OEM and License Agreement - Brocade Communication Systems Inc. and McData Corp.
AGREEMENT NO. ________
BROCADE COMMUNICATION SYSTEMS, INC.
OEM AND LICENSE AGREEMENT
This BROCADE Communications Systems, Inc. Original Equipment Manufacturer
("OEM") and License Agreement (including the attached terms and conditions and
exhibits, each of which is expressly incorporated herein, collectively the
"Agreement") is entered into as of this 27th day of April, 1999 (the "Effective
Date") by and between Brocade Communications Systems, Inc., a corporation
organized under the laws of the State of California, U.S.A., and having its
principal place of business at 1901 Guadalupe Parkway, San Jose, California
95131, ("BROCADE") and McDATA Corporation ("McDATA"), a Delaware corporation,
and having its principal place of business at 310 Interlocken Parkway,
Broomfield, Colorado 80021.
This Agreement consists of the following:
THE TERMS AND CONDITIONS CONTAINED IN THIS COVER/SIGNATURE PAGE OEM
TERMS AND CONDITIONS (THE "TERMS")
EXHIBIT A - PRICE LIST
EXHIBIT B - SERVICE AND SUPPORT REQUIREMENTS
EXHIBIT C - TECHNICAL TRAINING PROGRAM
EXHIBIT D - SOFTWARE LICENSE AGREEMENT
EXHIBIT E - McDATA PRODUCTS
EXHIBIT F - SETTLEMENT AGREEMENT AND MUTUAL RELEASE (DATED APRIL 14,
1998)
EXHIBIT G - ASICS SPECIFICATIONS
EXHIBIT H - BROCADE - HP - McDATA SUPPORT LETTER
EXHIBIT I - BROCADE - McDATA NDA
EXHIBIT J - MANUFACTURING [*] TEST PROCESSES
EXHIBIT K- HARDWARE SUBASSEMBLIES MTBF
IN WITNESS WHEREOF, in consideration of the covenants and other compensation set
forth herein, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto have executed this Agreement as of the Effective Date.
BROCADE: BROCADE COMMUNICATIONS McDATA: MCDATA CORPORATION
SYSTEMS, INC.
Signature: Signature:
---------------------------- -------------------------
Name: Name:
--------------------------------- ------------------------------
Title: Title:
-------------------------------- -----------------------------
Agreement No.: _______
BROCADE COMMUNICATIONS SYSTEMS, INC.
OEM AND LICENSE AGREEMENT TERMS
These Terms are effective as of the Effective Date of the Agreement and are made
between BROCADE and McDATA, as identified on the cover/signature page to which
these Terms are attached. BROCADE and McDATA hereby agree as follows:
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1.0 DEFINITIONS
1.1 "ASICs Firmware" means the object code [*] versions of BROCADE's proprietary
software used in conjunction with BROCADE's current generation of Fibre Channel
products incorporating the BROCADE ASICs and designated with version numbers
1.X, and related software design specifications provided to McDATA pursuant to
the Technology License and Development Agreement between the parties dated
November 1, 1996.
1.2 "ASICs Specifications" means the specifications attached hereto as Exhibit
G.
1.3 "BROCADE ASICs" means that generation of BROCADE Felt and McFlannel
application specific integrated circuits ("ASICs") as of April 1, 1998 for the
Felt ASICs, and July 1998 for the McFlannel ASICs, with the LSI Logic part
numbers [*] and [*], respectively.
1.4 "Customers" means the collective reference to End Users and Resellers.
1.5 "Derivative Work(s)" means any work of authorship that is based upon one or
more preexisting works such as a revision, modification, translation,
abridgement, condensation, expansion, or any other form in which such
preexisting works may be recast, transformed, or adapted and which, if prepared
without authorization of the owner of the copyright in such preexisting work,
would constitute a copyright infringement.
1.6 "End User(s)" means McDATA's customers of the Products (as incorporated into
the McDATA Products), which shall only be the ultimate users of a McDATA
Product, and not a reseller, agent, broker or other intermediary in the chain of
distribution.
1.7 "Hardware" means the SilkWorm Motherboard, CPU Board, G_Port Board, and
FL_Port Board offered to McDATA by BROCADE as set forth in Exhibit A.
1.8 "Licensed Software" means the software products set forth in Exhibit A, in
object code only, supporting version numbers 1.x of the ASICs Firmware and which
are pre-installed on all of the applicable Hardware shipped to McDATA under this
Agreement, and which further require a license key specific to an individual
Hardware unit ("Key") to activate the Licensed Software.
1.9 "McDATA Functionality" means McDATA's Intellectual Property Rights (as
defined in Section 13) embodied in the ASICs Specifications, as amended from
time to time by mutual consent, and McDATA's hardware designs, simulation
models, and system architecture specifications embodied in the McDATA Products.
1.10 "McDATA Product" means the Fibre Channel switches set forth in Exhibit E
which are designed and assembled by McDATA in which the [*] of such switches are
comprised of the Hardware set forth in Exhibit A, in accordance with the terms
set forth in Section 2.2.
1.11 "Prices" means the net amounts charged by BROCADE in relation to the list
of Products offered by BROCADE hereunder. The Prices are attached hereto in
Exhibit A.
1.12 "Products" means the Hardware and Licensed Software offered to McDATA by
BROCADE as set forth in Exhibit A, and any related documentation and manuals
provided by BROCADE, as set forth in Section 2.4.2.
1.13 "Reseller(s)" means any business entity which McDATA utilizes to market and
service the McDATA Products to End Users in accordance with the terms of this
Agreement, including systems integrators, original equipment manufacturers and
distributors.
1.14 "Software License Agreement" means the Software License Agreement, set
forth as Exhibit D, as may be amended by mutual agreement from time to time.
2.0 LICENSES
2.1 Grant of License. Subject to the terms of this Agreement, BROCADE grants
McDATA a non-exclusive, non-transferable, worldwide license to: (a) market,
sell, distribute, sublicense and demonstrate the Products to Customers solely as
incorporated into the McDATA Products set forth in Exhibit E; and (b) use the
Products solely as incorporated into the McDATA Products as reasonably required
in connection with such marketing, sales, distribution and demonstration.
2.2 No Standalone. McDATA agrees not to market, sell, distribute, sublicense or
demonstrate the Products in standalone form, except that McDATA shall have the
right to distribute spare and field replacement units of the Hardware solely for
use in connection with previously sold units of McDATA Product.
2.3 Private Label. McDATA shall privately label the Products as incorporated
into the McDATA Products, and may remove the BROCADE branding on the Products
and attach McDATA trademarks or other marks to the Products as the branding of
the Products, except that McDATA shall not remove any of BROCADE's proprietary
copyright, trademark and patent notices without BROCADE's prior written notice.
2.4 Documentation.
2.4.1 Documentation to McDATA. Promptly following the Effective Date and
concurrent with BROCADE's general release, if any, of the Products, BROCADE will
provide to McDATA BROCADE's standard technical documentation including but not
limited to data sheets, BROCADE Manuals (as defined below) and other manuals
distributed to resellers of the Products (such as technical manuals), all of
which BROCADE will supply in BROCADE's standard electronic format for
incorporating into the McDATA Manuals (as defined below) ("Documentation").
During the term of this Agreement, BROCADE will provide to McDATA updates to the
Documentation, if any, when BROCADE generally makes such updates available to
licensees of the Products.
2.4.2 Documentation Licenses.
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(a) Technical Documentation. Subject to the terms of this Agreement, BROCADE
hereby grants to McDATA a nonexclusive, nontransferable, worldwide license to
reproduce and use BROCADE's technical documentation provided to McDATA by
BROCADE hereunder, solely for McDATA's internal purposes in connection with the
manufacture, marketing and support of the McDATA Products into which the
Products are incorporated as set forth herein. Modifications to such technical
documentation by McDATA shall require BROCADE's prior written authorization,
which authorization will not be unreasonably withheld.
(b) Manuals. Subject to the terms of this Agreement, BROCADE hereby grants to
McDATA a nonexclusive, nontransferable, worldwide license to modify the BROCADE
End User manual(s) (including manual text and layouts) for the Products
("BROCADE Manuals"), subject to BROCADE's written approval as described below,
and to distribute such approved, revised versions of the BROCADE Manuals with
the McDATA Product (the "McDATA Manuals"). BROCADE will review and approve the
McDATA Manuals in writing as to form and content with respect to the Products
prior to their use or distribution. Such approval shall not be unreasonably
withheld and shall be made within [*] following BROCADE's receipt of the
proposed McDATA Manuals. Notwithstanding the foregoing, such approval shall not
be required for (a) changes to content made by McDATA which are consistent with
changes made by McDATA to the McDATA Products (other than changes to the
Products), or (b) changes consistent with McDATA's usage, style or format
guidelines, provided that no such change alters the form, features or
functionality of the Products.
(c) Ownership. McDATA agrees that the foregoing licenses do not grant to McDATA
any title or other right of ownership to the Documentation. Notwithstanding the
foregoing, the parties agree that McDATA shall own any modifications made to the
McDATA Manuals
2.4.3 Expenses. McDATA is solely responsible for all expenses incurred by McDATA
in modifying, reproducing and using the Documentation.
2.4.4 Documentation Warranty.
(a) [*]. BROCADE [*] that the Documentation will be [*]. Except as expressly
provided in this Section 2.4.4(a), BROCADE grants the licenses in Section 2.4.2
to McDATA hereunder solely on an "AS IS" basis.
(b) Disclaimer. EXCEPT AS OTHERWISE PROHIBITED BY LAW, AND THEN ONLY TO THE
EXTENT SO PROHIBITED, BROCADE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND
CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE DOCUMENTATION,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE.
2.5 Restrictions. Without BROCADE's prior written consent, McDATA will not do
any of the following acts: (a) disassemble, decompile, reverse engineer any
Products, or otherwise reduce the Licensed Software to human-readable form; (b)
copy or otherwise reproduce any Products, in whole or in part; (c) except as
authorized herein, remove, modify or otherwise tamper with notices or legends on
the Products or any labeling on any physical media containing the Licensed
Software; (d) use the Products in any manner to provide service bureau, time
sharing, or other computer services to third parties, (e) except as set forth
below, create Derivative Works from, adapt, modify, change or enhance the
Products. McDATA's rights in the Products will be limited to those expressly
granted in this Agreement, (f) remove the Licensed Software from the Hardware in
which is it embedded, or (g) authorize third parties to do any of the foregoing.
McDATA agrees to include the foregoing restrictions in its agreements with its
Resellers.
2.6 ASICs License.
(a) Right to Purchase. BROCADE grants McDATA the right to purchase, use and
resell the BROCADE ASICs as incorporated into the McDATA Products and not for
resale on a standalone basis, and shall authorize LSI Logic and LSI Logic's
authorized distributors to sell the BROCADE ASICs to McDATA for incorporation
into the McDATA Products, (such right and authorization is herein defined as
"ASIC License")which ASIC License is fully paid-up and irrevocable. The pricing
for such ASICs shall be as established between McDATA and LSI Logic and/or its
distributors.
(b) [*]. Brocade agrees that within thirty (30) days of the Effective Date of
this Agreement, it will [*] with [*] reasonably acceptable to McDATA, all [*]
and [*] (as defined below) [*], all of which shall be in a [*] form which
generally conforms to industry standards. For the purposes of this Agreement,
the term [*] means [*], and [*] means the [*] required to [*] and [*] the [*],
including [*] and [*]. Upon completion of the final design of the McFlannel
application ASIC, BROCADE will update the [*] to include the [*] and [*] for the
McFlannel ASIC.
(c) Access to [*]. Concurrent with BROCADE's [*] of the [*], BROCADE and McDATA
will execute an [*] authorizing said [*] to [*] to McDATA in the event that: (i)
upon receipt of [*] from LSI Logic of the [*], BROCADE will promptly notify
McDATA and work with McDATA to [*] for the [*], (ii) LSI Logic and/or LSI
Logic's authorized distributors fail or refuse to sell such [*] to McDATA,
including as a result of LSI Logic's [*] or [*] (other than as a result of
McDATA's failure to make payments when due or McDATA otherwise breaches its
obligations owed to LSI Logic or LSI Logic's authorized distributors) and,
BROCADE has not, within [*] of receipt of McDATA's written notice of such
refusal to sell by LSI Logic, [*] for McDATA the right to purchase said [*] from
a [*], (iii) the filing by or against BROCADE of bankruptcy proceedings which
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have not been dismissed for a period of [*] after the date of filing, or (iv)
solely prior to the release to production of the McFlannel ASICs and solely with
respect to the ASIC Designs and Manufacturing Documentation for the McFlannel
ASICs, the McFlannel ASICs do not [*] to the McFlannel ASICs specifications
after McDATA has provided BROCADE with written notice of such [*] and BROCADE
has failed to remedy such [*] within: (A) [*] of receipt of such written notice,
or (B) if such [*] cannot reasonably be remedied within [*], if BROCADE fails to
provide McDATA, within the stated [*] period, a written plan for specifying a
[*] to such failure which will be completed within the ensuing [*] period (or
longer time period if mutually agreed by the parties), along with demonstrable
evidence that progress has begun with respect to such plan ("[*]"). BROCADE
shall pay all [*] charged by the [*] pursuant to the [*]. Upon the release of
the [*] following a [*], then McDATA shall have the following rights in and to
the [*]:
(i) McDATA shall have a non-transferable, non-exclusive, right and license
to complete the development of, or have developed, and to [*], or [*], the
[*] for incorporation into the McDATA Products. McDATA agrees that such [*]
shall be used by McDATA solely to complete the development of (if
applicable) and to [*], sell, maintain and support the [*] as incorporated
into the McDATA Products. McDATA agrees that BROCADE shall have the right to
approve any [*] McDATA may use pursuant to this section, which approval
shall not be unreasonably withheld by BROCADE;
(ii) McDATA shall not use the [*] and [*] except as provided herein.
(iii) McDATA will maintain the confidentiality of the proprietary [*] and
[*] as it would maintain the confidentiality of its own comparable
information, but in no event with less than reasonable care.
(iv) McDATA will not, without BROCADE's express written permission make or
have made, or permit to be made, more [*] of the [*] and/or [*] than are
necessary for the permissible uses hereunder, and that each such necessary
[*] shall contain the same notices or legends which appear on the [*] of
each portion of the [*] and [*].
(v) BROCADE shall use its reasonable best efforts to assist McDATA in
securing a [*] between McDATA and any third parties with whom BROCADE may
have contracts, licenses or other arrangements necessary to the [*] of the
[*].
(vi) If McDATA exercises the [*] under this Section 2.6, McDATA agrees to
[*] BROCADE reasonable [*] for the [*] by McDATA and the amount of such [*]
shall be subject to the good faith negotiation of the parties.
2.7. ASICs Firmware License BROCADE grants McDATA an irrevocable, perpetual,
nonexclusive, nontransferable, worldwide fully paid up license to (i) internally
reproduce and modify the [*] version of the ASICs Firmware to compile a
derivative object code version of the ASICs Firmware, (ii) prepare and have
prepared Derivative Works of the ASICs Firmware, and (iii) reproduce,
distribute, sublicense, publicly perform and publicly display such object code
version of the ASICs Firmware only as incorporated into the McDATA Products and
not for resale on a standalone basis. BROCADE will provide each new release of
the ASICs Firmware to McDATA in a mutually agreed format within [*] days after
the date of general commercial availability of such release. Within [*] days of
any such release, BROCADE shall notify McDATA in writing in the form of BROCADE
standard release notes of changes to the [*] of such ASICs Firmware or related
software design specifications resulting from program errors or corrections in
relation to the immediately prior version of the ASICs Firmware; the parties
agree that such BROCADE notification shall not include information regarding
modifications to the ASICs Firmware as a result of custom work performed by
BROCADE for third parties. BROCADE agrees not to incorporate any such custom
modifications to the ASICs Firmware into the versions provided to McDATA to the
extent that any such modifications would affect the base functionality of the
ASICs Firmware.
3.0 TERM
The initial term of this Agreement shall commence on the Effective Date, and
shall extend for a period of twenty-four (24) months from the Effective Date
("Initial Term"), unless earlier terminated as set forth herein. This Agreement
may be renewed for subsequent one (1) year terms upon the prior written
agreement of the parties (each a "Renewal Term"). Whether or not the parties
renew this Agreement upon the expiration of the Initial Term or any subsequent
Renewal Term as set forth in the foregoing sentence, the parties agree that this
Agreement shall be deemed to automatically renew for successive three (3) month
periods in the event that McDATA continues to [*] Products in the [*] set forth
in Section 10.3 hereof ("Product End-of-Life"), unless otherwise terminated as
set forth herein. This Agreement shall always be interpreted to have a definite
term. Neither party has made or shall make any commitments regarding the
duration or renewal of this Agreement beyond those expressly stated herein.
4.0 TAXES
The parties acknowledge that the Prices do not include duty, sales, use, excise,
import, export, goods and services, value added or similar taxes or duties,
including any penalties and interest thereon, and all government permit and
license fees and customs and similar fees, which BROCADE may incur in respect of
this Agreement, including any costs expended to collect such amounts from McDATA
("Taxes"). McDATA agrees to pay, indemnify and hold BROCADE harmless from all
applicable Taxes (other than taxes based upon BROCADE's net income), unless
McDATA procures and provides to BROCADE an exemption certificate in a form
reasonably acceptable to BROCADE and to the appropriate taxing authority. If
McDATA fails to pay any Taxes as of the original due date therefor and BROCADE
receives any assessment or other notice (collectively, the "Assessment") from
any governmental taxing authority stating that such Taxes are due from BROCADE,
then BROCADE shall give
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McDATA written notice of the Assessment and McDATA shall pay the taxing
authority.
5.0 ORDERS, CHANGES AND CANCELLATIONS
5.1 Sales Forecast. During the term of the Agreement, within [*] days after the
beginning of each month, McDATA will submit to BROCADE by facsimile, e-mail or
nationally-recognized overnight delivery service a forecast of its projected
sales and purchases for a one hundred and eighty (180) day rolling period. The
forecasts will include: (a) quantity and type of Product to be sold and
projected delivery dates for the first ninety (90) days of such period, and (b)
the aggregate number of quantity and type of Product to be sold in each of
months four, five and six of such period. Such forecasts shall not be binding on
either party, but shall be made in good-faith.
5.2 Orders.
(a) Hardware Orders. McDATA will order Hardware by submitting written purchase
orders to BROCADE by facsimile, e-mail or nationally-recognized overnight
delivery service. All orders shall reference this Agreement, state the
quantities, part numbers and descriptions of Hardware ordered, applicable prices
and license fees, requested delivery dates and shipping instructions. All orders
placed by McDATA will be subject to acceptance by BROCADE, as well as to
BROCADE's standard lead times and forecasted requirements. BROCADE shall accept
or reject in writing any purchase orders which were forecasted by McDATA in
accordance with Section 5.1 above within [*] days of receipt of such purchase
orders by BROCADE; BROCADE shall use commercially reasonable efforts to accept
or reject purchase orders which were not forecasted in accordance with Section
5.1 above. All such purchase orders shall be governed by the terms and
conditions of this Agreement. For purposes of this Agreement, the order date
will be the date on which BROCADE receives McDATA's order. BROCADE will use
commercially reasonable efforts to ship the Hardware to McDATA in accordance
with delivery dates specified in the order as accepted by BROCADE.
(b) Licensed Software Orders. McDATA will order Keys to the Licensed Software by
submitting written purchase orders to BROCADE by facsimile, e-mail or
nationally-recognized overnight delivery service. All orders shall reference
this Agreement, state the quantities ordered, and provide the [*] of the CPU
board(s) for which McDATA seeks to activate the Licensed Software. All such
orders are subject to acceptance by BROCADE. BROCADE shall accept or reject any
such purchase orders in writing within [*] days of receipt of such purchase
orders by BROCADE. All such purchase orders shall be governed by the terms and
conditions of this Agreement.
5.3 Hardware Order Change or Cancellation by McDATA. McDATA may not cancel or
modify its Hardware orders thirty (30) days or less prior to the originally
scheduled shipment date. If McDATA submits to BROCADE a written request to
cancel or modify a Hardware order more than thirty (30) days prior to the
originally scheduled shipment date, BROCADE will make commercially reasonable
efforts to accommodate such requests, subject to written confirmation of receipt
of such request by BROCADE; such confirmation of receipt shall be provided
within [*] days after receipt by BROCADE. In the event of a BROCADE authorized
Hardware order change, it may be necessary for BROCADE to revise the scheduled
shipment date by mutual agreement of the parties.
5.4 Cancellation by BROCADE. With [*] days prior notice, BROCADE reserves the
right to cancel any Hardware orders placed by McDATA and accepted by BROCADE as
set forth above, or to refuse or delay shipment thereof, if McDATA: (a) fails to
make any payment as provided in this Agreement or otherwise agreed to by BROCADE
and McDATA, (b) fails to meet reasonable credit or financial requirements
established by BROCADE, including any limitations on allowable credit, or (c)
otherwise fails to comply with the terms and conditions of this Agreement.
5.5 Conflict. Any terms and conditions of: (a) any McDATA order for Products, or
(b) BROCADE acknowledgment or acceptance which are in addition to or
inconsistent with the terms and conditions of this Agreement will be deemed
stricken and unenforceable under such order, acknowledgment or acceptance.
6.0 PAYMENT TERMS
6.1 Payment. In consideration of the rights granted by BROCADE to McDATA in
Sections 2.6 ("ASICs License") and 2.7 ("ASICs Firmware License"), McDATA shall
pay to BROCADE the following amounts: (a) [*] United States Dollars ([*]) on
April 15, 1998; (b) [*] United States Dollars on each of July 15, 1998, October
15, 1998, January 15, 1999 and April 15, 1999. The parties agree that as of the
Effective Date of this Agreement, [*] United States Dollars ([*]) has been paid
by McDATA in respect of such payment obligations.
6.2 Payment for Products. McDATA shall pay all invoices net thirty (30) days
after the date of BROCADE's invoice, which BROCADE will issue upon shipment of
the Products for the Hardware or delivery of the Keys for the Licensed Software.
6.3 Late Payment. Payments made under this Agreement after their due date will
incur interest at a rate equal to one and one-half percent (1.5%) per month or
the highest rate permitted by applicable law, whichever is lower. In addition,
if McDATA fails to pay any invoice when due, BROCADE may: (i) declare all
amounts owed by McDATA to be immediately due and payable and refuse to deliver
any further Products or Keys until such amounts have been paid (ii) require
C.O.D. payment for Products or Keys ordered, and/or (iii) pursue any other
remedies under this Agreement, at law or in equity available to it.
6.4 No Setoff. McDATA will not setoff or offset against BROCADE's invoices
amounts that McDATA claims are due to it other than for authorized returns and
rejected shipments.
7.0 SHIPMENT AND DELIVERY
7.1 Shipment and Delivery.
(a) Hardware. Delivery will be made F.O.B. BROCADE facility. In the absence of
specific written instructions from
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McDATA, BROCADE will select the carrier, but such carrier will not be the agent
of BROCADE. Title, risk of loss and/or damage to Hardware, and responsibility
for filing claims with the carrier, will pass to McDATA on delivery to such
carrier. BROCADE will pack all Hardware shipped in accordance with standard
commercial practices. McDATA agrees that it will be responsible for and pay all
shipping, freight and insurance charges incurred in such shipment.
(b) Licensed Software. Upon acceptance of an order as set forth in Section
5.2(b) above, BROCADE will promptly deliver the necessary Keys to the Licensed
Software for the specified Worldwide Switch Numbers via E-mail to McDATA. Upon
receipt of each delivery of Keys, McDATA will log the receipt of each Key for
tracking purposes, and will use commercially reasonable best efforts to prevent
unauthorized access to such Keys. Notwithstanding the provisions of Section
5.2(b) and 7.1(b), BROCADE authorizes McDATA to enable the BROCADE software
licensed to third parties through third party purchase orders issued to and
accepted by BROCADE for mutually agreed upon third parties for BROCADE software
installed on McDATA Products sold to such third parties, and McDATA shall [*]
for such software.
7.2 Partial Shipments. McDATA agrees to accept partial shipments and pay for
Products comprising a partial shipment on the terms set forth above; provided,
however, that BROCADE shall only submit an invoice for Products that it has
actually shipped, unless otherwise agreed to in writing by the parties.
7.3 Delayed Delivery. If delivery of any Products is delayed (i) more than [*]
days on or before December 31, 1999, or (ii) more than [*] days (after December
31, 1999) following the accepted scheduled delivery date, McDATA may, at any
time prior to delivery by BROCADE of such Products to the transporting carrier,
cancel without penalty that undelivered portion of its purchase order covering
such Products.
7.4 Acceptance of Products.
(a) All Products sold under this Agreement shall materially conform to the
standards set forth in Section 15.2, below. McDATA's acceptance of each Product
shall occur upon delivery unless McDATA notifies BROCADE in writing within
thirty (30) days after delivery that such Product does not materially conform to
such standards. Payment for any Product by McDATA shall not reduce the thirty
(30) day period available for inspection and reporting of any material
non-conformance.
(b) McDATA may inspect and test Products received from BROCADE as set forth
above. BROCADE shall have the right to observe McDATA's inspection and test
procedures.
(c) In the event that any Product delivered to McDATA does not conform to the
standards in Section 15.2 below, and such non-conformance is not due to freight
damage, damage incurred after receipt by McDATA, or other exclusions in Section
15, McDATA shall immediately notify BROCADE, and request a RMA from BROCADE.
McDATA shall deliver, at its expense, all such non-conforming Products to
BROCADE pursuant to a valid RMA. Upon verification of such non-conformance,
BROCADE will either promptly repair or replace the non-conforming Product within
thirty (30) days of its receipt by BROCADE. Upon receipt of written request from
McDATA, BROCADE may be able to process small amounts of Product on an expedited
basis for an additional fee.
8.0 OTHER AGREEMENTS, PRICING AND MARKETING
8.1 Software License Agreement. McDATA agrees that all Licensed Software will be
distributed to Customers subject to a Software License Agreement (including
warranty statement), along with a McDATA Manual, in a manner which is (a) no
less protective of BROCADE's Intellectual Property Rights in the Licensed
Software than the form attached hereto as Exhibit D, and (b) legally enforceable
in the jurisdictions in which the Licensed Software, as incorporated into the
McDATA Products, is distributed.
8.2 Pricing Freedom. McDATA is, and will remain, entirely free to determine its
Customer prices and fees in its own discretion.
8.3 Negative Statements. Neither party to this Agreement shall make any
intentionally false, negatively misleading or intentionally misleading remarks
of any kind or nature regarding the products or services of the other party to
its current or potential customers, the press, resellers, suppliers or any other
third party ("Negative Remarks"), and each party to this Agreement shall
expressly inform its employees, contractors, and resellers of such prohibition.
A violation of this section shall be immediately reported to the President of
each of the parties, and such individuals shall take mutually agreed remedial
measures to prevent future occurrences of Negative Remarks. Notwithstanding the
remedial efforts undertaken by either party to prevent such Negative Remarks,
the parties agree that the repeated violation of this Section by either party
shall be deemed to be a material breach of this Agreement.
8.4 Versions. In the event that BROCADE develops any new features or
functionality for (i) of the ASICs Firmware as described in Section 1.1, (ii)
the Licensed Software which supports such ASICs Firmware, or (iii) the Hardware
versions specified in Exhibit A, and BROCADE makes such new features or
functionality generally available to its customers, BROCADE shall offer such new
features or functionality to McDATA under the terms and conditions of this
Agreement at reasonable prices which are mutually agreed to by the parties.
8.5 Support Letter. BROCADE and McDATA agree to provide support to
Hewlett-Packard with respect to the McDATA Product and software licensed from
BROCADE related thereto as set forth on Exhibit H.
8.6 Repair Facilities. BROCADE will maintain facilities to repair or replace, at
BROCADE's sole discretion, the Hardware for a [*] year period, commencing
on the date BROCADE issues a general market End of Life ("EOL") notice to its
customers for the SilkWorm switch with respect to the generation of such switch
applicable to the Hardware subassemblies set forth in Exhibit A. Upon
expiration of the such [*] year period, BROCADE agrees to provide to
McDATA [*] required, as determined by BROCADE,
to repair the Hardware subassemblies
9.0 McDATA OBLIGATIONS
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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9.1 Training. McDATA agrees to train an appropriate number of its systems
engineering, manufacturing and support personnel on products purchased from
BROCADE according to the Technical Training Program listed in Exhibit C in order
to ensure McDATA can provide adequate support to Customers as set forth in
Exhibit B. From time to time BROCADE may introduce new training courses, and
McDATA agrees to provide ongoing training to its personnel on a periodic basis
to ensure that its personnel are adequately trained. Additional training
materials and updates are available for the fees set forth in Exhibit C.
9.2 Product Customer Support and Service. McDATA shall provide the appropriate
personnel, facilities and equipment necessary to provide support in the use of
the Products (as incorporated into the McDATA Products) to Customers as required
to: (i) provide BROCADE regular feedback (at least quarterly) on Customer
satisfaction metrics in a manner mutually agreed by the parties, and (ii)
conduct service and support of McDATA's Products. McDATA will have personnel
attend product, sales and service training courses as may be offered by BROCADE
or McDATA from time to time.
9.3 Support for McFlannel ASICs. The parties acknowledge that as of the
Effective Date, the McFlannel ASICs require testing to ensure that such ASICs
conform to the relevant ASICs Specifications. BROCADE agrees to provide
assistance with such McFlannel ASICs testing to ensure substantial conformity
with the ASICs Specifications through [*]. In the event that during such testing
of the McFlannel ASICs, a substantial non-conformity with the ASICs
Specifications is discovered by McDATA and/or BROCADE, the parties agree to meet
and jointly determine a plan of resolution for such non-conformity.
10.0 ENGINEERING CHANGES
10.1 Product ECO's BROCADE shall use commercially reasonable efforts to provide
McDATA with [*] days' notice of changes to the Products (including Licensed
Software or drivers) that affect the form, fit or function of the Products
("Engineering Change Order" or "ECO").
10.2 Mandatory Product ECO's. BROCADE may issue notice of "Mandatory Changes",
which are changes to the Product(s) required to satisfy governmental
environmental, safety or other standards, reliability concerns, or to guarantee
a continuity of supply. BROCADE will make commercially reasonable efforts to
provide McDATA with [*] days prior written notice of Mandatory Changes prior to
implementing such changes, however this period may be reduced if the change
involves safety or reliability, or if otherwise required by law.
10.3 Product End-of-Life. Upon EOL notification from BROCADE to McDATA for the
Hardware subassemblies and not withstanding any of the provisions in this
section, BROCADE and McDATA will work together to facilitate a mutually agreed
upon EOL plan. Provided that McDATA issues [*] no fewer than the following [*]
of the following Hardware subassemblies per [*]: [*] as set forth in Exhibit A,
and schedules a [*] of all such Hardware subassemblies in such [*] with a
minimum of [*] leadtime for [*], then BROCADE agrees [*] the manufacture, sale
or distribution of any such Product ("End of Life" or "EOL"). The pricing for
Hardware subassemblies purchased at [*] shall be the prices set forth in Exhibit
A in the [*]. In the contrary case, BROCADE shall have the right to provide
McDATA with one hundred eighty (180) days' written notice of intent to EOL any
Product provided to McDATA hereunder. McDATA may place orders for any demand
during the first ninety (90) days of such EOL notice for delivery of affected
Product(s) prior to the end of the notice period. To the extent that such orders
exceed McDATA's previous forecast for such Product(s), the orders shall be
non-cancelable. BROCADE shall accept only forecasted orders in the last [*] days
of the stated notice period, and all such orders shall be non-cancelable. In
addition, during such notice period, BROCADE shall have the right, in its sole
discretion, to require payment for Product(s) from McDATA at the time such
purchase orders are submitted. If any component of any of the four Hardware
subassembly products set forth on Exhibit A is declared EOL and independent of
McDATA's ability to maintain the minimum purchase requirement of the affected
Hardware subassembly unit, BROCADE may declare the affected Hardware subassembly
product EOL. Within [*] days of EOL notification from BROCADE ("EOL Notification
Period"), McDATA may (i) [*] for the affected Hardware subassembly component, or
(ii) notify BROCADE in writing that McDATA will [*] for sufficient units of the
relevant component from [*] and arrange for the [*] to the facility designated
by BROCADE ("Last Buy Notification"). Provided that BROCADE receives such Last
Buy Notification within [*] days from the date of BROCADE's EOL notification,
the parties will negotiate in good faith the terms whereby BROCADE would [*] the
affected Hardware subassembly. In no event, however, shall BROCADE be required
to resume the manufacture of an affected Hardware subassembly unit after [*]
days from the end of the EOL Notification Period. BROCADE shall not be obligated
to qualify new components, develop alternative sources or redesign the affected
Hardware subassembly unit.
11.0 CROSS LICENSE AND COVENANT NOT TO SUE
11.1 Definitions. For the purposes of this Agreement, the following terms shall
have the following definitions:
(a) "Fibre Channel-based Products" means technology and materials for switching
and interconnect hardware and related software involved with the development of,
operation, management services and software for Fibre Channel products.
(b) "BROCADE Know-how" means the designs, techniques, inventions, practices,
methods, knowledge, skill, experience, test data and cost, sales and
manufacturing data relating to the manufacture of Fibre Channel-based Products
developed or acquired by BROCADE or acquired by license or otherwise with a
royalty-free right of sublicense or license as of April 1, 1998, and in the
possession of McDATA as of April 1, 1998.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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(c) "BROCADE Patents" means the existing BROCADE patents and patent applications
as of April 1, 1998 whose claims would be infringed by the manufacture, use,
sale, offer for sale, import or other disposition of Fibre Channel-based
Products; including without limitation all foreign counterparts issued or
issuing on such patents or patent applications. It is understood that the
license set forth in Section 11.2 is not contingent upon actual practice of the
BROCADE Patents during the Patent Term.
(d) "McDATA Know-how" means the designs, techniques, inventions, practices,
methods, knowledge, skill, experience, test data and cost, sales and
manufacturing data relating to the manufacture of Fibre Channel-based Products
developed or acquired by McDATA or acquired by license or otherwise with a
royalty-free right of sublicense or license as of April 1, 1998, and in the
possession of BROCADE as of April 1, 1998. Notwithstanding the foregoing,
BROCADE acknowledges that McDATA Know-how shall not include McDATA know-how
developed by McDATA or [*] or McDATA know-how received from [*] in relation to
US Patent Application Serial Numbers [*] and [*] for products jointly developed
by McDATA and [*] or for products developed by McDATA for [*].
(e) "McDATA Patents" means, except as to the joint patents between McDATA and
[*] (US Patent Application Serial Numbers [*] and [*]) which patent applications
are directly related to the products jointly developed by McDATA for [*]
referenced in the Agreement between McDATA and BROCADE dated March 26, 1998, the
existing McDATA patents and patent applications as of April 1, 1998 whose claims
would be infringed by the manufacture, use, sale, offer for sale, import or
other disposition of Fibre Channel-based Products; including without limitation
all foreign counterparts issued or issuing on such patents or patent
applications. It is understood that the license set forth in Section 11.2 is not
contingent upon actual practice of the McDATA Patents during the Patent Term.
(f) "Patent Term" means the term of the patent cross-license contained in
Section 11.2.
11.2 Cross-License and Covenant Not to Sue. Subject to the terms and conditions
of this Agreement, (i) BROCADE hereby grants to McDATA a perpetual,
non-exclusive, non-transferable, worldwide, royalty-free license, without the
right to sublicense, under the BROCADE Patents and the BROCADE Know-how to make,
use, sell, offer to sell, lease, import and otherwise transfer the Fibre
Channel-based Products and BROCADE covenants that, to the extent that McDATA and
McDATA's customers and distributors exercise the rights expressly granted to
McDATA hereunder, BROCADE will not assert any patent or trade secret rights
against McDATA or its direct or indirect customers, and (ii) McDATA hereby
grants to BROCADE a perpetual, non-exclusive, non-transferable, worldwide,
royalty-free license, without the right to sublicense, under the McDATA Patents
and the McDATA Know-how to make, use, sell, offer to sell, lease, import and
otherwise transfer the Fibre Channel-based Products and McDATA covenants that,
to the extent that BROCADE and BROCADE's customers and distributors exercise the
rights expressly granted herein, McDATA will not assert any patent or trade
secret rights against BROCADE or its direct or indirect customers. For the
purposes of the patent licenses set forth above, "perpetual" shall mean the life
of the applicable patents. Each party shall be responsible for overseeing
compliance with the terms and conditions of this Agreement, and shall be liable
for any breach of its obligations hereunder. Nothing in this Section 11 shall be
construed to obligate either party to disclose any information or materials to
the other party with respect to the patents and know-how of such party, whether
or not in existence on or before April 1, 1998.
11.3 Ownership
(a) BROCADE. McDATA acknowledges and agrees that BROCADE is and shall remain the
sole owner of the BROCADE Patents and the BROCADE Know-how and that McDATA has
no rights in or to the BROCADE Patents or the BROCADE Know-how other than the
license set forth herein.
(b) McDATA. BROCADE acknowledges and agrees that McDATA is and shall remain the
sole owner of the McDATA Patents and the McDATA Know-how and that BROCADE has no
rights in or to the McDATA Patents or the McDATA Know-how other than the license
set forth herein.
11.4 Prosecution Expenses. Each party shall be responsible for the payment of
the prosecution expenses related to the patents that such party owns.
11.5 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BROCADE AND
McDATA HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS OR
CONDITIONS OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY,
RELATING TO EACH PARTY'S RESPECTIVE PATENTS AND KNOW-HOW SET FORTH IN THIS
SECTION 11, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD
PARTY RIGHTS. Without limiting the generality of the foregoing, neither BROCADE
nor McDATA warrant the patentability of any information or materials, or the
safety, usefulness or accuracy of any information provided hereunder.
12.0 CONFIDENTIAL INFORMATION AND ADVERTISING
12.1 Definition. "Confidential Information" means: (i) all source code and all
technical or business information furnished in any form or medium, whether oral,
written, graphic or electronic by one party to the other pursuant to this
Agreement, including without limitation all analyses, architecture, code,
concepts, data, designs, discoveries, forecasts, ideas, information, inventions,
know-how, knowledge, layouts, mask works, methodologies, plans, processes,
products, projections, protocols, prototypes, schematics, skills, structure,
techniques, and/or work product, tangible or intangible, whether or not
patentable, and all originals and all copies of any compilations, database,
drawing, file (including on any computer storage media), memoranda, model,
notes, prototype, record, report, software, summary, writing or other materials
whether tangible or not, and whether or not eligible for copyright protection,
or any other information relating to any research project, work in progress,
future development, scientific engineering, manufacturing, marketing or
[*] Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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other business or financial plan relating to either party, its present or future
products, sales, suppliers, customers, employees, investors or business; and
(ii) all other non-public information that the party disclosing the information
(the "Disclosing Party") designates at the time of disclosure as being
confidential, or if disclosed orally or visually is identified as such prior to
disclosure and summarized, in writing, by the Disclosing Party to the receiving
party (the "Recipient") within [*] days of initial disclosure, including
without limitation, the terms and conditions of this Agreement, and information
regarding either party's financial condition, business opportunities, plans for
development of future products or new versions of existing products, know-how,
technology or customers.
12.2 Access to and Use of Confidential Information. A party receiving
Confidential Information agrees (a) that it shall use the same degree of care
and means that it utilizes to protect its own information of a similar nature,
but in any event not less than reasonable care and means, to prevent the
unauthorized use or the disclosure of such confidential information to third
parties, (b) not to disclose or use any of such Confidential Information for any
purpose except as necessary and consistent with the terms of this Agreement, (c)
to limit the use of and access to such Confidential Information to such
employees and subcontractors who have a need to know such Confidential
Information and have signed legally binding non-disclosure agreements, and (d)
that it will promptly notify the other party in writing of any unauthorized
disclosures and/or use thereof. The aforementioned notice shall include a
detailed description of the circumstances of the unauthorized disclosure or use
and the parties involved therewith.
12.3 Exclusions. Notwithstanding the foregoing, Confidential Information does
not include information that: (a) is or becomes generally available to the
public other than (i) as a result of a disclosure by Recipient or its employees
or any other person who receives such information in violation of this
Agreement, (b) is or becomes available to Recipient on a non confidential basis
from a source which is entitled to disclose it to Recipient, (c) can be
documented, by adequate written records, was developed by employees or agents of
the Recipient independently of and without reference to any information
communicated to Recipient by the Disclosing Party, or (d) is required by law to
be disclosed by the Recipient. A disclosure of Confidential Information (x) in
response to a valid order by a court or other governmental body, (y) otherwise
required by law, or (z) necessary to establish the rights of either party under
this Agreement shall not be considered to be a breach of this Agreement or a
waiver of confidentiality for other purposes; provided however, that the party
disclosing such information shall provide prompt written notice thereof to the
other party to enable it to seek a protective order or otherwise prevent such
disclosure.
12.4 Injunctive Relief. In the event of an unauthorized use, distribution or
disclosure of any Confidential Information, the parties agree that the
disclosing party will not have an adequate remedy at law. Therefore, injunctive
or other equitable relief may be appropriate to restrain such use, distribution
or disclosure, threatened or actual.
12.5 Advertising and Releases. Except as may be required by law or regulation,
no news release, material that references this Agreement or the other party
shall be issued by either party without the prior written consent of the other
party.
13.0 PROPRIETARY RIGHTS
Subject to the provisions of Section 11 of this Agreement, the Intellectual
Property Rights in and to the ASICs Firmware, BROCADE ASICs, Licensed Software
and the Products are and will remain the sole and exclusive property of BROCADE
and its suppliers, if any, whether the ASICs Firmware, BROCADE ASICs, and the
Products are separate or combined with any other products. BROCADE's rights
under this Section 13.0 will include, but not be limited to: (i) all copies of
the ASICs Firmware, and the Licensed Software portion of the Products; (ii) all
Intellectual Property Rights in the ASICs Firmware, BROCADE ASICs, and the
Products; and (iii) all modifications to, and Derivative Works based upon, the
BROCADE ASICs and the Products. McDATA shall own all Intellectual Property
Rights in and to the authorized modifications to and Derivative Works based upon
the ASICs as set forth in Section 2.7 and McDATA Functionality. McDATA shall
retain all right, title and interest, including manufacturing control and
worldwide Intellectual Property Rights in and to the McDATA Functionality. For
the purposes of this Agreement, "Intellectual Property Rights" means copyright
rights (including, without limitation, the exclusive right to use, reproduce,
modify, distribute, publicly display and publicly perform the copyrighted work),
trademark rights (including, without limitation, trade names, trademarks,
service marks, and trade dress), patent rights (including, without limitation,
the exclusive right to make, use and sell), trade secrets, moral rights, right
of publicity, authors' rights, contract and licensing rights, goodwill and all
other intellectual property rights as may exist now and/or hereafter come into
existence and all applications, renewals and extensions thereof, regardless of
whether such rights arise under the law of the United States or any other state,
country or jurisdiction. "Moral Rights" means the inalienable right to claim
authorship to or to object to any distortion, mutilation, or other modification
in relation to a work, whether or not such would be prejudicial to the author's
reputation, and any similar right, existing under common or statutory law or any
country in the world or under any treaty, regardless or whether or not such
right is denominated or generally referred to as a "moral right."
14.0 INDEMNITY
14.1 Infringement Claims. BROCADE will indemnify, defend and hold McDATA
harmless from any and all damages, liabilities, costs and expenses finally
awarded against McDATA as a result of any claim, judgment or adjudication
against McDATA which claims that (i) any of the Products, as furnished by
BROCADE under this Agreement, infringes or misappropriates any US patent, any
copyright or trademark, or (ii) the ASICs Firmware infringes any US patent or
any copyright, or (iii) the design of the ASICs, as furnished by BROCADE to LSI
Logic, infringes any US patent or any copyright. If a Product, ASICs Firmware or
the BROCADE ASICs are held in any such suit to infringe and the use of such
Product, ASICs Firmware or BROCADE ASICs is enjoined, BROCADE will have the
option, at its own discretion and expense, to (w) procure for McDATA the right
to continue using such Product, ASICs Firmware or BROCADE ASICs, (x) replace
such Product, ASICs Firmware or BROCADE ASICs with non-infringing Product, ASICs
Firmware or BROCADE ASICs of substantially equivalent quality and purpose, (y)
modify such Product, ASICs Firmware or BROCADE ASICs to make it non-infringing,
provided the modified Product, ASICs Firmware or BROCADE ASICs remains
substantially equivalent in quality and purpose to such Product, ASICs Firmware
or BROCADE ASICs, or (z) terminate the Agreement and return to McDATA the
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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depreciated value of such Product, ASICs Firmware or BROCADE ASICs based on
straight line depreciation over [*].
14.2 Exceptions. BROCADE will not be obligated to defend or be liable for costs
and damages to the extent that infringement, or a claim thereof, arises out of
or is related to (a) a modification made to Product, ASICs Firmware or BROCADE
ASICs by McDATA or a third party made in violation of this Agreement, (b) the
combination of a Product, ASICs Firmware or BROCADE ASICs with products or data
not provided by BROCADE, (c) use of other than the latest unmodified release of
Product, ASICs Firmware or BROCADE ASICs made available to McDATA by BROCADE if
such infringement would have been avoided by the use thereof, (d) McDATA's
failure to use or deploy modifications to the ASICs Firmware or Licensed
Software provided to McDATA by BROCADE to avoid infringement, (e) the direct
result of the manufacture of the BROCADE ASICs by LSI Logic. Notwithstanding the
foregoing, the parties acknowledge and agree that BROCADE shall have no
obligation to defend or indemnify McDATA against claims that the Products
infringe the Intellectual Property Rights of third parties pursuant to the
foregoing Section unless McDATA: (x) promptly informs BROCADE of such suit or
proceeding, and furnishes to BROCADE a copy of each communication, notice or
other action relating thereto, (y) gives BROCADE the authority, information and
reasonable assistance necessary to settle or litigate such suit or proceeding,
and (z) does not settle, or agree to settle, any such suit or proceeding without
the prior written permission of BROCADE, which will not be unreasonably withheld
or delayed.
14.3 Limitations. THE FOREGOING STATES THE ENTIRE LIABILITY OF BROCADE FOR
INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT BY ANY PRODUCT, ASICs FIRMWARE OR
BROCADE ASICs FURNISHED UNDER THIS AGREEMENT.
14.4 McDATA Indemnity. McDATA agrees to defend, indemnify and hold BROCADE
harmless from any and all losses, damages, liabilities, costs and expenses
(including but not limited to reasonable attorneys' fees and costs of
litigation) incurred by BROCADE as a result of any third party claim, regardless
of the form of action, arising from (i) McDATA's misuse or misrepresentation of
the Products or Documentation or Intellectual Property Rights contained therein,
(ii) McDATA's breach of its representations or warranties under this Agreement,
(iii) McDATA's false advertising, intentional wrongdoing, gross negligence, or
product liability arising from the marketing, sale or distribution of a McDATA
Product, or (iv) McDATA's modifications to the ASICs Firmware, the BROCADE ASICs
or the Products furnished by BROCADE to McDATA hereunder (if the unmodified
version of the information or materials provided by BROCADE to McDATA would not
have so infringed), provided that BROCADE promptly notifies McDATA of any such
claim in writing, gives McDATA sole control of the defense and all related
settlement negotiations, and cooperates with McDATA in defending or settling any
such claim.
15.0 LIMITED WARRANTY AND WARRANTY DISCLAIMER
15.1 Mutual Warranty. Each party certifies and represents to the other party
that as of the Effective Date, it has full power, right and authority to execute
this Agreement, to fulfill all its rights and obligations herein.
15.2 Product Warranty to McDATA. BROCADE warrants to McDATA that the Products
(except for Products which may be refurbished pursuant to Section 15.4) are new
, and that, for a period of [*] months after the date of the shipment
of the Products to McDATA (the "Hardware Warranty Period") (i) the Hardware will
substantially conform to BROCADE's standard manufacturing [*] test processes
as set forth in Exhibit J, and (ii) the Products will be Year 2000 compliant. In
addition, BROCADE warrants to McDATA that for a period of ninety (90) days after
the date of shipment of the Products to McDATA (the "Software Warranty Period")
the Licensed Software will substantially conform to the applicable standard
BROCADE product specifications for the Licensed Software. For the purposes of
this Agreement, "Year 2000 compliant" means that all Products and Documentation
provided to McDATA will correctly interpret and manipulate all date-related
data, when dates are in the 20th and 21st centuries, and that no delivery or
performance of such Products and Documentation shall be materially interrupted
or delayed as a result of the occurrence of or processes driven by dates after
December 31, 1999, provided that the non-BROCADE hardware, software and other
system components with which the Products and Documentation interact, directly
or indirectly (including without limitation the McDATA Products and all other
third party information, materials, components, hardware and software or any
kind), also correctly interpret and manipulate all such date-related data.
15.3 ASICs Warranty. BROCADE warrants to McDATA that the design information
furnished to LSI Logic for the manufacture of the BROCADE ASICs shall be
sufficient to enable LSI Logic to manufacture such BROCADE ASICs in substantial
conformance to the ASICs Specifications; provided, however, that nothing in this
Section 15.3 shall be construed to impose responsibility upon BROCADE for
defects in any such BROCADE ASICs introduced by LSI Logic in the course of the
LSI Logic manufacturing process. In the event that McDATA provides BROCADE with
written notice detailing a substantial non-conformity of the BROCADE ASICs with
the ASICs Specifications due to the design thereof and not the manufacture of
such BROCADE ASICs by LSI Logic, BROCADE will use diligent efforts to coordinate
with LSI Logic to remedy any such substantial non-conformity.
15.4 Limitations to Warranty. McDATA shall notify BROCADE of a failure by the
Product to substantially perform in accordance with the relevant standards set
forth in Section 15.2, as applicable, during the applicable Hardware Warranty
Period or Software Warranty Period. If BROCADE confirms such Product is
defective after McDATA, at McDATA's expense, has returned the Product to a
BROCADE-authorized repair center for inspection, then, BROCADE will at its
election promptly repair or replace any such Product within [*] days of
receipt thereof, at no charge to McDATA. Replacement Product may be either new
or re-manufactured and certified as new (in accordance with BROCADE's
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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standard manufacturing test processes or, with regard to the Licensed Software,
the applicable specifications). In the event that the Product returned is not
defective, McDATA will be responsible for freight costs for return shipment to
McDATA. The foregoing warranties shall not apply to Products that have been (i)
damaged by accident through no fault of BROCADE, Acts of God, shipment, improper
installation, abnormal physical or electrical stress, misuse or misapplication,
as determined by BROCADE in its sole reasonable discretion, or (ii) modified
without BROCADE's express written acceptance of such modification for warranty
purposes. BROCADE reserves the right to charge additional fees for repairs or
replacements performed on Products after the Hardware Warranty Period or
Software Warranty Period, as applicable, has terminated.
15.5 McDATA's Exclusive Remedy. McDATA acknowledges and agrees that its sole and
exclusive remedy for breach of the limited Product warranties is as set forth in
Section 15.4.
15.6 Title Warranty. BROCADE warrants that title to all Products and ASICs
Firmware delivered to McDATA by BROCADE shall be free and clear of all liens,
encumbrances or other restrictions.
15.7 Disclaimer. THE FOREGOING PRODUCT WARRANTIES IN SECTION 15 ARE IN LIEU OF,
AND BROCADE EXPRESSLY DISCLAIMS, ALL OTHER REPRESENTATIONS, WARRANTIES OR
CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
15.8 [*] Warranty In addition to the warranties specified above, BROCADE
warrants all Hardware subassemblies against [*] for a period of [*] years
after date of shipment of the Hardware subassemblies from BROCADE. An epidemic
failure means:
(i) the occurrence of the [*] the Hardware subassembly [*] more
frequently that the calculated Mean Time Between Failure
("MTBF"), as specified in Exhibit K attached hereto and
incorporated herein by reference, for that Hardware subassembly
within a [*], provided [*] is caused by the Hardware subassembly
and is not McDATA system or McDATA environment induced. In the
case of the [*], BROCADE shall [*] of the affected Hardware
subassembly population (after [*] is identified), as long as the
[*], as specified in Exhibit K, remains at [*]. BROCADE
calculates the MTBF for each Hardware subassembly using Belcore
Specification TR332, Issue 5 parts count method.
(ii) the occurrence of more than [*] that is considered a hazard class
2 or above (approved and initialed by both parties) safety
incident where the customers life or property is damaged due to
the [*].
8. RELATED PARTY TRANSACTIONS
.
16.0 LIMITATION OF LIABILITY AND INSURANCE
16.1 Nuclear, Aviation or Life Support Application. McDATA acknowledges that
Product is not specifically designed, manufactured or intended for use in
connection with the design, construction, maintenance, and/or operation of any
(i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground
support system, or (iii) life support system. Except as otherwise provided
herein, BROCADE shall not be liable to McDATA, in whole or in part, for any
claims or damages arising from such use, or resale by McDATA to a third party
for such purposes, and McDATA agrees not to sell into nuclear, aviation or life
support application and shall include a provision in its Customer agreement a
statement relating to the Products' inapplicability to such applications.
16.2. Limitation of Liability.
(a) EXCEPT FOR BREACHES OF SECTION 12 AND 14, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY, FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR
OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSS.
(b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING SUBSECTION, EITHER PARTY'S
TOTAL LIABILITY (EXCEPT FOR BREACHES OF SECTIONS 12 AND 14) TO THE OTHER PARTY
UNDER THIS AGREEMENT WILL BE LIMITED TO (a) WITH REGARD TO THE PRODUCTS, [*], OR
(b) WITH REGARD TO THE ASICs FIRMWARE OR BROCADE ASICs, [*].
16.3 Insurance. Each party agrees during the term of this Agreement to carry the
amount that party deems to be sufficient liability insurance to meet its
indemnification obligations under this Agreement.
17.0 EXPORTATION; GOVERNMENT APPROVAL AND FOREIGN CORRUPT PRACTICES ACT
17.1 Export. McDATA acknowledges that all Products including documentation and
other technical data are subject to export controls imposed by the U.S. Export
Administration Act of 1979, as amended (the "Act"), and the regulations
promulgated thereunder. McDATA warrants and represents to BROCADE that it will
not export or re-export (directly or indirectly) any Products or documentation
or other technical data therefor, in whole or in part, in violation of the Act
and the regulations thereunder. McDATA shall indemnify, defend and hold BROCADE
harmless against any claims for cost, damage, expense or liability arising out
of or in connection with any breach of this Section.
17.2 Government Rights. The Licensed 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 Licensed
Software was developed entirely at private expense and that
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
11
<PAGE> 12
no part of the Licensed Software was first produced in the performance of a
Government contract. If McDATA supplies the Licensed 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, McDATA shall license the Licensed
Software to the Government subject to the terms of this Agreement.
17.3 Governmental Approval. If any approval with respect to this Agreement, or
the notification or registration thereof, will be required at any time during
the term of this Agreement, with respect to giving legal effect to this
Agreement in the jurisdiction where McDATA Products are distributed, or with
respect to compliance with exchange regulations or other requirements so as to
assure the right of remittance abroad of U.S. dollars pursuant to this
Agreement, McDATA will immediately take whatever steps may be necessary in this
respect, and any charges incurred in connection therewith will be for the
account of McDATA. McDATA will keep BROCADE currently informed of its efforts in
this connection. BROCADE will be under no obligation to ship Products to McDATA
hereunder until McDATA has provided BROCADE with satisfactory evidence that such
approval, notification or registration is not required or that it has been
obtained.
18.0 DEFAULT AND TERMINATION
18.1 Default. In addition to any other rights or remedies which may be available
at law or in equity, either party may terminate this Agreement upon the
occurrence of any one of the following:
(a) In the event of a material breach by either party in the performance of
their obligations hereunder, the party alleging the breach shall give written
notice specifying the nature and extent of the breach to the other party and
such party shall have [*] days thereafter to cure the breach. If the breach is
not cured within the [*] day period, termination shall be come effective on the
[*] day following the written notice;
(b) In the event of proceedings in bankruptcy or insolvency invoked by or
against either party, or in the event of the appointment of a receiver, or the
making an assignment for the benefit of creditors; or proceedings are commenced
against such party under any bankruptcy, insolvency or debtor's relief law, if
such proceeding is not vacated or set aside within [*] days after the date of
commencement thereof; or
18.2 Termination for Convenience. In the event market conditions change to the
extent that the Product is no longer competitive, McDATA may terminate this
agreement for convenience. In that event, McDATA agrees to provide BROCADE with
[*] days written notice of its intent to terminate for convenience. Further,
McDATA agrees to reasonably compensate BROCADE for work in progress as of the
date of notification.
18.3 Effect of Termination. Upon the expiration or termination of this
Agreement, however arising:
18.3.1 Except for the retention of [*] of the Confidential Information
of the other party solely for support purposes, each party will cease its use of
the Confidential Information of the other party, and will return or destroy, at
the other party's direction, all such Confidential Information and any copies or
portions thereof which are incorporated into documents or archives;
18.3.2 If this Agreement is terminated pursuant to Section 18.1, the payment of
all amounts owed by McDATA to BROCADE as of the effective date of such
expiration or termination shall accelerate, and such payments shall become
payable as of such effective date, whether or not longer payment periods had
originally been established; and
18.3.3 Provided that BROCADE has not terminated this Agreement due to McDATA's
material breach of the terms of this Agreement, McDATA may submit orders for
Products, including without limitation those Products which BROCADE has agreed
not to discontinue pursuant to the terms and conditions set forth in Section
10.3 ("Product End of Life"), which orders are subject to approval by BROCADE in
its sole discretion, provided that McDATA pays BROCADE for such Product(s) at
the time such purchase orders are accepted by BROCADE. The parties agree that
orders submitted as set forth in this Section shall not be considered approved
by BROCADE until and unless BROCADE has notified McDATA of its acceptance of
such order in writing pursuant to Section 5.2 hereof.
18.4 Nonexclusive Remedy. The exercise by either party of any remedy under this
Agreement will be without prejudice to its other remedies under this Agreement
or otherwise.
18.5 Survival. The parties' obligations under Sections 2.4.2(c) ("Ownership"),
2.4.4 ("Documentation Warranty"), 2.5 ("Restrictions"), 2.6 ("ASICs License"),
2.7 ("ASICs Firmware License"), 4.0 ("Taxes"), 8.1 ("Software License
Agreement"), 10.2 ("Mandatory Product ECO's"), 11.0 ("Cross License and Covenant
Not to Sue"), 11.3 ("Ownership"), 11.5 ("Disclaimer of Warranties"), 12
("Confidential Information and Advertising"), 13 ("Proprietary Rights"), 14
("Indemnity"), 15 ("Limited Warranty and Warranty Disclaimer"), 16.2
("Limitation of Liability"), 18 ("Default and Termination"), 19 ("General") and
Exhibit D shall survive any termination and/or expiration of this Agreement.
19.0 GENERAL
19.1 Assignment. This Agreement will bind and inure to the benefit of each
party's permitted successors and assigns. Neither party may assign this
Agreement, in whole or in part, without the other party's written consent which
consent will not be unreasonably withheld, except that BROCADE may assign its
rights and delegate its duties hereunder in connection with any merger,
reorganization, consolidation, or other business combination, or the sale of all
or substantially all of its assets. Any attempt to assign this Agreement without
such consent will be null and void.
19.2 Independent Contractors. The relationship between BROCADE and McDATA
established by this Agreement is that of independent contractors. No franchise,
joint venture or partnership is established by this Agreement. Neither party
hereunder is the agent, broker, partner, employee, or legal representative of
the other for any purpose, and neither party shall have the right to bind or
otherwise obligate such other party.
19.3 Governing Law; Attorneys Fees. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California, excluding
its conflicts and choice of law rules, and shall not be construed in accordance
with the United Nations Convention
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
12
<PAGE> 13
for the International Sale of Goods (CISG). In the event that any dispute
between the parties arises out of or is related to any of the provisions of this
Agreement, and/or the performance or termination thereof, the prevailing party
in any such action shall recover all of its costs, including reasonable
attorneys' fees.
19.4 Arbitration. Except with respect to claims for emergency or preliminary
injunctive relief with respect to breach of provisions in Section 11 above or
breach of any Intellectual Property Rights hereunder, any dispute, claim or
controversy arising out of or relating to this Agreement, or the interpretation,
making, performance, breach or termination thereof, shall be finally settled by
binding arbitration in Santa Clara County, California under the Rules of
Arbitration of the American Arbitration Association, by a panel of three
arbitrators reasonably familiar with the technology and business pertaining to
the products covered by this Agreement, appointed in accordance with said Rules.
The arbitration and all pleadings and written evidence shall be in the English
language. Judgment on the award entered by the arbitrator may be entered in any
court having jurisdiction thereof.
19.5 Notices. Notices under this Agreement shall be sufficient only if sent by
certified mail or air express, return receipt requested, or other
nationally-recognized delivery service, or personally delivered to a party.
Notice by mail shall be deemed received on actual receipt. Notices to McDATA
shall be sent to the attention of the Contracts Department, and notices to
BROCADE shall be sent to the attention of "Legal Services."
19.6 No Waiver. The failure of either party to enforce any of the provisions
hereof shall not be construed to be a waiver of the right of such party to
thereafter enforce any such provision or any other provision.
19.7 Unenforceable Provisions. If any term of this Agreement is found to be
illegal or unenforceable, the remaining portions of this Agreement shall remain
in effect, and the parties agree to negotiate in good faith substitute
enforceable terms with similar economic impact on the parties.
19.8 Force Majeure. Neither party will be responsible for any failure to perform
due to causes beyond its reasonable control (each a "Force Majeure"), including,
but not limited to, acts of God, war, riot, embargoes, acts of civil or military
authorities, denial of or delays in processing of export license applications,
fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that
such party gives prompt written notice thereof to the other party. The time for
performance will be extended for a period equal to the duration of the Force
Majeure, but in no event longer than sixty (60) days.
19.9 Modifications. Any amendments and modifications to this Agreement shall be
in writing signed by both parties.
19.10 Entire Agreement. Except as provided in (i) the Non-Disclosure Agreement
executed by and between the parties as of February 23, 1999 set forth hereto as
Exhibit I, (ii) the Memorandum of Understanding executed by and between the
parties as of February 23, 1999, or (iii) the Settlement Agreement and Mutual
Release between the parties dated April 14, 1998 set forth hereto as Exhibit F,
this Agreement is the entire understanding between McDATA and BROCADE with
respect to the subject matter of this Agreement, and supersedes:
(a) All prior or contemporaneous proposals, whether oral or written, all
negotiations, conversations or discussions between the parties, and industry
custom or past course of dealing, relating to such subject matter,
(b) The Purchase and License Agreement entered into between the parties on May
31, 1996,
(c) The Technology License and Development Agreement entered into between the
parties on November 1, 1996,
(d) The Software License Agreement entered into between the parties on October
2, 1998,
(e) The Mutual Confidentiality and Non-Disclosure Agreement entered into between
the parties on February 12, 1996; and
(f) The two-page Agreement entered into between the parties on March 26, 1998.
13
<PAGE> 14
EXHIBIT A
PRICE LIST
SILKWORM SUBASSEMBLIES
[*] [*] [*] [*]
PRODUCT NUMBER SUBASSEMBLY UNITS UNITS UNITS UNITS
-------------- ----------- ----- ----- ----- -----
MD1001 [*] [*] [*] [*] [*]
MD1002 [*] [*] [*] [*] [*]
MD1003 [*] [*] [*] [*] [*]
MD1015 [*] [*] [*] [*] [*]
FW-0000000007-0002 Licensed Software [*] /bundle/motherboard
(regardless of number of units)
BROCADE WebTools
BROCADE SES
BROCADE Zoning
- McDATA acknowledges and agrees that the lead time for forecasted new orders
as of the Effective Date is sixty (60) days.
- McDATA agrees that subassemblies are to be ordered in [*] in
minimum increments of [*].
- McDATA acknowledges that subassemblies have not been [*].
Repair Pricing
MD 1001: [*]
MD1002 [*] [*]
MD1003 [*] [*]
MD1015 [*] [*]
TIME AND MATERIALS
BROCADE will evaluate"Out of Warranty" returns of each of the above
Hardware subassemblies for a fixed evaluation fee of [*] per Hardware
subassembly ("Evaluation Fee"). In the event that McDATA authorizes the
repair of the Hardware subassemblies, the applicable Evaluation Fee will be
applied toward the repair cost. In the event the rate of the subassemblies
tested to the BROCADE standard manufacturing [*] process exceed a "No
Trouble Found" ("NTF") rate greater than [*] during any given [*] day
period, the Evaluation Fee will be charged for all subassemblies exceeding
the [*] NTF rate for the following [*] day period. BROCADE will use
commercially reasonable efforts to repair subassemblies within [*] days of
the receipt of the written or email approval by McDATA of the repair or the
quote by BROCADE. All such repairs will be subject to a ninety (90) day
warranty (according to the terms and limitations set forth in Section 15 of
this Agreement) from the date of shipment by BROCADE.
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 15
EXHIBIT B
SERVICE AND SUPPORT REQUIREMENTS
1.0 SERVICE AND SUPPORT REQUIREMENT
McDATA will be responsible for working directly with Customers, and BROCADE
Support will work directly with McDATA to support McDATA personnel, as
necessary. McDATA represents and warrants that it is experienced in, capable
of, and staffed to provide, Level 1 and Level 2 support (as defined below).
BROCADE offers training programs for BROCADE's standard fees as set forth in
this Exhibit B (which may be amended from time to time upon written notice)
to assist in attaining this level of expertise on BROCADE Products. BROCADE
Support will accept calls for technical assistance only from Level II
engineers.
BROCADE will provide Level 3 support to McDATA (as defined below).
2.0 SUPPORT LEVEL DEFINITIONS
2.1 LEVEL 1 SUPPORT
Level 1 support is the first line, direct Customer contact, most
likely via a telephone call handling group provided by McDATA.
Level One support includes:
- [*] (rephrased, please approve)
- Information collection and analysis
- Identification of whether the problem is known and has a known
solution
- Troubleshooting and problem reproduction
- Problem report administration and tracking
The parties agree that Customers shall not have the right to contact
BROCADE directly for questions related to the Products.
2.2 LEVEL 2 SUPPORT
Level 2 support is "technical support" provided by McDATA personnel.
Level 2 support is typically provided by experts in the applicable
Product and who serve as the escalation point for Level 1. Level 2
support personnel are expected to resolve all known problems,
installation and configuration issues, assist in firmware or driver
updates at the Customer site, search BROCADE posted Technical Notes
and other technical information supplied that will assist in providing
problem resolutions. All pertinent data shall be entered in McDATA's
problem tracking database.
Should the Level 2 analyst be unable to resolve a problem, either
because of lack of expertise, exhausted troubleshooting knowledge, or
expiration of the allotted Level 2 resolution time, the Level 2
analyst may escalate the problem to Level 3 for resolution. Level 2
personnel of McDATA will continue to diligently work with Level 3
personnel of BROCADE to accomplish resolution. Level 2 personnel of
McDATA will communicate all resolutions back to the Customers.
Escalations should be presented to BROCADE engineers in the form of a
problem tracking data base record with all pertinent configuration
detail and failure information or symptoms documented in detail.
In an effort to maintain an efficient support organization and crisp
exchange of information, McDATA will limit the number of support
personnel ( Level 2) authorized to contact BROCADE (Level 3) to 5 and
ensure that these personnel have attended Courses 1,2, and 3 taught at
the BROCADE training facility.
2.3 LEVEL 3 SUPPORT
Level 3 support is provided by BROCADE System Engineers (SE) and/or
Technical Support Engineers (TSE). Level 3 is the first point of
contact for technical issues between BROCADE and McDATA. Once a
problem is accepted by BROCADE in its sole discretion for escalation
to Level 3, BROCADE is responsible for resolution and will utilize
commercially reasonable resources to resolve such problem.
Prior to escalating to Level 3, it is expected that McDATA shall
provide the following information and documentation:
- Any error information from the device connected to the
switch and from the switch.
- All names and revisions of hardware equipment.
- All firmware revisions of the drivers.
- Any log files from the devices connected to the switch.
- Any trace file from the devices connected to the switch.
- The configuration information of the equipment being used.
- Detailed definition of all steps taken to reproduce and
resolve this situation prior to escalation to Level 3.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 16
Assigned Level 3 support personnel (SE and/or TSE) can be contacted
via direct dial, email to an established "support" alias, web site
initiated input, and by calling BROCADE's 1-888-ATFIBRE support
number. Direct access to BROCADE support personnel will be possible
during normal BROCADE business hours (8 AM to 5 PM PST, M-F).
Emergency situations for Severity 1 problems are handled via 7 X 24
pager coverage at 1-888-ATFIBRE (1-888-283-4273)
3.0 BROCADE SEVERITY DEFINITIONS AND SUPPORT GOALS
The goal for initial response time to all telephone support requests
is [*] or less during normal BROCADE working hours. For after hours
telephone requests, the goal is [*] or less. The targeted response
time for requests submitted by other means, such as email, or fax, is
[*].
SEVERITY DEFINITION SERVICE OBJECTIVE RESOLUTION TIME
-------- ---------- ----------------- ---------------
1 BROCADE Product is completely Respond to initial request Less than 5
non-functional, or deemed a within 30 minutes during days, using
safety hazard, situation has normal BROCADE business commercially
high impact on development or hours, and 1 hour for reasonable
delivery efforts. non-business hours. efforts
Installation problems. Resources applied until a
solution or acceptable work-
around is found.
2 BROCADE Product is Respond to initial request Less than 15 days
functionally impaired, has within 1 (one) hour during
substantially degraded normal BROCADE business
performance but is not hours. Resources applied
completely dysfunctional. continuously, during
There are no available business hours, until a
work-arounds. Situation has solution or work-around is
medium impact on customer found.
activity
3 BROCADE Product or advertised Resources applied on a Next maintenance
functionality may be slightly priority basis, until a release.
impaired but is operational, solution or a work-around is
has low to no impact on found.
customer activity, and there
are work-arounds available.
4 Generic questions, and Answer generic questions or Commercially
enhancement requests. provide path to answers reasonable
within reasonable time efforts for
frames. The BROCADE web generic
site will be the prime questions.
repository for this type of Enhancement
information. Enhancement requests are
requests will be reviewed processed on a
and implemented in the next case by case
major release, where basis.
feasible, or to meet
specific commitments made.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 17
EXHIBIT C
TECHNICAL TRAINING PROGRAM
BROCADE TRAINING OUTLINE
COST PER
COURSE DAYS PERSON
-------------------------------------------------- ------------- ------------
1.1 FC & SAN intro: 1 [*]
Audience: Sales/Marketing/SE's
1.2 Switch intro & features : 2 [*]
Audience Sales/Marketing/SE's:
1.3 Install/Config/Troubleshoot/Mgmt tools: 2 [*]
Audience SE's, Tech support:
FULL COURSE 5 [*]
Note: Includes non-reproducible copy of all course materials
for each person. Additional binders of training materials
may be purchased from BROCADE.
Courses will be offered at BROCADE's offices in San Jose, CA or at such
other facility notified to McDATA from time to time. A minimum of [*]
students will be required to register and attend each course, or the course
in question may, at BROCADE's sole option, be canceled. McDATA agrees that
it shall pay any and all travel and lodging expenses related to such
training. BROCADE will make these courses available to Customers, on terms
to be negotiated at BROCADE's then-current rates for Customer training
courses.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 18
EXHIBIT D
BROCADE SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS END-USER SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE USING THE
SOFTWARE CONTAINED IN THIS EQUIPMENT.
BY USING THE EQUIPMENT THAT CONTAINS THIS SOFTWARE, YOU ARE CONSENTING TO BE
BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS
AGREEMENT, PROMPTLY RETURN THE EQUIPMENT AND DO NOT USE THE SOFTWARE OR ALLOW
OTHERS TO USE OR COPY THE SOFTWARE.
SINGLE USER LICENSE. Subject to the terms and conditions of this Agreement,
Brocade Communications Systems, Inc. ("Brocade") and its suppliers grant to
Customer ("Customer") a personal, non-transferable, nonexclusive license to use
the specific Brocade Software program modules or features which have been
enabled by license keys supplied by Brocade or its authorized distributors and
for which Customer has paid any applicable license fees (collectively, the
"Software"), in object code form only: (i) solely as embedded in Brocade
equipment owned or leased by Customer; and (ii) for key-enabled Software, solely
on the single central processing unit corresponding to the license key(s)
supplied by Brocade or its authorized distributors and to the license fees paid
by Customer.
LIMITATIONS. Except as otherwise expressly provided under this Agreement,
Customer shall have no right, and Customer specifically agrees not to:
(i) make error corrections to or otherwise modify, edit or adapt the Software
or create Derivative Works based upon the Software;
(ii) except as set forth herein, copy the Software, in whole or in part;
(iii) decompile, reverse engineer, translate, disassemble or otherwise reduce
the Software to human-readable form;
(iv) remove the Software from the equipment in which it is embedded; or
(v) permit third parties to do any of the foregoing.
Only to the extent required by law, if any, Brocade shall provide Customer with
the interface information needed to achieve interoperability between the
Software and another independently created program, upon Customer's request and
upon payment of Brocade's applicable fee. Customer shall observe strict
obligations of confidentiality with respect to such information, using
commercially reasonable efforts and means consistent with high industry
standards.
UPGRADES AND ADDITIONAL COPIES. For purposes of this Agreement, "Software" shall
include (and the terms and conditions of this Agreement shall apply to) any
upgrades, updates, bug fixes or modified versions (collectively, "Upgrades") or
backup copies of the Software licensed or provided to Customer by Brocade or its
authorized distributor; provided that Customer has paid the applicable license
fees and holds the corresponding license keys for such copies or Upgrades.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CUSTOMER HAS NO LICENSE
OR RIGHT TO USE ANY SUCH ADDITIONAL COPIES OR UPGRADES UNLESS (1) CUSTOMER, AT
THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE AND
THE CORRESPONDING LICENSE KEYS TO THE ORIGINAL SOFTWARE; (2) SUCH ADDITIONAL
COPIES OR UPGRADES ARE USED ONLY ON THE BROCADE EQUIPMENT FOR WHICH THE ORIGINAL
SOFTWARE IS LICENSED; AND (3) CUSTOMER IS THE ORIGINAL END USER PURCHASER OR
LESSEE OF SUCH BROCADE EQUIPMENT. Except as explicitly provided for in the
Limited Warranty section below, Brocade reserves the right to charge additional
fees for such additional copies and Upgrades.
NOTICES OF PROPRIETARY RIGHTS. Customer may make such backup copies of the
Software as may be necessary for Customer's lawful use, provided Customer
affixes to such copies all trademark, copyright, patent, and notices of other
proprietary rights on any such copies, in whatever form, of the Software in the
same form and manner that such notices appear in the Software. Except as
expressly authorized in this Agreement, Customer shall not make any copies or
duplicates of any Software without the prior written permission of Brocade.
PROTECTION OF INFORMATION. Customer agrees that aspects of the Software and
associated documentation, including the specific design and structure of
individual programs, constitute the trade secrets and/or copyrighted material of
Brocade and its Customer shall not disclose, provide, or otherwise make
available such trade secrets or copyrighted material in any form to any third
party without the prior written consent of Brocade. Customer shall implement
reasonable security measures to protect such trade secrets and copyrighted
material. Title to Software and all related documentation shall remain solely
with Brocade.
LIMITED WARRANTY. Brocade warrants that the Software will substantially conform
to its published specifications for a period of ninety (90) days from the later
of receipt of the equipment containing the Software or receipt of access to the
Software. This limited warranty extends only to Customer as the original
licensee. Customer's sole and exclusive remedy and the entire liability of
Brocade and its suppliers under this limited warranty will be, at Brocade or its
service center's option, repair, replacement, or refund of the Software if
reported (or, upon request, returned) to Brocade or its designee within the
stated ninety (90) day period. Except as expressly granted in this Agreement,
the Software is provided AS IS. Brocade does not warrant that the Software is
error free or that Customer will be able to operate the Software without
problems or interruptions. Brocade reserves the right to charge additional fees
for repairs or replacements performed outside of the ninety (90) day limited
warranty period.
<PAGE> 19
This warranty does not apply if the Software or the Brocade equipment in which
the Software is embedded (a) is licensed for beta, evaluation, testing or
demonstration purposes for which Brocade does not receive a license fee, (b) has
been altered, except by Brocade, (c) has not been installed, operated, repaired,
or maintained in accordance with instructions supplied by Brocade, (d) has been
subjected to abnormal physical or electrical stress, misuse, negligence, or
accident, or (e) is used in ultra-hazardous activities.
DISCLAIMER. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED
CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, SATISFACTORY QUALITY OR ARISING
FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE
MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO
EVENT WILL BROCADE OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR
DATA, OR FOR SPECIAL, INDIRECT, EXEMPLARY, EXTRAORDINARY, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, AND REGARDLESS OF THE THEORY OF
LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF
BROCADE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL BROCADE'S OR ITS SUPPLIERS' LIABILITY TO CUSTOMER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PRICE PAID BY
CUSTOMER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED
WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO
NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE
ABOVE LIMITATION MAY NOT APPLY.
ASSIGNMENT. This Agreement will bind and inure to the benefit of each party's
successors and permitted assigns. Customer may not transfer or assign this
Agreement, in whole or in part, without Brocade's written consent, even if
Customer sells, rents, distributes or leases the equipment for which the
Software is licensed or on which the Software is loaded.
TERM AND TERMINATION. This Agreement is effective until terminated. Customer's
license rights under this Agreement will terminate immediately without notice
from Brocade if Customer fails to comply with any provision of this Agreement.
Upon termination, Customer must destroy all copies of Software and the
corresponding license keys in its possession or control.
CUSTOMER RECORDS. Customer grants to Brocade and its independent accountants the
right to examine Customer's books, records and accounts during Customer's normal
business hours to verify Customer's compliance with this Agreement. In the event
such audit discloses non-compliance with this Agreement, Customer shall promptly
pay to Brocade the appropriate license fees.
EXPORT. Software, including technical data, is subject to U.S. export control
laws, including the U.S. Export Administration Act and its associated
regulations, and may be subject to export or import regulations in other
countries. Customer agrees to comply strictly with all such regulations and
acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software.
RESTRICTED RIGHTS. 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 Licensed Software was developed
entirely at private expense and that no part of the Licensed Software was first
produced in the performance of a Government contract. If Customer is a U.S.
Government agency, in accordance with FAR 12.212 and its successors or DFARS
227.7202 and its successors, as applicable, the Software is licensed to the
applicable U.S. Government agency subject to the terms of this Agreement.
GENERAL. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, United States of America, as if performed
wholly within the state and without giving effect to the principles of choice or
conflicts of law. If any portion hereof is found to be void or unenforceable,
the remaining provisions of this Agreement shall remain in full force and
effect. This Agreement constitutes the entire agreement between the parties with
respect to the use of the Software.
<PAGE> 20
EXHIBIT E
McDATA PRODUCTS
All releases and subsets of:
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 21
EXHIBIT F
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
McDATA CORPORATION (McDATA) and BROCADE COMMUNICATIONS SYSTEMS, INC.,
("Brocade") enter into this Mutual Release as of April 14, 1998.
1. The intent of this settlement agreement and mutual release is to release
McDATA and Brocade from any and all claims which have been brought or could
have been brought by either party in two lawsuits referenced below.
2. McData has filed an action in the United States District Court for the
District of Colorado on March 4, 1998, entitled McDATA Corporation v.
Brocade Communications Systems, Inc., et al., Civil Action No. 98-S-535
(the "Colorado Action"). Brocade has filed an action in the United States
District Court for the Northern District of California on March 20, 1998,
entitled Brocade Communications Systems, Inc. v. McDATA Corporation, Civil
Action No. C98-20259 RWM (the "California Action"). Both parties have
agreed to dismiss with prejudice the Colorado Action and the California
Action. Each party will bear its own costs for the Colorado Action and the
California Action, including all attorneys' fees.
3. McDATA, for itself and its legal successors and assigns, agents, employees,
representatives, officers, directors, parent, subsidiary or affiliated
corporations, and each of them, hereby releases Brocade and its legal
successors and assigns, agents, employees, representatives, officers,
directors, parent, subsidiary, or affiliated corporations, and each of
them, from and against any and all claims, actions, causes of action,
liabilities and demands, whether known or unknown, that McDATA brought or
could have brought in the Colorado Action or the California Action
(collectively, the "McDATA Claims"). McDATA acknowledges that both known
and unknown McDATA Claims are covered by this Settlement Agreement and
Mutual Release, and waives any rights or benefits that may arise under
California Civil Code section 1542, which provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
4. Brocade, for itself and its legal successors and assigns, agents,
employees, representatives, officers, directors, parent, subsidiary or
affiliated corporations, and each of them, hereby releases McDATA and its
legal successors and assigns, agents, employees, representatives, officers,
directors, parent, subsidiary, or affiliated corporations, and each of
them, from and against any and all claims, actions, causes of action,
liabilities and demands, whether known or unknown, that Brocade brought or
could have brought in the Colorado Action or the California Action
(collectively, the "Brocade Claims"). Brocade acknowledges that both known
and unknown Brocade Claims are covered by this Settlement Agreement and
Mutual Release, and waives any rights or benefits that may arise under
California Civil Code section 1542, which provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
5. Excluded from the operation of this Mutual Release are any continuing
obligations of the parties in connection with the March 26, 1998 Agreement,
the Technology License and Development Agreement dated as of November 1,
1996, and the Purchase and License Agreement dated as of May 31, 1996, and
any claims arising out of such continuing obligations.
6. This agreement is executed in counterparts.
McData Corporation Brocade Communications
Systems, Inc.
By: /s/ By:
----------------------------- ------------------------------
<PAGE> 22
EXHIBIT G
ASICS SPECIFICATIONS
[*]
McDATA has this copy
[*]
McDATA has this copy
[*] and BROCADE will Fed Ex the [*] within [*] of the approval of the agreement.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 23
EXHIBIT H
SUPPORT LETTER
BROCADE COMMUNICATIONS SYSTEMS, INC.
1901 GUADALUPE PARKWAY
SAN JOSE, CA 95131
FAX 408-487-8091
APRIL __, 1999
SUPPORT LETTER
McDATA Corporation Hewlett-Packard Company
310 Interlocken Parkway 8000 Foothills Blvd.
Broomfield, CO 80021 Roseville, CA 95747
Dear _____________and _____________ :
This letter is a follow-up to our recent communications and sets forth the
general terms under which BROCADE will supply products and support to HP in
connection with HP's use of a certain McDATA switch that incorporates unmodified
BROCADE hardware and software system elements and components, or modifications
approved in writing by BROCADE as defined in Exhibit A (the "ES 2500
Switch").BROCADE and McDATA will each enter into separate written agreements
with HP with respect to the products and services it will supply based on the
parties' understandings reflected below. This arrangement, of course, is being
entered into by BROCADE voluntarily and without any obligation to do so, solely
as an accommodation to HP and McDATA, and there is no obligation on the part of
any of us to enter into similar arrangements concerning other products or other
customers.
1. Software License: BROCADE will license specified software applications to
HP for use in the ES 2500 Switch, in accordance with a mutually agreed upon
application software license agreement.
2. BROCADE Support: BROCADE will provide technical support to HP consistent
with the attached escalation procedures, Schedule 1, to assist HP and
McDATA in performing fault isolation and analysis of the ES 2500 Switch,
and will use reasonable efforts to work with HP and McDATA to correct or
provide work-arounds for any errors attributable to BROCADE. Such support
will include BROCADE's using reasonable efforts to assist HP and McDATA in
supporting the approved modifications listed in Schedule 2. BROCADE support
will require both HP and McDATA to provide BROCADE with the necessary
system elements to replicate identical configurations in the field.
However, BROCADE will in no event be held legally or financially liable for
any failure to identify, isolate, correct or provide work-arounds to any
problems or deficiencies with the ES 2500 Switch or any modified BROCADE
hardware or software, regardless of the reasons or circumstances.
3. McDATA Support: McDATA will make available to BROCADE such information and
equipment (including one or more ES 2500 Switches) at no charge to BROCADE
as are reasonably necessary for BROCADE to provide the support to HP
contemplated under the parties' arrangement in an efficient manner. In
doing so, McDATA will not disclose to BROCADE any confidential information,
and BROCADE will have no obligation of confidentiality with respect to the
information provided. If BROCADE requires access to McDATA confidential
information, the request must be made in writing and be submitted by a Vice
President of BROCADE. The McDATA confidential information will then be
supplied only to a Vice President at BROCADE. McDATA confidential
information will be protected under the terms of the Non-Disclosure
Agreement dated February 23, 1999.
This letter serves as Exhibit D of the BROCADE-HP Software License Agreement and
also as Exhibit H of the BROCADE-McDATA OEM and License Agreement.
Please indicate your acceptance of the above terms by signing below and
returning the signed letter to me at your earliest convenience. Please do not
hesitate to call me if you have any questions or concerns.
Sincerely,
Greg Reyes
Agreed to and Accepted: Agreed to and Accepted:
McDATA Corporation Hewlett-Packard Company
<PAGE> 24
By By
----------------------------- -----------------------------------
Name Name
----------------------------- -----------------------------------
Date Date
----------------------------- -----------------------------------
<PAGE> 25
SCHEDULE 1
TO
SUPPORT LETTER
ESCALATION, SERVICE AND SUPPORT REQUIREMENTS
1.0 SERVICE AND SUPPORT REQUIREMENT
HP will be responsible for working directly with the End Users. McDATA and
BROCADE support will work directly with HP to support HP personnel, as
necessary. HP represents and warrants that it is experienced in, capable
of, and staffed to provide, Level 1 and Level 2 support (as defined below).
BROCADE offers regular training programs to assist in attaining this level
of expertise on BROCADE Products.
Subject to the terms of the "Support Letter" and the Non-Disclosure
Agreement dated February 23, 1999, BROCADE and/or McDATA, as applicable,
will provide Level 3 support (as defined below). Specifically, McDATA will
be the initial contact for problem isolation and escalation, service and
support issues from HP, and will be specifically responsible for hardware
support. BROCADE will be the contact for escalation, service and support
for BROCADE software issues following problem isolation by McDATA or HP.
2.0 SUPPORT LEVEL DEFINITIONS
2.1 LEVEL 1 SUPPORT
Level 1 support is the first line, direct End User contact, most likely
via a telephone call handling group provided by HP.
Level One support includes:
- On site service and FRU replacement
- First contact, direct McDATA/End User interaction
(rephrased, please approve)
- Information collection and analysis
- Identification of whether the problem is known and has a
known solution
- Troubleshooting and problem reproduction
- Problem report administration and tracking
The parties agree that End Users shall not have the right to contact
BROCADE directly for questions related to the Products.
2.2 LEVEL 2 SUPPORT
Level 2 support is "technical support" provided by HP personnel. Level 2
support is typically provided by experts in the applicable Product and
who serve as the escalation point for Level 1. Level 2 support personnel
are expected to resolve all known problems, installation and
configuration issues, assist in firmware or driver updates at the End
User site, search BROCADE and/or McDATA posted Technical Notes and other
technical information supplied that will assist in providing problem
resolutions. All pertinent data shall be entered in HP's problem
tracking database.
Should the Level 2 analyst be unable to resolve a problem, either
because of lack of expertise, exhausted troubleshooting knowledge, or
expiration of the allotted Level 2 resolution time, the Level 2 analyst
may escalate the problem to Level 3 for resolution. Level 2 personnel of
HP will continue to diligently work with Level 3 personnel of BROCADE
and/or McDATA to accomplish resolution. Level 2 personnel of HP will
communicate all resolutions back to the End Users.
Escalations should be presented to BROCADE and/or McDATA engineers in
the form of a problem tracking data base record with all pertinent
configuration detail and failure information or symptoms documented in
detail.
In an effort to maintain an efficient support organization and crisp
exchange of information, HP and McDATA will limit the number of support
personnel (Level 2) authorized to contact BROCADE (Level 3) to 5.
2.3 LEVEL 3 SUPPORT
Level 3 support for covered software is provided by BROCADE System
Engineers (SE) and/or Technical Support Engineers (TSE). Level 3 is the
first point of contact for technical issues between BROCADE and HP or
McDATA. Once a problem is accepted by BROCADE in its sole discretion for
escalation to Level 3, BROCADE will utilize commercially reasonable
resources to resolve such problem within the time frames set forth
below.
Prior to escalating to Level 3, it is expected that HP and/or McDATA
shall provide the following information and documentation:
- Any error information from the device connected to the
switch and from the switch.
- All names and revisions of hardware equipment.
- All firmware revisions of the drivers.
- Any log files from the devices connected to the switch.
<PAGE> 26
- Any trace file from the devices connected to the switch.
- The configuration information of the equipment being used.
- Any troubleshooting steps already performed.
Assigned Level 3 support personnel (SE and/or TSE) can be contacted via
direct dial, email to an established "support" alias, web site initiated
input, and by calling BROCADE's 1-888-ATFIBRE support number. Direct
access to BROCADE support personnel will be possible during normal
BROCADE business hours (8 AM to 5 PM PST, M-F). Emergency situations for
Severity 1 problems are handled via 7 X 24 pager coverage at
1-888-ATFIBRE (1-888-283-4273)
3.0 BROCADE SEVERITY DEFINITIONS AND SUPPORT GOALS
The goal for initial response time to all telephone support requests is
[*] or less during normal BROCADE working hours. For after hours
telephone requests, the goal is [*] or less. The targeted response time
for requests submitted by other means, such as email, or fax, is [*].
SEVERITY DEFINITION SERVICE OBJECTIVE RESOLUTION TIME
-------- ---------- ----------------- ---------------
1 BROCADE Product is completely Respond to initial Less than 5 days,
non-functional, or deemed a safety request within 30 using
hazard, situation has high impact minutes during normal commercially
on development or delivery BROCADE business hours, reasonable efforts
efforts. Installation problems. and 1 hour for
non-business hours.
Resources applied until
a solution or acceptable
work- around is found.
2 BROCADE Product is functionally Respond to initial Less than 15 days
impaired, has substantially request within 1 (one)
degraded performance but is not hour during normal
completely dysfunctional. There BROCADE business hours.
are no available work-arounds. Resources applied
Situation has medium impact on continuously, during
customer activity business hours, until a
solution or work-around
is found.
3 BROCADE Product or advertised Resources applied on a Next maintenance
functionality may be slightly priority basis, until a release.
impaired but is operational, has solution or a
low to no impact on customer work-around is found.
activity, and there are
work-arounds available.
4 Generic questions, and enhancement Answer generic questions Commercially
requests. or provide path to reasonable
answers within efforts for
reasonable time frames. generic
The BROCADE web site questions.
will be the prime Enhancement
repository for this type requests are
of information. processed on a
Enhancement requests case by case
will be reviewed and basis.
implemented in the next
major release, where
feasible, or to meet
specific commitments
made.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 27
SCHEDULE 2
TO
SUPPORT LETTER
APPROVED MODIFICATIONS FOR THE HP OEM FIBRE CHANNEL SWITCH
1. External Loop Back Test
2. [*]
3. Remove BROCADE name and BROCADE unique references from SilkWorm
4. [*]
5. [*]
6. Generic SNMP modifications
7. OEM Logo Set command
[*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 28
EXHIBIT I
McDATA CORPORATION
MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
(Organizational Level)
THIS AGREEMENT, by and between McDATA Corporation, hereinafter referred to as
"McDATA", having its principal place of business at 310 Interlocken Parkway,
Broomfield, Colorado 80021-3484 and,
Brocade Communication
457 E. Evelyn
Suite E
Sunnyvale, CA 94086
Hereinafter referred to as the "Organization", establishes certain terms and
conditions applicable to the parties relative to the protection and
non-disclosure of the confidential information and materials of the parties.
RECITALS
WHEREAS, each party hereto desires to protect its trade secrets, confidential
information and patentable ideas from unnecessary risk of unauthorized
disclosure while at the same time conducting business with the other party, and
the other party is willing to abide by the following covenants,
NOW, THEREFORE, the parties covenant and agree as follows:
1. DEFINITION AND AGREEMENT
1.1 Either party hereto may disclose to the other party (the receiving party)
certain of its confidential information as defined at Section 1.2 below. All
such confidential information shall remain the property of the disclosing party.
1.2 In order to come under the terms of this Agreement, such confidential
information must either be: (a) disclosed in tangible form clearly marked as
"confidential", "restricted", "proprietary", or with similar wording, or (b) if
orally disclosed, as may happen during meetings of the parties, within
seventy-two hours of such disclosure, disclosing party shall deliver to
receiving party a letter specifically identifying any such confidential
information so disclosed and indicating that such information is to be treated
as confidential under this Agreement. Neither party will, without the prior
written consent of the other, receive or take possession of any books, drawings,
blueprints, specifications, software (in any media), customer lists, data
formulations, compositions, reports, letters, memoranda, notes or other writings
or documents or copies thereof which contain or relate to any of the
confidential information.
1.3 The receiving party hereby agrees to maintain such confidential information
in confidence, to protect same with the same degree of care as that with which
it uses to preserve and safeguard its own information of a similar nature and to
disclose same only to officers, employees and agents of the receiving party who
reasonably require same for the purposes hereof and who execute a
confidentiality and non-disclosure agreement prior to receipt of same.
1.4 Each of the parties represents that it has in force a similar policy
respecting the protection of its information as described in 1.2 through 1.3, or
will develop and implement a policy substantially equivalent to that as
contained herein, including the execution of a confidentiality and
non-disclosure agreement by each officer, employee and agent of the receiving
party prior to divulging confidential information as described in 1.2 above.
1
<PAGE> 29
EXHIBIT I
1.5 The restrictions and obligations of the parties shall expire five (5) years
from the date of termination of the party's contacts with the other party, and
shall not apply to information which:
1.5.1 becomes a matter of general public knowledge; or
1.5.2 is required to be disclosed by the law of any government which has
jurisdiction over such information; or
1.5.3 was previously known at the time of its receipt from the disclosing party
without similar restrictions; or
1.5.4 is released by written mutual agreement of the parties; or
1.5.5 is provided by the owner of such information to third parties without
similar restrictions on disclosure; or
1.5.6 can be documented, by adequate written records, to have been independently
developed by the receiving party without reference to or use of any confidential
information.
1.6 Use of such confidential information by the receiving party is limited to
the use as is appropriate in exploring a potential business relationship and the
furnishing of such confidential information under this Agreement shall not
constitute any grant, option or license to the receiving party under any patent,
copyright or other rights now or hereafter held by the party disclosing said
confidential information.
1.7 In the event of a breach of this Agreement the parties expressly agree that
the aggrieved party shall be entitled to (in addition to all other remedies
available to it under this Agreement, by statute, or otherwise) injunctive
and/or other equitable relief to secure the enforcement of this Agreement, or
any part thereof.
2. CHANGES TO AGREEMENT
No provision of this Agreement shall be deemed waived, amended or modified by
either party unless such waiver, amendment or modification is in writing, signed
by the parties. No waiver in any one instance or with respect to any particular
entity shall be deemed to be a waiver in any other instance or with respect to
any other entity.
3. CONTINUING OBLIGATIONS
This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their permitted successors and assigns.
4. MAINTENANCE OF AGREEMENT
If one or more provisions of this Agreement should be invalid, illegal or
unenforceable in any respect, the remaining provisions contained herein shall
not, in any way, be affected or impaired thereby.
5. LEGAL AUTHORITY
This Agreement shall be construed under and governed by the laws of the State of
Colorado as though this Agreement were executed in, by parties who were all
residents of, and were intended to be performed fully in, the State of Colorado.
6. ATTORNEYS' FEES
If any dispute arises between the parties with respect to the matters covered by
this Agreement which leads to a proceeding to resolve such dispute, the
prevailing party in such proceeding shall be entitled to receive
2
<PAGE> 30
EXHIBIT I
its reasonable attorneys' fees and out-of-pocket costs incurred in connection
with such proceeding, in addition to any other relief it may be awarded.
7. RETURN OF CONFIDENTIAL INFORMATION
Upon request, a receiving party shall destroy or return all confidential
information to the disclosing party.
8. EXPORT
The Parties agree that they will not in any form export, reexport, resell, ship
or divert or cause to be exported, reexported, resold, shipped or diverted,
directly or indirectly, any product or technical data (as defined by the United
States Export Administration Regulations) or Software furnished hereunder or the
direct product of such technical data or Software which, in so doing, would
violate any United States Export Laws or Regulations.
If such technical data of Software or the direct product thereof is covered by
General License GTDR (Technical Data Under Restriction) then such technical data
or Software or the direct product thereof will not be sold or otherwise made
available, directly or indirectly, to or for use by country groups, Q, S, W, Y,
Z, Afghanistan, or the People's Republic of China or such other countries as
specified by the current Export Administration Regulations.
By execution hereof, the parties hereby certify that they have read, understand
and are DULY AUTHORIZED TO EXECUTE THIS AGREEMENT.
Executed and submitted to McDATA Accepted and effective as
for acceptance: of: ____________________
Brocade Communication McDATA Corporation
(Organization)
By: /s/ By: /s/
-------------------------------- -----------------------------------
(signature) (signature)
Name: Seth D. Neiman Name: Wo Overstreet
Title: CEO Title: Vice President of Marketing
and Sales
3
<PAGE> 31
EXHIBIT J
MANUFACTURING [*] TEST PROCESSES
1. [*] TEST. BROCADE will perform an [*] test on each subassembly ([*]) prior
to shipping that subassembly to McDATA.
2. [*] TESTS. BROCADE perform [*] tests on each subassembly ([*]). All such
[*] tests shall have optical ports cross-connected during diagnostics (port
0 to 3; port 2 to 4, etc.). Additional loops of [*] and [*] shall be done
at [*] test:
[*]
3. [*] TESTS. BROCADE agrees to work diligently to eliminate failures on the
subassemblies. If the failures persist for [*] days after the date of
execution of this Agreement, and if McDATA yields can be substantially
improved by performing a [*] test, then BROCADE shall perform the following
[*] test on the affected subassemblies:
Additional [*] testing shall be set up to run the [*] in a test
environment similar to the [*]. [*] test suites shall be agreed
upon by both parties within [*] days of execution of this
Agreement. All ports will be [*] during such tests. The duration
of such tests shall be [*].
4. TEST CORRELATION FOR FAILED SUBASSEMBLIES.
a. For the [*], BROCADE will provide to McDATA
a test fixture for performing validation tests on failed [*]
and [*]. McDATA shall run a validation test on each failed
[*] and [*] on the BROCADE test fixture, using a test
suite agreed upon by both parties. If McDATA is unable to validate the
failure, McDATA shall put the [*] or [*] back into its
stock. If McDATA is able to validate the failure, McDATA will return
the validated failed [*] or [*] to BROCADE for repair or
replacement.
b. McDATA shall return to BROCADE all failed [*] and [*]. BROCADE shall
run such failed [*] through BROCADE's standard validation test. If
such [*] is determined to be No Trouble Found (NTF), then BROCADE
shall retest such [*] in McDATA equipment, using McDATA's [*]. If the
failure is validated in McDATA equipment, BROCADE shall repair or
replace such [*].
c. Both parties shall review the test correlation data and process every
[*] days to determine if the then-current test correlation process
shall be continued or changed.
d. Such test correlation process shall apply to [*] and [*] failures.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.