[CONFIDENTIAL TREATMENT REQUESTED]
EXHIBIT 10.18
CUSTOM PRODUCT DEVELOPMENT AND PRODUCTION AGREEMENT
between
Fiberlane Communications, Inc. And ▇▇▇▇▇▇▇▇ Hallmark
1. AGREEMENT TO BUY AND SELL
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(a) SELLER and BUYER agree to sell and buy, respectively, Custom Products
and/or Services for the price and on the terms and conditions contained herein.
The manufacturer of the Custom Products will be LSI LOGIC ("MANUFACTURER").
(b) SELLER certifies that MANUFACTURER has agreed with SELLER to undertake
the obligations and responsibilities as set forth for MANUFACTURER in this
Agreement.
2. DEFINITIONS
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The below terms shall have the following meanings:
(a) "Custom Product". An integrated circuit manufactured, assembled or
otherwise fabricated or obtained by MANUFACTURER incorporating standard
characteristics defined by MANUFACTURER and the unique characteristics
of a "Pattern". Custom Products are either "Prototypes" or "Production Units" as
defined below.
(b) "Product Acceptance Specification". The written specifications which
BUYER and SELLER agree describe the functionality and physical characteristics
of the Custom Product which is developed pursuant to the Statement of Work in
Attachments A and C.
(c) "Prototype". The Custom Product fabricated pursuant to the "Statement
of Work" for the purpose of BUYER determining whether the Pattern meets the
Product Acceptance Specification.
(d) "Production Unit". A Custom Product other than a Prototype.
(e) "Pattern" The unique characteristics of a Custom Product developed
under this Agreement as provided by customer.
(f) "Design Technology". The design tools, systems and libraries of SELLER
or MANUFACTURER.
3. STATEMENT OF WORK
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SELLER, MANUFACTURER and BUYER will perform tasks as specified in the
Statement of Work. If BUYER and MANUFACTURER have entered into a separate
agreement related to this Agreement, then that agreement, if any, is set forth
in Attachment B.
4. PRICING
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(a) BUYER shall pay SELLER development charges for each Pattern as
specified in Attachment C ( quotation attached hereto).
(b) Price schedules, if any, for Production Units are listed in Attachment
C and are valid only for the time period specified. If no time period is
specified, then such prices are estimates only.
5. DESIGN CHANGES
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(a) Requests by BUYER for design changes after the parties have agreed
upon the Product Acceptance Specification shall be at BUYER's expense (except,
however for SELLER's or MANUFACTURER's error).
(b) If it is determined, during the course of executing the Statement of
Work, that a modification of the Statement of Work is required to meet BUYER's
requirement, including but not limited to a change in array size or type, SELLER
agrees to promptly inform BUYER of the effect of such modification on the
Statement of Work, the estimated schedule, and the price. Pending written
instruction from BUYER and written agreement by SELLER (which written agreement
shall not be unreasonable withheld), SELLER may suspend its performance
hereunder without liability.
6. CUSTOM PRODUCT ACCEPTANCE
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(a) BUYER may reject only those Prototypes that fail to meet the Product
Acceptance Specification. Notice of rejection must be in writing and include a
description of the failure and a return of the Prototype to SELLER. ▇▇▇▇▇'s
exclusive rights upon rejection of Prototypes are set forth in Section 7. Notice
and return of the Prototype to SELLER must be within four (4) weeks of delivery
of the Prototype to BUYER.
(b) BUYER may reject only those Production Units that fail to meet the
Product Acceptance Specification and any applicable MANUFACTURER's
specifications. BUYER shall be deemed to have accepted Production Units unless
notice of rejection is given within fifteen (15) calendar days of receipt.
(c) ▇▇▇▇▇ agrees to provide Seller with any other written acceptance or
rejection identified in the Statement of Work within 20 Calender days of
presentation.
7. SELLER'S LIMITED WARRANTY
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(a) SELLER warrants to BUYER that the prototype(s) will conform to the
Product Acceptance Specification. SELLER makes no other warranty, express or
implied, with respect to Prototypes. With respect to any such Prototype which
does not conform to the Product Acceptance Specification, SELLER's liability is
limited to replacing the non-conforming Prototype(s) or, at SELLER's election
and in the case where SELLER assisted in the design, refunding to BUYER the
development charges paid by BUYER hereunder. SELLER shall have no liability
hereunder unless BUYER complies with the requirements of Paragraph 6(a).
(b) SELLER warrants to BUYER that the Production Units will conform to the
Product Acceptance Specification. SELLER makes no other warranty, express or
implied, with respect to Production Units. SELLER will further transfer to BUYER
whatever transferable warranties SELLER receives from MANUFACTURER with respect
to Production Units. With respect to Production Units which do not meet the
Product Acceptance Specification, SELLER's liability is limited (at SELLER's
election) to (i) Refund of BUYER's purchase price for such Production Units
(without interest), (ii) Repair of such Production Units, or (iii) Replacement
of such Production Units; provided, however, that such Production Units must be
returned to SELLER, along with acceptable evidence of purchase, within twenty
(20) Calendar days from date of delivery, transportation charges prepaid.
8. OWNERSHIP RIGHTS
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(a) BUYER shall obtain title to a Pattern upon acceptance of the Prototype and
payment in full to SELLER, and SELLER shall thereupon furnish to BUYER the
netlist, test vectors and bonding diagrams which SELLER has furnished to
MANUFACTURER relating to the Pattern.
(b) Nothing contained in this Agreement shall grant SELLER or MANUFACTURER
any right to use for any third party any item first developed hereunder by BUYER
or for BUYER without BUYER's prior written approval.
(c) All Design Technology provided by SELLER hereunder, including all
circuit macros, shall remain the sole property of SELLER; provided, however,
that Seller shall deliver any and all netlists for Custom Products to Buyer
within fifteen (15) Calendar days of Buyer's written request.
(d) All tooling, processing technology, Design Technology, and proprietary
information of MANUFACTURER shall remain the sole property of MANUFACTURER.
9. PRODUCTION UNIT ORDERS
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(a) BUYER may place orders for Production Units upon its written acceptance of
the Prototype. Shipment of Production
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
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[CONFIDENTIAL TREATMENT REQUESTED]
Units will be scheduled as nearly as possible in accordance with BUYER's
requested delivery dates subject to MANUFACTURER's lead time at the time of
order acceptance. Shipment will be made against BUYER's specific purchase
orders.
(b) Each purchase order for Production Units is subject to acceptance in
writing by SELLER, which acceptance shall not be unreasonably withheld.
10. RESCHEDULING
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BUYER may reschedule delivery of Production Units, provided BUYER gives
SELLER written notice at least [*] Calendar days prior to the originally
scheduled shipment date and further provided SELLER accepts the new delivery
schedule. SELLER's acceptance shall not be unreasonably withheld.
11. TERMINATION
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(a) This Agreement may be terminated as follows:
(i) CONVENIENCE: BUYER may at any time prior to accepting the
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Prototype elect to terminate this Agreement, or thereafter cancel any Production
Units ordered hereunder, for its convenience. Such election shall be in writing
and sent to SELLER as provided herein.
(ii) NON-FEASIBILITY: This Agreement shall automatically terminate
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if SELLER and BUYER are unable to complete a Product Acceptance Specification
acceptable to both parties.
(iii) CAUSE: This Agreement may be terminated and/or any orders for
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Production Units may be cancelled immediately for cause by either party in the
event the other party fails to perform any of its material obligations under
this Agreement so as to be in default hereunder and fails to cure such default
within thirty (30) Calendar days after written notice thereof, or if such
default cannot reasonably be cured within thirty (30) Calendar days then the
other party fails to commence such cure within thirty (30) Calender days after
written notice and fails to diligently pursue such cure to completion.
(b) In the event of termination, the following sums shall become due and
payable:
(i) PROTOTYPE PHASE: If BUYER terminates this Agreement for CAUSE
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prior to BUYER accepting the Prototype, then SELLER shall refund all sums paid
by BUYER to SELLER. If this Agreement is terminated for any other reason prior
to accepting the Prototypes, then BUYER shall pay SELLER all charges due at the
time of termination together with accrued time, material and equipment charges,
if any. Charges associated with a billable event (applicable to both NRE and
Engineering Development Charges) shall be due if the work associated with any
phase following the previous billable event has been started.
(ii) PRODUCTION UNIT PHASE: If BUYER cancels any order for
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Production Units for CAUSE then BUYER may so cancel without liability therefor.
If any order for Production Units is cancelled for any other reason, BUYER
agrees to pay SELLER the full purchase price for such Production Units scheduled
for delivery within [*] Calendar days after written notice of cancellation or
other period as identified in Attachment C.
12. PATENT INDEMNITY
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(a) Protection provided by MANUFACTURER to BUYER for patent and/or
copyright infringement is set forth in Attachment D.
(b) MANUFACTURER's acceptance of orders for Custom Products is subject to
BUYER's execution of a separate patent/copyright infringement provision, which
is set forth in Attachment D.
(c) SELLER will defend any suit or proceeding brought against BUYER based
on a claim that a portion of the Pattern designed and developed by SELLER of a
Custom Product constitutes an infringement of a United States patent, copyright,
trademark, trade secrets or other property right of a third party. If notified
promptly in writing and given full and complete authority, information and
assistance for the defense of same, SELLER will pay damages and costs awarded
against BUYER in an amount that shall not exceed the development charges paid by
BUYER to SELLER hereunder with respect to the alleged infringing Pattern. In
providing such defense, or in the event that such Pattern is held to constitute
infringement and the sale or use of the Custom Product containing such Pattern
is enjoying, SELLER shall, in its sole discretion, either procure for Buyer the
right to continue selling and using the Custom Product containing such Pattern,
or modify it so it becomes noninfringing, without materially altering its
conformance with the product acceptance specification provided herein.
Notwithstanding the aforesaid, SELLER (i) shall not be responsible for any
damages, costs or expenses resulting from any compromise made without its
written consent, and (ii) shall have no liability to BUYER for any alleged
infringing Custom Product which was procured by BUYER from any third party
(including direct procurement from MANUFACTURER). Seller will not settle any
claims that do not provide for complete release of Buyer.
(d) Except the extent specified in Subsections (a) and (c) above, BUYER
agrees to defend any suit or proceeding brought against SELLER based on a claim
that any Custom Product developed under this Agreement, or the combination of
any Custom Product developed hereunder with any other product, constitutes the
infringement of a patent, copyright, trade secret or other property right of a
third party. If notified promptly in writing and given full and complete
authority, information and assistance for the defense of same BUYER shall pay
all costs and damages awarded against SELLER in an amount which shall not exceed
the sums paid or to be paid by BUYER to SELLER.
13. WARRANTY EXCLUSION
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EXCEPT AS EXPRESSLY SET FORTH BY THIS AGREEMENT OR ANY ATTACHMENT HERETO,
NEITHER SELLER NOR MANUFACTURER MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO (i) PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT, AND/OR
(ii) FITNESS FOR PURPOSE OR FOR PARTICULAR USE OR MERCHANTABILITY OF ANY CUSTOM
PRODUCT, PROTOTYPE, PRODUCTION UNIT, PATTERN OR SOFTWARE ACQUIRED OR USED BY
BUYER PURSUANT TO THIS AGREEMENT. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE
HEREBY EXCLUDED.
14. LIMITATION OF LIABILITIES
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ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT NOTWITHSTANDING,
NEITHER SELLER, BUYER, NOR MANUFACTURER SHALL BE ENTITLED TO OR BE LIABLE FOR,
INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING,
WITHOUT BEING LIMITED TO, LOSS OF PROFIT, PROMOTIONAL, OR MANUFACTURING
EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF BUSINESS, BUYER'S RECOVERY
FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE CUSTOM
PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT,
WARRANTY, OR OTHERWISE.
15. DEVELOPMENT SOFTWARE
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If Software used in the development of a Pattern is subject to a license,
such license shall be executed by BUYER and a copy thereof shall be attached to
this Agreement as Attachment E. The license contains the sole rights and
remedies of BUYER and neither SELLER nor MANUFACTURER shall have any liability
to BUYER for such software except as expressly set forth therein.
16. USE OF CUSTOM PRODUCTS IN LIFE SUPPORT APPLICATIONS
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Custom Products sold by SELLER are not designed for use in life support
equipment where malfunction of such Custom Product can reasonably be expected to
result in a personal injury. BUYER uses or sells such Custom Product for use in
life support equipment at BUYER's own risk and agrees to fully indemnify SELLER
and MANUFACTURER of such Custom Product for any damages resulting from such use
or sale.
17. PAYMENT
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(a) Payment terms are as stated in Attachment C, subject to credit
approval and the continuation of such approval by
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
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SELLER's credit department.
(b) On any invoice not paid by maturity date, BUYER shall pay interest
from maturity date to date of payment at the annual percentage rate of 18% (or
such lower rate as may be the maximum allowable by law), together with SELLER'S
cost of collection (including reasonable attorney's fees).
18. DELIVERIES
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(a) Unless otherwise stated in Attachment C, all deliveries hereunder
shall be F.O.B. MANUFACTURER'S facility. Products invoiced and held by SELLER
for any reason shall be at BUYER's risk and expense. Delivery route shall be at
the election of SELLER unless specifically designated by BUYER.
(b) All delivery dates and quantities are estimates and SELLER will use
best efforts to meet ▇▇▇▇▇'S requested delivery dates.
19. TAXES/FREIGHT
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Unless otherwise stated in Attachment C, BUYER shall be responsible for
transportation charges from the F.O.B. point and for payment of any and all
Federal, state and local sales, use, and excise taxes and all other taxes and
charges assessed in connection with this Agreement.
20. ARBITRATION
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Any controversy arising out of or relating to this Agreement shall be
settled by arbitration in one of the locations set forth at the end of this
Section in accordance with the commercial rules then effective of the American
Arbitration Association before a panel of three (3) arbitrators. The arbitrators
sitting in any such controversy shall have no power to alter or modify any
express provisions of this Agreement or any writing modifying or extending this
Agreement, or to render any award which by its terms effects any such alteration
or modification. The parties consent to the jurisdiction of the State and U.S.
District Courts in and for the location at which arbitration is conducted for
all purposes in connection with arbitration including the entry of judgment on
any award. The parties consent that any process or notice of motion or other
application to any of said courts, and any paper in connection with arbitration,
may be served by certified mail return receipt requested or by personal service
or in such other manner as may be permissible under the rules of the applicable
court or arbitration tribunal, provided a reasonable time for appearance is
allowed. Neither party will object to the joining of MANUFACTURER as a
participant and/or party in the arbitration proceedings. The parties further
agree that arbitration proceedings must by instituted within one (1) year after
the claimed breach occurred and that such failure to institute arbitration
proceedings within such period shall constitute an absolute bar to the
institution of any Administrative. Court or Arbitration proceedings and a waiver
of all claims. The arbitrators may award reasonable attorney's fees to the
prevailing party. The party instituting arbitration may elect to commence such
proceeding at any of the following locations: Phoenix, Arizona; or Santa Clara,
California; or New York, New York.
21. MISCELLANEOUS
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(a) TERMS AND CONDITION. THE TERMS AND CONDITIONS SET FORTH HEREIN
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RELATING TO PRODUCTION UNITS APPLY TO ANY SUBSEQUENT PURCHASE ORDERS PLACED BY
BUYER WITH SELLER FOR SUBSEQUENT PURCHASE ORDERS PLACED BY BUYER WITH SELLER FOR
PRODUCTION UNITS. NOTWITHSTANDING ANY CONFLICTING TERMS AND CONDITIONS WHICH MAY
APPEAR ON BUYER'S PURCHASE ORDER OR ANY ORDER ACKNOWLEDGEMENT OF SELLER.
(b) ENTIRE AGREEMENT. This Agreement contains the entire understanding of
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the parties with respect to the subject matter hereof and supersedes all prior
agreements relating thereto, written or oral, between the parties. Amendments to
this Agreement must be in writing, signed by the duly authorized officers of the
parties, specifically stating that such amendments are made pursuant to this
section. The parties agree that the terms and conditions of this Agreement shall
prevail, notwithstanding contrary or additional terms, in any purchase order,
sales acknowledgement, confirmation or any other document issued by either party
effecting the purchase and/or sale of Custom Products.
(c) NO ASSIGNMENT. Except as specifically provided herein, this Agreement
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may not be assigned by either party without the written consent of the other.
Seller agrees that such consent shall not be unreasonably withheld.
(d) NO IMPLIED WAIVERS. No delay or omission to exercise any right, power
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or remedy accruing to either party upon breach or default by the other party
under this contract shall impair any such right, power or remedy of the other
party, or shall be construed as a waiver of any such breach or default. All
waivers must be in writing.
(e) SEVERABILITY. In the event any of the provisions of this Agreement
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shall, for any reason, be held void or unenforceable, the remaining provisions
shall remain in full effect and shall control.
(f) INVALIDITY. Any provisions of this Agreement prohibited by the law of
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any state shall, as to said state, be ineffective to the extent of such
prohibition without invalidating the remaining provisions of this Agreement
(g) FORCE MAJEURE. Should any obligation of either party hereunder (except
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with respect to timely payment of Invoices) be delayed by events beyond such
party's control, including but not limited to, natural or man-made disasters,
strikes government actions or regulations, failure of a third party to comply or
conform, or inability to obtain labor or materials through its regular sources
that party's time for performance shall be extended by the period of delay.
(h) NOTICE. Any notice required to be sent to either party under the terms
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of this Agreement shall be either delivered personally or sent via registered or
certified mail, return receipt requested postage prepaid to the parties at the
addresses set forth on the face of this Agreement. Such notice shall be
effective upon receipt.
22. CONFIDENTIALLY
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If either party hereto receives from the other party written information
which is marked "Confidential" and/or "Proprietary" the receiving party agrees
not to use such information except in the performance hereof, and to treat such
information in the same manner as it treats its own confidential information.
Confidential information that is disclosed orally or visually shall be confirmed
as confidential or proprietary in writing within ten (10) days after such
disclosure.
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The obligation to keep information confidential shall not apply to any such
information that has been disclosed in publicly available sources; is in the
rightful possession of the party receiving the confidential information without
an obligation of confidentiality; or is required to be disclosed by operation of
law. Except as otherwise provided herein, the obligation not to disclose shall
be for a period of one (1) year after the termination hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year below:
▇▇▇▇▇▇▇▇ Hallmark Fiberlane Communications, Inc.
A division of Avnet, Inc. ("Buyer")
("Seller")
By: /s/ ▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Manager, Contracts Administration Title: V.P. Engineering
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Date: November 10, 1997 Date: Oct 21st 97
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[CONFIDENTIAL TREATMENT REQUESTED]
ATTACHMENT A
STATEMENT OF WORK
TURNKEY SYSTEM
[*]
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
[CONFIDENTIAL TREATMENT REQUESTED]
[*]
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
[CONFIDENTAL TREATMENT REQUESTED]
[LOGO OF ▇▇▇▇▇▇▇▇ HALLMARK APPEARS HERE]
Attachment A
Statement of Work
▇▇▇▇▇▇▇▇ Hallmark and Fiberlane Communications
BTC and SXC ASIC Designs
Quote # DWH7JJ121 09-SJW
[*]
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
ATTACHMENT B
RESERVED FOR INSERTION OF
ANY AGREEMENT BETWEEN BUYER AND MANUFACTURER
RELATED TO THIS AGREEMENT
ATTACHMENT C
SELLER'S QUOTE FOR
DEVELOPMENT CHARGES
[CONFIDENTIAL TREATMENT REQUESTED]
[LOGO OF ▇▇▇▇▇▇▇▇ HALLMARK APPEARS HERE]
"Attachment C"
[*]
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
[CONFIDENTIAL TREATMENT REQUESTED]
[LOGO OF ▇▇▇▇▇▇▇▇ HALLMARK APPEARS HERE]
[*]
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
[CONFIDENTIAL TREATMENT REQUESTED]
[LOGO OF ▇▇▇▇▇▇▇▇ HALLMARK APPEARS HERE]
[*]
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
[CONFIDENTIAL TREATMENT REQUESTED]
[LOGO OF ▇▇▇▇▇▇▇▇ HALLMARK APPEARS HERE]
[*]
* Represents confidential information for which Cerent Corporation is seeking
confidential treatment with the Securities and Exchange Commission.
ATTACHMENT D
MANUFACTURER'S POLICIES
(LSI LOGIC CORPORATION)
LIMITED WARRANTY AND LIMITATION OF LIABILITIES
(a) ENCAPSULATED UNITS. MANUFACTURER warrants that the products furnished
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hereunder will be free from defects in material and workmanship under normal use
and service. MANUFACTURER's obligations under this warranty are limited to
replacing or repairing or giving credit for, at its option, at its factory, any
of said products which shall, within one (1) year after shipment, be returned to
MANUFACTURER's factory of origin, transportation charges prepaid, and which are,
after examination, disclosed to MANUFACTURER's factory of origin, transportation
charges prepaid, and which are, after examination, disclosed to MANUFACTURER's
satisfaction to be thus defective. THIS WARRANTY IS EXPRESSED IN LIEU OF ALL
OTHER WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL
OTHER OBLIGATIONS OR LIABILITIES ON MANUFACTURER'S PART, AND IT NEITHER ASSUMES
NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR MANUFACTURER ANY OTHER LIABILITIES
IN CONNECTION WITH THE SALE OF THE SAID ARTICLES. This warranty shall not apply
to any of such products which shall have been repaired or altered, except by
MANUFACTURER, or which shall have been subjected to misuse, negligence, or
accident. The aforementioned provisions do not extend the original warranty
period of any product which has either been repaired or replaced by
MANUFACTURER.
(b) UNENCAPSULATED UNITS. It is understood that if this order calls for the
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delivery of semiconductor devices which are not finished and fully encapsulated,
that NO WARRANTY, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING THE IMPLIED WARRANTY
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY. All such
devices are sold "as is where is".
PATENT/TRADEMARK INDEMNIFICATION
(a) MANUFACTURER will defend any action against BUYER claiming that any
product furnished hereunder infringes any United States trade secret, copyright
or patent, and to pay all costs and damages finally awarded in any such action,
provided that MANUFACTURER is notified promptly in writing of the suit and at
MANUFACTURER's request and at its expense is given control of such action and
all requested information and assistance to settle or defend the same. Should
use or sale of any product furnished hereunder be enjoined as a result of such
action, then MANUFACTURER shall in a reasonable time either: (a) obtain for
BUYER the right to use or sell the product; (b) substitute an equivalent
product that no longer infringes; or (c) authorize the return of all products
and upon the return refund all monies paid to MANUFACTURER for such product .
(b) Notwithstanding subparagraph (a) above, BUYER shall, at his own expense,
defend any action based upon a claim that any product furnished hereunder
infringes any patent, trade secret, or copyright of a third party where such
claim is based upon (i) the use of any product furnished hereunder in
combination with products not furnished by MANUFACTURER or (ii) information or
materials furnished by BUYER and incorporated into products furnished by
MANUFACTURER or (ii) Information or materials furnished by BUYER and
incorporated into products furnished by MANUFACTURER, provided that MANUFACTURER
promptly notifies BUYER of such claim in writing and gives control of such
action and all requested information and assistance to settle or defend the same
at BUYER's expense.
(c) THE FOREGOING STATES THE SOLE LIABILITY OF MANUFACTURER FOR PATENT,
COPYRIGHT OR TRADE SECRET INFRINGEMENT OF ANY KIND EXPRESS, IMPLIED OR
STATUTORY.
COMPLIANCE WITH LAW
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Each party hereto shall be responsible for insuring its compliance with the
laws and regulations of the United States government relating to the export of
goods and technology.
BUYER ACKNOWLEDGES THAT IT HAS READ AND AGREES TO THE TERMS OF THE ABOVE
PATENT/TRADEMARK INDEMNIFICATION. BUYER UNDERSTANDS THAT THE TERM "MANUFACTURER"
REFERS TO LSI LOGIC CORPORATION.
Buyer: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Date: 10-21-97
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By:Fiberlane Communications, Inc. Title: V.P. Engineering
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ATTACHMENT E
RESERVED FOR ANY
SOFTWARE SUBJECT TO A LICENSE