Master Purchase, License and Maintenance Services Agreement - JPMorgan Chase Bank and Egenera Inc.
MASTER PURCHASE, LICENSE AND MAINTENANCE SERVICES AGREEMENT
BETWEEN
JPMORGAN CHASE BANK
AND
EGENERA, INC.
JPMC AGREEMENT NO. 62320
EFFECTIVE DECEMBER 12, 2002
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TABLE OF CONTENTS
1. SCOPE OF AGREEMENT............................................... 1
2. TERM OF AGREEMENT................................................ 3
3. ACCEPTANCE OF ORDERS............................................. 4
4. REQUIRED DOCUMENTATION........................................... 4
5. SUBSTITUTION OF PRODUCTS BY EGENERA.............................. 4
6. SHIPMENT......................................................... 4
7. RISK OF LOSS..................................................... 5
8. DELIVERY AND DELAYS.............................................. 5
9. CANCELLATION AND SUBSTITUTION OF PRODUCTS BY JPMC................ 5
10. ACCEPTANCE OF PRODUCTS........................................... 5
11. INVOICING AND PAYMENT TERMS...................................... 6
12. TAXES............................................................ 6
13. TITLE TO HARDWARE................................................ 6
14. LIMITED WARRANTY................................................. 7
15. CONTINUED SUPPORT SERVICES....................................... 9
16. VIRUSES.......................................................... 10
17. INDEMNIFICATION.................................................. 10
18. LIMITATION OF LIABILITY.......................................... 12
19. SOFTWARE LICENSE................................................. 13
20. TERMINATION FOR BREACH, BANKRUPTCY AND OTHER REASONS............. 14
21. FORCE MAJEURE.................................................... 15
22. CONFIDENTIALITY.................................................. 15
23. COMPLIANCE WITH LAWS............................................. 17
24. ASSIGNMENT....................................................... 18
25. WORK RULES AND SECURITY REGULATIONS.............................. 18
26. INDEPENDENT CONTRACTOR AND INSURANCE............................. 18
27. SURVIVAL......................................................... 20
28. NOTICES.......................................................... 20
29. USE OF JPMC NAME................................................. 21
30. GOVERNING LAW.................................................... 21
31. CONFLICTS........................................................ 21
32. GENERAL.......................................................... 21
EXHIBIT I
EXHIBIT II
EXHIBIT III
EXHIBIT IV
EXHIBIT V
SUPPORT SERVICES ADDENDUM
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JPMC AGREEMENT NO. 62320
MASTER PURCHASE, LICENSE AND MAINTENANCE SERVICES AGREEMENT
BETWEEN
JPMORGAN CHASE BANK
AND
EGENERA, INC.
This Master Purchase, License and Maintenance Services Agreement ("Agreement")
is made as of this 12th day of December, 2002 between JPMorgan Chase Bank a New
York State banking corporation ("JPMC") with its principal office located at 270
Park Avenue, New York, New York 10017, and Egenera, Inc. a Delaware corporation
("Egenera"), with its principal office located at 165 Forest Street, Marlboro,
Massachusetts 01752.
1. SCOPE OF AGREEMENT
This Agreement sets forth the terms and conditions pursuant to which JPMC
or a pre-qualified JPMC Affiliate may, from time-to-time order and
purchase generally available computer hardware and related peripheral
products manufactured by Egenera ("Egenera Hardware"), Egenera labeled
software, in object code form, including (a) firmware and Egenera software
embedded in the Egenera Hardware; and (b) third party software embedded in
the Egenera Software and Egenera Hardware ("Egenera Software")
collectively referred to as "Egenera Products" and hardware products
manufactured and developed by third parties, ("Third Party Hardware"), and
software provided by Egenera as itemized on an Egenera quotation and/or an
Order that is specifically labeled as being owned by an entity other than
Egenera which is not embedded in Egenera Hardware and/or Egenera Software
("Third Party Software") collectively referred to as "Third Party
Products" generally offered for sale and license by Egenera as an
authorized reseller (Egenera Products and Third Party Products are
collectively referred to as "Products" unless differentiated). Open Source
Software described in Section 19 is Third Party Software. Products are
purchased and/or licensed pursuant to the pricing arrangement then in
effect between the parties. The pricing arrangement currently in effect
between the parties is reflected in Exhibit I attached hereto. JPMC may
also purchase certain maintenance services, e.g. remedial maintenance,
("Maintenance Services") under this Agreement which are offered by Egenera
in connection with the Egenera Products purchased or licensed hereunder.
The standard Maintenance Services Egenera offers on Egenera Hardware and
Egenera Software installed within the continental United States are more
fully described in the Support Services Addendum attached hereto as
Attachments A-1 through A-4. JPMC will issue written Purchase Orders or
other ordering documents (collectively "Orders")
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for the purchase and or license of Products and Services in accordance
with the terms and conditions of this Agreement.
A JPMC affiliate that is pre-qualified (as defined below) by Egenera to
purchase and or license Products under this Agreement as an end user
("JPMC Affiliate") shall be deemed to be a third party beneficiary of this
Agreement A "JPMC Affiliate" is defined as any present or future
corporation or other entity (a) of which 50% or more of the outstanding
voting stock or voting equity interest is owned directly or indirectly by
JPMC; (b) which owns 50% or more of the outstanding voting stock or other
voting equity interest of JPMC ("Parent"); or (c) of which 50% or more of
the outstanding voting stock or voting equity interest is owned directly
or indirectly by the Parent. Whenever used in this Agreement the term
"JPMC" shall be deemed to include JPMC Affiliates unless otherwise noted.
A list of the JPMC Affiliates who have been pre-qualified is set forth in
Exhibit V attached hereto. JPMC Affiliates must remain in good standing in
accordance with Egenera's established commercial customer credit
requirements. From time to time, JPMC may add other affiliates (to become
JPMC Affiliates) to Exhibit V upon written notice to Egenera. However,
such added affiliates must meet the criteria specified in (a), (b) and (c)
above and Egenera's established commercial customer credit requirements. A
JPMC Affiliate that satisfies the above criteria may place an Order
directly with Egenera for Products and/or Maintenance Services. However,
JPMC may from time-to-time order Products and Maintenance Services for and
on behalf of a JPMC Affiliate. In such event, JPMC shall be deemed to do
so as an agent of the JPMC Affiliate. The JPMC Affiliate for which JPMC so
acts as agent (and not JPMC) shall be responsible for performance under
such Order. The JPMC Affiliate acknowledges that it will fully comply with
and be bound by the terms and conditions of this Agreement with respect to
any Order issued by, or on behalf of the JPMC Affiliate. In no event shall
JPMC be deemed to be a guarantor of, or otherwise responsible for, "any
performance or payment obligation of a JPMC Affiliate udder any Order
issued by a JPMC Affiliate or by JPMC for and on behalf of a JPMC
Affiliate.
For all Products to be delivered and installed at JPMC's facilities
located at 3 or 4 Chase MetroTech Center, Brooklyn, New York 11245 ("Chase
MetroTech Center") and for all Maintenance Services to be performed at
Chase MetroTech Center, JPMC shall be deemed to have bordered such
Products and Maintenance Services in its own name as agent for the New
York City Industrial Development Agency ("IDA") for the sole purpose of
qualifying for exemption from New York State and New York City sales and
use taxes, as set forth in the letter between the IDA and JPMC a copy
current as of the date of this Agreement is attached hereto as Exhibit II.
All Products to be delivered and installed at JPMC's Newport facility
located at 570-575 Washington Blvd., Jersey City, New Jersey ("JPMC
Newport Facility") and all Maintenance Services to be performed at the
JPMC Newport Facility are exempt from New Jersey sales and use taxes as
set forth in the Urban Enterprise Exempt Purchase Certificate (Form UZ-5)
issued by the State of New Jersey Department of Taxation, a copy current
as of the date of this Agreement is attached hereto as Exhibit III.
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JPMC and Egenera acknowledge and agree that outside of the United States,
Products and Maintenance Services can be ordered hereunder and may be
furnished by Egenera's wholly owned subsidiary or by Egenera's authorized
agents. Egenera will remain responsible for its wholly owned subsidiary's
and authorized agents' performance under this Agreement. Egenera may
require JPMC to place such Orders directly with a wholly owned subsidiary
of Egenera. These international transactions will be subject to the terms
and conditions of this Agreement except that (a) the terms and conditions
specific to the particular country will apply, which will amend or
supplement the terms and conditions of this Agreement, (any such country
specific terms and conditions will be set forth in mutually acceptable
amendments to this Agreement as appropriate executed by the parties); and
(b) JPMC shall be able to obtain Maintenance Services described in
Attachment A-1 through A-4 of the Support Service Addendum (i) in Tokyo,
Japan and within one hundred-twenty(120) miles of London, England not
later than January 1, 2003; and (ii) in Hong Kong, Singapore and Sydney,
Australia not later than January 1, 2004. The components of Maintenance
Services offered by Egenera in other countries will vary and thus, if
requested by JPMC, will be negotiated and mutually agreed upon in writing
by the authorized representatives of the parties on a case by case basis.
From time to time, upon JPMC's request, Egenera shall provide JPMC with a
current list of its wholly owned subsidiaries, authorized agents and
service providers and their locations by country.
By entering into this Agreement with Egenera, JPMC is not obligated in any
way to purchase any quantity of Products or Maintenance Services or order
any specific dollar volume of Products or Maintenance Services whatsoever.
Moreover, nothing contained in this Agreement is to be construed as
limiting the right of either party to enter into similar agreements with
other parties for similar products and maintenance services.
2. TERM OF AGREEMENT
This Agreement shall commence as of the date first written above and shall
remain in effect for an initial term of three (3) years unless terminated
earlier in accordance with the terms and conditions of this Agreement.
This Agreement may be renewed subject to mutual written agreement between
the parties. Such renewal may be subject to revised terms and conditions,
which with respect to Maintenance Services, will not affect Maintenance
Services already being furnished by Egenera, its agents or subcontractors
as of the effective date of the renewal. If not renewed as aforesaid, this
Agreement shall continue on a month to month basis until terminated by
either party upon ninety (90) days prior written notice to the other
party. Notwithstanding the foregoing, the provisions of this Agreement
shall remain in effect (a) for any open Order(s) as of the effective date
of termination of this Agreement, and (b) with respect to Maintenance
Services until the expiration or termination of the term of Maintenance
Services.
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3. ACCEPTANCE OF ORDERS
Unless JPMC is notified to the contrary in writing within [**] following
the day Egenera's Financial Department received an Order from JPMC,
Egenera shall be deemed to have accepted the Order for the generally
available Products and/or Maintenance Services. Egenera agrees that it
will not unreasonably refuse acceptance of any Order issued by JPMC
pursuant to this Agreement.
4. REQUIRED DOCUMENTATION
Each Order issued by JPMC will contain all information applicable to the
Products or Maintenance Services to be acquired including, but not limited
to, description of the Product or Maintenance Service, quantity, mutually
agreed upon prices, applicable discounts (if any), applicable fees (if
any), installation charges (if any), mutually agreed upon delivery date
(if any), ship-to and invoice-to addresses, tax exemption status (if
applicable), and any special instructions or terms and conditions that
have already been agreed to in writing for the particular Order by
authorized representatives of each party. Any pre-printed terms and
conditions set forth on the Purchase Order or any other document submitted
by JPMC shall be null and void. Egenera shall include a packing slip with
each shipment of Products which will include a description of the Product,
quantity shipped, carrier name, tracking number, and the JPMC Purchase
Order number.
Upon shipment of Products or in advance of the commencement of the
performance of Maintenance Services, Egenera shall furnish JPMC with an
invoice for same in accordance with the invoice instructions set forth in
the Order. All invoices must contain the information listed in the
attached Exhibit IV.
5. SUBSTITUTION OF PRODUCTS BY EGENERA
Egenera may not substitute any Product or change specifications of a
Product that JPMC has ordered unless otherwise agreed to by JPMC in
advance. In the event of an unauthorized substitution or specification
change, as JPMC's sole and exclusive remedy, JPMC reserves the right to
reject (a) the products that were substituted or changed or (b) cancel the
entire affected Order without charge or penalty, returning any Products
delivered under the affected Order at Egenera's expense.
6. SHIPMENT
Unless otherwise specified in the Order, JPMC will be responsible for all
transportation charges for the Products. No charges will be accepted by
JPMC for special handling or packaging unless specifically authorized by
JPMC. Egenera will not make partial shipment of individual components of
Egenera Hardware or Third Party Hardware without prior approval from JPMC.
In the absence of shipping instructions, Egenera shall select a carrier.
Unless otherwise prohibited by regulations applicable at the JPMC
location, delivery of all Products must be "inside delivery" (i.e.,
delivered to the JPMC installation floor location specified in the Order).
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7. RISK OF LOSS
The risk of loss of or damage to the Products shall pass to JPMC upon
JPMC's receipt of the Products. Thereafter Egenera will be responsible for
any loss or damage to the Products caused by acts, negligence or
misconduct of Egenera, its agents, representatives or subcontractors.
8. DELIVERY AND DELAYS
Egenera shall use its reasonable commercial efforts to adhere to the
delivery dates mutually agreed to by the parties. Egenera will promptly
give JPMC notice of any delay in delivery of the Products.
9. CANCELLATION AND SUBSTITUTION OF PRODUCTS BY JPMC.
JPMC reserves the right, prior to shipment to: (a) cancel the Order for
any Product without cause or (b) substitute any Product for another
Product which is available from Egenera. Such cancellation or substitution
will be effected without cost or liability on the part of JPMC to Egenera
provided that such cancellation or substitution occurs no less than
fifteen (15) days prior to the shipping date except that JPMC will be
responsible for the difference if any) in the net purchase price or
license fee which may be due Egenera as a result of a Product
substitution. Orders canceled or substituted within fifteen (15) days of
the shipping date may be subject to a restocking fee in an amount not to
exceed twenty (20) percent of the net purchase price of the Products
canceled or substituted.
10. ACCEPTANCE OF PRODUCTS
Unless the parties have previously mutually agreed upon a specific
acceptance criteria for the Products which must be specified in writing
and set forth in the applicable Order, Products delivered to JPMC will be
subject to the acceptance procedure set forth in this Section 10.
Acceptance of Products that Egenera is responsible to install shall occur
upon (a) the completion of Egenera's standard installation procedures that
demonstrate conformance to Egenera's applicable publicly available written
specifications in effect at the time of delivery; and successful
demonstration that the Products meet JPMC's written specifications
mutually agreed upon by the parties in writing prior to the time of Order.
With respect to Products which are JPMC's responsibility to install, JPMC
will have a period of [**] from receipt by JPMC to test such Products to
assure that they (a) successfully operate in conformance to Egenera's
applicable publicly available specifications in effect at the time of
delivery; and (b) successfully demonstrate that they meet JPMC's written
specifications mutually agreed upon by the parties in writing prior to the
time of the Order. Unless Egenera has been notified by JPMC that such
Products do not conform to such specifications, such Products will be
deemed to have been accepted by JPMC at the end of such [**] period.
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Egenera will, at its expense, promptly adjust, repair or replace the
Products as required so that they can be accepted in accordance with the
provisions of this Section 10.
The provisions of this Section 10 will also apply to all replacement
Products.
11. INVOICING AND PAYMENT TERMS
Payment terms for the purchase and/or license of Products and Maintenance
Services are net thirty (30) days from receipt of an invoice. JPMC shall
pay Egenera the price stated on an accepted Order plus all applicable
taxes as described in Section 12, duties, tariffs, transportation charges
and other import charges associated with the Products and Maintenance
Services ordered hereunder, and shall promptly reimburse Egenera for same
if Egenera incurs said expenses at JPMC's request on JPMC's behalf. In the
event of a dispute over the amount of any Order contained in a submitted
invoice, JPMC will pay the undisputed amount and the parties will
diligently endeavor to promptly resolve the disputed amount.
12. TAXES
JPMC shall pay any applicable taxes (e.g., sales, use or value added
taxes) in connection with the Products and Maintenance Services furnished
hereunder excluding franchise taxes and taxes based on Egenera's net
income or personal property. Certain Products and Maintenance Services
purchased by JPMC may be exempt from sales and use taxes such as those
described in Section 1 hereof. Tax-exempt transactions will be identified
as such by JPMC in the Order.
13. TITLE TO HARDWARE
Title to the Egenera Hardware and Third Party Hardware shall pass to JPMC
upon JPMC's receipt of the Egenera Hardware and Third Party Hardware.
Title shall pass to JPMC free and dear of any liens, encumbrances or
security interests.
Egenera Hardware and Third Party Hardware furnished hereunder shall
include all associated operating system software and all documentation
associated with the Egenera Hardware, Third Party Hardware and operating
system software normally provided by Egenera or the third party, as the
case may be, including but not limited to operator/user manuals, training
materials, guides, and functional and technical specifications
(collectively, "Documentation"). Egenera Software and Third Party Software
shall be subject to the applicable software license terms and conditions
set forth below in Section 19.
Unless otherwise prohibited by the third party, JPMC may make a reasonable
number of copies of the Documentation as it deems necessary for its own
internal purposes.
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14. LIMITED WARRANTY
Egenera hereby represents and warrants that: (a) it is authorized (i) to
sell the Egenera Hardware and Third Party Hardware; and (ii) license the
Egenera Software, third party software embedded in the Egenera Software
and Egenera Hardware and Third Party Software to JPMC; (b) unless
otherwise agreed to in an Order, all Egenera Hardware and Third Party
Hardware will be (i) of genuine and authentic manufacture and (ii) new and
unused (but may contain some remanufactured components that will operate
as new); (c) all Maintenance Services, including Maintenance Updates and
Software Upgrades that may be provided as a component software Maintenance
Services furnished by Egenera will be performed in a professional manner
by qualified personnel; (d) the Egenera Hardware will be free from defects
and will be in good operating condition in accordance with Egenera's
publicly available written specifications in effect at the time of
delivery during Egenera's one year warranty period for the Egenera
Hardware; (e) the Egenera Software (exclusive of Maintenance Updates and
Software Upgrades, which are provided as components of applicable
Maintenance Services) will perform in accordance with Egenera's publicly
available written specifications in effect at the time of Delivery during
Egenera's one year warranty period; and (f) the Egenera Software will
accurately recognize, calculate, process and store data from, into and
between 1999 and 2000 and the twentieth and twenty first centuries,
including leap year calculations, provided that all other technology used
in combination with the Egenera Software that JPMC acquires elsewhere
properly exchanges date data with it. The warranty periods specified in
(d) and (e) above will commence on the date of installation of the Egenera
Hardware and Egenera Software as applicable. However, if upon installation
the Egenera Hardware and/or Egenera Software is not performing in
accordance with Egenera's publicly available written specifications or the
mutually agreed upon specific acceptance criteria, if any, the warranty
periods specified in (d) and (e) above will be extended for the period of
time it takes Egenera to make the necessary adjustments, repairs or
replacements. Egenera will, at its sole option, cost and expense, promptly
adjust, repair or replace the Products that do not conform to the
warranties specified herein or re-perform Maintenance Services as required
to satisfy the warranties specified herein. The level of warranty services
to be provided by Egenera pursuant to (d) and (e) above are specified in
the Support Services Addendum attached hereto as Attachment A-1. If after
a reasonable number of attempts, Egenera is unable to make Product
adjustments, repair or replacements, or corrections to the Maintenance
Services as required to satisfy the warranties specified herein, Egenera
shall refund the amount paid by JPMC for the non-conforming Products
(including refund of installation charges, if any) in exchange for their
return at Egenera's expense or, in the case of Maintenance Services,
refund the amount JPMC paid Egenera for the portion of the non-conforming
Maintenance Service. In the event the operation of a Third Party Product
provided hereunder by Egenera, impacts the Egenera Hardware and/or Egenera
Software to the extent that such Egenera Hardware and/or Egenera Software
fail to satisfy their respective warranties specified above, Egenera's
obligations (including that of refund) and JPMC's remedies specified
immediately above shall apply. The foregoing is Egenera's sole and
exclusive
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liability and obligation regarding any Products or Maintenance Services
provided under this Agreement that do not conform to their respective
warranties.
JPMC shall have the option to purchase Egenera's Annual Post Warranty
Service described in the Support Services Addendum after the initial
warranty period for Egenera Products and/or upgrade the level of warranty
services for Egenera Products in accordance with the service offerings
specified in the Support Services Addendum attached hereto as Attachments
A-3 and A-4 pursuant to charges mutually agreed upon.
All Third Party Products are subject to the third party's warranty
provisions copies of which will be provided to JPMC by Egenera.
Notwithstanding the warranties specified in this Section 14 for Third
Party Hardware, Egenera will pass through to JPMC, as between JPMC and the
third party, the benefit of any third party warranty provisions applicable
to Third Party Products and such warranty provisions are hereby passed
through by Egenera for the benefit of JPMC.
Egenera currently provides support for Red Hat, Inc. Third Party Software
that is licensed by Egenera. At JPMC's option, JPMC may engage Egenera for
support of such Third Party Software licensed by Egenera to JPMC in
accordance with terms, conditions and charges mutually agreed upon in
writing by the authorized representatives of both parties.
Any replacement Egenera Hardware or part provided by Egenera as part of
its warranty service will be comparable in function and performance to the
replaced original Egenera Hardware or part and is warranted for the
remainder of the replaced original Egenera Hardware or part limited
warranty period, or for ninety (90) days, whichever is greater. Whenever
JPMC is responsible to install replacement Egenera Hardware or parts, JPMC
will promptly return the replaced Egenera Hardware or part which will
become the property of Egenera on an exchange basis. Egenera is
responsible for the shipping and insurance charges associated with the
replacement and replaced Egenera Hardware and parts shipped to and from
JPMC as part of Egenera's limited warranty service.
The limited warranties set forth in this Section 14 do not apply to
problems to the extent that they arise from (i) accident or abuse; (ii)
interoperation with third party products which are not recommended or
approved by Egenera; (iii) improper installation or modification by other
than Egenera, its agents or subcontractors; (iv) use of Egenera Products
in an environment or in a manner or for a purpose for which the Egenera
Products were not designed: or (v) JPMC's failure to implement all
previously supplied software Updates.
EGENERA DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE
UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 14
AND IN SECTION 15, EGENERA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
ABOUT THE EGENERA PRODUCTS, MAINTENANCE SERVICES OR OTHER EGENERA
SERVICES. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 14, EGENERA DOES NOT
MAKE, AND DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH
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RESPECT TO THIRD PARTY PRODUCTS. EGENERA MAKES NO OTHER WARRANTIES WITH
RESPECT TO EGENERA PRODUCTS, MAINTENANCE SERVICES OTHER EGENERA SERVICES
OR THIRD PARTY PRODUCTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY COURSE OF DEALING,
PERFORMANCE, OR USAGE OF TRADE.
15. CONTINUED SUPPORT SERVICES
For the purpose of continued support services upon the expiration of the
Egenera Product limited warranties. JPMC may order Maintenance Services
offered by Egenera. The features and components of Maintenance Services
currently available from Egenera are described in the Support Services
Addendum. Software Upgrades and Maintenance Updates described in and
provided under the Support Services Addendum are considered a component of
such Maintenance Services. If the Egenera limited warranty on the Egenera
Products has lapsed and post-warranty Maintenance Services for the Egenera
Products have not been purchased. Egenera will only provide and charge for
support services on a per-event, time and materials basis unless JPMC pays
Egenera's published fee for recertification of Egenera Products for
eligibility under Maintenance Services. JPMC is responsible for providing
Egenera with remote access to Products it purchases from Egenera in order
for Egenera to provide Maintenance Services. JPMC must provide an IP
address, login and password for Egenera to establish access to such
Products. Egenera will comply with all internal JPMC control practices and
policies (including without limitation all security, network and data
access and audit provisions) made known or known to Egenera, applicable to
the Maintenance Services provided under this Agreement. Failure to provide
an IP connection may impact response and resolution time. In the event
JPMC has not provided Egenera with remote access, and as a result, an
Egenera Support Engineer is required on site which otherwise would not be
required, Egenera reserves the right invoice JPMC, and JPMC shall pay,
Egenera's prevailing labor rate and related travel expenses for the
on-site Maintenance Services. In order to resolve a problem, Egenera may
require JPMC's reasonable assistance in recreating the problem. Failure by
JPMC to attempt to recreate the problem, or to provide such reasonable
assistance as may be necessary, may prevent Egenera from resolving the
problem. Egenera provides Maintenance Services only for the two most
recent Major Releases (as defined in the Support Services Addendum) of
Egenera Software (i.e., current Major Release and the immediately prior
Major Release) or for two (2) years on each such Major Release, whichever
is longer. A Major Release is considered current until such time as a
subsequent Major Release is generally available.
Software Maintenance Services encompasses changes that are intended to
resolve problems that prevent a system from performing to specifications.
At Egenera's discretion, fixes may take the form of patches, Maintenance
Updates as defined in the Support Services Addendum, Major Releases or
Minor Releases as defined in the Support Services Addendum.
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Egenera's Standard Warranty Service for Egenera Software does not include
Major Releases or Minor Releases which are provided under certain
Maintenance Services. During the standard warranty period and in lieu
thereof, JPMC may purchase the Software Subscription Service described in
the Support Services Addendum in order to obtain when-and-if available
Major Releases and Minor Releases at no additional charge.
16. VIRUSES
Egenera represents, warrants and covenants that the Egenera Software in
the form provided to JPMC hereunder does not and will not contain any
computer code, programs, or programming devices (a) intentionally designed
to disrupt, modify, delete, damage, deactivate, disable, harm or otherwise
impede in any material manner, including aesthetic disruptions or
distortions, the operation of the Egenera Software or any other associated
software, firmware, hardware, computer system or network (sometimes
referred to as "Trojan horses," "viruses" or "worms"), (b) designed to
disable the Egenera Software or any other associated software, firmware,
hardware, computer system or network or impair in any way their operation
based on the elapsing of a period of time, exceeding an authorized number
of copies or advancement to a particular date or other numeral (sometimes
referred to as "time bombs," "time locks," or "drop dead" devices), or (c)
designed to permit Egenera to access the Egenera Software or any other
associated software, firmware, hardware, computer system or network to
cause such disablement or impairment (sometimes referred to as "traps",
"access codes", or "trap door" devices), or any other similar harmful,
malicious or hidden procedures, routines, or mechanisms that are designed
to cause the Egenera Software or any other associated software, firmware,
hardware, computer system or network to cease functioning or to damage or
corrupt data, storage media, programs, equipment, or communications, or
otherwise interfere with operations (collectively, "Destructive
Elements"). Egenera further agrees to use reasonable commercial efforts to
promptly eliminate any and all such Destructive Elements that are
discovered.
When installation of the Product is the responsibility of Egenera, Egenera
shall ensure that all software furnished under this Agreement is tested
using a virus-scanning program reasonably acceptable to JPMC. In the event
that Egenera finds that the software is not virus free, Egenera shall
replace the software with software that is virus free.
17. INDEMNIFICATION
Egenera hereby passes through to JPMC the benefits of any indemnification
from the third party (e.g., patent; copyright, trade secret or other
proprietary rights infringement indemnification) with respect to third
party software embedded in the Egenera Software and Egenera Hardware and
Third Party Products to the extent such indemnification may be passed
through to JPMC.
For the purpose of this Section 17 only, the term "Egenera Products" does
not include third party software embedded in the Egenera Software or
Egenera Hardware.
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With respect to Egenera Products, Egenera hereby agrees to indemnify,
defend (with counsel satisfactory to JPMC) and hold JPMC harmless from and
against any third party claim, suit, action or proceeding that the Egenera
Products infringe any patent, copyright, trade secrets or other
proprietary right, and pay all amounts agreed upon in settlement, costs,
expenses (including attorney's fees) and the resulting judgments and
damages finally awarded against JPMC by a court of competent jurisdiction.
Any lost profits, lost business, indirect, special, punitive, incidental
or consequential damages awarded against JPMC as a result of any such
claim, suit, action or proceeding shall be deemed direct damages. In
connection with Egenera's indemnification obligation pursuant to this
paragraph, JPMC shall provide Egenera with (a) prompt notification in
writing of such claim, (b) sole control over the defense and settlement
thereof, and (c) reasonable cooperation, at Egenera's expense, in response
to a Egenera request for assistance. JPMC shall be entitled to participate
in the defense of any such claim at its own expense including its
attorney's fees for which Egenera will not be responsible. In the event
that JPMC is enjoined, or is otherwise prohibited, from using Egenera
Products, as a result of or in connection with any such claim, suit,
action or proceeding, or should Egenera Products become or in Egenera's
opinion likely to become, the subject of such a claim, suit, action or
proceeding, Egenera shall, at its option and expense, (a) modify Egenera
Products so that they become noninfringing and nonviolative, without
diminishing the usefulness of Egenera Products to JPMC; or (b) replace
Egenera Products with products that are noninfringing and nonviolative,
and that are at least as useful to JPMC as Egenera Products; (c) procure
for JPMC the right to make continued use thereof; or (d) if neither (a),
(b) or (c) can be accomplished on commercially reasonable terms, request
the return of the Egenera Products at Egenera's expense and upon receipt,
promptly refund to JPMC as appropriate, the license fee for Egenera
Software less a reasonable amount for past usage, or a pro rata amount of
the purchase price for the returned Egenera's Products, taking into
account the useful life and depreciated value of the Egenera Hardware as
determined by JPMC in accordance with its normal accounting practices
(e.g., three (3), four (4) or five (5) years as applicable).
Egenera shall have no liability to the extent the alleged infringement is
based on: a combination of the Egenera Products with third party products
not furnished by Egenera or not recommended or approved in writing by an
authorized representative of Egenera, Egenera Products for a purpose or in
a manner for which the Egenera Product was not designed; use of any older
version of the Egenera Software when use of a newer Egenera revision made
available and known to JPMC would have avoided the infringement; any
modification to the Egenera Product not made by Egenera or made without
Egenera's written approval; any unique custom Egenera software made by
Egenera pursuant to JPMC's specific instruction, or any intellectual
property right owned or licensed by JPMC.
THE PROVISIONS OF THIS SECTION 17 WITH RESPECT TO EGENERA PRODUCTS STATE
JPMC's SOLE AND EXCLUSIVE REMEDY AND EGENERA'S ENTIRE LIABILITY FOR
INFRINGEMENT CLAIMS.
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Each party hereby agrees to indemnify and hold the other ("Indemnified
Party") harmless from and against any and all damages, losses, judgments,
settlement amounts, costs and expenses (including attorney's fees) that
the Indemnified Party may suffer or incur that arise out of, are in
connection with, or result from bodily injury (including death), personal
injury or damage to tangible property to the extent that such damage or
injury are caused by, arise out of, are connected with or result from its
acts, negligence or willful misconduct or that of its employees, agents,
or subcontractors. In connection with each party's indemnification
obligations pursuant to this paragraph, the Indemnified Party shall
provide the other party with (a) prompt notification in writing of the
claim, (b) sole control over the defense and settlement thereof, and (c)
reasonable cooperation, at the other party expense, in response to the
other party's request for assistance.
18. LIMITATION OF LIABILITY
Except for Egenera's indemnification obligation as set forth in Section 17
with respect to those lost profits, lost business, indirect, special,
punitive, incidental or consequential damages which, for the purpose of
Section 17 only, the parties have agreed to be direct damages, neither
party shall be liable, one to the other, for any damages resulting from
loss of use, data, profit, or business or for any indirect, special,
punitive, incidental or consequential damages arising out of, or in
connection with this Agreement no matter what the cause of action, even in
the event that either party is advised of the possibility that such
damages may arise, occur or result.
Except for each party's indemnification obligation as set forth in Section
17, no action arising out of or in connection with this Agreement or any
transaction hereunder may be brought by either party more than eighteen
(18) months after the cause of action has arisen.
EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATION AS SET FORTH IN SECTION
17 AND A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATION AS SET
FORTH IN SECTION 22, AND SUBJECT TO SECTION 14, EACH PARTY'S AGGREGATE
LIABILITY FOR DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF
THE FORM OF ACTION (IN CONTRACT OR IN TORT), SHALL BE LIMITED, FOR EACH
YEAR OF THIS AGREEMENT, TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO
EXCEED THE PRICE JPMC PAID FOR THE PRODUCTS AND MAINTENANCE SERVICE DURING
THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE
THAT CAUSED THE DAMAGES OR WAS THE SUBJECT MATTER OF THE CAUSE OF ACTION.
The limitation of liability set forth in this Section 18 shall apply to
all causes of action under or relating to this Agreement, except as
otherwise provided, including any claim against any subsidiary,
stockholder, officer, director, employee, agent of either party, Egenera
affiliates or JPMC Affiliates.
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19. SOFTWARE LICENSE
Egenera Software and Third Party Software (collectively, "Software")
provided under this Agreement is owned and copyrighted by Egenera or its
third party suppliers, as the case may be, and title to, ownership of and
all applicable rights and trade secrets in such Software shall not
transfer to JPMC. In consideration of the applicable license fee. JPMC is
hereby granted a non-exclusive, irrevocable, perpetual, worldwide license
to use Egenera Software only on the Egenera Hardware. JPMC's license is
not a sale of any rights in Software. All ownership rights remain with
Egenera or its third party suppliers, as the case may be.
JPMC may make a reasonable number of copies of the Software for backup and
archival purposes and JPMC may make additional copies when copying is an
essential step in the authorized use of the associated Products. All
copyright and other proprietary or restricted rights notices in the
original must be retained on all copies.
Except to the extent permitted in this Agreement, JPMC may not modify,
translate, reverse engineer, decompile, disassemble, otherwise attempt to
obtain the source code of, or create derivative works based on, the
Software; copy (including copying onto a bulletin board or similar system)
the Software; lease, time share, grant a security interest in, or
otherwise transfer rights to the Software; remove any proprietary notices
or labels on the Software; or disclose or otherwise make available the
Software in any form to anyone other than JPMC's employees, consultants or
independent contractors who have agreed in writing to the terms of this
Software license. If JPMC is using the Software in any country in the
European Community, the prohibition against modifying, translating,
reverse engineering, decompiling, disassembling or creating derivative
works based on the Software does not affect JPMC's rights under any
legislation implementing the E.C. Council Directive on the Legal
Protection of Computer Programs.
Unless otherwise specified by the separate terms of a shrink or dick wrap
software license that may accompany Third Party Software, JPMC may
transfer the license to the Software upon sale or other disposition of the
associated Egenera Hardware, and the Software may not be separated for use
on other computers or equipment. Nothing herein shall prevent the transfer
of the Software by JPMC to other Egenera Hardware (i.e., different serial
number) provided it is no longer used on the previous Egenera Hardware. In
the case of the sale or other disposition of the Egenera Hardware, JPMC
must deliver the original and all complete, partial or electronically
stored copies of the Software and related Documentation to the transferee.
JPMC may not retain any copies of the Software or related Documentation,
and any copies that have been made which are not transferred to the
transferee must be destroyed. As a prerequisite to transferring the
Software as aforesaid, JPMC must obtain the transferee's written agreement
to all of the software license terms and conditions set forth in this
Section 19, and at Egenera's request, provide a copy of same to Egenera.
JPMC's license will automatically terminate upon any transfer of the
Software. JPMC may receive the Software in more
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than one medium, for example CD-ROM or by Internet. JPMC may not use or
install the Software in the other medium on another hardware product.
In the event that JPMC at any time desires to change the Egenera operating
environment (i.e., the Egenera Hardware platform and any other equipment,
configurations, operating systems, control programs and other elements of
the operating environment including an Internet or Internet oriented
operating environment provided by Egenera on which JPMC uses the Egenera
Software) to a revised Egenera operating environment or any component
thereof, with, on or in which one or more copies of the Egenera Software
will not function or execute, and Egenera has a commercially available
version of the Egenera Software which is compatible with such revised
Egenera operating environment or component thereof, JPMC shall have the
right to use such compatible version to the same extent as the Egenera
Software licensed hereunder, provided JPMC is either then in the Warranty
Period for the Egenera Software or subscribing to Maintenance Services for
the Egenera Software. In such case, JPMC shall so notify Egenera and
Egenera shall promptly deliver, at no charge to JPMC, such version of the
Egenera Software to JPMC, together with a copy of any associated
Documentation that Egenera generally makes available to its customers.
JPMC shall be fully responsible to Egenera for the compliance of JPMC's
employees, consultants or independent contractors who are given access to
the Software.
In the event JPMC, in connection with the Egenera Products, orders Third
Party Software, JPMC acknowledges that JPMC shall be licensing the Third
Party Software directly from the third party owner thereof, including the
right to use the Third Party Software in connection with the Egenera
Products, and agrees to comply with the license terms that accompany the
Third Party Software. Certain Third Party Software supplied by Egenera are
Open Source Software products, and as such are governed by open-source
software license agreements supplied with such Open Source Software; such
as the GNU Public License. Egenera makes no claim of ownership of Open
Source Software, and such Open Source Software products are supplied
solely in accordance with the license agreements accompanying same.
Accordingly, the restrictions concerning modification, confidentiality and
other provisions set forth in this Section 19 do not apply to Open Source
Software.
20. TERMINATION FOR BREACH, BANKRUPTCY AND OTHER REASONS.
In the event that JPMC or Egenera: (a) breaches a material provision of
this Agreement and fails to cure such breach within thirty (30) days after
it notifies the other thereof; (b) becomes insolvent; (c) files a petition
in bankruptcy or has such a petition filed against it (and fails to lift
any stay imposed thereby within sixty (60) days after such stay becomes
effective); (d) has a receiver appointed with respect to all or
substantially all of its assets; (e) makes an assignment for the benefit
of creditors or (f) ceases to do business in the ordinary course, the
other party may terminate this Agreement immediately upon written notice
thereof. Any termination of this Agreement shall not affect JPMC's license
to use the Egenera Software.
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The Egenera Software maintained pursuant to the Support Services Addendum
is unique and requires highly specialized skills and/or tools to maintain.
Egenera acknowledges that the skills and/or tools needed to maintain the
Egenera Software may not be available from any source other than Egenera.
Egenera also acknowledges that the remedies at law for Egenera's breach of
its obligations to provide Maintenance Services as set forth in this
Agreement may not be adequate and that JPMC, as a result of such
inadequacy, may suffer irreparable harm in the event Egenera breaches the
Maintenance Services provisions of this Agreement. Therefore, Egenera and
JPMC agree that JPMC shall have the right to seek mandatory or affirmative
injunctive relief to maintain the status quo in the event of an actual or
threatened breach of the Maintenance Services provisions of this
Agreement.
21. FORCE MAJEURE
Neither party shall be held responsible or in any manner liable, for
damages or otherwise, nor shall it be deemed in breach of this Agreement
or any Order, for delays in performing or inability to perform, this
Agreement or any Order caused by circumstances beyond its reasonable
control, including, without limitation, fire, flood, explosion, storm, act
of God or governmental act. To qualify for excused performance under the
foregoing sentence, such party must promptly notify the other party of
such delay.
22. CONFIDENTIALITY
Each party, as a recipient of the other's Confidential Information as
hereinafter defined ("Recipient") acknowledges and agrees that a duty is
owed the other, as a discloser of its Confidential Information
("Discloser") to maintain the confidentiality of Confidential Information
provided by the Discloser, obtained by the Recipient or which became known
to Recipient in connection with this Agreement. The Recipient shall treat
such Confidential Information as strictly confidential, and shall not use,
disclose, duplicate, copy, transmit or otherwise disseminate or permit to
be used, disclosed, duplicated, copied, transmitted or otherwise
disseminated at any time prior to or after the termination of this
Agreement such Confidential Information, except as specially permitted in
this Agreement or in writing by the Discloser, whether Recipient has such
Confidential Information in its memory or it is embodied in writing or
other physical form. The term "Confidential Information" shall include:
(a) any information of the Discloser not generally known to the public,
including, without limitation, any trade secrets or proprietary
information concerning the Discloser, the financial content of this
Agreement, its sales, personnel or accounting procedures, accounts,
operations, devices, techniques, methods, business plans, software,
(regardless of its state of completion or form of recordation),
databases, models, product proposals, internally devised technology,
system or network architecture or topology, secret processes,
products, capacities, systems, security practices, development,
machines, inventions, research projects and other means used by the
Discloser in the
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provision of services to customers and in the conduct of business,
whether developed, acquired or compiled by the Discloser.
(b) any information concerning customers and prospective customers of
the Discloser, and the affairs and business activities of the
Discloser and/or its customers, including, without limitation, trade
secret and proprietary information concerning accounts, financial
standing, investment holdings and other personal financial data
compiled by the Discloser and/or provided by customers, specific
financial needs and requirements with respect to investment,
financial position and standing, leads, referrals and references to
customers, holding book or customer book pages, assets and
obligations carried in accounts of customers, and all records and
documents concerning the business and affairs of the Discloser
and/or customers (including copies and originals and any graphic
format or electronic media) whether developed, acquired or compiled
by the Discloser, and
(c) the identity of any and all confidential or proprietary information
or data belonging to or concerning any of Discloser's customers and
any third parties which is in the possession, custody or control of
the Discloser.
The obligation to treat information as Confidential information shall not
apply to information which: (a) is publicly available through no action of
the Recipient, (b) shall have been in Recipient's possession independent
of its relationship with the Discloser, (c) shall have been developed by
or become known to the Recipient without access to any Confidential
information and outside the scope of any agreement with the Discloser, or
(d) shall be obtained rightfully from third parties not bound by an
obligation of confidentiality. The Recipient shall promptly notify the
Discloser in writing of any unauthorized use or disclosure of any
Confidential Information.
Recipient shall advise its personnel of their obligations under this
Section 22 and that such obligations continue even in the event such
Recipient personnel leave the employ of Recipient (if applicable) or cease
work under an Order, and Recipient shall be responsible for such Recipient
personnel's compliance with such obligations.
Upon termination of any Order or this Agreement, or upon the Discloser's
earlier request, the Recipient shall promptly deliver to the Discloser all
Confidential Information (exclusive of Software license by JPMC hereunder)
and any other material which the Discloser furnishes to Recipient in
connection with this Agreement. The Recipient shall retain no part or copy
of any Confidential Information. If requested by Discloser, Recipient
shall certify in writing its exacting compliance with this provision.
Recipient shall not disclose, duplicate, copy, transmit or otherwise
disseminate any Confidential Information except to Recipient's personnel
(and in the case of JPMC, its consultants or independent contractors) who
have a need to know it in order to perform under this Agreement or an
Order.
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In no event shall Recipient use Confidential Information (Software
licensed by JPMC hereunder excepted) for its own benefit or that of any
third party, nor shall Recipient use Confidential information to
Discloser's detriment for any purpose other than performance of this
Agreement or an Order pursuant to which it is disclosed or later
associated; or in any manner not necessary to performance of this
Agreement or such Order. Recipient shall not interpret, reverse-engineer,
decompile, disassemble, debug or otherwise use any part of any software to
which it is given access by or through the Discloser in connection with
this Agreement, nor shall Recipient access or generate corresponding
higher level code, access the logic intrinsic thereto; or aid, abide or
permit another to do so.
Recipient agrees that no remedy at law is adequate to compensate Discloser
for .a breach of the provisions of this Section 22 and that Discloser
therefore shall seek or may be entitled to temporary and permanent
injunctive relief against any such breach, or the threat of any such
breach, without having to prove damages or the inadequacy of money
damages.
This Section 22 shall survive the termination of this Agreement regardless
of the party that terminated this Agreement or the reason for termination.
23. COMPLIANCE WITH LAWS
Each party warrants that at all times it shall comply with all applicable
federal, state, local and other laws and regulations and the laws and
regulations of any country in which Egenera furnishes Products or
Maintenance Services to JPMC (and as such laws and regulations may have
been amended or may be amended from time to time in the future) in
performing its obligations pursuant to this Agreement. Without limiting
the generality of the first sentence of this Section 23, Egenera shall not
discriminate against any employee or applicant for employment because of
race, color, religion, sex, national origin, age, disability, sexual
orientation, creed, alienage, citizenship status, marital status or any
other protected status. Such treatment shall include, but not be limited
to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising; layoff or termination; rates of
pay or other forms of compensation; and selected for training including
apprenticeship. Egenera shall post in conspicuous places, available to the
employees and applicants for employment, notices setting forth the
provisions of this Section.
Unless exempt, Egenera shall comply with Department of Labor requirements
for: (a) Executive Order 11246, as amended; (b) Affirmative Action
Regulations for Minorities and Women - 41 Code of Federal Regulations
("C.F.R.") 60-1 et seq., (c) Section 503 of the Rehabilitation Act of
1973; (d) Affirmative Action Regulations for Handicapped Workers - 41
C.F.R. 60-741 et seq.; (e) Section 402 of the Vietnam-Era Readjustment
Assistance Act of 1972 and 1974; (f) Affirmative Action Regulations for
Special Disabled and Vietnam-Era Veterans - 41 C.F.R. 60-250 et seq.; and
(g) Affirmative Action Regulations for Small, Small Disadvantaged and
Women-
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Owned Small Business Concerns 48 C.F.R. 519.12 et seq., which are
incorporated by reference herein.
Egenera shall comply with all privacy and data protection laws, rules and
regulations which are or which may in the future be applicable to customer
information, including, but not limited to, the Gramm-Leach-Bliley Act
(P.L. 106-102) (15 U.S.C. Section 6801 et seq.), and the Fair Credit
Reporting Act (15 U.S.C. Section 1681 et seq.) and applicable regulations.
24. ASSIGNMENT
Except as otherwise provided in this Agreement; neither party may assign
this Agreement, or any rights under this Agreement, or delegate any duties
or obligations under this Agreement, without the other's prior written
consent, which consent shall not be unreasonably withheld or delayed, and
any assignment (or attempted assignment) or delegation (or attempted
delegation) without such consent shall be void and of no effect.
Notwithstanding the foregoing, JPMC may assign this Agreement, or any
rights under this Agreement, or delegate any duties or obligations under
this Agreement, without Egenera's consent, to (a) any JPMC Affiliate; or
(b) any entity (i) to which JPMC outsources functions relevant to this
Agreement or (ii) processes work for JPMC or its customers provided such
entity agrees to fully comply with and be bound by the terms and
conditions of this Agreement. In the event either party merges into or
consolidates with another entity; or sells all or substantially all of its
assets to another entity, this Agreement shall be deemed assigned or
transferred to such successor in interest without further action by such
party.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
25. WORK RULES AND SECURITY REGULATIONS
The employees, agents and representatives of Egenera shall comply with the
working rules and security regulations applicable to the JPMC premises to
which its employees, agents and representatives have access pursuant to
this Agreement or any Order.
26. INDEPENDENT CONTRACTOR AND INSURANCE
Egenera, in the performance of this Agreement, is acting as an independent
contractor and not as an employee, agent, partner or joint venturer of
JPMC, and shall not hold itself out as such or knowingly permit another to
rely on such belief. Nothing in this Agreement is intended or shall
construed to create any association, partnership, joint venture or
employment relationship between the parties, nor shall either party have
any right to enter into any contract or commitment on behalf of the other
or to bind the other in any respect whatsoever.
Egenera agrees to maintain in full force and effect at all times, while it
has any obligations remaining under this Agreement, policies of insurance
issued by a
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responsible carrier which afford the following coverage, reasonable and
customary in scope and amount with respect to work to be performed under
this Agreement:
(a) Workers Compensation Insurance with coverage applicable in all
states in which Maintenance Services are to be performed under any
Order, with limits in accordance with the statutory requirement of
each state, and Coverage B Employer's Liability Coverage, including
occupational disease with a limit not less than $1,000,000.00 per
accident;
(b) Commercial General Liability Insurance covering Egenera's
operations, with combined single limits for bodily injury, personal
injury and property damage not less than $3,000,000.00 per
occurrence including coverage as follows:
- Commercial General Liability (Comprehensive Form);
- Broad Form Contractual liability;
- Independent Contractors (if any part of work is to be
subcontracted);
- Broad Form Property Damage; and
- Advertising Liability;
(c) Automobile Liability Insurance in an amount not less than
$1,000,000.00 per occurrence for bodily injury and property damage,
including owned, non-owned and hired vehicles [Required if
automobiles will be used in performing work];
(d) Commercial Crime insurance in an amount not less than $1,000,000.00
including:
- Coverage for theft or loss of JPMC and JPMC customer property;
and
(e) Professional Liability Insurance in an amount not less than
$1,000,000.00 including coverage for errors and omissions caused by
Egenera's negligence in the performance of its duties under this
Agreement.
The insurance required under this Section 26 may be in policy or policies
of insurance, primary and excess, including so-called Umbrella or
Catastrophe form, which may also include Comprehensive Automobile
insurance and Employer's Liability insurance. Insurance provided under
this Agreement must be placed with carriers with A.M. Best's rating of A -
VIII or superior. None of the above policies will exclude computer
viruses.
Egenera shall add JPMC as an additional insured to the policies required
under subsections (b) and (c) of this Section 26 but only in respect to
the work being performed pursuant to an Order. All such policies also
shall be endorsed with the
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provisions that the coverage afforded for JPMC shall be primary and shall
not require contribution by any other similar insurance available to JPMC.
Certificates of Insurance listing the required coverages and acceptable to
JPMC shall be filed with JPMC prior to Egenera commencing performance of
its obligations hereunder. Such certificates shall provide that JPMC shall
be given at least thirty (30) days written notice prior to cancellation or
any change to restrict the coverage or reduce the limits afforded.
The insurance required in this Section 26 shall not affect Egenera's other
obligations under this Agreement or any Order.
27. SURVIVAL
The terms and conditions of this Agreement which by their express terms
extend beyond termination or expiration of this Agreement or which by
their nature shall so extend shall survive and continue in full force and
effect after any termination or expiration of this Agreement.
28. NOTICES
Any notice required or permitted to be sent under this Agreement shall be
delivered by hand, or mailed by registered or certified mail, postage
prepaid, return receipt requested, addressed to the parties set forth
below, or to such other address as may be given by written notice to the
other party:
If to JPMC: JPMorgan Chase Bank
Enterprise Technology Services
Strategic Technology Sourcing
277 Park Avenue, 37th Floor
New York, New York 10172
Attention: Non-Desktop Hardware Sourcing
Reference: JPMC Agreement No. 62320
With a copy to: JPMorgan Chase Bank
Technology Contracts Group/Legal Department
One Chase Manhattan Plaza, 25th Floor
New York, New York 10081
Attention: Manager
Reference: JPMC Agreement No. 62320
If to Egenera: Egenera, Inc.
165 Forest Street
Marlboro, Massachusetts 01752
Attn: Thomas Sheehan, CFO
Reference: JPMC Agreement No. 62320
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Notices shall be effective on the date personally delivered, or on the
fourth day after mailing, if mailed.
29. USE OF JPMC NAME
Egenera agrees that it will not, in the course of performance of this
Agreement or thereafter, use the name or logo of JPMC or any JPMC
Affiliate in any advertising or promotional media or material as a
customer or client of Egenera or otherwise, without the written consent of
JPMC.
30. GOVERNING LAW
This Agreement shall be governed by, interpreted and enforced in
accordance with the internal laws of the State of New York without
reference to the conflict of laws provisions thereof. The U.N. Convention
On The International Sale Of Goods (UNCISG) shall not. apply to this
Agreement. The parties hereby irrevocably waive any and all rights to
trial by jury in any legal proceeding arising out of or relating to this
Agreement.
The Uniform Computer Information Transactions Act (UCITA) shall not apply
to this Agreement or any Order regardless of when and howsoever adopted,
enacted and further amended under the laws of the State of New York or any
other state. In the event that UCITA is adopted and enacted in New York or
any other state and, as a result of such adoption and enactment or any
subsequent amendment thereto, the parties are required to take any action
to effectuate the result contemplated by this provision, including, but
not limited to, amending this Agreement, the parties agree to take such
action as may be reasonably required, including, but not limited to,
amending this Agreement accordingly.
31. CONFLICTS
In the event of any conflict between the terms and conditions set forth in
this Agreement and the special terms and conditions mutually agreed upon
by the parties in writing and subsequently set forth in any Order, the
special terms and conditions of such Order shall prevail.
32. GENERAL
No modification of this Agreement shall be effective unless it is in
writing (and not in electronic form) and such writing is signed by the
authorized representatives of JPMC and Egenera. Only officers of Egenera
are authorized to bind Egenera. No waiver of any right or remedy under
this Agreement shall be effective unless it is in writing (and not in
electronic form) and such writing is signed by the authorized
representative of the party to be charged therewith.
Any and all rights and remedies which either party may have under this
Agreement, at law or in equity, shall be cumulative and shall not be
deemed inconsistent with each
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other, and any two or more of all such rights and remedies my be exercised
at the same time insofar as permitted by law.
The failure of JPMC or Egenera at any time to require performance of the
other of any provision of this Agreement shall in no way affect its right
thereafter to require performance of the other of such provision, nor
shall such failure be held to be a waiver of any succeeding breach of such
provision or a waiver of such provision itself.
The Section headings used in this Agreement are intended for reference
purposes only and shall not affect the interpretation of this Agreement.
Any references to a particular Section of this Agreement shall be deemed
to include reference to any and all subsections thereof.
If an ambiguity or question of intent arises with respect to any provision
of this Agreement, this Agreement will be construed as if drafted jointly
by the parties and no presumption or burden of proof will arise favoring
or disfavoring either party by virtue of authorship of any of the
provisions of this Agreement.
The parties hereto agree to perform all acts and execute all supplementary
instruments or documents which may be necessary or desirable to carry out
the provisions of this Agreement and each Order.
Any provision of this Agreement which is prohibited or unenforceable in
any Jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and no such prohibition or
unenforceability in any jurisdiction shall invalidate such provision in
any other jurisdiction.
This Agreement, the Orders and documents referenced in this Agreement or
the Orders represent the entire agreement between JPMC and Egenera with
respect to the subject matter hereof.
This Agreement may be executed in or more counterparts, each of which
shall be deemed an original and all of which shall be taken together and
deemed to be one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
effective as of the day, month and year first written above.
JPMORGAN CHASE BANK EGENERA, INC.
By /s/ Bob Rosetta By /s/Thomas Sheehan
-------------------------- --------------------------
Name Bob Rosetta Name Thomas Sheehan
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Title VP Title Chief Financial Officer
Date 12/12/02 Date 12/18/02
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JPMC AGREEMENT NO. 62320
EXHIBIT I
The discount structure set forth below is based on a mutually agreed targeted
dollar volume of $[**]. (`Target Dollar Volume") of Products and Maintenance
Services anticipated to be purchased by JPMC within [**] from the effective date
of the Agreement. This discount structure will apply to all Orders from JPMC
and/or JPMC Affiliates Worldwide will remain in effect for the specified period.
The discounts for Egenera Products purchased in the United States are calculated
against the United States list price. List price for Egenera Products purchased
outside the United States will be subject to a mutually agreed upon uplift
percentage. However, the UK list price will be no greater than [**] percent
([**]%) of the United States list price. All discounts granted to JPMC hereunder
will be deemed earned, i.e., the discounts granted to JPMC will not be subject
to any adjustment, off-set or refund in the event the Target Dollar Volume is
not achieved.
- [**] percent ([**]%) discount on all Egenera Products ordered for
the JPMC Computer Backbone Project within [**] from the effective
date of the Agreement. This discount includes a [**] percent ([**]%)
partnership catalyst discount;
- [**] percent ([**]%) discount on all Egenera Products ordered which
are not associated with the JPMC Computer Backbone Project within
[**] from the effective date of the Agreement; and
- [**] percent ([**]%) discount on [**] of Maintenance Services
ordered and pre-paid which are associated with the JPMC Computer
Backbone Project within [**] from the effective date of the
Agreement. This discount will continue to apply to any renewal of
Maintenance Services for the JPMC Computer Backbone Project which
was initially ordered during the aforementioned [**] period.
The above discount structure will apply to any Order for Egenera Products issued
by JPMC and accepted by Egenera prior to the effective date of the Agreement.
Nothing herein shall be deemed to prohibit the parties from negotiating
discounts greater than those set forth above on a case by case basis as
circumstances may warrant.
Egenera's current fees for Maintenance Services are specified below.
- Annual Post Warranty Support Services described in Attachment A-2
- annual fee is [**]percent ([**]%) of the Egenera System's list
price.
- Enterprise Service described in Attachment A-3
- annual fee is [**] percent ([**]%) of the Egenera System's
list price if this Maintenance Service commences at the start
of the Warranty Period; [**] percent ([**]%) per year
thereafter.
<PAGE>
- two (2) year fee is [**] percent ([**]%) of the Egenera
System's list price if this Maintenance Service commences at
the start of the Warranty Period.
- Software Subscription Service described in Attachment A-4
- annual fee is $[**] per Egenera System.
<PAGE>
JPMC AGREEMENT NO. 62320
EXHIBIT II
Tax Exemption -- Chase MetroTech Center
<PAGE>
JPMC AGREEMENT NO. 62320
EXHIBIT III
Tax Exemption - JPMC Newport Facility
<PAGE>
JPMC AGREEMENT NO. 62320
EXHIBIT IV
Invoicing Information
All invoices submitted to JPMC shall include the following information:
- Ship to Address
- Bill to Address
- Purchase Order Number
- Invoice Date
- Ship Date (Products)
- Requisition Number (if applicable)
- Order Quantity
- Line Item Description
- Ship Quantity (Products)
- Line Item Unit and Extended Purchase and Maintenance Service and License
Fees Price
- Freight Charges (if applicable)
- Taxes (if applicable)
<PAGE>
JPMC AGREEMENT NO. 62320
EXHIBIT V
Pre-Qualified JPMC Affiliates
<PAGE>
OWNERSHIP
ENTITY NAME PERCENTAGE
----------- ----------
J.P. Morgan Chase & Co. (100%) 100
Brown & Company Securities Corporation (100%) 100
Bridge Acquisition Holdings, Inc. (100%) 100
Chase International Capital Finance Limited (100%) 100
Chase Home Mortgage Corporation of the Southeast (100%) 100
Chase Futures & Options, Inc. (100%) 100
Chase Funding, Inc. (100%) 100
Chase Lincoln First Commercial Corporation (100%) 100
Chase Cardholder Services, Inc. (100%) 100
Chase Capital VIII (100%) 100
Chase Capital VII (100%) 100
Chase Capital VI (100%) 100
Chase Capital V (100%) 100
Chase Capital IV (100%) 100
Chase Capital III (100%) 100
Chase Capital II (100%) 100
Chase Capital I (100%) 100
Capital Market Transactions Inc. (100%) 100
CSLT Holdings Inc. (100%) 100
COREQ, Inc. (100%) 100
CMRCC, Inc. (100%) 100
Chase Manhattan Overseas Finance Corporation N.V. (100%) 100
Corsair, Inc. (100%) 100
Clintstone Properties Inc. (100%) 100
Chemical Securities Holdings, Inc. (100%) 100
Chemical Real Holdings, Inc. (100%) 100
Chemical New York, N.V. (100%) 100
Chemical Investments, Inc. (100%) 100
The Beacon Group Investors II, LLC (100%) 100
Chase Shareholder Services of California, Inc. (100%) 100
Chase Mortgage Finance Corporation (100%) 100
Chase Manhattan Realty Leasing Corporation (100%) 100
Hambrecht & Quist Group (100%) 100
Hambrecht & Quist California (100%) 100
H&Q Holdings Inc. (100%) 100
Hambrecht & Quist Management Corporation (100%) 100
Hambrecht & Quist Limited (100%) 100
J.P. Morgan Chase National Corporate Services, Inc. (100%) 100
J.P. Morgan Chase Delaware CE Company (100%) 100
J.P. Morgan Chase Community Development Corporation (100%) 100
J.P. Morgan Chase Capital XIII (100%) 100
J.P. Morgan Chase Capital XII TR (100%) 100
J.P. Morgan Chase Capital XII (100%) 100
J.P. Morgan Chase Capital XI (100%) 100
J.P. Morgan Chase Capital X (100%) 100
J.P. Morgan Chase Capital IX (100%) 100
J.P. Morgan Chase Advertising Inc. (100%) 100
J.P. Morgan Capital Financing Limited (100%) 100
Robert Fleming Pension Trust Limited (100%) 100
<PAGE>
Robert Fleming Quest Limited (100%) 100
Chase Equities Limited (100%) 100
J.P. Morgan Secretaries (UK) Limited (100%) 100
Jardine Fleming Group Limited (100%) 100
J.P. Morgan Chase International Financing Limited (100%) 100
Jardine Fleming Limited (100%) 100
J.P. Morgan Capital Corporation (100%) 100
J.P. Morgan Capital emerging Markets Y Corporation (100%) 100
J.P. Morgan Capital Bahamas Limited (100%) 100
J.P. Morgan Capital, L.P. (99.5%) 99.5
J.P. Morgan Capital Asia Investments Ltd. (100%) 100
JPMCC Luxembourg Corporation (100%) 100
J.P. Morgan Capital Luxembourg S.a.r.i. (100%) 100
JPMCC Belgium S.P.R.L. (100%) 100
JPMCC Belgium (SCA) (100%) 100
J.P. Morgan Funds Bahamas Ltd. (100%) 100
J.P. Morgan Investment Corporation (100%) 100
J.P. Morgan Investment Partners, L.P. (100%) 0
Corsair II, L.L.C. (100%) 100
Corsair II Offshore, L.L.C. (100%) 100
J.P. Morgan Corsair II Offshore Capital Partners, L.P. (100%) 100
J.P. Morgan Corsair II Capital Partners, L.P. (100%) 100
J.P. Morgan Capital Management Company, L.L.C. (100%) 100
Sixty Wall Street Management Company, L.P. (99.9%) 99.9
Sixty Wall Street Management Company, L.L.C. (100%) 100
J.P. Morgan Latin America Management Company, LLC (100%) 100
J.P. Morgan Partnership Capital Corporation (100%) 100
J.P. Morgan Technology Partnership Corporation (100%) 100
J.P. Morgan Real Estate Partnership Corporation (100%) 100
J.P. Morgan Partnership Investment Corporation (100%) 100
J.P. Morgan Whitney Partnership Corporation (100%) 100
Peabody Real Estate Partnership Corporation (100%) 100
The Peabody Fund Consultants, Inc. (100%) 100
J.P. Morgan Partners Australia Pty Limited (100%) 100
J.P. Morgan Funding Corp. (100%) 100
J.P. Morgan Fleming Life Limited (100%) 100
J.P. Morgan Fleming Investment GmBH (100%) 100
J.P. Morgan Fleming Asset Management Holdings Inc. (100%) 100
Robert Fleming Holdings Limited (96%) 96
Robert Fleming Holdings Inc. (100%) 100
Robert Fleming Argentina SA (100%) 100
Robert Fleming (Overseas) Number 3 Limited (100%) 100
Chase Fleming Luxembourg Holding S.A. (99%) 99
Fleming Flagship Advisory Company Sari (99.99%) 99.99
Robert Fleming (Luxembourg) Sari (100%) 100
Robert Fleming (Bahrain) WLL (100%) 100
Flemings Nederland B.V. (100%) 100
Flemings European Asset Management Distribution Company Sari (100%) 100
J.P. Morgan Fleming Asset Management Services S.a.r.i. (100%) 100
J.P. Morgan Fleming Societa di Intermediazione Mobiliare S.p.A. (100%) 100
J.P. Morgan Fleming Fund Marketing Limited (100%) 100
J.P. Morgan Fleming Asset Management (France) SAS (100%) 100
J.P. Morgan Fleming Selection Sas (100%) 100
<PAGE>
J.P. Morgan Fleming Investissement SAS (100%) 100
J.P. Morgan Fleming Asset Management (Europe) S.a.r.i. (100%) 100
Fleming Offshore Managers Limited (In MVL 17 May 2002) (100%) 100
Equimark (Jersey) Limited (100%) 100
Flemings (CIS) Limited (100%) 100
J.P. Morgan Fleming Asset Management (Schweiz) AG (100%) 100
J.P. Morgan Management (Jersey) Limited (100%) 100
Jardine Fleming Canada Holdings Limited (100%) 100
Fledgeling Nominees International Limited (100%) 100
Robert Fleming Management (Bermuda) Limited (100%) 100
Robert Fleming Asset Management Limited (100%) 100
Fleming Life Limited (100%) 100
Fleming Investment Trust Management Limited (In Liq) (100%) 100
J.P. Morgan Fleming Services Limited (100%) 100
J.P. Morgan Fleming Fund Management Limited (100%) 100
J.P. Morgan Fleming Asset Management (UK) Limited (100%) 100
Robert Fleming (Bahamas) Limited (100%) 100
Robert Fleming Investment Trust Limited (100%) 100
Fleming Investment Holdings (Jersey) Limited (100%) 100
Robert Fleming Investment Management (Jersey) Limited (100%) 100
Stone Investments (Number 5) Limited (100%) 100
J.P. Morgan Fleming Asset Management International Limited (100%) 100
J.P. Morgan Fleming Asset Management (Asia) Inc. (100%) 100
J.P. Morgan Fleming Taiwan Limited (100%) 100
J.P. Morgan Fleming Asset Management Holdings (Asia) Limited (100%) 100
J.P. Morgan Fleming Asset Management (Japan) Limited (100%) 100
JF Capital Partners Holdings Limited (100%) 100
JF Asset Management Limited (100%) 100
JF Asset Management International Limited (100%) 100
JF Private Investment Limited (100%) 100
JF Mauritius Investment Limited (100%) 100
JF Management Inc. (100%) 100
Jardine Fleming Management G P Limited (100%) 100
Jardine Fleming Management (B.V.I.) Limited (100%) 100
J.P. Morgan Strategic UK Limited (100%) 100
J.P. Morgan Financial Investments Limited (100%) 100
J.P. Morgan Equity Holdings, Inc. (100%) 100
Texas Commerce Operating Services, Inc. (100%) 100
J.P. Morgan Securities of Texas, Inc. (100%) 100
Chase Manhattan Bank USA, National Association (100%) 100
Chase BankCard Services, Inc. (100%) 100
Card Acquisition Funding LLC (100%) 100
Chase Data Services Corporation (100%) 100
Chase Manhattan Insurance Agency, Inc. (100%) 100
Chase Insurance Agency, Inc. (100%) 100
J.P. Morgan Investor Services Co. (100%) 100
Chase International Insurance Holding Company, Inc. (100%) 100
Chase International Insurance Brokerage Limited (100%) 100
Chase Re Limited (100%) 100
J.P. Morgan Trust Company, National Association (100%) 100
J.P. Morgan Trust Company of Delaware (100%) 100
J.P. Morgan Equities Inc. (100%) 100
J.P. Morgan Corporate Business, Inc. (100%) 100
<PAGE>
J.P. Morgan Private Investments International Inc. (100%) 100
J.P. Morgan Private Investments Inc. (100%) 100
J.P. Morgan Partners Global Private Investors II, L.P. (100%) 100
J.P. Morgan Partners Global Private Investors I, L.P. (100%) 100
J.P. Morgan Municipal Finance Inc. (100%) 100
J.P. Morgan Leasefunding Corp. (100%) 100
J.P. Morgan (1992-I) Foreign Sales Corporation (100%) 100
J.P. Morgan Investment Management Inc. (100%) 100
J.P. Morgan Investment Management Limited (100%) 100
J.P. Morgan Chase Realty Corporation (100%) 100
J.P. Morgan International Holdings Corp. (100%) 100
Morgan Trust Company of the Cayman Islands Ltd. (100%) 100
J.P. Morgan Funds Management Inc. (100%) 100
Chase Manhattan Trust Corporation (Nominees) Limited (100%) 100
Chase Manhattan FT Limited (100%) 100
J.P. Morgan Futures Inc. (100%) 100
J.P. Morgan Futures Hong Kong Limited (100%) 100
LabMorgan International Ltd. (100%) 100
LabMorgan Corporation (100%) 100
LabMorgan Investment Corporation (100%) 100
JPMorgan Chase Bank (100%) 100
Chase Manhattan Mortgage Corporation (100%) 100
Chase Ventures Holdings, Inc. (100%) 100
Manufacturers Hanover Leasing International Corp. (100%) 100
Chase Leasing of Texas, Inc. (100%) 100
Texas Commerce Leasing Company (100%) 100
The Chase Company, Inc. (100%) 100
Chase Bank Limited (100%) 100
Chase Bank International (100%) 100
Chase Automated Clearing House, Inc. (90%) 90
Chase Access Services Corporation (100%) 100
Chase Access Fund Management Company, LLC (100%) 100
Chase Fixed Income Advisors, Inc. (100%) 100
Chase Education Holdings, Inc. (100%) 100
Chase Community Development Corporation (100%) 100
Chase Commercial Mortgage Funding Corporation (100%) 100
Chase Commercial Mortgage Banking Corp. (100%) 100
Chase Manhattan Automotive Finance Corporation (100%) 100
Chase Auto Leasing Corporation (100%) 100
Chase Manhattan Acceptance Corporation (100%) 100
Chemical Mortgage Acceptance Corporation (100%) 100
Chemical Acceptance Corporation (100%) 100
Chase MAC Securities Corp. (100%) 100
Chase Investment Services Corp. (100%) 100
Chase Image Archive Services, Inc. (100%) 100
Chase Mortgage Holdings, Inc. (100%) 100
Chase Mortgage Company (100%) 100
Chem Network Processing Services, Inc. (100%) 100
Colson Services Corp. (100%) 100
J.P. Morgan Chase Custody Services, Inc. (100%) 100
J.P. Morgan Chase Commercial Mortgage Securities Corp. (100%) 100
J.P. Morgan Fleming Asset Management (USA) Inc. (100%) 100
J.P. Morgan International Inc. (100%) 100
<PAGE>
Banco J.P. Morgan S.A. (99.14%) 99.14
Chase Manhattan Corporate Services Ltd. (100%) 100
Chase Manhattan Overseas Finance Corporation (100%) 100
J.P. Morgan Bank International (98%) 98
J.P. Morgan Bank Canada (100%) 100
Chase Securities Canada, Inc. (100%) 100
J.P. Morgan Chase International Holdings Limited (100%) 100
J.P. Morgan Limited (100%) 100
J.P. Morgan Services Ltd. (100%) 100
Jardine Fleming International Holdings Limited (100%) 100
Jardine Fleming International Securities Ltd. (100%) 100
Jardine Fleming International Futures Limited (100%) 100
Jardine Fleming Securities Services Limited (100%) 100
J.P.Morgan Trust Company (Jersey) Limited (100%) 100
Chase Corporation Corporate Services Limited (100%) 100
Morgan Guaranty International Finance Corporation (100%) 100
Morgan Guaranty International Bank (100%) 100
J.P. Morgan Leasing Inc. (100%) 100
J.P. Morgan Mortgage Capital Inc. (100%) 100
J.P. Morgan Mortgage Acquisition Corp. (100%) 100
J.P. Morgan Markets LLP (100%) 100
J.P. Morgan Partners (23A SBIC Manager), Inc. (100%) 100
JPMC 60 Wall Street LLC (100%) 100
JPMP Management Corp. (100%) 100
JPMP Capital Corp. (100%) 100
J.P. Morgan Chase Foundation Associates, LLC (100%) 100
J.P. Morgan Partners, LLC (100%) 100
J.P. Morgan Securities Inc. (100%) 100
Manufacturers Hanover Wheelease, Inc. (100%) 100
Morgan Futures Corporation (100%) 100
Chemical Overseas Holdings, Inc. (100%) 100
<PAGE>
SUPPORT SERVICES ADDENDUM ("ADDENDUM")
TO
MASTER PURCHASE LICENSE AND MAINTENANCE SERVICES
AGREEMENT ("AGREEMENT")
BETWEEN
JPMORGAN CHASE BANK ("JPMC")
AND
EGENERA, INC. ("EGENERA")
Egenera is in the business of providing Maintenance Services for the
Egenera Products. JPMC may from time to time wish to acquire Maintenance
Services for Egenera Products purchased by JPMC pursuant to the Agreement
in accordance with the service offerings specified in this Addendum. This
Addendum also specifies certain terms and conditions that shall govern the
provision of Maintenance Services.
SECTION 1 - DEFINITIONS
"Maintenance Services" means Egenera's Standard Warranty Service, Annual
Post Warranty Service, Software Subscription Service and Enterprise
Service that Egenera makes available for Egenera Products as described in
Attachments A-1 through A-4 hereto.
"Source Code" means the source code form of the Egenera Software.
"Egenera Software" means the Egenera Software which is licensed to JPMC
pursuant to the Agreement together with all error-corrections, Maintenance
Updates, Software Upgrades, new releases or other modifications to Egenera
Software generally made available by Egenera to its customers as a
component of Maintenance Services.
"Maintenance Updates" consists of generally released bug fixes, patches,
maintenance releases, updates and associated Documentation relating to
Egenera Software that Egenera distributes and license to those customers
to whom it is providing Maintenance Services (i.e., Standard Warranty
Service, Annual Post Warranty Service, Software Subscription Service, and
Enterprise Service). Maintenance Updates do not include patches, fixes,
updates or upgrades to Third Party Software. Each new Maintenance Update
is identified by the first numeral to the right of the decimal point, with
the newer Maintenance Update having the larger numeral (e.g., Release 2.5
is newer than 2.1).
"Software Upgrades" consists of "Major Releases," which are new generally
available releases of the Egenera Software that are intended to provide
significant functionality enhancements as well as incorporate cumulative
bug fixes and patches since the most
<PAGE>
recent release of the Egenera Software, and "Minor Releases," which are
new releases of the Egenera Software that are intended to provide
incremental functionality enhancements as well as incorporate cumulative
bug fixes and patches since the most recent release of the Egenera
Software.
"Severity Level 1" means a service event where there has been a total
Egenera System failure (e.g., Egenera System crashes or locks up.)
"Severity Level 2" means a service event where a major function of the
Egenera Systems that is critical and is not working.
"Severity Level 3" means a service event where there is a "bug" within the
functional component of the Egenera System, but there is a workaround
solution.
"Severity Level 4" means a service event were there is a minor error in
the Egenera System or the Egenera System's improper operation is causing
inconvenience to JPMC (e.g., documentation errors).
"Severity Level 5" means an Egenera Product enhancement request by the
JPMC.
"Egenera System" means the combination of Egenera Products and Third Party
Products purchased and/or licensed from Egenera interacting properly as a
system.
"Egenera Processing Blade (pBlade((TM)))" means that part of the
BladeFrame that contains only processors and memory, and acts as a server
for JPMC's application. One (1) BladeFrame can accommodate up to
twenty-four (24) Egenera Processing Blades.
"Warranty Period" means to the duration (one (1) year) of the warranty
described in the Agreement for the Egenera Products.
SECTION 2 - MAINTENANCE SERVICES
PERIOD OF MAINTENANCE SERVICES AVAILABILITY
Subject to Section 15 of this Agreement, Egenera shall make Maintenance
Services available to JPMC pursuant to this Addendum with respect to each
Egenera Product purchased and/or licensed by JPMC for a period of at least
five (5) years following the date of acceptance of the Egenera Product
pursuant to the Agreement.
PROVISION OF MAINTENANCE SERVICES
The Maintenance Services purchased by JPMC for the Egenera Products
installed in the United States are described in the Maintenance Services
data sheet, attached hereto as Attachments A-1 through A-4 and depending
on the level of the Maintenance Service purchased by JPMC, shall include
but not be limited to:
Twenty-four (24) hours a day, seven (7) days a week Maintenance
Services consisting of:
<PAGE>
(a) toll free telephone numbers from within the United States, at
which JPMC may contact Egenera personnel qualified to maintain
Egenera Products and submit requests for Maintenance Services
or other assistance; and
(b) severity levels and maximum response times for Maintenance
Services.
MAINTENANCE SERVICES RENEWAL PROCEDURE
For so long as Egenera is required to make Maintenance Services available
to JPMC, JPMC shall have the option to renew any Maintenance Services
provided hereunder or included with any Egenera Product purchased or
licensed under the Agreement by issuing an Order to Egenera. Each renewal
shall be for the term of the particular Maintenance Service purchased,
effective upon expiration of the term of Maintenance Services previously
in effect. Egenera shall use its reasonable commercial efforts to deliver
to JPMC a written notice, not less than thirty (30) nor more than one
hundred twenty (120) days prior to each such expiration (including any
expiration at the end of the Warranty Period), stating the date of
commencement of the renewal term of Maintenance Services and a quote for
the applicable renewal fee. In the event Egenera does not so notify JPMC,
JPMC may nevertheless elect to renew Maintenance Services. Otherwise,
Maintenance Services shall be automatically renewed on a month-to-month
basis until terminated by JPMC upon thirty (30) days written notice to
Egenera at one twelfth the fee previously in effect unless Egenera
provides JPMC with written notice of any increase in the renewal fee,
after which Maintenance Services provided by Egenera on a month-to-month
basis shall be provided at that increased fee.
MAINTENANCE SERVICES RENEWAL FEE
The fee for Maintenance Services renewal term with respect to each Egenera
Product shall be as quoted by Egenera to JPMC and will reflect the
discounts then in effect between the parties (if any). Egenera reserves
the right to increase the fee for Maintenance Services effective upon the
commencement of a renewal term provided (a) [**] prior written notice of
the increase has been given to JPMC; and (b) the fee for Maintenance
Services will not be increased by more than the amount determined by
multiplying the current fee for Maintenance Services by a percentage which
is equal to the lowest of (i) the percentage of the average increase in
the then current Consumer Price Index for Urban Wage Earners and Clerical
Workers, All Cities Average, 1982-1982=100 as published by the Bureau of
labor Statistics of the Department of Labor for the previous twelve (12)
months annualized; (ii) five percent (5%); or (iii) the percentage by
which Egenera increases the fee for Maintenance Services to its customers
generally. The above limitations apply only to Maintenance Services
renewed during the period the Agreement is in effect.
SECTION 3 - EGENERA PERSONNEL
Egenera represents and warrants that Egenera's Personnel and the personnel
of its agents, representatives or subcontractors ("Egenera Personnel")
shall be adequately
<PAGE>
experienced and trained by Egenera or subcontractor before any of
Egenera's Personnel are assigned to perform Maintenance Services. Egenera
shall be solely and entirely responsible for Egenera's acts (and those of
Egenera's Personnel) even if Egenera's Personnel are not acting within the
scope of employment.
Egenera acknowledges that JPMC, as a participant in a highly regulated
industry, has certain requirements and that such requirements may apply to
Egenera's Personnel ("JPMC Requirements"). The JPMC Requirements may be
amended from time to time by JPMC and JPMC shall give Egenera notice of
any such amendments.
Egenera agrees to comply with all then existing JPMC Requirements
concerning any of Egenera's Personnel (where permitted by applicable laws
and regulations). Any of Egenera's Personnel who do not successfully meet
or comply with any of the then current JPMC Requirements shall not be
assigned, or if applicable, shall not continue in an assignment, to
perform Maintenance Services; however, such failure to meet or comply with
any of the JPMC Requirements shall not affect such individual's
eligibility for employment with Egenera.
The JPMC Requirements currently mandate and Egenera represents and
warrants that each member of Egenera's Personnel who is placed in any
assignment will:
(a) on or before the first day of the assignment (or if more than
six (6) months have elapsed since completion of a prior
assignment, on or before the first day of the next
assignment):
(i) accurately complete, sign and submit to Egenera a
Pre-JPMorgan Chase Assignment Statement (a current copy
of which is attached hereto as Attachment A 5);
(ii) sign and submit to Egenera, JPMC's then standard form of
Confidentiality and Non-Disclosure Agreement (a current
copy of which is attached hereto as Attachment A-6);
(iii) submit to fingerprinting in accordance with the then
Statement of JPMorgan Chase Domestic Fingerprinting
Policy for Contingent Worker Providers/Servicing
Agencies as it applies to Egenera and Egenera's
Personnel (a current copy of which is attached hereto as
Attachment A7); and
(iv) submit to drug testing, in accordance with the then
Statement of JP Morgan Chase Domestic Drug Testing
Policy for Contingent Worker Providers/Servicing
Agencies as it applies to Egenera and Egenera's
Personnel (a current copy of which is attached hereto as
Attachment A-8).
(b) promptly submit to a background check upon JPMC's request.
<PAGE>
JPMC Requirements currently mandate and Egenera represents and warrants
that (a) Egenera shall retain original signed copies of each document
referenced in subsections (a)(i) and (a)(ii) above with respect to each
member of Egenera's Personnel, and (b) upon JPMCs request, Egenera shall
promptly produce and deliver to JPMC original signed copies of each
document referenced in subsections (a)(i) and (a)(ii) above with respect
to each member of Egenera's Personnel for whom JPMC requests such
documents.
Egenera shall advise Egenera's Personnel of their obligations set forth in
this Section 3 and shall be responsible for Egenera's Personnel's
knowledge, understanding, agreement and compliance with Egenera's
obligations, to the extent applicable.
JPMC shall have the right to reject, remove or replace any of Egenera's
Personnel for any reason in JPMC's reasonable sole discretion; but it is
understood that such right shall not affect such individual's eligibility
for employment with Egenera or any subcontractor.
SECTION 4 - ESCROW
JPMC shall be entitled to receive a fully documented copy of the current
source code of the Egenera Software and subject to the software license
terms of the Agreement, may use same for the sole purpose of maintaining
its Egenera Software if (a) Egenera ceases doing business and the same
Maintenance Services as set forth herein are not otherwise available at
fees consistent with those which would have been payable to Egenera
hereunder, (b) Egenera becomes insolvent or a party to any bankruptcy or
receivership proceedings or makes an assignment for the benefit of
creditors; or (c) if any other event or circumstance occurs which
demonstrates with reasonable certainty the inability or unwillingness of
Egenera to fulfill any of its Maintenance Services obligations to JPMC
Egenera shaft place in escrow with an escrow agent reasonably acceptable
to JPMC, a fully documented copy of the' source code of the Egenera
Software and keep said copy updated. The agreement for such escrow
arrangement shall provide for independent verification of deposits and
release to JPMC upon the occurrence of (a), (b) or (c) above.
SECTION 5 - MAINTENANCE SERVICES TERMS AND CONDITIONS
FEES FOR MAINTENANCE SERVICES
The Fees for Maintenance Services payable by JPMC under this Addendum are
inclusive of all labor, replacement parts and replacement hardware.
NEW EGENERA SOFTWARE
Should Egenera, at any time, make available a new software product ("New
Egenera Software") which is a substitution for any Egenera Software
licensed to JPMC under the Agreement which has functions that compete with
and/or duplicate the functions of such Egenera Software and (a) Software
Upgrades for such Egenera Software has been
<PAGE>
discontinued in accordance with the terms of the Agreement; or (b) Egenera
has announced that Software Upgrades for such Egenera Software will be
discontinued in accordance with the terms of this Agreement, the New
Egenera Software wait be furnished to JPMC under the same license and
Maintenance Services terms as. such Egenera Software without the payment
of any fees or charges by JPMC.
EGENERA PROCESSING BLADE SOFTWARE UPGRADES
Egenera will provide Software Upgrades associated with Egenera Processing
Blades at no cost to JPMC during the Warranty Period for the Egenera
Processing Blades and for a period of three (3) years from the expiration
of the Warranty Period even though JPMC may not have purchased Maintenance
Services for the Egenera Processing Blades.
ENGINEERING CHANGES
As part of Maintenance Services furnished by Egenera for the Egenera
Hardware, Egenera will install in the Egenera Hardware, without additional
charge, all appropriate engineering changes determined to be necessary by
Egenera. Egenera agrees that such engineering changes will not increase
the fees for Maintenance Services payable by JPMC hereunder.
REPLACEMENT PARTS AND HARDWARE
Only new parts and hardware will be used by Egenera in performing
Maintenance Services. However, such parts may contain remanufactured
components that will operate as new.
SUBCONTRACTING
Egenera agrees that the Maintenance Services to be performed under this
Addendum will be performed by the employees of Egenera. Egenera will not
subcontract any part of its Maintenance Services obligations hereunder
without the prior written consent of JPMC which consent shall not be
unreasonably withheld or delayed. In the event subcontracting of
Maintenance Services have been authorized, Egenera will be solely
responsible for all work performed by the subcontractor(s).
Notwithstanding the above, JPMC acknowledges that Products installed
outside the United States may have to be serviced by Egenera
subcontractors who will be identified by Egenera and for whom JPMC's
consent is hereby given.
JPMC SYSTEMS
Subject to Section 15 of the Agreement, in the course of furnishing
Maintenance Services, Egenera shall not access, and shall not permit its
employees or agents and subcontractors within its control to access,
JPMC's systems without JPMC's express written authorization. Such written
authorization may subsequently be revoked by JPMC at any time in its sole
discretion. Further, any such actual or attempted access
<PAGE>
shall be consistent with, and in no case exceed the scope of, any such
authorization given by JPMC. All JPMC authorization Egenera connectivity
or attempted connectivity to JPMC's computing systems shall be only
through JPMC's security gateways and/or JPMC's firewalls, and in
conformity with JPMC's internal control practices and policies including
without limitation, all security, network and data access and audit
provisions made known or known to Egenera.
TERMINATION OF MAINTENANCE SERVICES
In the event Egenera merges into or consolidates with another entity, or
sells all or substantially all of its assets to another entity or is
acquired by another entity, JPMC may terminate Maintenance Services upon
ninety (90) days written notice to Egenera, whereupon Egenera will
promptly refund to JPMC the balance of any fees for Maintenance Services
that were paid by JPMC in advance.
JPMC may at any time, terminate Maintenance Services coverage for
individual items of Egenera Hardware and/or Egenera Software upon thirty
(30) days prior written notice to Egenera. In such event, Egenera will
promptly refund to JPMC the balance of any fees for Maintenance Services
that were paid by JPMC in advance for such Egenera Hardware and/or Egenera
Software.
ON SITE REPLACEMENT PARTS AND HARDWARE
If at any time during the term of Maintenance Services, Egenera will
maintain a replacement part and/or replacement hardware inventory at a
JPMC's site, the details of such arrangement will be mutually agreed to by
the parties in writing.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be effective
simultaneously with the Agreement.
JPMORGAN CHASE BANK EGENERA, INC.
By /s/ Bob Rosetta By /s/Thomas Sheehan
---------------------------- ----------------------------
Name Bob Rosetta Name Thomas Sheehan
Title VP Title Chief Financial Officer
Date 12/12/02 Date 12/18/02
<PAGE>
ATTACHMENT A-1
STANDARD WARRANTY SERVICE
SERVICE ACTIVITY SERVICE LEVEL RESPONSE
Part Replacement Next Business. Day
Initial response from receipt of customer contact
via email/call home
Received During Normal Business Hours One hour by telephone call or on site
Received outside of normal business hours One hour from start of next normal business
hours of next business day
24 x 7 x 365 Telephone support from receipt of
customer contact
Received during normal business hours One hour by telephone call or on site
Received outside of normal business hours Six hours by telephone call or on site
Installation of Maintenance Updates Mutually agreed with customer
Problem Resolution Process Continuous effort during normal business hours
Severity 1 and 2
Severity 3 and 4 Continuous effort during normal business hours
as required by Egenera
Severity 5 Periodic updating of customer as requested by
Egenera
<PAGE>
ATTACHMENT A-2
ANNUAL POST WARRANTY SUPPORT SERVICES
Current annual fee: [**]% of Egenera System's list price
SERVICE ACTIVITY SERVICE LEVEL RESPONSE
Part Replacement Next Business Day
Initial response from receipt of customer
contact via email/call home
Received During Normal Business Hours One hour by telephone call or on site
Received outside of normal business One hour from start of next normal business
hours hours of next business day
24 x 7 x 365 Telephone support from receipt of
customer contact
Received during normal business hours One hour by telephone call or on site
Received outside of normal - business Six hours by telephone call or on site
hours
Installation Maintenance Update Mutually agreed with customer
Problem Resolution Process Continuous effort during normal business hours
Severity 1 and 2
Severity 3 and 4 Continuous effort during normal business hours
as required by Egenera
Severity 5 Periodic updating of customer as requested by
Egenera
<PAGE>
ATTACHMENT A-3
ENTERPRISE SERVICE
Current Annual fee: [**]% of Egenera System's list price if this Maintenance
Service commences at start of Warranty Period; [**]% per year thereafter.
Current Two-Year Fee: [**]% of Egenera System list price if this Maintenance
Service commences at start of Warranty Period.
Service Activity Service Level Response
24 x 7 x 365 On Site Four Hours from Initial Customer Contact
Part Replacement Four Hours from Initial Customer Contact
Initial response from receipt of customer One hour by telephone call or on site
contact via email/call home
24 x 7x 365 Telephone support from receipt of One hour by telephone or on site
customer call
Training: "Egenera BladeFrame System Schedule within five business days from
Administration" (See Appendix A) customer or Egenera request
Installation of Software Upgrades Five business days from customer request
Problem Resolution Process Continuous effort 24 x 7 x 365 until resolved
Severity 1 and 2
Severity 3 and 4 Continuous effort during normal business
hours as required by Egenera
Severity 5 Periodic updating of customer as requested
by Egenera
Software Subscription Service See Attachment A-4
Quarterly review with customer (See Appendix B Within 10 business days of quarter end
and B-1)
<PAGE>
ATTACHMENT A-4
SOFTWARE SUBSCRIPTION SERVICE
Current Annual Service Fee: $[**] per Egenera System
Service Activity Service Level. Response
24 x 7 x 365 Days Support
Calls received during business hours One hour by telephone
Call received outside of normal business Four hours by telephone
hours
Installation of Maintenance Updates
To remedy Severity 1 and 2 Mutually agreed with customer
To remedy Severity 3 and 4 Five business days from request
Installation of Software Upgrades Five business days from customer request
<PAGE>
APPENDIX A
Egenera BladeFrame System Administration Course
Course Description
The Egenera BladeFrame System Administration course is designed to provide
students with the core skills needed to perform basic BladeFrame system
administrative tasks. These tasks include:
Administration of Processing Area Networks (PANs)
The design and provisioning of Logical Processing Area Networks (LPANs)
Configuration of LPAN resources as pServers and vNets
Configuration of applications and services hosted by LPANs for high
availability and load balancing.
The course is conducted over a 2 day period with the time divided between
lecture and lab. Approximately 40% of the course is lecture based and 60% is
spent in hands on configuration labs.
The course consists of the following lessons:
Introduction to Egenera BladeFrame System
Designing and Creating Logical Processing Area Networks
Configuring Logical Processing Area Networks
Configuring Hardware for High Availability
Installing and Configuring Applications For High Availability
Configuring Load-balancing Clusters
Below is a table outlining what is covered in each section and on what day it is
covered:
Day Lesson Lecture Labs
--- ------ ------- ----
1 1 Basic review of BladeFrame foundations 1. Naming the BladeFrame
and concept leading to a better 2. Configuring Ethernet Ports on cBlades
understanding of the Egenera 3. Configuring redundant Ethernet
paradigm. Physical and Logical connections (rEths)
components are discussed as well as 4. Creating virtual switches
what job functions are performed at
different administrative levels
<PAGE>
1 2 PAN Administration functions are 1. Examine PAN Resources
reviewed. LPAN design and creation 2. Design and LPAN
are discussed as well as users and 3. Create LPAN
assigning users to specific roles 4. Assigning LPAN Administrators
within the PAN and or LPAN>
1 3 Students now are acting as LPAN 1. Creating pServers
Administrators. In this role students 2. Assigning Disk to pServers
create a virtual network consisting of 3. Creating vEths
3 servers using those resources 4. Define pServer Boot Options
assigned to their LPAN from the 5. Booting the LPAN
previous lesson.
1 4 Students' test hardware high 1. Configure Hardware Fall Over
availability by setting up a local 2. Testing Hardware Fall Over
fall over pool and falling one of 3. Removing Hardware Fall Over
their pServers over to it.
2 5 Students review the first 4 lessons as 1. Configuring Application Resources
the start of the day then begin the 2. Configuring Application Fall Over
process of creating application fall resources
over. Applications are created as are 3. Configuring the Monitoring Service
their resources (file systems, IP 4. Testing Applications
addresses, and disks). Applications 5. Removing Application Fall Over
then have fall over policies applied
and tested.
2 6 Students create load balance service 1. Creating Load Balance Service
with one of their pServer and set the 2. Creating Load Balanced Member Resources
other 2 pServers to become load 3. Testing Load Balance Service
balance members. Each load-balanced 4. Removing Load Balanced Service
member is setup as a web server and
load balancing is tested
PREREQUISITES
Students attending this course should have experience in the following areas:
Will have read BladeFrame Technical Overview -
<PAGE>
Have experience with the Linux Operating System, or other Unix based
operating system
Have basic understanding of Linux Network Administration issues
Recommended Pre-Course Reading
"In Search of Clusters" by Gregory Pfister. Prentice Hail
"Red Hat System Administration Unleashed" by Thomas Schenk et al. SAMS
"Taking Control of the Internet Data Center" (White Paper) www.egenera.com
"Guidelines for Effective E-Business Infrastructure Management" (White Paper)
www.egenera.com
"The Pros and Cons of Server Clustering in the ASP Environment" (White Paper)
www.egenera.com
INTENDED AUDIENCE
This course is intended for Egenera BladeFrame system administrators and anyone
who needs to understand Egenera BladeFrame configuration and administrative
tasks. This includes:
Processing Area Network (PAN) administrators
Logical Processing Area Network (LPAN) administrators.
BladeFrame Application Developers
All course and related training materials provided by Egenera will be conducted
in the English language.
<PAGE>
APPENDIX B
QUARTERLY REVIEW
Scheduled within ten business days of calendar quarter end
Conducted by Technical Support Engineer
Reviews of past quarters call history
Rating of past quarter service
Completed Quarterly Review Form (Appendix B-1)
<PAGE>
APPENDIX B-1
QUARTERLY REVIEW FORM
QUARTERLY REVIEW
Date held: _________________
Customer Name: _________________________________
Customer Location: _____________________________
Customer personnel in attendance:
Name Title
_________________________________ __________________________________
_________________________________ __________________________________
_________________________________ __________________________________
Number Blade Frames: ____________
Number PBlades: _________________
Y/N
[ ]
Past quarter service history reviewed:
Service Satisfaction:
DISSATISFIED SATISFIED VERY SATISFIED
1) Responding in a timely manner
2) Technical expertise of technical engineer
3) Ability to solve the problem
4) Courteous and professional
5) Overall service delivery.
Comments:
Customer Print Name: Customer Signature: Customer Title:
___________________________ ___________________ ___________________
<PAGE>
Service Provider Company Name:
________________________________________________
Print Technical Support Engineering Name:
________________________________________________
Signature Technical Support Engineer:
________________________________________________
Other Service Provider Personnel attending meeting:
NAME TITLE
--------------------------------- ----------------------------------
--------------------------------- ----------------------------------
--------------------------------- ----------------------------------
--------------------------------- ----------------------------------
--------------------------------- ----------------------------------
--------------------------------- ----------------------------------
<PAGE>
ATTACHMENT A-5
PRE-JPMORGAN CHASE ASSIGNMENT STATEMENT
5. I understand that I am an employee of ("Egenera") and that my provision of
services for JPMorgan Chase Bank does not alter that status. I understand
that I am not eligible for, or entitled to, any employment status with, or
employment benefits of, JPMorgan Chase Bank.
6. I understand that JPMorgan Chase Bank's policies prohibit any concurrent
employment or assignment which creates a conflict of interest or
interferes with my provision of services to JPMorgan Chase Bank. I hereby
confirm that I am not so employed or assigned. I also agree to promptly
advise Egenera and JPMorgan Chase Bank should i become concurrently
employed or assigned by a financial institution or by a company primarily
engaged in the issue, flotation, underwriting, public sale or distribution
of stocks, bonds or other similar securities (such as a broker/dealer)
while I provide services at JPMorgan Chase Bank, and I understand that
JPMorgan Chase Bank may permit such concurrent employment or assignment
without prejudice to subsequent objection to conduct which creates a
conflict or interference.
7. I further understand that while providing services at JPMorgan Chase Bank
I am obligated to conduct myself in accordance with any work rules in
effect and to abide by those principles of any applicable World Wide Rules
in effect, including but not limited to the obligation to report any
observed or suspected illegal activity to the Office of the Secretary of
JPMorgan Chase Bank, not to engage in insider trading based on information
I become aware of or by virtue of my provision of services at JPMorgan
Chase Bank, and not to accept gifts for my provision of services at
JPMorgan Chase Bank.
8. I understand that I am not to operate or drive any motorized vehicle or
operate any machinery (except office machinery) without Egenera's prior
written consent and that I am not authorized or empowered to render
professional opinions or to sign my name or the JPMorgan Chase Bank name
to any financial statement or tax return in connection with the
performance of services at JPMorgan Chase Bank or its affiliates.
9. Have you ever been assigned to or employed by JP. Morgan Chase & Co.,
JPMorgan Chase Bank or any of their direct or indirect subsidiaries,
affiliates or predecessors, including The Chase Manhattan Corporation, The
Chase Manhattan Bank, Chemical Bank, The Chase Manhattan Bank. NA,
Manufacturers Hanover Corporation, or Manufacturers Hanover Trust Company,
J.P. Morgan & Co. Incorporated or any of its direct or indirect
subsidiaries, affiliates or predecessors, including Morgan Guaranty Trust
Company of New York (collectively "JPMorganChase")?