclosure Agreement attached as Exhibit F (the
"CDA"). To the extent any term of this Agreement conflicts with
any term in the CDA, the terms of this Agreement will control
and take precedence. Confidential Information may only be used
by those employees of the Recipient who have a need to know such
information for the purposes related to this Agreement. The
parties acknowledge that all Technical Information and Forecasts
are deemed Confidential Information to be protected for a term
of [*] from the date of disclosure.
19.2 Exclusions. The foregoing confidentiality obligations will not
apply to any information that is (a) already known by the
Recipient prior to disclosure, (b) independently developed by
the Recipient prior to or independent of the disclosure, (c)
publicly available through no fault of the Recipient, (d)
rightfully received from a third party with no duty of
confidentiality, (e) disclosed by the Recipient with the
Discloser's prior written approval, or (f) disclosed under
operation of law. In the event that a party becomes aware that
disclosure is likely to be required by operation of law, the
party having knowledge of such possible disclosure will provide
the other with ample notice and opportunity to seek a
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-23-
<PAGE>
BROCADE/HP CONFIDENTIAL
protective order.
20. INSURANCE REQUIREMENTS
20.1 Insurance Coverage. Supplier will maintain Comprehensive or
Commercial General Liability Insurance (including but not
limited to products and completed operations, broad form
contractual liability, broad form property damage and personal
injury liability) with a minimum limit of [*] combined single
limit per occurrence and [*] in the aggregate, for claims of
bodily injury, including death, and property damage that may
arise from use of the OEM Products or acts or omissions of
Supplier under this Agreement. Each policy obtained by Supplier
will [*] ([*] in performing [*] or [*] herein) as [*]. Such
insurance will apply as [*] and no other [*] will be called upon
to contribute to a [*] thereunder. In addition, such policies
will permit Supplier to waive, on its own behalf and on behalf
of its insurers, any rights of subrogation against HP. Such
insurance policies will be written with appropriately licensed
and financially responsible insurer, and Supplier will provide
for a minimum of [*] written notice to HP of any cancellation or
reduction in coverage. Certificates of insurance evidencing the
required coverage and limits will be furnished to HP before any
work is commenced hereunder, and Supplier will deliver copies of
policies or certificates to the HP contact listed in Exhibit G.
20.2 Claims Made Coverage. If any applicable Comprehensive or General
Liability policies have "claims made" coverage, Supplier will
maintain such coverage with [*] as an [*] for a minimum of [*]
after termination of this Agreement. Any such coverage must have
a retroactive date no later than the date upon which work
commenced under this Agreement.
20.3 Additional Requirements. All deductibles on policies providing
coverage will be paid by Supplier. In the event Supplier is
self-insured for matters described in Section 20.1, Supplier
agrees to respond to any claims or losses made against or
incurred [*] had been purchased with the [*] than what is
generally available to similar suppliers. In no event will the
coverage or limits of any insurance required under this Article,
or the lack or unavailability of any other insurance, be deemed
to limit or diminish Supplier's obligations or liability to HP
under this Agreement. Supplier's obligations under this Article
(20) shall also include those as set forth in Exhibit (J)
attached hereto.
21. LIMITATION OF LIABILITY
UNLESS OTHERWISE STATED HEREIN, NEITHER PARTY WILL BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
PROFITS) OF THE OTHER ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT
OR IN FURTHERANCE OF THE
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE>
BROCADE/HP CONFIDENTIAL
PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH
DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE
ABOVE, THE PARTIES WILL BE RESPONSIBLE FOR ANY DAMAGES OF ANY KIND
INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM UNDER ARTICLES
9, 14, OR 19 ABOVE. EXCEPT FOR THE PARTIES' RESPECTIVE OBLIGATIONS UNDER
SECTIONS 14 OR 19 ABOVE, THE PARTIES' RESPECTIVE AGGREGATE LIABILITY
UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (i) [*], OR (ii)
THE [*] BY SUPPLIER FROM HP UNDER THIS AGREEMENT IMMEDIATELY PRECEDING
THE EVENTS GIVING RISE TO THE IMPOSITION OF LIABILITY.
22. TERMINATION
22.1 Outstanding Orders. All accepted Orders issued prior to the
expiration of this Agreement must be fulfilled pursuant to and
subject to the terms of this Agreement, even if the Delivery
Dates are after expiration. Upon termination of this Agreement
for Supplier's breach, HP may cancel any outstanding Order or
require Orders to be fulfilled even if a Delivery Date is after
the date of termination. If this Agreement is terminated due to
HP's breach, then HP will reimburse Supplier for [*] OEM Product
units within the [*] back to Supplier's standard product, as
described in Exhibit (A-1) attached hereto. Such reimbursement
costs shall specifically [*] used in connection with the
customization of OEM Products.
22.2 Return Of HP Property. Supplier must return all HP Property to
HP upon expiration or termination. All such property must be in
good condition, normal wear and tear excepted. [*] will
determine the [*] for [*] HP will [*]. Otherwise, Supplier will
[*].
22.3 Surviving Provisions. Notwithstanding the expiration or early
termination of this Agreement, the provisions regarding
Warranties in Article 9, Support in Article 10, Marketing and
Licensing in Article 13, Intellectual Property in Article 14,
Confidentiality in Article 19, Insurance Requirements in Article
20, Limitation of Liability in Article 21, and the Miscellaneous
provisions below will each survive in accordance with their
terms.
23. MISCELLANEOUS
23.1 Notices. All notices to be given under this Agreement must be in
writing addressed to the receiving party's designated recipient
specified in Exhibit G. Notices are validly given upon the
earlier of confirmed receipt by the receiving party or three
days after dispatch by courier or certified mail, postage
prepaid, properly addressed to the receiving party. Notices may
also be delivered by
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SEC. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE>
BROCADE/HP CONFIDENTIAL
telefax and will be validly given upon oral or written
confirmation of receipt. Either party may change its address for
purposes of notice by giving notice to the other party in
accordance with these provisions.
23.2 Exhibits. Each Exhibit attached to this Agreement is deemed a
part of this Agreement and incorporated herein wherever
reference to it is made.
23.3 Independent Contractors. The relationship of the parties
established under this Agreement is that of independent
contractors and neither party is a partner, employee, agent or
joint-venturer of or with the other. Nothing in this Agreement
precludes either party from independently developing,
manufacturing, selling or supporting products similar to the OEM
Products.
23.4 Assignment. Neither party may, directly or indirectly, in whole
or in part, either by operation of law or otherwise, assign or
transfer this Agreement or delegate any of its obligations under
this Agreement without the other party's written consent, which
such consent shall not be unreasonably withheld or untimely
delayed. Any attempted assignment, transfer, or delegation
without such prior written consent will be void. Notwithstanding
the foregoing, HP or its permitted successive assignees or
transferees may assign or transfer this Agreement or delegate
any rights or obligations hereunder without consent: (1) to any
entity controlled by, or under common control with, HP, or its
permitted successive assignees or transferees; or (2) in
connection with a merger, reorganization, transfer, sale of
assets or product lines, or change of control or ownership of
HP, or its permitted successive assignees or transferees.
Without limiting the foregoing, this Agreement will be binding
upon and inure to the benefit of the parties and their permitted
successors and assigns.
23.5 No Waiver. The waiver of any term, condition, or provision of
this Agreement must be in writing and signed by an authorized
representative of the waiving party. Any such waiver will not be
construed as a waiver of any other term, condition, or provision
except as provided in writing, nor as a waiver of any subsequent
breach of the same term, condition, or provision. Other than as
expressly agreed herein, all remedies of a party provided
herein, together with all remedies available at law or in
equity, shall be cumulative.
23.6 Headings. The Section headings used in this Agreement are for
convenience of reference only. They will not limit or extend the
meaning of any provision of this Agreement, and will not be
relevant in interpreting any provision of this Agreement.
23.7 Publicity. Subject to the terms and conditions of Article 19
above, neither party may publicize or disclose to any third
party, without the written consent of the other party, the
existence or terms of this Agreement except as required under
applicable federal securities laws. In the event that Supplier
becomes aware that disclosure is likely to be required by
operation of law, Supplier shall promptly provide HP with ample
notice and opportunity to seek a protective order. Supplier
agrees that in the event that disclosure to the SEC is likely,
Supplier will file a request for confidential treatment. Such
request for confidential treatment
-26-
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BROCADE/HP CONFIDENTIAL
will include a request that, at a minimum, Exhibits C, D, F, H,
and J to this Agreement be deemed confidential. Without limiting
the generality of the foregoing sentence, no press releases may
be made without the prior mutual written consent of each party.
23.8 Severability. If any provision in this Agreement is held invalid
or unenforceable by a body of competent jurisdiction, such
provision will be construed, limited or, if necessary, severed
to the extent necessary to eliminate such invalidity or
unenforceability. The parties agree to negotiate in good faith a
valid, enforceable substitute provision that most nearly effects
the parties' original intent in entering into this Agreement or
to provide an equitable adjustment in the event no such
provision can be added. The other provisions of this Agreement
will remain in full force and effect.
23.9 Subcontractors and Subsidiaries. Each party unconditionally
guarantees to the other party the performance of all obligations
by any of its subcontractors and Subsidiaries under the
Agreement (including, without limitation, payment obligations),
as amended from time to time, or any other obligation of any
subcontractors or Subsidiary to the other party, now existing or
hereafter arising. If either party's subcontractors or
Subsidiary does not perform such obligation, such party shall
immediately perform such obligation.
23.10 Entire Agreement. This Agreement comprises the entire
understanding between the parties with respect to its subject
matters and supersedes any previous or contemporaneous
communications, representations, or agreements, whether oral or
written. For purposes of construction, this Agreement will be
deemed to have been drafted by both parties. No modification of
this Agreement will be binding on either party unless in writing
and signed by an authorized representative of each party.
23.11 Governing Law. This Agreement shall be governed and interpreted
according to the laws of the State of New York, exclusive of its
choice-of-law provisions.
23.12 Exhibits. Each of the following Exhibits referred to in this
Agreement is incorporated in full in this Agreement wherever
reference to it is made:
EXHIBIT (A) OEM PRODUCTS AND SPECIFICATIONS
(A-1) Supplier Product Specifications
(A-2) HP Configuration Specification Document
(A-3) Packaging
(A-4) Documentation
(A-5) HP OpenView SDK Developers' Guide
(A-6) OEM Product Interoperability Requirements
EXHIBIT (B) ELIGIBLE PURCHASERS & [*]
EXHIBIT (C) PRICING AND FEES
EXHIBIT (D) MAINTENANCE AND SUPPORT
EXHIBIT (E) HP EQUIPMENT LOAN AGREEMENT
EXHIBIT (F) CONFIDENTIAL DISCLOSURE AGREEMENT
EXHIBIT (G) RECIPIENTS FOR RECEIPT OF NOTICES
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BROCADE/HP CONFIDENTIAL
EXHIBIT (H) HP SUPPLIER QUALITY SYSTEM REQUIREMENTS
EXHIBIT (I) HP END USER SOFTWARE LICENSE AGREEMENT
EXHIBIT (J) SUPPLIER-MANAGED INVENTORY REQUIREMENT
AGREED:
BROCADE COMMUNICATIONS HEWLETT-PACKARD COMPANY
SYSTEMS, INC.
By: By:
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
BROCADE COMMUNICATIONS
SWITZERLAND, SARL.
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
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<PAGE>
BROCADE/HP CONFIDENTIAL
[GRAPHIC IMAGE APPEARS HERE]
EXHIBIT A-1 - Supplier Product Specification
HIGHLIGHTS
- The SilkWorm 6400 Integrated Fabric delivers a high-density port,
rack-ready solution to drive cost-effective SANs.
- The product simplifies the deployment of large SANs by providing high
port density and integrated cable management to facilitate SAN
implementation and administration.
- Modular design consists of six switch modules preconfigured in a highly
available, networked switch fabric enclosed in a well-designed cabinet.
- The Integrated Fabric is fully networkable for "pay-as-you-grow"
migration to larger SAN environments.
- With no single point of failure within the overall Fabric, the SilkWorm
6400 offers a highly available platform for mission-critical
SAN-designed applications.
- The product offers proven forward and backward compatibility with all
Brocade SilkWorm switches.
- Brocade Fabric Manager(TM) offers a centralized view of the SilkWorm
6400 switch modules to simplify SAN administration and maintenance.
- The included Brocade Fabric OS(TM) provides distributed intelligence for
the switch modules.
The SilkWorm 6400 enterprise-class Fibre Channel Integrated Fabric extends the
Brocade SilkWorm intelligent storage networking infrastructure for Storage Area
Networks (SANs) by providing a cost-effective means of meeting the
large-port-count requirements of workgroups and enterprises. The product
comprises six integrated switch modules in an enclosure with a removable steel
door that represents the latest thinking in industrial design. With
preconfigured switch interconnection and management software, the SilkWorm 6400
significantly simplifies the deployment and management of SAN fabrics. The 64
user ports of the SilkWorm 6400 can be managed as a single switch entity in the
SAN Fabric. The SilkWorm 6400 Integrated Fabric supports business-critical SAN
applications, such as LAN-free backup, server and storage consolidation, remote
mirroring and data replication, high-availability clustering configurations, and
new SAN-enabled applications such as dynamic storage resource and volume
management.
SEAMLESS UPGRADES AND COST-EFFECTIVE MIGRATION
This product provides a seamless upgrade path for customers. The SilkWorm 6400
offers proven backward and forward compatibility with the entire Brocade
SilkWorm family. It is fully per-workable in larger SANs, enabling a
cost-effective
SilkWorm(R) 6400
High-Port-Count Fibre Channel Integrated Fabric
[GRAPHIC IMAGE APPEARS HERE]
The SilkWorm 6400
Integrated Fabric
"pay-as-you-grow" migration to more advanced SAN environments while reducing the
need to configure and integrate multiple low-port-count switches.
EASE OF CONFIGURATION AND HIGH AVAILABILITY
The integrated design of the SilkWorm 6400 Integrated Fabric accelerates the
configuration of the cables and ISL (InterSwitch Link) GBICs (Gigabit Interface
Converters) that make up the fabric with 32 pre-installed and wired ISLs and
associated cable management. The 64-port SilkWorm 6400 Integrated Fabric
delivers high-density connectivity for large SAN fabrics and simplifies the task
of designing and building high-availability enterprise SANs.
With the proven reliability of the Brocade SilkWorm family and its integrated
fabric foundation, the SilkWorm 6400 modules combine to deliver a SAN fabric
with built-in redundancy and no single point of failure within the overall
Fabric. Based on Brocade tests, the MTBF (mean time between failures) of the
individual components of the SilkWorm 6400 is estimated to be more than 50
years, and the MTTR (mean time to repair) is estimated at less than one hour.
The modular architecture of the SilkWorm 6400 Integrated Fabric results in an
overall availability greater than 99.999 percent.
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<PAGE>
BROCADE/HP CONFIDENTIAL
SOFTWARE FOR SIMPLIFIED MANAGEMENT
The SilkWarm 6400 Integrated Fabric supports scalability and simplifies
management by networking multiple switches under Brocade Fabric OS, the embedded
real-time operating system of the industry-leading SilkWarm switch family. This
enables heterogeneous device connectivity, automatic data routing and rerouting,
self-healing, and scalable connectivity. The product leverages the distributed
intelligence in Brocade SANs to enable more feature-rich SAN applications.
The product includes the Brocade Fabric Manager, a portable, Java-based
management application that is easy to install on a Windows management station.
Fabric Manager makes it easy to view the status of all switch modules, drill
down to individual switch modules, and access the Brocade WEB TOOLS GUI
(graphical user interface). Brocade Fabric Watch(TM) enables pro-active SAN
monitoring and intelligent integration with SNMP Enterprise Management Consoles.
The SilkWorm 6400 also offers both hardware- and software-enforced SAN zoning,
to give SAN administrators comprehensive control over data. Brocade
QuickLoop(TM) provides for connection of legacy Fibre Channel arbitrated loop
devices to the SilkWorm 6400 and enables them to participate fully as members of
the fabric.
BEST-OF-CLASS PRODUCTS FOR ENTERPRISE SAN FABRICS
- All 64 user parts deliver 100 MB/sec in each direction (full duplex) to
meet the most demanding bandwidth requirements for enterprise
applications.
- Universal parts automatically determine the part type for a loop,
point-to-point devices, or an ISL to provide flexible connectivity with
a wide variety of host, storage, and other switch types.
- Buffer-pool management and use of mini-buffers for small frames optimize
overall performance.
- Hardware-enforced Brocade Zoning(TM) secures data access among switch
parts to prevent unauthorized access to important data.
- Services are distributed across the entire Fabric, which means there is
no single point of failure.
INDUSTRY-LEADING RELIABILITY AND SERVICEABILITY
- ISLs are prewired and installed with 32 short-wave-length (SWL) GBICs
and cable management harnesses to make the unit easier to install,
upgrade, and manage.
[GRAPHIC IMAGE APPEARS HERE]
- GBIC based modular design makes it easy to hot-swap connections quickly.
Media may be mixed on the same switch in any combination.
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<PAGE>
BROCADE/HP CONFIDENTIAL
- Highly reliable components, continuous monitoring of environmental
components (fan status and temperature), and extremely durable
construction all maximize MTBF to reduce service costs.
- POST (Power-On Self-Test) and online diagnostics enable administrators
to monitor and test parts while the switch is in operation.
- Per-part statistics help administrators diagnose and isolate problem
parts for ease of service. The switch will continue to operate even when
individual parts have been removed.
- Embedded port-monitoring facilities automatically disable failing parts
and restart them when the problem has cleared, reducing administrative
overhead.
- Swappable switch modules in an integrated switch fabric provide
redundancy. With host-based failover support, automatic rerouting across
switch modules ensures continued operation if one module fails.
- Color-coded ISL cable diagrams and cables, along with the ability to
replace a single switch module, reduce service costs and minimize
downtime in the event of a failure.
ADVANCED SAN CONTROL AND MANAGEMENT
- The Brocade Fabric Manager software enables the switch to be defined and
viewed as a single entity to simplify administration.
- The Fabric OS API (application programming interface) supports
feature-rich SAN applications and management capabilities, including
VERITAS SANPoint Control.
- Support for industry-standard MIBs (Management Information Bases)
enables SNMP (Simple Network Management Protocol)-based interfaces to
access switch information.
- Network administrators can manage switch configuration using a
command-line interface or the Web-based administrative capability
offered by Brocade WEB TOOLS(TM) and Brocade Zoning.
- Self-healing feature enables the fabric to isolate a problem switch
module or part and reroute traffic onto alternate paths to ensure
availability with enterprise applications.
- Brocade Fabric Watch, a time-based threshold-monitoring feature, allows
advanced management of the SAN Fabric, including monitoring of the
internal ISLs for congestion.
- Self-learning feature allows the fabric to automatically discover and
register host and storage devices.
- Brocade QuickLoop enables enhanced connectivity and management of private
devices.
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<PAGE>
BROCADE/HP CONFIDENTIAL
SILKWORM 6400 INTEGRATED FABRIC SPECIFICATIONS
FIBRE CHANNEL STANDARDS
STANDARD REVISION
FC-AL Rev. 4.5*
FC-AL-2 Rev. 7.0
FC-FLA Rev 2.7*
FC-GS-2 Rev 5.3*
FC-FG Rev 3.5*
FC-PH Rev 4.3*
FC-PH-2 Rev 7.4*
FC-PH-3 Rev 9.4*
FC-PLDA Rev 2.1*
FC-SW Rev 3.3*
FC-VI Rev 1.5
IPFC RFC 2625
* Indicates an approved standard
SYSTEMS ARCHITECTURE
FIBRE CHANNEL 64 user ports
PARTS
SCALABILITY Full Fabric Architecture:
239 switches maximum
CERTIFIED MAXIMUM 32 switches, 7 hops. Larger
Fabrics certified as
required
INTEROPERABILITY SilkWorm II, SilkWorm
Express, or any SilkWorm
2000 Family switch
PERFORMANCE 1.0625 Gb/sec line speed,
full duplex
SWITCH BANDWIDTH 64 Gb/sec end to end
SWITCH MODULES Nonblocking
FABRIC LATENCY <2 (micro)sec within each module,
cut-through routing
MAXIMUM FRAME SIZE 2112-byte payload
FRAME BUFFERS Each switch module contains
448 dynamically allocated
CLASSES OF SERVICE Class 2, Class 3, Class F
(InterSwitch Frames)
PORT TYPES FL_Port, F_Port, and
E_Port. Self-discovery
based on switch type
(U_Port)
DATA TRAFFIC TYPES Fabric switches support
unicast, multi-cast (256
groups), and broadcast
MEDIA TYPES Hot-pluggable,
industry-standard GBICs.
SWL, up to 500 m (1,640
ft). Longwave laser (LWL),
up to 10 km (6.2 mi).
Passive copper, up to 13 m
(43 ft).
FABRIC SERVICES Simple Name Server,
Registered State Change
Notification (RSN), Alias
Server, multicast); and
Brocade Zoning, WEB TOOLS.
Fabric Watch, QuickLoop,
Extended Fabrics(TM) Remote
Switch(TM)
OPTIONS User port GBICs
MANAGEMENT
MANAGEMENT Telnet, SNMP, Brocade WEB
TOOLS, Brocade Zoning,
Brocade SES (optional),
Fabric Watch, Extended
Fabrics, Remote Switch
MANAGEMENT ACCESS 10/100 Ethernet (RJ-45),
in-band over a Fibre Channel
(requires Fabric), Fabric
Manager
DIAGNOSTICS POST and embedded
online/off-line diagnostics
MECHANICAL SPECIFICATIONS
MOUNTING Rack mountable in a standard
19 in. EIA rack with
removable door
ENCLOSURE Rear panel-to-door airflow,
power from rear panel
SIZE 44.5 cm (17.5 in.) width,
62.2 cm (24.5 in.) height,
62.2 cm (24.5 in.) depth
WEIGHT 81.6-90.7 kg (180-200 lb)
ENVIRONMENT
TEMPERATURE Operating:
10(Degree)C-40(Degree)C
(50(Degree)F-104(Degree)F)
Nonoperating:
-35(Degree)C-65(Degree)C
(-31(Degree)F-147(Degree)F)
HUMIDITY Operating: 5%-85%
noncondensing @40(Degree)C
(104(Degree)F)
ALTITUDE *Up to 3,000 m (9,800 ft)
SHOCK 4 G, 11 ms_sine low impulse
VIBRATION Operating: 5 G, 0-3 kHz
Nonoperating: 10 G, 0-5 kHz
POWER
SUPPORTED POWER Nominal: 100-230 VAC contiguous
RANGE Operational: 85-264 VAC
FREQUENCY 47-63 Hz
REGULATORY COMPLIANCE
SAFETY EMC
CANADA CSA 950 ICES-003 Class A
UNITED STATES UL 1950 FCC Part 15 Class A
JAPAN IEC60950 A4 VCCI Class A
EUROPEAN EN60950 EN55022 Level A
COMMUNITY TUV, NEMKO EN55082-2
(Immunity)
AUSTRALIA/ AS/NZS 3548
-3-
<PAGE>
BROCADE/HP CONFIDENTIAL
NEW ZEALAND
INTERNATIONAL EC 60950 CISPR 22
-4-
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT A-2
[BROCADE(R) LOGO]
Brocade Communications Systems, Inc.
WWW.BROCADE.COM
Corporate Headquarters European Headquarters Asia-Pacific Headquarters
1745 Technology Drive 400 Thames Valley Park Drive Level 21, 201 Miller Street
San Jose, CA 95110 Thames Valley Park, Reading North Sydney, NSW 2060
T 408 487-8000 United Kingdom, RG6 1PT Australia
F 408-487-8101 T +44 (0) 118 965 3419 T +61 2 9025 3766
info@brocade.com F +44 (0) 118 965 3519 F +61 2 9521 6995
europe-info@brocade.com
(C) 2000 by Brocade Communications Systems, Inc. All Rights Reserved. 10/00
GA-DS-070-00
Brocade, SilkWorm, Extended Fabrics. Remote Switch, Fabric Aware, Fabric CS
Fabric Watch. QuickLoop, WEB TOOLS, and Zoning are Trademarks or registered
trademarks of Brocade Communications Systems Inc. In the United States and/or in
other countries. All other brands, products, or service names are or may be
trademarks or service marks of and are used to identify, products of services of
their respective owners.
Notice: This document is for informational purposes only and does not set forth
any warranty expressed or implied, concerning any equipment, equipment feature
or service offered or to be offered by Brocade. Brocade reserves the right to
make changes to this document at any time without notice and assumes no
responsibility for its use. This information document describes features that
may not be currently available. Contact a Brocade sales office for information
on feature and product availability.
Export or technical data contained in this document may feature on export
license from the United States Government.
EXHIBIT (A-2)
Page 1 of 5
<PAGE>
EXHIBIT A-2
HP CONFIGURATION SPECIFICATION DOCUMENT
This document describes the customizations that BROCADE will perform for HP for
the SW-6400 Integrated Fabric product.
PHYSICAL CUSTOMIZATION
The product will conform to HP standard customization requirements including but
not limited to the following.
1. The front door will be painted HP Quartz Gray.
2. Additionally there will be a HP Logo Jewel on the front door, defined,
designed and provided by HP.
3. There will be an extra copy of the serial number (numeric and bar code)
placed on the rear cover
4. [*] will provide mounting Rail kit for HP Rose Bowl cabinets.
5. FRUs will not be labeled with HP part numbers, though both packaging and
the VPD will have HP numbers. (see below)
6. The chassis and AC power distribution assembly will remain BROCADE color
VITAL PRODUCT DATA (VPD) CUSTOMIZATION
1. FRU HP Part numbers
FRU Description BROCADE# HP Number # in full VPD
unit
Sw-2250 switch XBR-000057 Y
Front door XBR-000059 N
Rack Mount Kit XBR-000061 N
2. OEM Identifier: "HP"
3. Chassis Serial Number: Range provided by HP.
4. System VPD Model Identifier: "pending final identifier from HP".
SOFTWARE CUSTOMIZATION
5. Integrated Fabric Model Number: [pending final determination from HP]
6. Splash screen: Provided by HP
7. Screen Headers: [pending final determination of HP] AS MUTUALLY AGREED.
8. Create Fabric Manager agent for SAN management device manager.
9. Help screens to be consistent with HP branding as mutually agreed.
PACKAGING
10. FRU Packaging Labeling: FRU packing material will be labeled with
the HP part members and the BROCADE part number.
11. Unit Packaging Labeling: Units will be shipped in the standard brown
shipping box. without BROCADE identification on the box. HP product
identification will be placed outside the box in much the same
EXHIBIT (A-2)
Page 2 of 5
<PAGE>
manner as the FRU labeling. HP, for field installed units, may provide
and apply HP color stickers to packaging.
DOCUMENTATION
Documentation [*] covered in reference A-4.
ENVIRONMENTAL/TRANSPORTATION REQUIREMENTS
The following is a summary of HP's internal environmental specifications for our
products. It is expected that these tests or ones that provide the same results
are performed on the product being considered. A joint effort where possible,
will be used to complete the following tests. HP will be responsible for any
tests not able to be completed by Supplier. Supplier has indicated their test
specifications below as a reference point. For details on the testing, contact
HP Quality Engineering.
SPECIFICATION
THERMAL MAPPING TEMPERATURE PROFILE [*]
TEMPERATURE OPERATING [*]
NON-OPERATING [*] [*]
TEMPERATURE [*] [*]
STRESS
HUMIDITY OPERATING [*]
NON-OPERATING [*]
ALTITUDE OPERATING [*]
NON-OPERATING [*]
SPECIFICATION
VIBRATION SINE SWEEP SURVIVAL [*] [*] [*]
All axes to be tested
RANDOM SURVIVAL POWER SPECTRAL DENSITY [*]
[*]
[*]
[*]
[*]
* 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 (A-2)
Page 3 of 5
<PAGE>
RANDOM OPERATING POWER SPECTRAL DENSITY [*]
[*]
[*]
[*]
SPECIFICATION
SHOCK OPERATING [*]
END USE HANDLING [*]
[*]
TRANSPORTATION (3) [*] [*]
[*]
SPECIFICATION
SHIPPING CARTON VIBRATION [*] [*]
PERFORMANCE [*]
[*]
[*]
SWEPT SINE [*] [*]
[*]
[*]
SHOCK [*] [*]
[*]
SPECIFICATION
ELECTOSTATIC [*] [*]
DISCHARGE [*]
* 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 (A-2)
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<PAGE>
SPECIFICATION
POWER LINE: VOLTAGE AND FREQUENCY [*]
OPERATING (4)
INRUSH CURRENT [*]
TOTAL HARMONIC DISTORTION [*]
TRANSIENT SURGE [*]
SURGE [*]
SAG [*]
DROP OUT [*]
TRANSIENT [*]
CHATTER TEST [*]
ON/OFF POWER-CYCLING [*]
BROWN OUT AND RECOVERY [*]
LINE CYCLE DROPOUT [*]
SPECIFICATION
MARGIN TESTS LIMIT EXPLORATION [*]
[*]
Notes:
-----
(1) [*]
(2) [*]
(3) [*]
(4) [*]
* 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 (A-2)
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<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A-3)
OEM PRODUCT PACKAGING INSTRUCTIONS
1.0 PACKAGING STANDARDS:
- Brocade to comply with all HP standard packaging and labeling
requirements.
2.0 TOOLS REQUIRED:
- Brocade to inform HP of any tools required for product
packaging.
3.0 REFERENCE DOCUMENTS:
- Brocade to inform HP of any reference documents required for
product packaging such as quality assurance and cosmetic
requirement documents (ISO documentation).
- Brocade to provide HP with packaging design
specifications/drawings for the SW 6400.
- Unpacking and Installation Guide (see attached).
4.0 PRODUCT ASSEMBLY:
- Brocade to provide HP with their product assembly requirements
demonstrating ISO standards compliance.
- Brocade to provide HP with final packaging pictures for the SW
6400,
(Note: Exhibit A-3-1 follows immediately after this page.)
EXHIBIT (A-3)
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<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A-3-1)
[BROCADE(R) LOGO]
SILKWORM(R) 6400
QUICKSTART GUIDE
COPYRIGHT
(C)2001 Brocade Communications Systems. Incorporated.
ALL RIGHTS RESERVED.
Brocade, Silk Worm, Silk Worm Express, Fabric OS, Fabric Watch, QuickLoop, and
the Brocade logo are trademarks or registered trademarks of Brocade
Communications Systems, Inc., in the United States and/or in other countries.
All other brands, products, or service names are or may be trademarks or service
marks of, and are used to identify, products or services or their respective
owners.
Notice: This document is or informational purposes only and does not set forth
any warranty, express or implied, concerning any equipment, equipment feature,
or service offered. Brocade reserves the right to make changes to this document
at any time, without notice, and assumes no responsibility for its use.
Export of technical data contained in this document may require an export
license from the United States Government.
Publication Number 53-0000112-01
<PAGE>
BROCADE/HP CONFIDENTIAL
SilkWorm 6400 QuickStart Guide
UNPACKING AND INSTALLING THE SILKWORM 6400
--------------------------------------------------------------------------------
Use this procedure to unpack and install a SilkWorm 6400 Integrated Fabric.
NOTE: After unpacking and installing the SilkWorm 6400, the SilkWorm
6400 will need to be configured. Refer to the SilkWorm 6400
Product Guide, Publication Number 53-0000109-01 for configuration
information, as well as all mechanical and software information.
INSTALLATION CONSIDERATIONS AND SAFETY GUIDELINES
----------------------------------------------------------
WARNING The SilkWorm 6400 Integrated Fabric weighs
approximately 200 pounds. Use proper
handling and lifting equipment, such as a
hydraulic lift, to reduce the possibility of
injury or product damage.
----------------------------------------------------------
The SilkWorm 6400 is a high-port count integrated fabric comprised of
six switch modules in a rack mountable chassis.
- If installing the SilkWorm 6400 in a closed or multi-rack
assembly, ensure the air temperature measured inside the
SilkWorm 6400 chassis door does not exceed 40 degrees C
during operation.
- Ensure the airflow available to the switch fabric is at
least 300 cfm (cubic feet per minute).
- Verify that the fully-loaded chassis does not unbalance
the rack or exceed the rack's mechanical limits, with all
six SilkWorm 2250 switches secured in the chassis as well
as with one switch partially extended out of the chassis.
- Verify the supply circuit, line fusing, and wire size are
adequate according to the electrical rating on the switch
nameplate.
- Verify that all equipment installed in the rack has a
reliable branch circuit ground connection.
- It is strongly recommended that the EIA Rack be
mechanically secured to prevent tipping over in an
earthquake.
REQUIREMENTS
TIME REQUIRED
Approximately 45 minutes.
ITEMS REQUIRED
- SilkWorm 6400.
- #2 Phillips screwdriver.
- 30 inch deep rack space, 14 rack units high, and 19
inches wide.
- Six power outlets, one for each switch.
- A hydraulic lift.
Publication Number 53-0000112-01 BROCADE Confidential 2-5
EXHIBIT (A-3-1)
Page 1 of 4
<PAGE>
SilkWorm 6400 QuickStart Guide
UNPACKING THE SILKWORM 6400
1. Unpack the SilkWorm 6400.
a. After opening the shipping crate, remove the packaging wrapped
around the SilkWorm 6400.
b. Remove the screws holding the SilkWorm 6400 to the pallet.
INSTALLING THE SILKWORM 6400 IN THE RACK
-----------------------------------------------------------------
WARNING The SilkWorm 6400 weighs approximately 200 pounds,
and requires a hydraulic lift to move it safely.
Move the chassis slowly and carefully, and continue
supporting it until it is verified as correctly
positioned on the shelf and fastened in the rack.
-----------------------------------------------------------------
2. Use the supplied Rack Mount Rail Kit to create a "shelf" in the EIA
rack for the SilkWorm 6400 chassis, and to install all chassis
mounting brackets. See Figure 1-1, Installation of the SilkWorm 6400
in a Rack, for illustration of the following steps a-b.
Publication Number 53-0000112-01 BROCADE Confidential 3-5
EXHIBIT (A-3-1)
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<PAGE>
SilkWorm 6400 QuickStart Guide
a. Attach both the left and right Rack Mount Brackets (Items 1 and 2)
to the EIA rack, so that they provide a shelf-like surface for the
chassis to rest on; attach the brackets using 1/4-20 x .5 inch
Phillips Head Screws (Item 6, quantity 12). Tighten the screws to a
torque of 40 inch-pounds.
[GRAPHIC IMAGE APPEARS HERE]
FIGURE 1-1 Installation of the SilkWorm 6400 in a Rack
ITEM 1 Left Rack Mount Bracket ITEM 2 Right Rack Mount Bracket
ITEM 3A Upper Rack Mount Bracket, 2-Piece ITEM 3B Upper Rack Mount Bracket, 2-Piece
(L-shaped)
ITEM 4 8-32 x 5/16 inch Flathead Screws ITEM 5 10-32 x .63 inch Phillips Panhead
Screws
ITEM 6 1/4-20 x .5 inch Phillips Panhead ITEM 7 10-32 Retainer Nuts
Screws
ITEM 8 Left and Right Front Mounting ITEM 9 10-32 x 3/8 Phillips Panhead Screws
Brackets
b. Position the 10-32 Retainer Nuts (Item 7, quantity 4) on the front
of the EIA rack, as shown in Figure 1-1. These nuts can be
repositioned later, but must be installed on the EIA rack before the
chassis is installed.
3. Attach Item 3A. Upper Rack Mount Bracket, to the chassis using 8-32
x 5/16 inch Phillips Flathead Screws (Item 4. quantity 4 per
bracket). Position the slotted holes toward the rear of the chassis.
See Figure 1-1 for right and left bracket location.
EXHIBIT (A-3-1)
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<PAGE>
SilkWorm 6400 QuickStart Guide
4. Use a hydraulic lift to raise the chassis, then slide the chassis onto
the two shelf-like Rack Mount Brackets, ensuring that the chassis is set
evenly and lined up on both brackets.
5. From the back of the EIA rack, attach the two L-shaped Upper Rack Mount
Brackets (Item 3B) to Item 3A, using 10-32 x 3/8 inch Phillips Panhead
Screws (Item 9, quantity 4 per bracket).
6. Secure the chassis in the rack.
a. Position two of the 10-32 x .63 inch Phillips panhead screws (Item
5) in the holes of the right L-shaped Upper Rack Mount Bracket (Item
3B) and the matching holes in the EIA rack, and tighten to 25
inch-pounds.
b. Position two of the 10-32 x .63 inch Phillips Panhead Screws (Item
5) in the holes of the left L-shaped Upper Rack Mount Bracket (Item
3B) and the matching holes and retainer nuts in the rack, and
tighten to 25 inch-pounds.
c. Position two 10-32 x .63 inch Phillips panhead screws (Item 5) in
the holes of the right Front Mounting Bracket (Item 8, right side)
and the matching holes and retainer nuts in the rack, and tighten to
25 inch-pounds.
d. Position two 10-32 x .63 inch Phillips panhead screws (Item 5) in
the holes of the left Front Mounting Bracket (Item 8, left side) and
the matching holes and retainer nuts in the rack, and tighten to 25
inch-pounds.
7. Connect each of the six power cables to a power source. Route one
cable per channel through each of the six channels under the
switches, and plug each cable into the power connector of the
corresponding switch. Verify that each power cable is firmly seated
in the power connector.
NOTE: Each time the switch is powered on, it automatically performs a
POST (Power On Self Test), which takes approximately two minutes
and is complete when LED activity stops.
THE SILKWORM 6400 INSTALLATION IN NOW COMPLETE.
At this point, the SilkWorm 6400 will need to be configured. For configuration
instructions, as well as operating and maintenance information, refer to the
SilkWorm 6400 Product Guide, Publication Number 53-0000109-01.
Publication Number 53-0000112-01 BROCADE Confidential 5-5
EXHIBIT (A-3-1)
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<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A-4)
DOCUMENTATION
PRODUCT DOCUMENTATION: [*], AND DISTRIBUTION
Supplier will provide to HP an electronic master copy of Supplier's standard
documentation made generally available for the Products, using the FrameMaker on
an HP FTP site. It is an express condition to the timely release of the OEM
Products that all applicable documentation be timely submitted by Supplier to HP
in acceptable format and content. Such documentation will include, but is not
limited to, planning, installation, operation, and service and user guides, as
appropriate. Supplier retains ownership of all such customized documentation
performed by Supplier. Any costs associated with the preparation of the [*]
Product documentation are set forth in this Agreement. Supplier shall provide HP
with master copies of the documentation in both hard copy and electronic form.
Except as otherwise provided and subject to the retention of all copyright
notices and/or confidentiality legends, HP shall have the right to [*] for use
internally by its employees and Resellers. HP shall have the right to [*]
supplied to it by Supplier. HP shall provide Supplier with a [*], and Supplier
agrees to [*] of any release within [*] of receipt of such [*]. Further, HP
shall have the right to [*] to its Resellers and End Users Customers. Such
license shall continue [*] after the date of last shipment by HP of the Products
purchased under this Agreement. If HP [*] into the Documentation, then Supplier
shall have [*].
PRODUCT AND DOCUMENTATION
1. PRODUCT DOCUMENTATION. As stated in this Agreement, Supplier will prepare for
HP and provide standard documentation made generally available for the
Product(s) [*].
2. OTHER DOCUMENT REQUESTS.
2.1 CD Manual Files. If requested, [*] Suppliers generally available CDs
with manual text files will be supplied [*]. Please specify the manuals and
indicate the preferred file format desired. (PDF and FrameMaker 5.5 source
files). [*] of each manual may be ordered for each revision level.
2.2 Illustrations. Upon request, [*] of each [*] used in the Manual(s)
will be provided [*] when text files of each manual are ordered. These files
will be provided in both .cdr and .bmp formats.
* 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 (A-4)
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<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A-5)
HP OPENVIEW DEVELOPERS' GUIDE - SDK
This Exhibit (A-6) incorporates by reference the publication issued by HP and
generally known as "HP OpenView Storage Area Manager Developer's Guide, Edition
1200," a copy of which Supplier acknowledges receipt from HP prior to or on the
Effective Date of the Agreement.
EXHIBIT (A-5)
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<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (A-6)
HETEROGENEOUS SWITCH INTEROPERABILITY
During the Term of this Agreement and any extension(s) thereto, and upon written
request from HP, Supplier and HP shall use [*] to achieve mutually agreed switch
fabric interoperability between Supplier's [*] and [*] switch products from [*].
(Note: all current switch interoperability testing performed by Supplier to date
has been done with the [*] product in [*] only. Any new switch platforms to be
tested that are not specified in Attachment (A) to this Exhibit (A-6) will
require HP to obtain such equipment for all labs involved in the
interoperability development.) In furtherance of the objectives under this
Exhibit (A-6), HP and Supplier further agree to:
1. Evaluate Supplier's then-currently available firmware for
standards-compliant interoperability capability;
2. Review HP-completed test results for the following configurations
set forth in Attachment (A) of this Exhibit (A-6) and mutually
establish defined configurations substantially derived from the
baseline configurations set forth in Attachment (A) to this Exhibit
(A-6). Supplier will support such configurations according to the
provisions of Exhibit (D) of the Agreement.
3. Continue to add mutually agreeable and feasible
configurations/functions to be qualified and supported.
4. Mutually establish a test plan, including equipment, resources
required (people, etc.) and milestones/timelines for future
supported configurations.
5. Mutually establish a communication and program management plan to
address operational issues and status updates in a timely manner.
Supplier will retain responsibility to comply with the FC-SW2-Rev4.8 standard
and FC-MI Rev 1.5 Technical Report Section 7 (Fabric Behaviors) which identify
the areas of Supplier's required compliance including, but not limited to, the
following functions:
1. [*]
2. [*]
3. [*]
4. [*]
5. [*]
Any unique development requested by HP to facilitate interoperability with other
third party providers will be based on joint specification and endorsement by
all interested parties and prioritized considering implementations to be
included in any resulting future standard. Supplier will have [*] testing, test
results, or resulting changes to Supplier's products, and will have [*] OEM
products or firmware to fix problems reasonably determined by both HP and
Supplier to be the responsibility of any unaffiliated third party. HP
acknowledges that it has [*] to ensure similar cooperation to facilitate this
tripartite interoperability effort.
* 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 (A-6)
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<PAGE>
Supplier and HP shall review current HP test results from the configurations set
forth in Attachment (A) to this Exhibit (A-6), and will mutually establish
defined configurations substantially derived from those baseline configurations
designated in Attachment (A). Supplier will [*] such mutually defined
configurations. Subject to completion of steps 1 through 5 listed above and
mutually agreeable validation test results, Supplier will [*] HP on the
mutually defined configurations within [*] of the Effective Date of this
Agreement. Additionally, program teams from Supplier and HP will continue to
[*] configurations and test plans. The first joint program team meeting shall
occur within [*] of the Effective Date of this Agreement and shall include
Vice President and Director level attendees from both Supplier and 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 (A-6)
Page 4 of 7
<PAGE>
ATTACHMENT (A)
[GRAPHIC IMAGE APPEARS HERE]
EXHIBIT (A-6)
Page 4 of 7
<PAGE>
ATTACHMENT (A)
[GRAPHIC IMAGE APPEARS HERE]
EXHIBIT (A-6)
Page 4 of 7
<PAGE>
ATTACHMENT (A)
[GRAPHIC IMAGE APPEARS HERE]
EXHIBIT (A-6)
Page 4 of 7
<PAGE>
ATTACHMENT (A)
[GRAPHIC IMAGE APPEARS HERE]
EXHIBIT (A-6)
Page 4 of 7
<PAGE>
ATTACHMENT (A)
[GRAPHIC IMAGE APPEARS HERE]
EXHIBIT (A-6)
Page 4 of 7
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (B)
ELIGIBLE PURCHASERS & [*]
ELIGIBLE PURCHASERS:
HP [*] COMPUTER
[*]
[*]
[*] Germany
HEWLETT-PACKARD COMPANY
[*].
[*] CA [*]
HP GLOBAL SUPPORT LOGISTICS
PRODUCT SUPPORT DIVISION
[*]
[*] CA [*]
--------------------------------------------------------------------------------
[*] LOCATIONS:
EUROPEAN REGION [*] :
[*]
[*]
Germany
NORTH AMERICAN REGION [*]
Hewlett-Packard Company
[*] -
[*] CA [*]
* 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 (B)
Page 1 of 1
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (C)
PRICING AND FEES
OEM PRODUCT PRICING.
Subject to the terms and conditions of the Agreement, [*] made
available by Supplier to HP, as set forth in this Agreement and more
particularly described in Exhibit (A), are as set forth below.
All prices listed below are in United States Dollars (USD) and are [*].
All OEM Product pricing herein is subject to the terms and conditions of this
Agreement and more particularly those of this Exhibit (C). [*]
BROCADE OEM SOFTWARE PRODUCTS TERMS AND CONDITIONS.
Silkworm 6400 OEM Product Orders. All Silkworm 6400 OEM Product units
purchased under this Agreement shall include [*] as described herein [*].
No Distribution Obligation. Notwithstanding anything to the contrary
herein, [*] in new purchase orders is expressly subject to the provisions of
Section 13.1 (Marketing and Distribution) of this Agreement.
All Other Software License Fees. For the Term of this Agreement and any
extension(s) thereof, Supplier will provide to HP [*] for use in conjunction
with OEM products provided by Supplier [*] will be released
to HP [*]. Supplier shall provide such copies and/or required [*] of the
Software listed in this Section in [*].
Security Software. If or when this Software product is offered to any of
[*], Supplier will [*] to HP at [*].
Internal-use Copies. [*] shall be due for copies of the Software used by
HP for [*]
Software Delivery. All Software provided by Supplier under this
Agreement shall be offered to HP [*]
Software Licenses. All Software license OEM Products listed in this
Exhibit (C) shall include HP's right to [*] will be due for any package item
subsequently [*].
SILKWORM 6400 AGGREGATOR FC SWITCH OEM PRODUCT PRICING.
HP PART DESCRIPTION: HP Surestore FC-6400 (64-Port Fibre Channel Fabric
Switch)
SUPPLIER MODEL NO. / DESCRIPTION: [*]
* 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 (C)
Page 1 of 3
<PAGE>
[*] HP PURCHASE PRICE
[*] [*]
[*] [*]
[*] [*]
[*] [*]
BROCADE FABRIC SOFTWARE OEM PRODUCT PER-COPY FEES.
HP PART DESCRIPTION: [HP private-label name pending]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
HP per-license fee: [*]
HP PART DESCRIPTION: [HP private-label name pending]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
HP per-license fee: [*]
HP PART DESCRIPTION: [HP private-label name pending]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
HP per-license fee: [*]
HP PART DESCRIPTION: [HP private-label name pending]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
HP per-license fee: [*]
FRU OEM PARTS.
All FRU pricing listed below shall be effective beginning on the
Effective Date of the Agreement [*]
FRU OEM PARTS (FOR BR-6400 OEM PRODUCT):
SUPPLIER MODEL NO. / DESCRIPTION: [*]
* 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 (C)
Page 2 of 3
<PAGE>
[*] HP PURCHASE PRICE
[*] [*]
[*] [*]
[*] [*]
[*] [*]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
[*] HP PURCHASE PRICE
[*] [*]
[*] [*]
[*] [*]
[*] [*]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
[*] HP PURCHASE PRICE
[*] [*]
[*] [*]
[*] [*]
[*] [*]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
[*] HP PURCHASE PRICE
[*] [*]
[*] [*]
[*] [*]
[*] [*]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
[*] HP PURCHASE PRICE
[*] [*]
[*] [*]
[*] [*]
[*] [*]
SUPPLIER MODEL NO. / DESCRIPTION: [*]
[*] HP PURCHASE PRICE
[*] [*]
[*] [*]
[*] [*]
[*] [*]
* 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 (C)
Page 3 of 3
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (D)
MAINTENANCE AND SUPPORT
- GENERAL TERMS:
- 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 ("Customers") of the Product. 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.
- DEFINITIONS: The following capitalized terms will have these
meanings when used in these Support Terms:
- "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:
[*]
- "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.
- "FIX" means a change in a Product 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 Product 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.
- "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 process. HP confirms the
problem diagnosis with Supplier, and the parties cooperate to
resolve the problem.
- "SUPPORT INFORMATION" means Product Service Information and a
Knowledge Data Base of known problems related to Supplier's
support of Products.
- "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.
- "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
* 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)
Page 1 of 9
<PAGE>
exchange of information, such as product configuration, product
operation, or other necessary answers or assistance to support
questions.
- "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.
- "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.
- "PRODUCTS" means the products listed in Exhibit (A) of the
Agreement to which this Exhibit is attached, including all
related Documentation. Software licenses and media, Parts, and
other deliverables provided pursuant to the Agreement.
- GENERAL OBLIGATIONS: Each party agrees to the following general
terms:
- For each Product, Supplier will provide a product support plan
incorporating HP's support planning processes and support
recommendations.
- Unless expressly authorized under these Support Terms, neither
party will commit resources of the other to Customers.
- 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)
Page 2 of 9
<PAGE>
[*]
[*]
- 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.
- 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.
- 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.
- 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.
- 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.
- TECHNICAL ASSISTANCE:
- HP REQUEST FOR TECHNICAL ASSISTANCE.
- 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.
- COLLECT THE FOLLOWING INFORMATION FOR ANALYSIS:
[*]
- - [*].
* 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>
- PROVIDE INFORMATION FOR BROCADE TO BE ABLE TO REPRODUCE
THE PROBLEM: Step-by-step procedure(s) used to recreate
the problem, if possible.
- SYSTEM CONFIGURATION INFORMATION:
- HOST: All OS platforms and versions; HBA type and
driver version
- HOST Applications: List
- STORAGE: Disk or tape subsystem type (i.e: RAID,
JBOD, public, private, DLT, etc.), manufacturer and
firmware version.
- Storage management software and applications
- SWITCH TOPOLOGY: Describe the network configuration.
Provide SAN diagram if possible.
- Is the switch in a cascaded or meshed environment?
- How many switches are in the configuration? Of what
types?
- How are the switches zoned?
- Are there parallel fabrics? Dual host, storage
connections
- Are there any third-party switches linked in the
fabric?
- Are there any arbitrated loop devices connected?
- Are any bridges, gateways, or routers connected? To
what?
- Effective as of the date of [*] of the Product, Supplier
will make its Technical Support Contacts available to
receive Technical Assistance requests from HP through the
supplier's designated toll-free telephone number, designated
e-mail address, ___________, or designated web site,
____________. The supplier shall provide technical support
to HP Support as set forth in this Agreement [*]
- 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.
- HP agrees that the support engineers that contact Supplier
for Technical Assistance have previously received a
substantial level of training on the Product.
- 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.
- TECHNICAL ASSISTANCE RECORDS WILL INCLUDE, AT A MINIMUM. THE
FOLLOWING INFORMATION:
- HP tall identification number and Supplier call tracking
number.
- Date of initial call to the supplier.
- Names of call participants.
- Times and dates of subsequent calls to HP
- Model, version and serial number of Product(s) involved;
and version of operating system involved.
- Problem Description (Symptoms) as provided by HP.
- Root Cause(s) as provided by the supplier
- Recommended Corrective Action(s) Alternatives and
Priorities (Steps taken to diagnose and remedy the
problem.) provided by the supplier.
- Any Action Plan(s) required for follow-up or resolution.
- Date of resolution.
* 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>
- 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.
- WEEKLY TECHNICAL ASSISTANCE REPORT: The Supplier will provide a
weekly technical report covering all problems received from HP
during the current week, all problems still open from previous
weeks including the original date forwarded to the Supplier,
current status of each problem, categorization of problems and
resolutions, and problem metrics including average response time
and number of escalations. Note: Problems include both Problem
Resolution Requests (paragraph 3) and Escalations (paragraph 4).
- PROBLEM RESOLUTION:
- REQUESTING PROBLEM RESOLUTION SERVICE:
- HP will receive defect reports, inquiries and problem calls
about Products 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.
- When making a Request for Technical Assistance, HP will
provide the following information in addition to the
HP-provided information as identified and listed in Section
2.1.1 & 2.2.1 above:
- Description of diagnostic work performed and data
collected by HP.
- Action being requested (e.g. remedying or assisting in
isolating the fault)
- Problem classification pursuant to the definitions in
Appendix II.
- PROBLEM RESOLUTION PROCESS:
- After Supplier receives a Request for Technical Assistance,
it will acknowledge receipt and then acknowledge HP's
diagnosis of the problem. When it is mutually deemed
necessary, [*] contact may be established. Supplier will
recommend appropriate corrective action(s) 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.
- 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. If the problem is mutually deemed to require Supplier
on-site presence in order to diagnose and isolate a problem,
the Supplier will provide technical assistance on-site (see
paragraph 4 - Escalation).
- 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; (d)
assist HP with on-site analysis.
- 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
* CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
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OMITTED PORTIONS.
EXHIBIT (D)
Page 5 of 9
<PAGE>
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.
- 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.
- PROBLEM RESOLUTION RECORDS:
- Supplier will keep records of all Requests for Technical
Assistance in the Suppliers Tracking System and update their
current status. Supplier will also be responsible for
accessing, reviewing, and updating defect information
related to the Products. The Supplier will provide a weekly
report as referenced in paragraph 2.4.
- PROBLEM RESOLUTION RECORDS WILL INCLUDE, AT A MINIMUM, THE
ITEMS LISTED IN SECTIONS 2.1.1, 2.2.1. AND 3.1.2 ABOVE ALONG
WITH THE FOLLOWING INFORMATION:
- Summary of the problem as finally diagnosed.
- Detailed description of the root causes and symptoms.
- Actions taken to resolve the situation.
- Date of Problem Resolution request and Final resolution.
- Likelihood of problem recurring and recommended action
in the event of a recurrence.
- Supplier and HP Service Request numbers for cross
reference purposes.
- Fix or Workaround implemented and how and when
available.
- Tests performed on the Fix or Workaround.
- If only temporary Fix or Workaround is available, the
Action Plan for Permanent Fix.
- CLOSING PROBLEM RESOLUTION REQUEST:
- 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.
- ESCALATION:
- REQUESTING AN ESCALATION:
- 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.
- WHEN REQUESTING ESCALATION, in addition to the HP-provided
information required under Problem Resolution in Sections
2.1.l, 2.2.1, and 3.1.2 above, HP will provide:
- Caller's location.
- Any currently installed Fixes or Workarounds.
- Reason for escalation.
- Steps taken to resolve problem.
* 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)
Page 6 of 9
<PAGE>
- Any Requests for Problem Resolution 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 [*].
- 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 [*] to
resolve the Escalation, and when mutually deemed necessary,
[*] contact may be established. If Problem Resolution
Service Requests are produced as a result of the Escalation,
the procedure defined above for Problem Resolution must be
followed.
- ESCALATION RECORDS:
- Supplier will keep a record of all Escalation requests
in the Supplier's Tracking System and update their
current status.
- ESCALATION RECORDS WILL INCLUDE, AT A MINIMUM, THE ITEMS
LISTED IN SECTION 3.3.2 ABOVE ALONG WITH THE FOLLOWING
INFORMATION:
[*]
- 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 Supplier will
coordinate monitoring activities. [*] will determine the [*]
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)
Page 7 of 9
<PAGE>
APPENDIX I
STRATEGIC AND TECHNICAL SUPPORT CONTACTS
INITIAL CALLS FOR BROCADE'S TECHNICAL ASSISTANCE NEED TO GO THROUGH:
PHONE:
EMAIL:
THE FOLLOWING PERSONS ARE DESIGNATED TO SERVE AS STRATEGIC SUPPORT CONTACTS:
SUPPLIER: HP:
-------- --
NAME: [*]
ADDRESS: Brocade Communications ADDRESS: Hewlett-Packard Company
1745 Technology Drive 602 E, Montecito St.
San Jose. CA 95110 Santa Barbara, CA 93103
[*] [*]
THE FOLLOWING PERSONS ARE DESIGNATED AS TECHNICAL SUPPORT CONTACTS:
SUPPLIER: HP:
-------- --
NAME:
ADDRESS: Brocade Communications [*]
1745 Technology Drive ADDRESS: Hewlett-Packard Company
San Jose, CA 95110 602 E. Montecito St.
[*] Santa Barbara, CA 93103
[*]
* 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)
Page 8 of 9
<PAGE>
APPENDIX II
[*]
PERMANENT FIX OR
ACKNOWLEDGE LONG TERM ACTION
HP CAL/PROBLEM PROBLEM RECEIPT; INITIAL ACTION FIX, OR FOR A PERMANENT
CLASSIFICATION ENGINEER ASSIGNED PLAN/STATUS UPDATE WORKAROUND TO HP FIX
-------------- ----------------- ------------------ ---------------- ----------------
[*] [*] [*] [*] [*]
[*] [*] [*] [*] [*]
[*] [*] [*] [*] [*]
[*] [*] [*] [*] [*]
[*] [*] [*] [*] [*]
*BCS =Business Continuity Service
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)
Page 9 of 9
<PAGE>
BROCADE/HP CONFIDENTIAL
EXHIBIT (E)
HP EQUIPMENT LOAN AGREEMENT
THIS EQUIPMENT LOAN AGREEMENT, (the "Agreement") is entered into between
HEWLETT-PACKARD COMPANY, ("HP"), and Brocade. This Agreement is effective as of
February 28, 2001 (the "Effective Date").
- LOAN OF EQUIPMENT. HP hereby loans to Brocade, for the applicable Term
defined below, the HP-owned equipment (collectively, "HP Equipment"),
which may consist of hardware, software and documentation described in
the HP Equipment Schedule attached as Exhibit A. HP may, from time to
time, add, upgrade, or remove HP Equipment from Brocade's site during
the Term. All HP Equipment received by Brocade during the Term will be
described in an amended HP Equipment Schedule signed by Brocade and
appended to this Equipment Loan Agreement. Brocade agrees, by its
receipt of HP Equipment, that all HP Equipment is subject to the
provisions of this Agreement.
- TERM. This Agreement will begin as of the Effective Date and run for a
term of [*] or the completion of [*] (the "Term"), unless earlier
terminated by HP or Brocade upon [*] written notice to the other. HP may
in writing extend the Term, or establish a separate Term with respect to
particular items of HP Equipment.
- USE. Brocade may use the HP Equipment solely for purpose of performing
testing services in support of the HP NSSO/SNS Testing. Brocade may not
use this equipment or offer testing services to any third party or other
HP Divisions or Entities without express written permission from the SNS
division of HP. Brocade may not move any HP Equipment from the location
specified in the HP Equipment Schedule without the prior written consent
of HP. Brocade's right to use the HP Equipment is non-transferable.
- SOFTWARE AND DOCUMENTATION. All software provided with the HP Equipment
is hereby licensed to Brocade Under HP's Software License Terms, a
current form of which is attached as Exhibit B. If Brocade requires a
license to use any software other than as stated in the Software License
Terms, that license must be specified in the HP Equipment Schedule. Any
documentation listed in the HP Equipment Schedule is licensed to Brocade
for its use solely for tile purposes stated in Section 3 above. If
Brocade wishes to make copies of any documentation, it must first obtain
HP's prior written consent.
- OWNERSHIP. HP retains all right, title and ownership to the HP
Equipment, unless any such HP Equipment is purchased by Brocade. Brocade
hereby nominates and appoints HP as its attorney-in-fact for the sole
purpose of executing and filing, on Brocade's behalf, UCC-1 financing
statements (and any appropriate amendments thereto) or a suitable
substitute document (including this Agreement) under the provisions of
the Uniform Commercial Code for the HP Equipment loaned to Brocade
hereunder. If requested by HP, Brocade will 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. Brocade may not sell,
transfer, assign, pledge, or in any way encumber or convey the HP
Equipment or any portion or component of such equipment.
- WARRANTY DISCLAIMER. ALL HP EQUIPMENT IS PROVIDED "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. Brocade understands that some newly manufactured HP
equipment may contain remanufactured parts equivalent to new in
performance.
- INDEMNIFICATION. Brocade hereby agrees to defend, indemnify and hold HP
harmless from any claims or suits against HP arising From Brocade's use
of the HP Equipment, including use by its employees, agents or
subcontractors. Brocade will pay [*] incurred by HP and will pay [*]
with respect to any such claim or agreed to in any settlement.
* 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 8
<PAGE>
- MAINTENANCE. During the Term, Brocade 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 installation,
support and maintenance for the HP Equipment [*] to Brocade during the
Term; however, [*] due to Brocade's negligence will be borne by Brocade.
Brocade will be responsible for providing HP personnel ready and safe
access to the HP Equipment for such maintenance and support.
- RISK OF LOSS. Brocade will bear [*] risk of loss with respect to the
HP Equipment from receipt until such HP Equipment is returned to HP. All
HP Equipment returned to HP must include the same components as received
by Brocade, and must be in good operating order and condition. Charges
may be imposed by HP if Brocade fails to return the HP Equipment in such
condition or within the return timeframe set forth herein.
- SHIPPING COSTS. Unless otherwise agreed in writing by HP, Brocade will
be responsible for and pay [*] with respect to the delivery or return
of any HP Equipment hereunder.
- LIMITATION OF LIABILITY. HP WILL 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 BROCADE'S USE OF THE HP EQUIPMENT.
- TERMINATION. Upon expiration or earlier termination of the Term, Brocade
will return to HP all HP Equipment within [*]. HP may permit Brocade to
purchase certain items of the HP Equipment upon termination under the
purchase terms set forth below. In the event that Brocade is permitted
to purchase any of the HP Equipment and fails to return that Equipment
to HP upon expiration of the Term within such [*] period, Brocade will
be deemed to have elected to purchase the LIP Equipment, and HP will
invoice Brocade accordingly.
- PURCHASE OPTION. If HP permits Brocade to purchase any of the HP
Equipment, Brocade may elect to purchase those items of the HP Equipment
Under HP's then current standard terms and conditions. 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 tills Section will be [*]. No other
promotional or purchase discounts will apply. Such purchase will not
quality for any stock rotation or price protection under any other
agreement which Brocade may have with HP.
- GENERAL PROVISIONS.
- Notices. All notices to be given under this Agreement must be in
writing and addressed to the location specified in the Master
Agreement or as designated in the opening paragraph of this
Agreement if there is no Master Agreement. Notices are validly given
upon the earlier of confirmed receipt by the receiving party or
three days after dispatch by courier or certified mail, postage
prepaid, properly addressed to the receiving party. Notices may also
be delivered by 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.
- No Assignment. Neither this Agreement nor any right, privilege,
license or obligation set forth herein may, be assigned, transferred
or shared by Brocade without HP's prior written consent, and any
such attempted assignment or transfer is void. Any merger,
consolidation, reorganization, transfer of substantially all assets
of Brocade or other change in control or ownership of Brocade will
be considered an assignment for the purposes of this Agreement.
- Entire Agreement. This Agreement and the attached Exhibits
comprise tile entire understanding between the parties with respect
to its subject matter and supersede any previous communications,
* 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 2 of 8
<PAGE>
representations, or agreements, whether oral or written. No
modification of this Agreement will be binding on either party
unless in writing and signed by an authorized representative of each
party.
- Governing Law. This Agreement will be governed in all respects by
the laws of the State of California without reference to any choice
of laws provisions, as though this Agreement were entered into by
residents of that State to be wholly performed within that State.
The parties hereby waive any application of the United Nations
Convention on Contracts for the International Sale of Goods (as
promulgated in 1980 and any successor or subsequent conventions)
with respect to the performance or interpretation of this Agreement.
APPROVED AND AGREED:
BROCADE: HEWLETT-PACKARD COMPANY
---------------------------------
By: /s/ Charles Smith By: /s/ Martin D. King
------------------------------------- ---------------------------
Print Name: Charles Smith Print Name: Martin D. King
----------------------------- -------------------
Title: VP, Worldwide Sales Title: Functional Manager
---------------------------------- ------------------------
SNS Solutions
Development Organization
EXHIBIT (E)
Page 3 of 8
<PAGE>
EXHIBIT A
HP EQUIPMENT SCHEDULE
HARDWARE
[*] [*] [*] [*]
------- ------- ------- ------
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
SOFTWARE LICENSE TYPE
[*] See attached License Agreement
[*]
DOCUMENTATION
[*]
LOCATION
1745 Technology Drive
San Jose, Ca 95110
ACKNOWLEDGED:
HEWLETT-PACKARD COMPANY BROCADE
By: /s/ Ken Raskin By: /s/ Jay Rafati
----------------------- --------------------------------
Print: Ken Raskin Print: Jay Rafati
----------------------- -----------------------------
Title: R&D Project Manager Title: SAN Solutions Project Manager
----------------------- -----------------------------
* 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>
EXHIBIT B
HP SOFTWARE LICENSE TERMS
EXHIBIT (E)
Page 5 of 8
<PAGE>
HP EQUIPMENT LOAN AGREEMENT
--------------------------------------------------------------------------------
ATTENTION: UPON PURCHASE OF AND PAYMENT FOR THE SOFTWARE LICENSE, 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
Upon purchase of and payment for the appropriate software license, 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. Additional license restrictions if any, for HP OpenView products
are contained in "Additional License Restrictions" as attached.
OWNERSHIP. The Software is owned and copyrighted by HP or its third party
suppliers. Your license confers no title to, 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 ADAPTATION. 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. You must reproduce all copyright notices in the
original Software on all copies or adaptations. You may not copy the Software
onto any public network.
NO DISASSEMBLY OR DECRYPTION. You 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, you will provide HP with reasonably detailed information regarding any
disassembly or decompilation. You may not decrypt the Software unless decryption
is a necessary part of the operation 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 RIGHT. The Software and 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 52.227-19 (Jun 1987) (or any equivalent agency regulation or
contract clause), whichever is applicable. You have only those rights provided
for such Software and Documentation by the applicable FAR or DFARS clause or the
HP standard software agreement for the product involved.
EXHIBIT (E)
Page 6 of 8
<PAGE>
ADDITIONAL LICENSE RESTRICTIONS FOR HP OPENVIEW STORAGE AREA MANAGER SOFTWARE
You are granted the right to install and use the Software for management of your
SAN in accordance with the storage based licensing policy. You are only granted
the right to manage as much storage as your license allows (specified in your HP
Entitlement Certificate). Exceeding that limit is a violation of this license
agreement.
ADDITIONAL LICENSE RESTRICTIONS FOR ANY EMBEDDED HP-UX RUNTIME ENVIRONMENT FOR
JAVA SOFTWARE
* License to Distribute HP-UX Runtime Environment for Java (tm). You are granted
a royalty-free right to reproduce and distribute the HP-UX Runtime Environment
for Java provided that you distribute the HP-UX Runtime Environment for Java
complete and unmodified, only as a part of, and for the sole purpose of running
your Java compatible applet or application into which the HP-UX Runtime
Environment for Java is incorporated.
* Java Platform Interface. Licensee may not modify the Java Platform Interface
("JPI," identified as classes contained within the "java" package or any
subpackages of the "java" package), by creating additional classes within the
JPI or otherwise causing the addition to or modification of the classes in the
JPI. In the event that Licensee creates any Java-related API and distributes
such API to others for applet or application development, Licensee must promptly
publish broadly, an accurate specification for such API for free use by all
developers of Java-based software.
* You acknowledge the Software is not designed or intended for use in on-line
control of aircraft, air traffic, aircraft navigation, or aircraft
communications; or in the design, construction, operation or maintenance of any
nuclear facility. HP disclaims any express or implied warranty of fitness for
such uses.
* You may make the HP-UX Runtime Environment for Java accessible to application
programs developed by you provided that the programs allow such access only
through the Invocation Interface specified and provided that you shall not
expose or document other interfaces that permit access to such HP-UX Runtime
Environment for Java. You shall not be restricted hereunder from exposing or
documenting interfaces to software components that use or access the HP-UX
Runtime Environment for Java.
EXHIBIT (E)
Page 7 of 8
<PAGE>
HP OPENVIEW STORAGE AREA MANAGER SOFTWARE
LIMITED WARRANTY STATEMENT
* Duration of limited warranty: 90 clays from date of purchase.
* HP warrants to you, the end customer, that the media upon which this product
is recorded will be free from defects in materials and workmanship after the
date of purchase for the period specified above. If HP receives notice of such
defects during; the warranty period, HP will, at its option, either repair or
replace products which prove to be defective.
* HP warrants to you that the Software will not fail to execute its programming
instructions after the date of purchase, for the period specified above, due to
defects in materials and workmanship when properly installed and used. If HP
receives notice of such defects during the warranty period, HP will replace
Software which does not execute its programming instructions due to such
defects.
* HP does not warrant that the operation of HP products will be uninterrupted or
error free. If HP is unable, within a reasonable time, to repair or replace any
product to a condition warranted, you will be entitled to a refund of the
purchase price upon prompt return of the product. Alternatively, in the case of
HP Software, you will be entitled to a refund of the purchase price upon prompt
delivery to HP of written notice from you confirming destruction of the HP
Software, together with all copies, adaptations, and merged portions in any
form.
* Warranty does not apply to defects resulting from: (a) improper or inadequate
maintenance or calibration; (b) software, interfacing, parts or supplies not
supplied by HP, (c) unauthorized modification or misuse; (d) operation outside
of the published environmental specifications for the product, or (e) improper
site preparation or maintenance. * Warranty does not apply to non-HP software
supplied by third parties including the embedded HP-UX runtime environment for
Java.
* TO THE EXTENT ALLOWED BY LOCAL LAW. THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO
OTHER WARRANTY OR CONDITION. WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED.
HP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Some Countries, states or provinces do not allow limitations on the duration of
an implied warranty, so the above limitation or exclusion might not apply to
you. This warranty gives you specific legal rights and you might also have other
rights that vary from country to country, state to state, or province to
province.
* TO THE EXTENT ALLOWED BY LOCAL LAW. THE REMEDIES IN THIS WARRANTY STATEMENT
ARE YOUR SOLE AND EXCLUSIVE REMEDIES. EXCEPT TO THE EXTENT PROHIBITED BY LOCAL
LAW. IN NO EVENT WILL HP OR ITS SUBSIDIARIES, AFFILIATES OR SUPPLIERS BE LIABLE
FOR DIRECT. SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING LOST
PROFIT, LOST DATA, OR DOWNTIME COSTS), ARISING OUT OF THE USE, INABILITY TO USE,
OR THE RESULTS OF USE OF THE SOFTWARE, WHETHER BASED IN WARRANTY, CONTRACT, TORT
OR OTHER LEGAL THEORY, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. Your use of the Software is entirely at your own risk. Some Countries,
states and provinces do not allow the exclusion or limitation of liability for
incidental or consequential damages, so the above limitation may not apply you.
* Except to the extent allowed by local law, these warranty terms do not
exclude, restrict or modify, and are in addition to, the mandatory statutory
rights applicable to the license of the software to you.
* Warranty service may be obtained from the nearest 1-IP sales office or other
location indicated in the owners manual or service booklet.
EXHIBIT (E)
Page 8 of 8
<PAGE>
EXHIBIT (F)
CONFIDENTIAL DISCLOSURE AGREEMENT
In order to protect certain confidential information, HP and the Participant
identified below, agree to the Following:
- DEFINITIONS. A Discloser is a party disclosing confidential information.
A Recipient is u party receiving disclosed confidential information. An
Associate is a subsidiary, parent or corporate affiliate of Recipient,
or a third party contractually bound to Recipient in accord with this
Agreement.
- AGREEMENT COORDINATOR. Each party designates the following person, if
any, as its Agreement Coordinator for coordinating the disclosure or
receipt of confidential information:
[*]
- HP CONFIDENTIAL INFORMATION.
[*]
- PARTICIPANT CONFIDENTIAL INFORMATION.
[*]
- RECIPIENT'S OBLIGATIONS.
- Recipient will protect, and will ensure its participating
Associates will protect, the disclosed confidential information
by using the same degree of care, but no less than a reasonable
degree of cart, to prevent the unauthorized use, dissemination
or publication of the confidential information its Recipient
uses to protect its own confidential information of a like
nature. Recipient may reassign its employees. Recipient will
provide reasonable prior notice to Discloser if Recipient is
required to disclose the confidential information under
operation of low.
- Recipient will comply with all applicable export laws.
- DISCLOSURE AND PROTECTION PERIODS. The Disclosure Period and the
Protection Period start on the Begin Disclosure Date unless a different
start date is specified. Recipient's obligations under Section 5(a) only
apply to confidential information disclosed during the Disclosure
Period. Recipient's obligations under Section 5(a) stop at the end of
the Protection Period.
The Begin Disclosure Date is [*].
The Disclosure Period ends on [*]
The Protection Period ends on [*]
- MARKING. Recipient's obligations under this Agreement extend only to
confidential information that is
- itemized in Section 3(a) or 4(a); or
- both described generally in Section 3(a) or 4(a) and
- marked at the time of disclosure to show its
confidential nature, or
- unmarked (for example, orally or visually disclosed)
bill treated ns confidential at the time of disclosure,
and designated to show its confidential nature in a
written message sent to Recipient's Agreement
Coordinator within thirty days after disclosure,
summarizing the disclosed confidential information
sufficiently for identification.
- 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 publicly known without breach
by Recipient, (c) is rightfully received by Recipient from a third party
without a duty of confidentiality, (d) is disclosed by Discloser to a
third [)any without a duty of confidentially on the third parry, (e) is
independently developed or learned by Recipient or (f) is disclosed by
Recipient with Discloser's prior written approval.
[*]
- CHOICE OR LAW. Without regard to choice or law provisions, this
Agreement is governed by and will be consented in accordance with the
laws of the State of New York and the USA unless if filled in here, thin
the laws of ___________________.
- WARRANTY. Each Discloser warrants that it has the right to make the
disclosures under this Agreement. Each Recipient warrants that its
participating Associates will protect disclosed confidential information
in accordance with the toms of this Agreement. NO OTHER WARRANTIES ARE
MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY CONFIDENTIAL INFORMATION
DISCLOSED UNDER THIS AGREEMENT IS PROVIDED "AS IS."
- MISCELLANEOUS. Neither party acquires any intellectual property rights
under this Agreement except the rights granted in Sections 3, 4 and 9.
This Agreement imposes no obligation on either party to purchase, sell,
license, transfer or otherwise dispose of any technology, services or
products. This Agreement does not create any agency or partnership
relationship. All additions or modifications to this Agreement
* 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 1 of 2
<PAGE>
must be made in writing, and must be signed by both panics. This
Agreement may be signed in duplicate originals, or in separate
counterparts, which arc effective as if the parties signed to single
original. A facsimile of an original signature transmitted to the other
parry is effective as if the original was sent to the other Party.
HP PARTICIPANT
HEWLETT-PACKARD BROCADE
------------------------ ---------------------------
--------------------------------------- ----------------------------------
(Address) (Address)
--------------------------------------- ----------------------------------
(Address) (Address)
By: /s/ Martin D. King By: /s/ Charles Smith
----------------------------------- ------------------------------
(Financial Manager's Signature) (Authorized Signature)
Martin D. King Charles Smith
--------------------------------------- ----------------------------------
(Name) (Name)
Product Engineering Center Manager VP, OEM Sales
--------------------------------------- ----------------------------------
(Title) (Title)
EXHIBIT (F)
Page 2 of 2
<PAGE>
EXHIBIT (G)
RECIPIENTS FOR RECEIPT OF NOTICES
FOR HP: FOR SUPPLIER:
------ ------------
BUSINESS CONTACT: BUSINESS CONTACT:
[*] [*]
8000 Foothills Blvd. 1745 Technology Drive
[*] San Jose, CA 95110
Roseville, CA 95747 [*] @brocade.com
------------
[*]
TECHNICAL CONTACT:
Technical Contact: [*]
[*] 1745 Technology Drive
8000 Foothills Blvd. San Jose, CA 95110
[*] [*]
Roseville, CA 95747
[*]
[*]
[*]
* 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
Note: The parties intend to amend this Exhibit (H) to include the applicable HP
Supplier Quality System Requirements for the [*] as soon as such information is
made available.
------------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 OEM MANAGER
-----------------------------------------------------------------------------------------------------
A Preliminary Draft 3/31/01 [*]
-----------------------------------------------------------------------------------------------------
[LOGO]
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.
-----------------------------------------------------------------------------------------------------
ASSEMBLY #: N/A HP P/N: TBD
-----------------------------------------------------------------------------------------------------
DATE: March 31, 2001 DESCRIPTION:
[*]
SUPPLIER QUALITY/RELIABILITY REQUIREMENTS
DOCUMENT: Quality Plan
-----------------------------------------------------------------------------------------------------
BY: [*]
-----------------------------------------------------------------------------------------------------
DWG#:
-----------------------------------------------------------------------------------------------------
[ * ]
* 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 (H)
<PAGE>
BROCADE [*]
SUPPLIER QUALITY/RELIABILITY
REQUIREMENTS DOCUMENT
Model Numbers:
TBD - [*]
Supplier: Brocade
-----------------------------------------------------------------------------------------------------
DOCUMENT REVISION HISTORY
-----------------------------------------------------------------------------------------------------
REVISION # DATE DESCRIPTION
-----------------------------------------------------------------------------------------------------
00 3/31/01 - Initial Release
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
[ * ]
* 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 (H)
<PAGE>
TABLE OF CONTENTS
1. PURPOSE......................................................................................4
2. DEFECTIVE PRODUCT............................................................................4
2.1 [*]......................................................................................4
3. [*] TEST PROCESS.............................................................................5
3.1 [*]......................................................................................5
3.2 HP Incoming [*]..........................................................................5
3.3 Dock-To-Stock............................................................................5
3.4 OOBA Inspection .........................................................................5
4. FIELD QUALITY/ RELIABILITY...................................................................6
4.1 AFR (Annual Failure Rate)................................................................6
5. FAILURE ANALYSIS EXPECTATIONS................................................................6
6. QUALITY DATA EXPECTATIONS....................................................................6
6.1 HP'S Responsibility .....................................................................6
6.2 Supplier's Responsibility ...............................................................7
[*] Reports.............................................................................7
Other Reports............................................................................8
7. COMMUNICATION EXPECTATIONS...................................................................8
7.1 PRODUCT Changes REQUIRING HP Approval....................................................8
7.2 Process Changes Requiring HP Approval....................................................8
7.3 Shipment Hold Notification...............................................................8
7.4 [*].....................................................................................9
8.0 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.
EXHIBIT (H)
<PAGE>
1. PURPOSE
The purpose of this QualiM/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 failed
units, and provide the data of failure symptoms observed or NTF (No Trouble
Found), on all units returned from HP worldwide manufacturing sites.
2.1 [*]
[*]
* 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 (H)
<PAGE>
[*]
[*] 3. [*] TEST PROCESS
3.1 [*] [*]
First production shipment to HP will be [*][*] listed in the
Configuration Specification. The [*][*] will include a review of the
following items:
- Packaging (check for damage during shipment)
- Identification (labeling of product and package)
- Content (proper components in the package)
- Configuration (correct revisions, jumper settings, etc)
3.2 HP INCOMING [*]
All new suppliers must demonstrate relevant process control through a quality
system [*]. HP shall thoroughly [*] the [*] units received from the Supplier. If
there are any functional failures or cosmetic failures HP has the right to [*]
the Supplier's manufacturing process immediately.
Incoming [*] will include a review of the following items:
- Packaging (check for damage during shipment)
- Identification (labeling of product and package)
- Content (proper components in the package)
- Configuration (correct revisions, jumper settings, etc)
- Operation (HP manufacturing test)
[*]
* 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 (H)
<PAGE>
- Firmware level and license key.
All failures require a corrective action report completed by the Supplier within
[*] after notification. If the Supplier needs the defective unit to determine
the root cause, the Supplier shall complete a [*] report within [*] after
receipt of the defective unit(s). The report shall contain detailed explanation
of the root cause and [*] performed. HP shall verify the report during the
audit.
3.3 DOCK-TO-STOCK
Product will move to Dock-To-Stock status after successful completion of [*] as
listed in Section 3.2. Upon successful completion of [*] and [*], subsequent
shipments will not be inspected as they are received by HP-NSSO.
3.4 OOBA INSPECTION
OOBA is performed after a [*] final Inspection on the BROCADE manufacturing
line. The focus of OOBA is to screen for failures, rectify any lots with
problems, and implement [*] based on the observed failures.
The In-Process Acceptance Limit has been established and specified in the
following chart. The In-Process Lot Sample Inspection shall be used when
determining the Q1 score for the TQRDC/E review.
-------------------------------------------------------
DPM
PART DESCRIPTION PART NUMBER UPPER LIMIT
-------------------------------------------------------
[*] TBD [*]
------------------- ----------------- -----------------
If the DPM goal is not met, Brocade will provide [*] and [*] the
manufacturing process (and/or contract supplier process if necessary)
and hold [*] until [*] the stated goal.
[*]
4. FIELD QUALITY / RELIABILITY
4.1 AFR (ANNUAL FAILURE RATE)
The AFR Limits 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 REPLACEMENT FIELD FAILURE
PART DESCRIPTION PART NUMBER RATE (AFR) LIMIT
-------------------------------------------------------
[*] TBD [*]
-------------------------------------------------------
These number do not include [*].
5. FAILURE ANALYSIS EXPECTATIONS
Supplier shall test and verify all unit failures returned by HP 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.
[*] first evaluation shall be completed to the component level within [*] after
receipt of the unit at Brocade. If problem cannot be detected with typical
diagnostic tests and burn-in/stress testing is required, then an evaluation
report will be sent within [*] of receipt of unit. Complete [*] report will be
completed in [*] and sent to OEM Engineering at 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 (H)
<PAGE>
6. QUALITY DATA EXPECTATIONS
Quality data supplied by Supplier shall include, but not be limited to, [*] and
[*] regarding failures.
6.1 HP'S RESPONSIBILITY
HP shall inform Supplier of In-Process Failures that occur at [*] on a
[*] basis.
6.2 SUPPLIER'S RESPONSIBILITY
[*] REPORTS
Supplier shall provide the following reports to HP-LASSO s OEivl
Engineer on a [*] basis:
- [*] of all reports contained in following [*] report
section.printed: Supplier shall provide the following reports to
HP-NSSO's Mass Storage OEM Engineers on a [*] basis:
[*]
OTHER REPORTS
Supplier shall provide the following additional information to the HP
Fibre Channel OEM Engineer.
- [*] upon completion.
7. COMMUNICATION EXPECTATIONS
7.1 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 OEM Engineer. Changes that must
be communicated in writing are:
[*]
- [*]
7.2 PROCESS CHANGES REQUIRING HP APPROVAL
Supplier shall notify HP of any major changes to the manufacturing process in
[*] proposed implementation. These include:
1. [*]
[*]
* 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 (H)
<PAGE>
7.3 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
I-IP's inventory exposure and a recover, plan, if applicable, shall be
provided within [*] of such situation occurring.
7.4 [*]
Supplier will maintain a [*] with HP to address all open issues and will
[*].
8. SUPPLIER QUALITY SYSTEM
[*]
[*]
* 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 (H)
<PAGE>
EXHIBIT (I)
HP END USER SOFTWARE LICENSE AGREEMENT
ATTENTION 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.
EXHIBIT (I)
Page 1 of 2
<PAGE>
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 52.227-19 (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.
EXHIBIT (I)
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<PAGE>
[ * ]
* 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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[*]
* 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 (J)
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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.
EXHIBIT (J)
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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.
EXHIBIT (J)
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