Acknowledgement - Brocade Communications Systems Inc. and Wind River Systems Inc.
ACKNOWLEDGEMENT
This Acknowledgement is made on April 22, 1999 by Brocade Communications
Systems, Inc., a California corporation with offices at 1901 Guadalupe Parkway,
San Jose, CA 95131 ("BROCADE") and Wind River Systems, Inc., a Delaware
corporation with offices at 5201 Great America Parkway, Suite 320, Santa Clara,
California 95054 ("WIND RIVER").
The parties hereby acknowledge that on or about October 11, 1995, the parties
agreed into the following agreements:
A. The Wind River Systems, Inc. VxWorks Target Application License
Agreement attached as Exhibit A and the related Purchase Order attached
as EXHIBIT B, (referenced in such agreement as the Sales
Acknowledgement Agreement) which gave Brocade certain rights to
distribute copies of portions of the VxWorks Development Software and
to incorporate such copies physically in target applications developed
by Brocade using VxWorks. The parties acknowledge that under such
agreements, Brocade may distribute an unlimited number of copies of the
VxWorks Target Application provided Brocade pays Wind River a per unit
royalty.
B. The end user license agreement attached as EXHIBIT C, which allows
Brocade to use certain development tools referenced in such purchase
order, i.e. the VxWorks Development Systems, BSP Part Kit, and WindNet
SNMP.
ACKNOWLEDGED:
Brocade Communications Systems, Inc. Wind River Systems, Inc.
By: /s/ VICTOR RINKLE By: /s/ WENDY OKUN
------------------------------ -----------------------------
Name: Victor Rinkle Name: Wendy Okun
---------------------------- -----------------------------
Title: V.P. OPERATIONS Title: CORPORATE COUNSEL
--------------------------- --------------------------
3
<PAGE> 2
EXHIBIT A
WIND RIVER SYSTEMS, INC.
VXWORKS TARGET APPLICATION LICENSE AGREEMENT
____ PACK
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE OPENING THIS PACKAGE.
THIS AGREEMENT STATES THE TERMS AND CONDITIONS UPON WHICH WIND RIVER
SYSTEMS, INC. ("WIND RIVER") OFFERS TO LICENSE TO YOU THE RIGHT TO MAKE A
LIMITED NUMBER OF COPIES OF CERTAIN PORTIONS OF THE VXWORKS DEVELOPMENT SOFTWARE
AND TO INCORPORATE SUCH COPIES PHYSICALLY IN TARGET APPLICATIONS DEVELOPED BY
YOU USING VXWORKS (THE TARGET APPLICATIONS). AMONG OTHER THINGS, THIS AGREEMENT
CONTAINS WARRANTY DISCLAIMERS. BY OPENING THIS PACKAGE YOU ARE AGREEING TO
BECOME BOUND BY THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT OPEN THE
PACKAGE. PROMPTLY RETURN THE UNOPENED PACKAGE TO THE PLACE WHERE YOU OBTAINED
IT FOR A FULL REFUND.
THIS AGREEMENT APPLIES TO ALL FILES PROVIDED WITH THE VXWORKS DEVELOPMENT
ENVIRONMENT EXCEPT THE VXWORKS DIRECTORY "bin", SUBDIRECTORY "h", AND THE FILES
ENTITLED "makefile" IN DIRECTORIES "config/all" AND "config/(target)" (THE
"LICENSED FILES"). NO LICENSE IS GRANTED TO ANY OTHER WIND RIVER SOFTWARE UNDER
THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY OTHER PORTION OF VXWORKS.
The Licensed Files are licensed, not sold, to you for use only under the terms
of this Agreement, and Wind River reserves all rights not expressly granted to
you.
1. LICENSE. You (the original licensee) may:
(a) Subject to all of the limitations set forth herein and on the Wind River
Acknowledgment Agreement to which this Target Application License Agreement
applies (the Sales agreement), make only up to the number of copies set forth
above (i.e., the 50 Pack license allows you to make up to 50 copies) of the
Licensed Files in tangible object code form only for physical incorporation
into Target Applications. Each such Licensed File shall be accessible only as
part of a Target Application and not on a stand alone or independent basis. In
no event will Target Applications contain software development functionality.
You agree to affix to each tangible copy of a Target Application containing any
portion of the Licensed Files one of the serially numbered and adhesive labels
contained in this package. In addition, you shall reproduce Wind River's
VxWorks copyright notices as contained in the original in each such copy and in
human-readable form in all copy media.
(b) Distribute the Target Applications incorporating copies of the Licensed
Files made under (a) above throughout the world; provided, however, that each
such copy shall be licensed to the end user under the terms of an end user
license that (i) does not allow further copying of the Licensed Files (except
for backup purposes with retention of Wind River copyright notices), (ii)
expressly disclaims all warranties as to the Licensed Files, (iii) requires the
end user to take precautions that are reasonable under the circumstances to
maintain the confidentiality of the Licensed Files, and (iv) for any licenses to
any United States government agency, provides that the agency is subject to
restrictions substantially similar to those set forth in Section 10 below.
2. RESTRICTIONS. You may only make copies of the Licensed Files only at the
Location (as defined on the Sales Agreement) for use in connection with the
Project (as defined on the Sales Agreement). Unauthorized copying of the
Licensed Files is expressly forbidden. You may be held legally responsible for
any copyright infringement which is caused or encouraged by your failure to
abide by the terms of this Agreement. You may not decompile, reverse engineer,
disassemble or otherwise reduce the Licensed Files in a human perceivable form
or, except as set forth above, disclose them to any third party. You understand
WRS STANDARD TARGET DISTRIBUTION LICENSE
Revision 1.0
January 14, 1998
Page 1 of 3
<PAGE> 3
that Wind River may update or revise the Licensed Files and in so doing incurs
no obligation to furnish such updates to you, other than under a valid VxWorks
Maintenance Agreement. You agree to keep records of all copies of the Licensed
Files or any portion thereof made by you. Wind River shall have the right, upon
reasonable notice, to have independent auditors examine your records regarding
such practices. EXCEPT AS SET FORTH ABOVE, UPON TRANSFER OF ANY COPY,
MODIFICATION OR MERGED PORTION OF THE LICENSED FILES TO ANOTHER PARTY, THIS
LICENSE IS AUTOMATICALLY TERMINATED.
3. CONFIDENTIALITY. Wind River considers the Licensed Files to contain valuable
trade secrets of Wind River, the unauthorized disclosure of which could cause
irreparable harm to Wind River. Except as expressly set forth above, you agree
to use reasonable efforts not to disclose the Licensed Files to any third
parties and not to use the Licensed Files other than for the purposes
authorized by this Agreement. This confidentiality obligation shall continue
after any termination of this Agreement.
4. WARRANTY DISCLAIMER. THE LICENSED FILES, WHEN INCORPORATED INTO A TARGET
APPLICATION, ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. WIND RIVER
DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF
THIRD PARTY RIGHTS.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WIND RIVER, ITS DEALERS,
DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY
INCREASE THE SCOPE OF THIS WARRANTY AND YOU MAY NOT RELY ON ANY SUCH
INFORMATION OR ADVICE.
5. LIMITED REMEDIES. WIND RIVER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, PROFITS OR THE
LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED FILES EVEN IF
WIND RIVER OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE LIABILITY OF WIND RIVER FOR ANY CLAIMS ARISING OUT OF THIS
AGREEMENT, THE SALES AGREEMENT OR USE OF THE PROGRAM, REGARDLESS OF THE FORM OF
ACTION, SHALL NOT EXCEED THE GREATER OF THE LICENSE FEE FOR THE PROGRAM OR
$500. THE LIMITED WARRANTY, LIMITED REMEDIES AND LIMITED LIABILITY ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WIND RIVER AND YOU.
WIND RIVER WOULD NOT BE ABLE TO PROVIDE THE LICENSED FILES WITHOUT SUCH
LIMITATIONS.
6. INDEMNITY. You agree to indemnify, defend and hold Wind River harmless from
any claim, lawsuit, legal proceeding, settlement or judgment (including without
limitation Wind River's reasonable United States and local attorneys' and
expert witnesses' fees and costs) arising out of or in connection with the
copying, marketing, performance or other distribution of the Target
Applications.
7. SUPPORT AND MAINTENANCE. Except as may be provided in a separate agreement
between Wind River and you, if any, Wind River is under no obligation to
maintain or support the copies of the Licensed Files made and distributed
hereunder and Wind River has no obligation to furnish you with any further
assistance, documentation or information of any nature or kind. You are solely
responsible for the support and maintenance of all portions of any Target
Applications you develop.
8. TERMINATION. This Agreement is effective until terminated. Except for
Sections 2 through 6 (which will survive any termination of this Agreement),
this Agreement will continue until your breach of this Agreement. Upon
termination, you agree not to use the Licensed Files for any purpose whatsoever
and to destroy any copy of the Licensed Files then in your possession. This
remedy shall be in addition to any other remedies available to Wind River. Any
valid licenses to Target Applications incorporating Licensed Files granted by
you under this Agreement shall survive the termination of this Agreement.
WRS STANDARD TARGET DISTRIBUTION LICENSE
Revision 1.0
January 14, 1998
Page 2 of 3
<PAGE> 4
9. EXPORT CONTROL. You may not export or reexport the Licensed Files or the
immediate product produced by use of the VxWorks program (including TARGET
APPLICATIONS), without complying with all United States export laws and
regulations, including but not limited to (i) obtaining prior authorization from
the U.S. Department of Commerce if a validated export license is required, and
(ii) obtaining written assurances from licensees, if required.
10. GOVERNMENT CUSTOMERS. If the rights granted hereunder are acquired by or
on behalf of a unit or agency of the United States Government, this provision
applies. the VxWorks Program (the Program): (a) was developed at private
expense, is existing computer software and no part of it was developed with
government funds, (b) is a trade secret of Wind River for all purposes of the
Freedom of Information act, (c) is "restricted computer software" submitted
with restricted rights in accordance with subparagraphs (a) through (d) of the
Commercial Computer Software-Restricted Rights clause at 52.227-19 and its
successors, (d) in all respects is proprietary data belonging solely to Wind
River, (e) is unpublished and all rights are reserved under the copyright laws
of the United States. For units of the Department of Defense (DoD), the Program
is licensed only with "Restricted Rights" as that term is defined in the DoD
Supplement to the Federal Acquisition Regulation, 252.227-7013(c)(1)(ii),
Rights in Technical Data and Computer Software and its successors, and use,
duplication or disclosure is subject to restrictions as set forth in
subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software
clause at 252.227-7013. Contractor/manufacturer is Wind River Systems, Inc.
1010 Atlantic Avenue, Alameda, CA 94501. If the Program is acquired under a
GSA Schedule, the Government has agreed to refrain from changing or removing
any insignia or lettering from the Program or the documentation that is
provided or from producing copies of manuals or media (except for backup
purposes).
11. GENERAL. This Agreement will be governed by the laws of the State of
California except with regard to its choice of law rules. This Agreement and
the Sales Agreement between Wind River and you constitute the complete, final
and exclusive statement of the agreement between Wind River and you, which
supersede all proposals, oral or written, and all other communications between
the parties relating to the subject matter of this Agreement. No waiver,
alteration or modification of the provisions of this Agreement or any of the
terms of your purchase order will be valid unless made in writing and signed by
a corporate officer of Wind River. If any legal action or proceeding is brought
for the enforcement of this Agreement, or because of any alleged dispute,
breach, default or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, in addition to any other relief to which such party may
be entitled. If any provision or provisions of this Agreement are determined to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Agreement will not in any way be affected
or impaired thereby.
Should you have any questions concerning this Agreement, or if you wish to
contact Wind River for any reason, please write: Corporate Counsel, Wind River
Systems, 1010 Atlantic Avenue, Alameda, CA 94501.
WRS STANDARD TARGET DISTRIBUTION LICENSE
Revision 1.0
January 14, 1998
Page 3 of 3
<PAGE> 5
EXHIBIT B
BROCADE COMMUNICATIONS PURCHASE ORDER
457 E. EVELYN AVE. SUITE E
SUNNYVALE, CA 94086 DATE P.O. NUMBER
-------- -----------
10/11/95 16
VENDOR SHIP TO
--------------------------------- ---------------------------------
Wind River Systems, Inc. Brocade Communications
5201 Great America Pkwy. 457 Evelyn Ave. Suite E
Suite 320 Sunnyvale, CA 94086
Santa Clara, CA 95054
EXPECTED FOB
---------- -----------
10/11/95 Alameda, CA
ITEM DESCRIPTION QTY RATE AMOUNT
-----------------------------------------------------------------------------------------------------------------
VxWorks VxWorks/Tornado Development System for 1 16,500.00 16,500.00
SPARCitation Host/060 Target
Includes BSP for Cyclone CVME-960 Boxed
VxWorks Maint VxWorks Annual Maintenance and Support 1 2,800.00 2,800.00
VXWorks Addt *Additional Seats of VxWorks Tornado Development 2 0.00 0.00
System for SPARCitation Host/960 Target ($2750.00
ea.)
Maint Addt *VxWorks Annual Maintenance and Support for 2 0.00 0.00
Additional Seats ($470.00 each)
BSP Port kit BSP Port Kit, Value Option for SPARCitation Host 1 2,000.00 2,000.00
BSP Maint BSP Port Kit Annual Maintenance and Support 1 340.00 340.00
WindNet SNMP WindNet SNMP Developers License for 1 4,000.00 4,000.00
SPARCitation Host/960 Target
Includes: MIB Compiler for SPARCitation Host
WindNet Maint WindNet SNMP Annual Maintenance and Support 1 680.00 680.00
*WindRiver Systems will loan the additional two units of
VxWorks/Tornado to Brocade Communications for a period
of 12 months at no charge. WindRiver Systems will then
invoice Brocade Communications for $6440.00 for the
additional two development units on October 1, 1996.
VxWorks Target License Pricing:
Cumulative Qty Price per Target License
1-100 [*]
101-500 [*]
501-1,000 [*]
1,001-2,500 [*]
2,501-5,000 [*]
5,001-10,000 [*]
10,001+ [*]
--------------------------------------------------------------------------------
Terms: Net 30 Authorized Signature: TOTAL
--------------------------------------------------------------------------------
* 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 1
<PAGE> 6
BROCADE COMMUNICATIONS PURCHASE ORDER
457 E. EVELYN AVE. SUITE E ---------------------
SUNNYVALE, CA 84086 DATE P.O. NUMBER
---------------------
10/1/95 16
---------------------
---------------------------------- ------------------------------------
VENDOR SHIP TO
---------------------------------- ------------------------------------
WIND RIVER SYSTEMS, INC. BROCADE COMMUNICATIONS
5201 GREAT AMERICA PKWY. 427 E. EVELYN AVE. SUITE E
SUITE 320 SUNNYVALE, CA 94086
SANTA CLARA, CA 95054
------------------------
EXPECTED FOB
------------------------
10/11/95 ALAMEDA, CA
--------------------------------------------------------------------------------
ITEM DESCRIPTION QTY RATE AMOUNT
--------------------------------------------------------------------------------
This pricing reflects two special
terms, cumulative discounts and
payments on a quarterly basis. The
quantities are cumulative for all
products covered by the Project.
All payments will be made thirty
days after the end of the calendar
quarter for units shipped in that
quarter.
For quote #101195-JR-BC-2
--------------------------------------------------------------------------------
TERMS: NET 30 AUTHORIZED SIGNATURE
[SIGNATURE ILLEGIBLE] TOTAL $26,330.00
--------------------------------------------------------------------------------
[SIGNATURE ILLEGIBLE] Page 2
<PAGE> 7
EXHIBIT C
BY OPENING THIS PACKAGE YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS
AGREEMENT. DO NOT OPEN THIS PACKAGE UNTIL YOU HAVE CAREFULLY READ AND AGREED TO
THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS
AGREEMENT, PROMPTLY RETURN THE SOFTWARE AND ACCOMPANYING DOCUMENTATION AND THE
PRICE YOU PAID FOR THE SOFTWARE WILL BE REFUNDED.
LICENSE AND RESTRICTIONS: Wind River Systems ("WRS") grants you the
non-exclusive, non-transferable right to use the software program on this
CD-ROM, including any documentation in hard or soft copy (collectively, the
"Software"), only: 1) for the number of users; 2) at the street address; 3) on
the type of computer; and for the particular project, which are specified in the
purchase order which you submitted to WRS to purchase this license. You must
purchase additional licenses for additional users, for other addresses, for a
different type of computer, or for other projects. You will not use, copy,
modify, rent, lease, loan, sell, transfer, market, distribute, or electronically
transfer the Software from one computer to another over a network except as
provided in this Agreement. Unauthorized copying of the software and
accompanying documentation is expressly forbidden. You may not use the Software
from multiple locations of a multi-user or networked system at any time. The
Software contains trade secrets of WRS and in order to protect them, you may
not decompile, reverse engineer, disassemble or otherwise reproduce the
Software to a human perceivable form or disclose them to a third party.
WARRANTY: WRS warrants that the media on which Software is delivered will be
free from defects in materials or workmanship for a period of ninety (90) days
from the date on which you receive such media. If during the foregoing ninety
(90) day warranty period the media on which Software is delivered proves to be
defective, WRS will repair or replace such media, at WRS' option, and as your
sole remedy for any breach of warranty hereunder. THE FOREGOING WARRANTY IS IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED. WRS EXPRESSLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NONINFRINGEMENT OF THIRD PARTY RIGHTS.
LIMITATION OF LIABILITY: WRS WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS, LOSS
OF USE, INTERRUPTION OF BUSINESS, NOR FOR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER UNDER THIS AGREEMENT OR OTHERWISE,
IRRESPECTIVE OF WHETHER WRS HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL WRS' LIABILITY HEREUNDER EXCEED THE AMOUNT YOU PAID
FOR THE SOFTWARE.
TERMINATION: WRS may terminate this license at any time if you are in breach of
any of its terms and conditions. Upon termination, you will immediately destroy
the Software and will certify in writing to WRS that you have done so.
U.S. GOVERNMENT RESTRICTED RIGHTS: The Software and its documentation are
provided with restricted rights. Use, duplication, or disclosure is subject to
restrictions set forth in subparagraph (c)(1)(ii) of The Rights in Technical
Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)
and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR
52-227-19, as applicable. The Contractor/Manufacturer is Wind River Systems,
Inc., 1010 Atlantic Avenue, Alameda, California 94501.
EXPORT CONTROL: You agree that your performance under this Agreement shall at
all times conform to the requirements of all applicable laws, regulations,
rules and the like, including those relating to the export of technology,
including software and related documentation. To the extent required, you will
obtain all applicable export licenses prior to any such export of the Software.
APPLICABLE LAW/GENERAL: This Agreement is governed solely by the laws of the
state of California and the United States, including patent and copyright laws.
This Agreement shall not be subject to the United Nations Convention on
Contracts for the International Sale of Goods. Sole jurisdiction over any
dispute arising under this agreement shall be brought in the courts of the
United States of America, with sole venue in Alameda County, California. This
Agreement is the entire agreement between the parties regarding this subject
matter, and supersedes all prior discussions, negotiations, agreements and the
like. This Agreement may be modified only in writing, and signed by both
parties. Purchase orders submitted by you to WRS shall be for administrative
convenience only, and any printed terms therein shall have no effect unless
otherwise agreed in writing by WRS.