General Purchase Agreement - Egenera INc. and Credit Suisse First Boston LLC
EGENERA, INC.
GENERAL PURCHASE AGREEMENT
Egenera, Inc. ("Egenera"), 165 Forest St., Marlboro, MA 01752, and the customer
identified below ("Customer") agree that this General Purchase Agreement ("GPA")
shall govern any Equipment, Egenera Software and services listed on any Order to
be shipped within the United States of America and accepted by Egenera on or
after the date of the last signature below (the "Effective Date").
1. DEFINITIONS
"Order" means a document (typically Customer's purchase order), which is signed
by Customer, specifies Product and related services that Customer seeks to
obtain from Egenera and the related pricing and sufficient other information to
complete the transaction.
"Equipment" means the hardware identified on an Order accepted by Egenera.
"Egenera Software" means software owned by Egenera, including firmware or
materials embedded in the Equipment or identified on an Order accepted by
Egenera, and related documentation (including CD-ROM duplicates), but excluding
any Third Party Materials.
"CRU" means "Customer Replaceable Unit" and is an Equipment component designed
for replacement by the customer.
"RFU" means "Field Replaceable Unit" and is an Equipment component designed for
replacement by Egenera.
"Installation Services" means (i) "Basic Set-Up" (setting up the Equipment,
powering up the Equipment, and booting up the operating system), (ii) a training
course (titled "Foundations"), and (iii) two hours' on-site configuration
consultation, all performed on the same business day. Except as otherwise
agreed, Customer shall be solely responsible for supply and maintenance of an
appropriate environment (including power, network and telephone connections,
etc.) for Equipment.
"Open Source Materials" means Third Party Materials supplied under open-source
software license agreements, such as the GNU Public License, including any
modifications to such software made by Egenera.
"Product" means Equipment, Egenera Software and Third Party Materials acquired
by a customer under an Order.
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"Third Party Material" means software provided by Egenera to Customer which is
specifically labeled as being provided by and/or owned other than by Egenera,
including Open Source Materials.
"Software" means Egenera Software and Third Party Materials.
2. ORDERING, PRICING AND PAYMENT. All Orders shall reference this GPA and are
subject to acceptance by Egenera. Upon acceptance by Egenera, Orders may not be
cancelled by Customer.
The terms and conditions of this GPA shall apply to each order accepted or
shipped by Egenera hereunder. Any terms or conditions appearing on the face or
reverse side of any purchase order, acknowledgement, or confirmation that are
different from or in addition to those required hereunder shall not be binding
on the parties, even if signed and returned, unless both parties hereto
expressly agree in a separate writing to be bound by such separate or additional
terms and conditions.
Customer shall pay Egenera the price, stated on an accepted Order and also pay
or reimburse Egenera for all related taxes or withholdings, except for those
based on Egenera's net income, or provide Egenera with an appropriate exemption
certificate. All amounts are due in United States currency and in full thirty
(30) days after receipt of Egenera's invoice following Acceptance as described
in Section 3 below. Egenera reserves the right to cancel or suspend any orders
placed by Customer and accepted by Egenera, or refuse or delay shipment thereof,
if Customer fails to make any payment as provided herein or in any invoice or
otherwise to comply with the terms and conditions of this Agreement.
Customer may authorize its affiliates to place Orders hereunder by identifying
such affiliates to Egenera. An affiliate that is controlled by, is under common
control with, or controls ("control" means more than 50% ownership of the
outstanding stock or similar interest) Customer may place an Order. Customer
guarantees its affiliate's compliance with the obligations of this GPA.
3. DELIVERY AND ACCEPTANCE. Title of Equipment and the media for Egenera
Software, free and clear of all liens and encumbrances, and risk of loss for
Equipment, media and embedded Egenera Software shall transfer to Customer upon
Egenera's delivery at Egenera's plants to a common carrier selected by Customer
unless otherwise indicated in the Order. Customer shall pay all shipment related
charges and transit insurance. Unless Customer advises Egenera to the contrary
in writing, Egenera shall not make partial shipments of Customer's orders to be
separately invoiced and paid for when due. If Customer directs Egenera to make
partial shipments, reasonable delay in delivery of any installment shall not
relieve Customer of its obligation to accept the remaining deliveries. In the
case of installment deliveries of materials necessary in order to make prior
shipments usable, acceptance of each installment shall occur upon acceptance of
the last installment necessary to make such shipment usable. Egenera shall use
reasonable efforts to meet Customer's requested delivery schedules for the
Products. Should orders for Products exceed Egenera's available inventory,
Egenera will allocate its available inventory and make deliveries on a basis
Egenera deems equitable, in its sole discretion, and without liability to
Customer on account of the method of allocation chosen or its implementation.
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Acceptance of Equipment that Egenera is paid to install occurs (i) upon
successful completion of Egenera's standard installation procedures that
demonstrate conformance to the applicable Egenera-published specifications.
There are no Acceptance criteria for any Product for which Installation Services
are not provided, or for any Product for which the Customer has delayed
installation beyond (10) business days.
4. STANDARD WARRANTY
EQUIPMENT AND EGENERA SOFTWARE. Egenera warrants that Equipment and Egenera
Software will, for a period of one (1) year after Acceptance, perform in
accordance with the applicable Egenera-published specifications. Equipment
upgrades are warrantied for a period of one (1) year from the date of shipment.
This warranty does not apply to problems that arise from (i) accident or abuse,
(ii) interoperation with products not specified or provided by Egenera, (iii)
improper installation or modification by other than Egenera, or (iv) use in an
environment or in a manner or for a purpose for which a Product was not
designed.
Customer should provide remote dial-up access to each system purchased. A login
and password are required to establish access. Failure to provide a dial-up
connection may impact response and resolution time. In the event the Customer
has not provided dial-up access and an Egenera Support Engineer is required on
site due to inability to remotely access the system, Time and Material charges
(at the rate of $[**] per hour, with a [**] hour minimum) will be incurred for
the on-site service, unless Customer is enrolled in a support program that
includes on-site service. Reimbursement of travel and any other expenses shall
be subject to Customer's prior written approval.
Egenera does not warrant that the operation of Egenera Software will be
uninterrupted or error free, or that all defects can be corrected. Egenera does
not warrant any Third Party Material.
Any replacement Equipment parts will be comparable in function and performance
to the original part or Equipment, and be warranted for the remainder of the
original warranty period, or for 90 days, whichever is greater. All replaced
Product or portions thereof shall be returned to and become the property of
Egenera. Any replaced Product or portions thereof not received by Egenera within
ten (10 business days will be invoiced to the Customer. Egenera may use new and
reconditioned parts made by various manufacturers in performing Equipment
warranty repairs and building replacement products. Egenera is responsible for
shipping and insurance charges on replacement parts shipped to and from
Customer.
Egenera provides post-warrant support services for Equipment and Egenera
Software at an additional charge on separate terms and conditions. This support
covers new releases of Egenera Software and post-warranty equipment and software
repair and error correction. If such separate support is not purchased, Egenera
has no obligations to repair or correct errors reported after the end of the
warranty period. If the Standard Warranty has lapsed and post-warranty support
services have not been purchased, Egenera will only provide and charge for
support services on a per-event basis.
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SERVICES. Egenera shall perform Installation Services and all other services in
a workmanlike manner in accordance with generally accepted industry standards.
REMEDIES. Egenera's entire liability and Customer's exclusive remedies under the
warranties described under "STANDARD WARRANTY" shall be for Egenera to, at its
option: (1) provide replacement parts and service necessary to repair the
Equipment, and modify the Software to make it conform to its warranty, (2)
replace the Equipment with comparable Equipment and/or replace any Software with
comparable Software that conforms to the warranties, or, in the case of
services, reperform the services, or (3) refund the amount paid by Customer for
the affected Product in exchange for the return of the Product.
LIMITATIONS AND EXCLUSIONS. EGENERA MAKES NO WARRANTIES OR REPRESENTATIONS
WHATSOEVER WITH RESPECT TO ANY THIRD PARTY MATERIALS. AS BETWEEN EGENERA AND
CLIENT, ANY AND ALL THIRD-PARTY MATERIALS ARE EXPRESSLY PROVIDED "AS IS."
EXCEPT AS EXPRESSLY STATED UNDER "WARRANTY" ABOVE, EGENERA PROVIDES PRODUCTS AND
SERVICES "AS IS" AND MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL
OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO THE
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE
OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
5. EGENERA SOFTWARE
LICENSE AND OWNERSHIP. Egenera hereby grants Customer a transferable (as set
forth below) world-wide, perpetual, irrevocable license to use, execute, copy
(as set forth below), display and perform the Egenera Software in connection
with the use of Egenera Equipment. The Egenera Software is owned and copyrighted
by Egenera or its third party suppliers. Customer's license confers no title or
ownership in the Egenera Software and is not a sale of any rights in the Egenera
Software. All ownership rights remain in Egenera or its third party suppliers,
as the case may be.
COPIES. Customer may make reasonable numbers of copies of the object code of the
Egenera Software solely for backup, disaster recovery, or archival purposes or
when copying in an essential step in the authorized use of the Egenera Software.
All copyright and other proprietary or restricted rights notices in the original
Egenera Software must be retained on all copies. Customer may copy any of the
enclosed books or printed materials that are part of the Egenera Software, and
any other user documentation, in support of its use of the Egenera Software and
Equipment.
ADDITIONAL RESTRICTIONS. Customer acknowledges that the Egenera Software may
contain software procedures or other mechanisms ("License Enforcement
Mechanisms") that enforce use restrictions and that may disable functionality of
the Egenera Software upon violation of the terms of this GPA. Egenera agrees
that will not invoke or cause to be invoked, for any reason including
enforcement of a valid contract right, any such License Enforcement Mechanisms.
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Except to the extent permitted above, Customer may not: modify, translate,
reverse engineer, decompile, disassemble, or create derivative works based on
the Egenera Software; copy (including copying onto a bulletin board or similar
system) the Egenera Software other than as specified above; rent, lease, grant a
security interest in, or otherwise transfer rights to the Egenera Software
except as set forth in "Transfer" below; modify, disable, attempt to circumvent,
or otherwise interfere with any License Enforcement Mechanisms (and Customer
acknowledges that any attempt to do so may be a violation of applicable law) or
remove any proprietary notices or labels on the Egenera Software; or disclose or
otherwise make available Egenera Software in any form to anyone other than
Customer's employees, consultants or independent contractors. If Customer is
using the Egenera Software in any country in the European Community, the
prohibition against modifying, translating, reverse engineering, decompiling,
disassembling or creating derivative works based on the Egenera Software does
not affect Customer's rights under any legislation implementing the E.C. Council
Directive on the Legal Protection of Computer Programs.
TRANSFER. Customer may transfer the license to the Egenera Software only upon
transfer of the Equipment for which it was supplied, and the Egenera Software
may not be separated for use on other computers or equipment. In the case of the
transfer of the Equipment, Customer may deliver the original and all complete,
partial, or electronically stored copies of the Egenera Software and related
documentation to the transferee. Customer may not retain any copies of the
Egenera Software or related documentation, and any copies have been made which
are not transferred to the transferee must be destroyed. The transferee must
accept these licensing terms as a condition of the transfer. Customer's license
will automatically terminate upon any transfer of the Egenera Software. Customer
has no right to sublicense, loan, rent or lease the Egenera Software. Customer
may receive the Egenera Software in more than one medium, for example CD-ROM or
by internet. Customer may not use or install the other medium on another
hardware product. Egenera Software supplied as an upgrade may be used only in
accordance with this GPA.
RESPONSIBILITY FOR PERSONNEL. Customer shall be fully responsible to Egenera for
the compliance of Customer's employees, consultants or independent contractors
who are given access to the Egenera Software.
THIRD PARTY MATERIALS. Egenera may provide to Customer certain software that is
specifically labeled as being provided by and/or owned other than by Egenera
("Third Party Materials") in connection with the Equipment. It is acknowledged
by Customer that Customer shall be licensing such Third-Party Materials directly
from the third party, including the right to use such Third Party Materials in
connection with the Equipment. Egenera shall make available to Customer the
applicable license agreements for all such Third Party Materials. Certain Third
Party Materials supplied by Egenera are Open Source Materials, and as such are
governed by open-source software license agreements supplied with such Open
Source Materials, such as the GNU Public License. Egenera makes no claim of
ownership of Open Source Materials, and such Open Source Materials are supplied
solely in accordance with the license agreements accompanying such software.
Accordingly, the restrictions under "EGENERA SOFTWARE" concerning modification,
confidentiality and other provisions do not apply to such Open Source Materials.
However, the provisions under "STANDARD WARRANTY - Limitations and Exclusions"
and "LIMITATIONS OF LIABILITY" do apply to all Third Party Materials.
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6. INDEMNITY. Egenera shall, at its expense, indemnify, defend and hold Customer
and its affiliates, and its and their officers, directors, employees and agents
(collectively, "Customer Indemnities") harmless against any third party claim
that a Product infringes any copyright, trade secret, U.S. trademark or U.S.
patent and pay the resulting costs and damages awarded against Customer by a
court of competent jurisdiction, provided Customer (i) notifies Egenera promptly
in writing of such claim (provided that any delay in notifying Egenera shall not
relieve Egenera of its obligations hereunder except to the extent of any actual
prejudice thereby), (ii) grants Egenera sole control over the defense and
settlement thereof (provided that Egenera shall not enter into any settlement or
consent to any judgment imposing any material obligation on Customer Indemnities
other than the payment of money for which Egenera indemnifies Customer
Indemnities), and (iii) reasonably cooperates in response to an Egenera request
for assistance at Egenera's expense.
Should any Product become, or in Egenera's opinion be likely to become, the
subject of such a claim, Egenera shall, at its option and expense, (a) procure
for Customer the right to make continued use thereof, (b) replace or modify such
so that it becomes non-infringing, or (c) request return and upon receipt
thereof refund the price paid by Customer.
Egenera shall have no liability to the extent the alleged infringement is based
on a combination with products not provided or specified by Egenera; use for a
purpose or in a manner for which the Product was not designed; use of any older
version of the Egenera Software when use of a newer Egenera revision made
available to Customer at no charge would have avoided the infringement; any
modification made without Egenera's written approval; any modifications made by
Egenera pursuant to Customer's specific written instructions unless Egenera knew
of the potential infringement; any intellectual property right owned or licensed
by Customer, or Third Party Materials in their form prior to any modifications
made by Egenera.
THE PROVISIONS UNDER "INDEMNITY" STATE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND
EGENERA'S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
7. LIMITATIONS OF LIABILITY. EXCEPT AS PROVIDED OTHERWISE UNDER "INDEMNITY"
ABOVE, EGENERA'S TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR
ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF A PRODUCT OR SERVICE PROVIDED
HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY EGENERA IN AN
AMOUNT NOT TO EXCEED THE PRICE PAID BY CUSTOMER TO EGENERA FOR THE SPECIFIC
SERVICE (CALCULATED ON AN ANNUAL BASIS, WHEN APPLICABLE) OR PRODUCT FROM WHICH
SUCH CLAIM ARISES.
EXCEPT FOR CLAIMS ARISING UNDER "INDEMNITY" ABOVE, NEITHER PARTY SHALL (A) HAVE
LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR
INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA
AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF; AND (B) BRING ANY CLAIM
BASED ON PRODUCT OR SERVICE PROVIDED HEREUNDER MORE THAN TWO (2) YEARS AFTER THE
CAUSE OF ACTION ACCRUES.
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THESE LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION UNDER OR RELATING TO THIS
GPA, INCLUDING ANY CLAIM BY OR AGAINST ANY SUBSIDIARY, STOCKHOLDER, OR
AFFILIATE, OR OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF ANY OF THEM.
8. FORCE MAJEURE. If either party is prevented from performing any portion of
this GPA by cause beyond its control, including labor disputes (other than by
the employees, contractors, agents, or suppliers of the party seeking relief
hereunder), civil commotion, war, governmental regulations or control, casualty,
inability to obtain materials or services or acts of God, such defaulting party
will be excused from performance for the period of the delay and for a
reasonable time thereafter, provided such party uses commercially reasonable
efforts to resume performance as soon as practicable.
9. CHOICE OF LAW; ARBITRATION. This GPA is governed by and shall be construed
and enforced in accordance with the law of State of New York, excluding its
conflict of law rules that would result in the application of another forum's
law and The U.N. Convention in Contracts for the International Sale of Goods.
Except for the right of any party to apply to a court of competent jurisdiction
for a temporary restraining order, preliminary injunction, or other equitable
relief to preserve the status quo or prevent irreparable harm, any dispute under
this GPA involving its interpretation or the obligations of any party hereto
shall be determined by binding arbitration in accordance with the commercial
arbitration rules of the AAA, in New York, New York, before a single arbitrator.
The arbitrator shall have the authority to permit discovery, to the extent
deemed appropriate by the arbitrator, upon request of a party. The arbitrator
shall have no power or authority to add to or detract from the agreements of the
parties, and the costs of the arbitration shall be borne equally. The arbitrator
shall have the authority to grant any temporary, preliminary or injunctive
relief in a form substantially similar to that which would otherwise be granted
by a court of law. The arbitrator shall have no authority to award punitive or
consequential damages. The resulting arbitration award may be enforced, or
injunctive relief may be sought, in any court of competent jurisdiction. The
parties expressly stipulate that federal and state courts located in New York
County, New York are courts of competent jurisdiction for this purpose.
10. U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that term
is defined in 48 C.F.R. 12.101 (Oct. 1995), consisting of "commercial computer
software" and "commercial computer software documentation," as such terms are
used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users
acquire the Software with only those rights set forth herein.
11. EXPORT CONTROL. Customer understands that Products provided under this GPA
may be subject to regulations by agencies of the United States Government as
well as laws and regulations of other applicable countries which prohibit export
or diversion of certain technical products to certain countries and individuals.
Customer shall comply in all respects with all applicable export and re-export
restrictions applicable to the Products or related materials.
12. MISCELLANEOUS. Egenera may not identify Customer as a customer except as
required by law or with Customer's prior written consent. Neither party shall
assign this GPA or any
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right or delegate any performance without the other party's prior written
consent, which consent shall not be unreasonably withheld. This GPA is the
complete statement of the agreement of the parties with regard to the subject
matter hereof; may be modified only by a writing signed by both parties; and
shall control in case of an inconsistent or conflicting term set forth on an
Order. No waiver shall be deemed a waiver if any prior or subsequent default
hereunder. If any part of this GPA is unenforceable, the validity of the
remaining provisions shall not be affected.
EGENERA, INC. ("EGENERA")
By: /s/ Thomas F. Sheehan
--------------------------
Name (Print): Thomas F. Sheehan
Date: 12/31/01 Title: CFO
CREDIT SUISSE FIRST BOSTON CORPORATION ("Customer")
By: /s/ Evan A. Bauer
--------------------------
Name (Print): Evan A. Bauer
Date: 12/31/01 Title: Director
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EGENERA, INC.
ADDENDUM 1 TO GENERAL PURCHASE AGREEMENT: SUPPORT SERVICES AGREEMENT
This Addendum 1 to the General Purchase Agreement (the "GPA") between Egenera,
Inc. ("Egenera") and Credit Suisse First Boston Corporation ("Customer") is made
on this 27th day of December, 2001 (the "Effective Date").
SCOPE: This Addendum contains additional terms and conditions for support
services offered with the 1 Year Warranty Extension Program, Enterprise II
Program, Enhanced Warranty Program and the Software Subscription Service
Program. In the event of any ambiguity or conflict between this Addendum and the
GPA or between this Addendum and a Statement of Work for Services, the terms of
the GPA will control. Each Statement of Work entered into hereunder will be
governed by and become part of this Addendum. This Addendum shall continue in
effect throughout the Term of the GPA, unless stated otherwise herein.
1. DEFINITIONS
"Major Releases" are new releases of Egenera Software intended to provide
significant functionality enhancements as well as incorporate cumulative bug
fixes and patches since the most recent release.
"Minor Releases" are new releases of Egenera Software that are intended to
provide incremental functionality enhancements as well as incorporate cumulative
bug fixes and patches since the most recent release.
Capitalized terms in this Addendum shall have the meanings defined in the GPA
unless specifically defined in this Addendum.
2. TERM OF SERVICE
The Enterprise II Program and the Software Subscription Program each commence
upon Acceptance of the related Product. The Enterprise II Program has a term of
two years. The Software Subscription Service Program has a term of one year. The
1 Year Warranty Extension program commences upon expiration of the related
Product's Standard Warranty and has a term of one year. The Enhanced Warranty
can only accompany the Enterprise II Program. The Enhanced Warranty is
conterminous with the Enterprise II Program it accompanies.
If the Standard Warranty has lapsed, Egenera will provide and charge for support
services on a per-event basis. The Customer may purchase additional warranty
service at Egenera's then-current rates, upon inspection and re-certification by
Egenera. A fee may be charged for recertification.
Egenera shall provide Customer at least ninety (90) days notice before
expiration of the support program in which Customer is enrolled. The notice
shall contain the proposed pricing for renewal of the applicable support program
as well as Egenera's other support programs. The proposed pricing for any
renewal item shall not exceed the price of the prior term by more than 3% per
year. Customer shall have until thirty (30) days prior to the expiration of the
then-current
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support term to notify Egenera of its election to renew support, either under
its then-current program or other program offered by Egenera. If Customer elects
to renew support, the Enterprise II Program shall renew on a biannual basis and
the 1 Year Warranty Extension shall renew on an annual basis.
The term of service for any additions and/or upgrades to already-purchased
Egenera Software is coterminous. Any replacement Equipment parts will be
comparable in function and performance to the original part or Equipment, and be
warranted for the remainder of the original term of service, or for 90 days,
whichever is greater.
3. TECHNICAL SUPPORT
Technical Support will be provided according to Egenera's then-published summary
descriptions, as they may be amended from time to time, of each warranty and
support services program, provided however, that material changes to the
published summary descriptions shall not be effective until the next renewal
term.
Customer should provide remote dial-up access to each system purchased. A login
and password are required to establish access. Failure to provide a dial-up
connection may impact response and resolution time. In the event the Customer
has not provided dial-up access and an Egenera Support Engineer is required on
site due to inability to remotely access the system, Time and Material charges
(at the rate of $[**] per hour, with a [**] hour minimum) will be incurred for
the on-site service, unless Customer is enrolled in a support program that
includes on-site service. Reimbursement of travel and any other expenses shall
be subject to Customer's prior written approval.
Unless customer has purchased the Enhanced Warranty, Egenera will make
reasonable efforts to arrive at the Customer's site within [**] business hours
of the dispatch. Whenever the Enhanced Warranty is in effect, Egenera will make
reasonable efforts to arrive at the Customer's site within [**] hours of the
dispatch. Certain geographical limitations and common carrier schedules may
affect response time.
4. SOFTWARE UPDATE AND UPGRADE SERVICES
Egenera provides support services under this Addendum for the two most recent
Releases of Egenera Software (referred to as Current Release and One Major
Release Back). A Major Release is considered current until such time as a
subsequent major software release is generally available.
Software Support encompasses changes that are needed to resolve problems that
prevent the system from performing to specifications. At Egenera's discretion,
fixes may take the form of patches, maintenance releases, or point releases.
Egenera's Standard Warranty does not include free Major Releases or Minor
Releases. During the Standard Warranty period, Customer may purchase the
Software Subscription Service in order to obtain when-and-if available Major
Releases and Minor Releases at no additional charge.
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The Enterprise II Program includes [**] years of Software Subscription Service.
5. CUSTOMER RESPONSIBILITIES
Customer shall be solely responsible to monitor, maintain, and administer the
Product and Egenera Software.
6. EXCLUSIONS
Support under this Addendum shall not include operating supplies and
accessories. This Addendum does not apply to problems that arise from (i)
accident or abuse, (ii) interoperation with products not specified or provided
by Egenera, (iii) improper installation or modification by other than Egenera,
(iv) use in an environment or in a manner or for purpose for which a Product was
not designed, or (v) failure to implement all previously supplied updates to
Product and/or Egenera Software.
7. WARRANTY
Egenera agrees to perform Services in a workmanlike manner in accordance with
generally accepted industry standards. If Services performed by Egenera prove
not to have been so performed or if Egenera fails to provide the Services or a
portion thereof, Egenera will, at its option, either (i) correct any defects and
deficiencies or (ii) render a full refund or credit (at Customer's election)
based on the original charge for the Services.
THIS SERVICES WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND
IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY SHALL
BE EGENERA'S OBLIGATION TO MAKE CORRECTIONS OR GIVE A CREDIT OR REFUND AS SET
FORTH ABOVE IN THIS WARRANTY.
EGENERA, INC. ("EGENERA")
By: /s/ Thomas F. Sheehan
--------------------------
Name (Print): Thomas F. Sheehan
Date: 12/31/01 Title: CFO
CREDIT SUISSE FIRST BOSTON CORPORATION ("Customer")
By: /s/ Evan A. Bauer
--------------------------
Name (Print): Evan A. Bauer
Date: 12/31/01 Title: Director
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AMENDMENT TO GENERAL PURCHASE AGREEMENT DATED DECEMBER 31, 2001 BETWEEN CREDIT
SUISSE FIRST BOSTON CORPORATION AND EGENERA, INC.
Credit Suisse First Boston Corporation ("Customer") and Egenera, Inc.
("Egenera") hereby amend the above captioned agreement ("Agreement") effective
as of November 1, 2002 as follows:
1. Customer and Egenera acknowledge that from time to time Customer's
international affiliates, including, but not limited to, Credit
Suisse First Boston Securities (Japan) Limited, may wish to order
Products and associated support services from Egenera pursuant to
the terms and conditions of the Agreement, as amended. Under such
circumstances, Egenera may want the flexibility to have such orders
placed with either Egenera, Inc. or Egenera International, Inc.
("EII"), a wholly owned subsidiary of Egenera. In the event,
Customer and Egenera agree (i) that such Customer international
affiliates may order and purchase such Products and, subject to
Section 2 below, support services directly from, at Egenera's
discretion, either Egenera or EII, in accordance with the Agreement,
as amended, (ii) that Egenera or EII, as the case may be, shall
fulfill such orders in accordance with the Agreement, as amended,
(iii) that Egenera or EII, as the case may be may subcontract the
support services ordered by the Customer's international affiliates
to the Egenera subsidiary that, in Egenera's opinion, is best suited
to provide such services ("Egenera Servicing Subsidiary"), (iv) that
all such orders shall otherwise be subject to the terms and
conditions of the Agreement, as amended, (v) that Customer shall
guarantee its applicable international affiliate's compliance with
and performance under the Agreement, as amended, if and only if
Customer approves in writing the purchase order issued by the
applicable international affiliate, (vi) that Egenera shall
guarantee, as applicable, EII's and the applicable Egenera Servicing
Subsidiary's compliance and performance under the Agreement, as
amended, (vii) the limitation in the preamble of the Agreement to
orders to be shipped within the United States of America shall not
apply to orders placed by Customer's international affiliates and
accepted by Egenera or EII and (viii) the limitation to U.S.
trademarks and U.S. patents in Section 6 (Indemnity) shall not
apply, but instead Egenera's obligations under Section 6 (Indemnity)
with respect to trademarks and patents shall be limited to
trademarks and patents under the law of the country in which
Customer's international affiliate is located.
2. Notwithstanding the above, if Customer's international affiliate is
located in a country where Egenera does not have a local service
office, then either Egenera and Customer's international affiliate
shall agree in writing upon service support terms that are
appropriate under the circumstances or Customer's international
affiliate may contract directly with an independent local Egenera
authorized Service Provider to obtain service support on the
Products.
3. Except as expressly modified hereby, the terms and conditions of the
Agreement remain in full force and effect.
<PAGE>
ACCEPTED: ACCEPTED:
Credit Suisse First Boston Corporation Egenera, Inc.
By: /s/ Bruce Starr By: /s/ Thomas F. Sheehan
----------------------------- ---------------------
Title: Title: CFO
Date: 12/12/02 Date: 12/9/02
<PAGE>
AMENDED AND RESTATED AMENDMENT NUMBER 2 TO THE GENERAL PURCHASE AGREEMENT
BETWEEN CREDIT SUISSE FIRST BOSTON CORPORATION AND EGENERA, INC.
DATED DECEMBER 31, 2001, AS AMENDED
This Amended and Restated Amendment Number 2 (the "Restated Amendment 2") to the
General Purchase Agreement between Credit Suisse First Boston Corporation and
Egenera, Inc. dated December 31, 2001 as amended on November 1, 2002 and June
27, 2003, (collectively the "Agreement"), is entered into by and between
Egenera, Inc. ("Egenera") and Credit Suisse First Boston LLC, (f/k/a Credit
Suisse First Boston Corporation), a Delaware limited liability company, ("CSFB")
to amend and modify the Agreement. The Effective Date of this Restated Amendment
2 shall be March 31, 2004.
1. In the event of a conflict between the terms of the Agreement and
the terms of this Restated Amendment 2, the terms and conditions of
this Restated Amendment 2 shall govern.
2. Capitalized terms used in this Restated Amendment 2 that Are not
defined herein have the meanings specified therefore in the
Agreement.
3. The parties acknowledge that CSFB and Egenera have fulfilled their
respective obligations under paragraph 1 of Amendment Number 2 to
the General Purchase Agreement dated June 27, 2003 (the "Original
Amendment 2").
4. CSFB agrees that it will purchase an aggregate of $[**] of Products
and services from Egenera, and take delivery thereof between the
Effective Date and December 31, 2004 (the "Order Period"). CSFB may
purchase any Products that Egenera makes commercially available
during the Order Period. At CSFB's option such purchase may be
divided into more than one shipment, with delivery requested for one
or more delivery dates occurring on or before December 31, 2004,
CSFB shall issue an order for the products and services identified
in Attachment A on March 31, 2004; provided, however, that (a)
Egenera shall not invoice CSFB until after the applicable Product
has been received by CSFB or the applicable service has commenced
and (b) CSFB may change or modify its order to the extent permitted
under paragraph 13 below.
5. Pricing. CSFB shall have the right to purchase Products through
December 31, 2005 at the following discounts [**] percent
([**]%) off of the list price of any BladeFrame System and
associated core components that Egenera makes available and a [**]
percent ([**]%) discount off of the list price of any processing
blades that Egenera makes commercially available, independent of
platform. CSFB agrees to purchase products in accordance with the
methodology set forth in Attachment B without specificity as to
platform or Product version or type. The list prices set forth in
Attachment B shall remain in effect through December 31, 2005,
provided however that if such list prices decrease between the
Effective Date of this Restated Amendment 2 and December 31, 2005,
CSFB shall be charged the lower list price minus the applicable
discount as described above.
1
<PAGE>
6. Support Services Pricing.
a. BladeFrame System Support Services. CSFB may purchase Egenera
Enterprise Support Services with 7x24x365 coverage, for any
BladeFrame System at an annual price equal to [**] percent
([**]%) of the "Net BladeFrame Price" (as described in
Attachment B) of the applicable BladeFrame System (the
"BladeFrame System Annual Support Fee") (for example: $[**]
per year as in Attachment B), provided CSFB commits to a [**]
year initial term. Following the expiration of such initial
[**] year term, CSFB may renew Egenera Enterprise support
services for additional one (1) year terms at a price per year
equal to the BladeFrame System Annual Service Fee for that
BladeFrame System ($[**] per year in the example in Attachment
B).
b. Processing Blade Extended Warranty Services. All Processing
Blades purchased under Original Amendment 2 or this Restated
Amendment 2 will be covered under Egenera's limited warranty
for the first year after delivery. Upon expiration of such
warranty or upon expiration of any pre-existing support
services term, CSFB my purchase Egenera's standard Extended
Warranty Services (as described in Attachment C) for any such
Processing Blade at an annual price equal to [**] percent
([**]%) of the "Net Pblade Price" (as described in Attachment
B) of the applicable Processing Blade (the "Processing Blade
Annual Support Fee") (for example: $[**]per year for the "High
-End Two-Way" in Attachment B). After the initial term, CSFB
may renew such Extended Warranty Services for any such
Processing Blade for additional one (1) year terms at a price
per year equal to the Processing Blade Annual Support Fee for
that Processing Blade ($[**] per year in the "High-End
Two-Way" example in Attachment B).
c. BladeFrame System Annual Support Fee. The BladeFrame System
Annual Support Fee shall be payable in advance annually. In
the event that an order for BladeFrame Systems is placed after
January 1st of any calendar year, the BladeFrame System Annual
Support Fees for the BladeFrame Systems contained in such
order shall be prorated for the months remaining in such
calendar year. The BladeFrame System Annual Fee shall then be
coterminous from January 1st of the following and all future
years.
d. Processing Blade Annual Fee. The Processing Blade Annual
Support Fee shall be payable in advance annually upon
expiration of the one (1) year warranty as described in 6(b)
above or upon expiration of the any pre-existing support
services term. In the event that the one-year warranty or
support services term expires and Extended Warranty Services
begin after January 1st of any calendar year, the Processing
Blade Annual Support Fee for the applicable Processing Blades
shall be prorated for the months remaining in such calendar
year. The Processing Blade Annual Support
2
<PAGE>
Fee shall then be coterminous from January 1st of the
following and all future years. In an effort to effectively
administer the expiration of one (1) year warranties and the
expiration of pre-existing support services terms for all
Processing Blades, upon the first anniversary of the shipment
date of first order placed and the Original Amendment 2 and
upon the first anniversary of the shipment date of the first
order placed under this Restated Amendment 2, Egenera shall
provide CSFB with an invoice and a report detailing the
expiration dates of all of the one (1) year warranties and
pre-existing support services terms and the associated
prorated Processing Blade Annual Support Fees for the
remainder of that calendar year.
7. CSFB shall order Processing Blades on an as needed basis. Upon the
installation of the [**] Processing Blade on a BladeFrame System
ordered under this Restated Amendment 2, CSFB may request delivery
of an additional BladeFrame System. Such additional BladeFrame
System(s) shall include a pair of Harvard Control Blades, a top
mount for patch panel rack, a static transfer switch, and a chassis
(including a BladePlane). Egenera shall provide such additional
BladeFrame Systems to CSFB at a [**] percent ([**]%) discount from
Egenera's list price therefore. Egenera will ship additional
BladeFrame Systems immediately upon CSFB's request.
8. The Products to be purchased pursuant to paragraph l of Original
Amendment 2 and paragraph 4 above of this Restated Amendment 2
include a supply of on-site spares (i.e. spare blades to replace
failed or malfunctioning blades pending repair or replacement of the
same if covered by warranty or maintenance services or replacement
of the same with newly purchased blades if not so covered) for CSFB
using the following algorithm: Each major data center will receive
one Control Blade, one Switch Blade and five (5) Processor Blades.
One (1) spare Processor Blade will be provided for every fifteen
(15) Processor Blades installed on a BladeFrame System ordered under
Original Amendment 2 or this Restated Amendment 2. In order to
ensure these spares are provisioned properly, CSFB will provide a
list of major data centers where Egenera products purchased under
Original Amendment 2 or this Restated Amendment 2 will be used. CSFB
shall pay Egenera [**] percent ([**]%) of the applicable Processing
Blade list price for the on-site spares provided. Egenera and CSFB
will periodically review the on-site spares inventory at CSFB in
order to ensure such inventory mix will provide an adequate supply
of spare blades for the install base of Egenera Products. Such
review will take place on a quarterly basis. In the event that CSFB
and Egenera agree that the inventory of on-site spares needs to be
increased in order to appropriately support the install base of
Egenera Products, Egenera will increase the on-site spares inventory
at no cost to CSFB.
9. CSFB may ship, at Egenera's cost, any Processing Blades purchased
under Original Amendment 2 or this Restated Amendment 2 to Egenera
to be upgraded. Egenera will factory upgrade the processors on such
Processing Blades at the
3
<PAGE>
following Not-to-Exceed (NTE) prices. This will apply to those
Processing Blades that are offered as standard Egenera Processing
Blade options, and that are in the same family of Intel processors
as those currently offered in Egenera's 2-way and 4-way blades (e.g.
2-way 533MHz FSB processor family or 4-way 400 MHz FSB processors).
For two-way blades, the NTE price is $2,800.00 per Processing Blade.
This includes time/labor and all materials. For high-end four-way
blades, the NTE price is $[**] per Processing Blade. For the
midrange four-way blades, the NTE price is $[**] per blade. There is
no limit on the number of upgrades that CSFB may order pursuant to
this paragraph.
10. Egenera will offer a credit equal to [**] percent ([**]%) of the
"Net Pblade Price" (as described in Attachment B) of the applicable
2-way blades purchased under Original Amendment 2 or this Restated
Amendment 2, which will be applied as an additional discount against
the purchase of the replacement blades for any upgrades up to [**]
months after CSFB's receipt of the applicable Processing Blade. The
total amount of credit available under this paragraph shall not
exceed $[**].
11. The support service pricing terms set forth in paragraph 6 above
shall apply, at CSFB's option, to all Products presently under an
Egenera Enterprise Services Agreement, at the time of renewal of
such agreement.
12. Egenera will waive the [**] percent ([**]%) of list International
uplift charge for all Europe based purchases. For Asia Pacific, the
[**] percent ([**]%) of list uplift will remain in effect for
deliveries in that region.
13. CSFB has the right to change or modify its order for Products and
services issued under this Restated Amendment 2 at any time up to
thirty (30) days prior to shipment of the applicable Products or
commencement of the applicable services, provided that the final
aggregate purchase price and final configurations to be delivered on
or before December 31, 2004 are equal to or greater than $[**].
14. Credit Suisse Financial Services (CSFS) and other affiliates of CSFB
may purchase Products and services pursuant to the terms and
conditions herein and any such purchases shall count towards the
order of $[**] to be issued this Restated Amendment 2 above.
15. The terms and conditions contained herein shall apply to all
purchases of Products and services until December 31, 2005.
16. The terms and conditions of the Agreement are further amended as
follows:
a. Section 2 (ORDERING, PRICING AND PAYMENT) of the General
Purchase Agreement is amended by deleting the second sentence
of the second paragraph and inserting the following language:
"Any terms or conditions contained in any shrink-wrap or
click-wrap agreement contained in or provided with any Product
or any terms or conditions
4
<PAGE>
appearing on the face or reverse side of any purchase order,
acknowledgement or confirmation that are different from or in
addition to those required hereunder shall not be binding on
the parties, even if agreed to electronically or by use or if
signed and returned, unless both parties hereto expressly
agree in a separate writing to be bound by such separate or
additional term and conditions. CSFB expressly acknowledges
and agrees that Egenera's base BladeFrame software package may
include Microsoft Corporation's Multipath I/O software
("Microsoft Software"). In the event that CSFB uses such
Microsoft Software, CSFB agrees to be subject to the end user
license agreement attached hereto as Attachment D.
b. Section 2 (ORDERING, PRICING AND PAYMENT) of the General
Purchase Agreement is amended by inserting the following
language immediately after the first sentence in the third
paragraph of Section 2 of the Agreement: "CSFB agrees to
provide Egenera with a tax exemption certificate or to pay all
taxes properly levied against or upon the equipment, products
or services or their use hereunder, exclusive however of
personal property taxes, franchise taxes, corporate exercise
or corporate privilege, property or license taxes, taxes based
on Egenera's net income or the gross revenues of Egenera or
other taxes levied on Egenera , which are not required by law
to be collected from CSFB, which taxes shall be paid by
Egenera. For purposes of CSFB obtaining certain tax benefits,
Egenera agrees that CSFB may assign its rights, and delegate
its obligations under this Agreement, from time to time, to an
affiliate of CSFB ("Purchaser") and that Purchaser may sell,
lease or sublicense such rights to another affiliate of CSFB
acting as agent of the Industrial Development Agency of New
York ("IDA Agent"), for the sole benefit of CSFB, and that IDA
Agent may sell, lease or sublicense such rights to CSFB. CSFB
shall at all times be subject to the terms and conditions of
this Agreement. A purchase order issued by the Purchaser shall
constitute notice of such assignment with respect to the
amounts set forth in such purchase order. All applicable taxes
shall be separately stated on the invoice in which they
apply."
c. The first sentence of Section 3 (DELIVERY AND ACCEPTANCE) of
the Agreement is deleted and the following language is
substituted in its place: "All shipments will be F.O.B.
destination. Egenera will bear the risk of loss of or damage
to Products until the Products are delivered to the ship-to
address. Title to Equipment and the media containing Egenera
Software and Third Party Material, free and clear of all liens
and encumbrances, and risk of loss for Products shall transfer
to Customer upon such delivery. Customer will be responsible
for loss of or damage to Products after delivery."
d. In Addendum 1 to the General Purchase Agreement: SUPPORT
SERVICES AGREEMENT, the Section entitled "SCOPE" shall be
5
<PAGE>
deleted in its entirety and replaced by the following: "This
Addendum contains additional terms and conditions for support
services offered with Extended Warranty Support Services,
Enterprise Support Services, Standard Warranty Services and
Software Subscription Services. In the event of a conflict
between the terms and conditions of the GPA and this Addendum,
the terms and conditions of the GPA shall apply. This Addendum
shall remain in effect throughout the Term of the GPA, unless
otherwise stated herein."
e. Sections 2 and 3 of Addendum 1 to General Purchase Agreement:
SUPPORT SERVICES AGREEMENT shall be deleted Attachment C
attached hereto shall be substituted in the place of said
sections.
17. Except as otherwise expressly provided in this Restated Amendment 2,
the Agreement shall continue in full force and effect as heretofore
in effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the Effective Date.
EGENERA, INC. CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Thomas Kelly By: /s/ Bruce Starr
--------------------------- ---------------
Name: Thomas Kelly Name: Bruce Starr
Title: Controller Title: Director
Date: March 31, 2004 Date: 3/31/04
6
<PAGE>
ATTACHMENT "A" - PROPOSAL QUOTE
egenera
<S> <C> <C> <C>
Date: 31-Mar-04
Customer Name: Credit Suisse First Boston Quote Number: CSFB03310401
Contact Name: Bruce Starr
Address: Eleven Madison Ave
New York, NY System Engineer: S. Sethl
e-mail: Account Executive P. Gallico
Phone: 212-325-1126 Sales District New York
Deal ID <> city <>
</TABLE>
Egenera BladeFrame
<CAPTION>
Volume
Discount
[**]%
Total City Marketing Country Code Description CSFB Unit Price Net Selling Price
-------------------------- ------------ -------------------------------- --------------- -----------------
<S> <C> <C> <C> <C>
BladeFrame System
9 SC100102 A BladeFrame Base System, Included
Includes chassis, redundant,
switch blades, redundant Harvard
control blades, static transfer
switch
Processing Blades
61 PB100348 A Processing Blades [**] [**]
2K 3.2GHz Intel Xeon, 6GB RAM
130 PB200483 A Processing Blade - 4 Way [**] [**]
4x3.06Hz, Xeon MP 2MB L3 Cache,
12GB RAM
Control Blade II Upgrade
12 CB200005 A Upgrade package Bolton [**] [**]
cBlades/sBlades to Harvard
cBlades/sBlades
8 CB100320 A Spare Control Blade-EP [**] [**]
(Harvard) option 2;
(2) 2-port 2Gb FibreChannel
BAH, (2) 2-port Gb Ethernet
2 CB200005 Control Blade II Upgrade Kits [**] [**]
Total System Price
Services City
C8260301 9 One-year Enterprise 7x24x365 $[**] $[**]
Service
CS200100 12 Upgrade __ Installation $[**] $[**]
Total Services
Total Invoice Due
</TABLE>
These services prices are renewable at the end of [illegible] at the option of
CSFB. Service price at the time of service will be the same as that of the
[illegible].
FOB Description Quote Yield for 30 days Shipping charges and taxes US
from date above are additional
1
<PAGE>
ATTACHMENT "B" - PRICING WORKSHEET
CSFB PBLADE PRICING WORKSHEET - MARCH 2004
<S> <C> <C> <C> <C>
Designation High-End Two-Way High-End Two-Way Midrange Four-Way High-End Four Way
# of CPUs 2 2 4 4
CPU Speed 3.06GHz 3.2GHz 2 3
L2 Cache 512KB 512KB 512KB 512KB
L3 Cache - - 1MB 2MB
Memory 6GB 6GB 8GB 12GB
Memory Type ECC/DDR/Chipkill ECC/DDR/Chipkill ECC/DDR/Chipkill ECC/DDR/Chipkill
Part Number PB100336 PB100346 PB200426 PB200483
------------------------------------------------------------------------------------------------------
Total Pblade Price $ [**] $ [**] $ [**] $ [**]
------------------------------------------------------------------------------------------------------
</TABLE>
<S> <C> <C> <C> <C>
BladeFrame System Breakdown
BladeFrame @ List $ [**] $ [**] $ [**] $ [**]
STS @ List $ [**] $ [**] $ [**] $ [**]
Patch panel rack @ List $ [**] $ [**] $ [**] $ [**]
Option 2 @ List $ [**] $ [**] $ [**] $ [**]
-------------------------------------------------------------------
Base BladeFrame Hardware at List Price $ [**] $ [**] $ [**] $ [**]
Discount [**]% [**]% [**]% [**]%
Net BladeFrame Price (List price less $ [**] $ [**] $ [**] $ [**]
[**]%)
-------------------------------------------------------------------
Net Amortized BladeFrame price per $ [**] $ [**] $ [**] $ [**]
Pblade -------------------------------------------------------------------
Processing Blade Price Breakdown
Pblade List Price $ [**] $ [**] $ [**] $ [**]
Discount [**]% [**]% [**]% [**]%
-------------------------------------------------------------------
Net Pblade price (List price less [**]%) $ [**] $ [**] $ [**] $ [**]
-------------------------------------------------------------------
-------------------------------------------------------------------
Pblade price with Net amortized $ [**] $ [**] $ [**] $ [**]
BladeFrameprice per Pblade -------------------------------------------------------------------
Provision for on-site spares ([**]% of $ [**] $ [**] $ [**] $ [**]
Pblade List Price)
</TABLE>
1
<PAGE>
<S> <C> <C> <C> <C>
-------------------------------------------------------------------
Total Pblade Price* $ [**] $ [**] $ [**] $ [**]
-------------------------------------------------------------------
Support Services Breakdown
BladeFrame System Annual Support $ [**] $ [**] $ [**] $ [**]
Services 7x24x365 ([**]% of BladeFrame
System Net)
Processing Blade Annual Support Services $ [**] $ [**] $ [**] $ [**]
- Extended Warranty ([**]% of Pblade Net)
</TABLE>
* The Total Pblade price is the sum of the Net Pblade Price, Net Amortized
BladeFrame System and the Provision for on-site spares
2
<PAGE>
ATTACHMENT "C" - SERVICES
ENTERPRISE SUPPORT SERVICES
<CAPTION>
Service Activity Service Level Response
---------------- ----------------------
<S> <C>
24 x 7 x 365 On Site Four (4) hours from Initial Customer contact
Part Replacement Delivered to Site Four (4) hours from Initial Customer contact
Initial response from receipt of Customer contact via One (1) hour by telephone call
email/call home
24 x 7 x 365 Telephone support from receipt of One (1) hour by telephone call
Customer call
Software Upgrade Installation Five (5) business days from Customer request
Problem Resolution Process
Severity 1 and 2 Continuous effort 24 x 7 x 365 until resolved
Severity 3 and 4 Continuous effort during normal business hours as
required by Egenera
Severity 5 Periodic updating of Customer
SOFTWARE SUBSCRIPTION SERVICE
(24x7x365)
</TABLE>
<CAPTION>
Software Support Service Level Response
---------------- ----------------------
<S> <C>
24x7x365 Days Support
Calls received during business hours One (1) hour by telephone
Calls received outside of normal business hours Four (4) hours by telephone
Software Maintenance Update Installation
To remedy Severity 1 and 2 Mutually agreed with Customer
To remedy Severity 3 and 4 Five (5) business days from Customer request
Software Upgrade Installation Five (5) business days from Customer request
</TABLE>
<PAGE>
EXTENDED WARRANTY SERVICES
<S> <C>
Services provided during normal business hours
</TABLE>
<CAPTION>
Service Activity Service Level Response
---------------- ----------------------
<S> <C>
On Site Four (4) hours from Initial Customer contact during
normal business hours
Part Replacement Delivered to Site Four (4) hours from Initial Customer contact during
normal business hours
Initial response from receipt of Customer One (1) hour by telephone call during normal
contact via business email/call home hours
Normal Business Hours Telephone support One (1) hour by telephone call during normal
from receipt of Customer Call business hours
Software Upgrade Installation Five (5) business days from Customer request
Problem Resolution Process
Severity 1 and 2 Continuous effort 24 x 7 x 365 until resolved
Severity 3 and 4 Continuous effort during normal business hours as
required by Egenera
Severity 5 Periodic updating of Customer
</TABLE>
SOFTWARE SUBSCRIPTION SERVICE
<CAPTION>
Software Support Service Level Response
---------------- ----------------------
<S> <C>
Normal Business Hours Support
Calls received during business hours One (1) hour by telephone call during normal business
hours
Calls received outside of business hours Four (4) hours by telephone call during normal business
hours
Software Maintenance Update Installation
To remedy Severity 1 and 2 Mutually agreed with Customer
To remedy Severity 3 and 4 Five (5) business days from Customer request
</TABLE>
<PAGE>
<S> <C>
Software Upgrade Installation Five (5) business days from Customer request
</TABLE>
<PAGE>
STANDARD WARRANTY SERVICES
<CAPTION>
Service Activity Service Level Response
---------------- ----------------------
<S> <C>
Part Replacement Delivered to Site Next Business Day
Initial response from receipt of Customer
contact via email/call home
Received During Normal Business Hours Two (2) hours by telephone call
General Problem Resolution On-site within four (4) hours of Customer contact
during normal business hours. Continuous effort
during normal business hours as required by
Egenera/Customer.
Software Maintenance Update Installation Installed by Customer
</TABLE>
<PAGE>
ATTACHMENT "D" - MICROSOFT MULTIPATH I/O EULA
(Below is the End User License Agreement included with each Egenera CD for the
Windows 2003 Server)
END USER LICENSE AGREEMENT FOR EGENERA-SUPPLIED
MICROSOFT MULTIPATH I/O
Egenera includes Microsoft Multipath I/O software (the "SOFTWARE
PRODUCT") as part of the Egenera Microsoft Windows Server 2003,
Enterprise Edition support on Egenera BladeFrames under the
following terms and conditions.
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA")
is a legal agreement between you (either an individual or a single
entity) and Egenera, Inc. relating to the software product
identified above, which includes computer software and may include
associated media, printed materials, additional computer software
applications, and "online" or electronic documentation ("SOFTWARE
PRODUCT"). BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING
THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS
EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL,
COPY OR OTHERWISE USE THE SOFTWARE PRODUCT. IF YOU RECEIVED THE
SOFTWARE PRODUCT ON DISKS OR OTHER MEDIA, PROMPTLY RETURN THE DISKS
AND ACCOMPANYING ITEMS (INCLUDING WRITTEN MATERIALS AND BINDERS OR
OTHER CONTAINERS) TO EGENERA.
SOFTWARE PRODUCT LICENSE. The SOFTWARE PRODUCT is protected by
copyright laws and international copyright treaties, as well as
other intellectual property laws and treaties. THE SOFTWARE PRODUCT
is licensed, not sold.
GRANT OF LICENSE. This EULA grants you the following rights,
provided that you comply with the terms and conditions of this EULA:
Egenera grants you a limited, non-exclusive, nontransferable, non-assignable
license to install and use an unlimited number of copies of the SOFTWARE PRODUCT
in object code form only on computers, including workstations, terminals or
other digital electronic devices only as part of an Egenera product for which it
is supplied, and only in conjunction with Microsoft Windows 2003 Server, Windows
2003 Enterprise Server, Windows 2003 Datacenter Server (beta3 or later), or any
successor version thereof.
You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT,
except and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation.
<PAGE>
You may not rent, lease, or lend the SOFTWARE PRODUCT, or transfer or
redistribute the SOFTWARE PRODUCT to any third party (including indirect
transfers such as consignments); provided you are permitted to transfer the
SOFTWARE PRODUCT in connection with a permitted transfer of the Egenera product
for which it is supplied.
Without prejudice to any other rights, Egenera may terminate this EULA if you
fail to comply with the terms and conditions of this EULA. In such event, you
must destroy all copies of the SOFTWARE PRODUCT.
All rights not expressly granted are reserved to Egenera or its suppliers.
U.S. GOVERNMENT LICENSE RIGHTS. SOFTWARE PRODUCT provided to the U.S. Government
pursuant to solicitations issued on or after December 1, 1995 is provided with
the commercial license rights and restrictions described elsewhere herein.
SOFTWARE PRODUCT provided to the U.S. Government pursuant to solicitations
issued prior to December 1, 1995 is provided with "Restricted Rights" as
provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013
(OCT 1988), as applicable.
EXPORT RESTRICTIONS. You acknowledge that the SOFTWARE PRODUCT is subject to
U.S. export jurisdiction. You agree to comply with all applicable international
and national laws that apply to the SOFTWARE PRODUCT, including the U.S. Export
Administration Regulations, as well as end-user, end-use and country destination
restrictions issued by U.S. and other governments.
DISCLAIMER OF WARRANTIES. To the maximum extent permitted by applicable law,
Egenera and its suppliers provide the SOFTWARE PRODUCT AS IS WITH ALL FAULTS,
and hereby disclaim all other warranties and conditions, whether express,
implied, or statutory, including, but not limited to, any (if any) implied
warranties, duties or conditions of merchantability, of fitness for a particular
purpose, of reliability or availability, of accuracy or completeness of
responses, of results, of workmanlike effort, of lack of viruses, and of lack of
negligence, all with regard to the SOFTWARE PRODUCT, and the provision of or
failure to provide support or other services, information, software, and related
content through the SOFTWARE PRODUCT or otherwise arising out of the use of the
SOFTWARE PRODUCT. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET
ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT
WITH REGARD TO THE SOFTWARE PRODUCT.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EGENERA, MICROSOFT OR
EGENERA'S OTHER SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE,
INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS
INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY
DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY
OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED
TO THE USE OF OR INABILITY TO USE
<PAGE>
THE SOFTWARE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER
SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE
PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE PRODUCT, OR
OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE
EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF
CONTRACT, OR BREACH OF WARRANTY OF EGENERA, MICROSOFT OR ANY OF EGENERA'S OTHER
SUPPLIER, AND EVEN IF ANY OF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF EGENERA, MICROSOFT
OR ANY OF EGENERA'S OTHER SUPPLIER, AND EVEN IF ANY OF SUCH PARTIES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LIMITATION OF LIABILITY AND
REMEDIES, NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL
DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF EGENERA, MICROSOFT AND ANY
OF EGENERA'S OTHER SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE
REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT
ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR U.S. $5.00. THE FOREGOING
LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
APPLICABLE LAW. This Agreement will be governed by the laws of the Commonwealth
of Massachusetts, USA, except for that body dealing with conflicts of law. The
application to this Agreement of the United Nations Convention on Contracts for
the International Sale of Goods is hereby expressly excluded. In the event of
any dispute involving this Agreement, Egenera and you each consent to exclusive
jurisdiction and venue in either the state or federal courts in the Commonwealth
of Massachusetts, USA.
ENTIRE AGREEMENT. This EULA (including any addendum or amendment to this EULA
which is included with the SOFTWARE PRODUCT) is the entire agreement between you
and Egenera relating to the SOFTWARE PRODUCT and it supersedes all prior or
contemporaneous oral or written communications, proposals and representations
with respect to the SOFTWARE PRODUCT or any other subject matter covered by this
EULA.