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EXHIBIT 10.29
PURCHASE AGREEMENT
FOR PRODUCT
BETWEEN
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ AND
BROCADE COMMUNICATIONS, INC.
CONTENTS PAGE
-------- ----
1.0 DEFINITIONS ....................................................... 2
2.0 SCOPE OF AGREEMENT ................................................ 2
3.0 TERM AND TERMINATION .............................................. 2
4.0 INTELLECTUAL PROPERTY RIGHTS....................................... 3
5.0 PRODUCT DOCUMENTATION ............................................. 4
6.0 PRICE AND PAYMENT ................................................. 4
7.0 PURCHASE ORDERS ................................................... 5
8.0 SHIPPING, DELIVERY AND PACKAGING................................... 5
9.0 INSPECTION AND ACCEPTANCE.......................................... 7
10.0 WARRANTY .......................................................... 7
11.0 PRODUCT SUPPORT ................................................... 8
12.0 EMC REQUESTED CHANGES ............................................. 8
13.0 MANDATORY CHANGES ................................................. 9
14.0 SUPPLIER REQUESTED CHANGES......................................... 9
15.0 PRODUCT WITHDRAWALS ...............................................10
16.0 CONTINUITY OF SUPPLY ..............................................10
17.0 PRODUCT QUALITY ...................................................10
18.0 REVIEW AND PLANNING MEETINGS.......................................11
19.0 REPORTS ...........................................................11
20.0 LIMITATION OF LIABILITY............................................11
21.0 CONFIDENTIAL INFORMATION & PUBLICITY...............................11
22.0 INFRINGEMENT ......................................................12
23.0 FIBRE ALLIANCE MEMBERSHIP..........................................12
24.0 MISCELLANEOUS PROVISIONS...........................................13
25.0 ENTIRE AGREEMENT ..................................................14
EXHIBITS
A PRODUCT AND REPAIR PRICING.........................................
B PRODUCT SPECIFICATION AND REQUIREMENTS ............................
C QUALITY ASSURANCE,PRODUCT DEVELOPMENT LIFECYCLE,
AND ESCALATION PROCEDURES..........................................
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D SCHEDULES AND PROGRAM COORDINATION.................................
ATTACHMENT [*] STANDARD APPROVED
BY STANDARDS COMMITTEE.............................................
E SUPPLIER QUALITY PLAN .............................................
F TECHNICAL SUPPORT .................................................
G RMA PROCEDURE .....................................................
H PRODUCT REPAIR ....................................................
I END-USER SOFTWARE LICENSE AGREEMENT................................
J DROP SHIP PROCESS .................................................
K INDEMNITY COUNTRY LIST.............................................
L ACT AGREEMENT......................................................
X REGULATORY COUNTRY LISTING.........................................
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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PURCHASE AGREEMENT
This Agreement, effective as of the date last signed ("Effective Date"), is
entered into by and between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("EMC"), a Massachusetts
corporation, and BROCADE COMMUNICATIONS, Inc. ("SUPPLIER"), a Delaware
corporation.
Now, therefore, the parties agree as follows:
1.0 DEFINITIONS
1.1 "Product(s)" means the items listed in Exhibit A, "Product and Repair
Pricing". The parties may add other SUPPLIER products to this Agreement as
mutually agreed upon in writing, and upon such agreement, these shall also
become "Product(s)" In the event there is a conflict between or among any of the
headings set forth in Exhibit A, the following rules of construction shall
apply:
EMC's specification, which is referenced by EMC's part number and is attached
hereto as Exhibit B and incorporated herein by this reference shall control in
the event of conflict with SUPPLIER's part number or description. SUPPLIER's
part number is referenced for SUPPLIER's convenience only.
1.2 "Product Support" means support that includes, but is not limited to
testing, repair, upgrades, reporting, failure analysis, and closed loop
corrective action for both hardware and software.
1.3 "Product Documentation" means SUPPLIER's Product specifications, user
manual, diagnostic software documentation, and operations manual.
1.4 "End User" means EMC's customer as delivered through EMC's direct or
indirect channel.
1.5 "Year 2000 Compliance" means that the Product shall be capable of creating,
storing and processing records for the year 2000 and beyond; the Product shall
be capable of managing data involving dates including single-century formulas
and multi-century formulas; the Product will recognize the rollover to year 2000
and the fact that the year 2000 is a leap year; the Product will continue to
function and operate in accordance with the software specifications including
performance specifications and will provide the required output; and the Product
will experience no interruptions and no abnormal endings and/or incorrect
results caused by the use of said software in the year 2000 and thereafter.
1.6 Day shall mean "Business Day" unless otherwise detailed in this Agreement.
1.7 "EMC Logistics Partner" shall mean a business or company as listed in
Exhibit A. The list set of entities set forth on Exhibit A may be amended from
time to time upon the mutual written agreement of the parties.
2.0 SCOPE OF AGREEMENT
2.1 SUPPLIER agrees to sell Products and provide Product Support to EMC in
accordance with the terms and conditions of this Agreement. This Agreement is
non-exclusive and the parties may enter into similar agreements with other
parties. EMC [*] any Products or Product Support from SUPPLIER hereunder.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3.0 TERM AND TERMINATION
3.1 Subject to the provisions of sub-Sections 3.2, 3.3, 3.4 and 3.5 below, the
initial term of this Agreement shall be for a period of [*] from the Effective
Date. EMC shall have the option to extend this Agreement for successive periods
of one (1) year each, subject to negotiated modification, if any, to this
Agreement. EMC will give SUPPLIER written notice that it is exercising its
option to extend this Agreement no less than [*] days before the expiration of
the then-current term; provided, however, that such renewal is subject to
SUPPLIER's right to terminate this Agreement effective at the end of the
then-current term by providing written notice of its intention to terminate at
least [*] days before the expiration of the then-current term.
3.2 EMC may terminate this Agreement at any time, without cause, by giving
SUPPLIER at least [*] days prior written notice. Termination of this Agreement
will not relieve the parties of any obligations incurred prior to the date of
termination.
3.3 In addition to the termination rights specified in sub-Section 3.2, above,
either party may immediately terminate this Agreement upon written notice if the
other party:
3.3.1 becomes insolvent or bankrupt, files or has filed against it a
petition in bankruptcy, or undergoes a reorganization pursuant to a petition in
bankruptcy filed with respect to it; provided that such proceeding is not
vacated, dismissed or set aside within [*] days after the date of commencement
thereof; or
3.3.2 is dissolved or liquidated, or has a petition for dissolution or
liquidation filed with respect to it; or
3.3.3 is subject to property attachment, court injunction, or court
order which substantially and negatively affects its operations; or
3.3.4 makes an assignment for the benefit of creditors; or
3.3.5 ceases to function as a going concern or to conduct its
operations in the normal course of business.
3.4 Either party may immediately terminate this Agreement upon written notice if
the other party fails to perform any of the material obligations imposed upon it
under the terms of this Agreement so as to be in default hereunder and fails to
cure such default within [*] days after receiving written notice thereof.
3.5 EMC will, in its sole discretion, have the right to terminate this Agreement
and/or any license(s) granted to SUPPLIER by written notice to SUPPLIER, such
termination to be effective immediately, if SUPPLIER [*] or attempts to [*]
under this Agreement without EMC's prior written consent.
3.6 During the termination notice period, EMC may issue additional purchase
orders with deliveries to be scheduled not later than [*] days after the
specified termination date.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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4.0 INTELLECTUAL PROPERTY RIGHTS
4.1 Subject to Section 4.2, SUPPLIER grants EMC all appropriate rights and
licenses worldwide, at no additional charge beyond its price for the Products
under SUPPLIER's applicable patents, copyrights and other intellectual property
rights, as necessary for EMC to use, market, promote, lease, sell and distribute
both directly and through third parties, evaluate, test, demonstrate, support,
maintain, repair and upgrade the Product as provided under this Agreement.
Except as expressly herein stated, no other license is granted to EMC.
4.2 SOFTWARE LICENSE
4.2.1 SUPPLIER hereby grants to EMC a non-exclusive, worldwide,
revocable (except as expressly provided in Section 4.3.4), royalty-free right
and license, under all copyrights, patents, patent applications, trade secrets
and other necessary intellectual property rights of SUPPLIER, to (i) use,
execute, and display all device drivers, firmware and software of SUPPLIER used
in the operation and support of the Product, including upgrades, updates, bug
fixes or modified versions or backup copies of the same (collectively, the
"Software"), in object code form, in conjunction with, or for use with Products,
(ii) distribute or license the Software, in object code form, as part of, in
conjunction with, or for use with Products sold or leased by EMC to End Users,
and (iii) authorize, license and sublicense third parties to do any, some or all
of the foregoing. EMC shall distribute the Software to End-Users pursuant to
EMC's end user license agreement, attached hereto as Exhibit I, as updated by
EMC from time to time.
4.2.2 EMC shall have no right to (i) modify or adapt the Software for
other products or create derivative works of the Software, (ii) decompile,
reverse engineer, or disassemble the Software for purposes of designing similar
products, or (iii) use or distribute the Software other than in connection with
the use or distribution of the Products.
4.2.3 EMC agrees that the foregoing licenses do not grant any title or
other right of ownership to the Software and that SUPPLIER owns and shall
continue to own all right, title and interest in and to the Software.
4.2.4 Upon any termination or expiration of this Agreement, EMC's
rights set forth in this Section 4.2 shall terminate except as follows: (i) End
Users shall be permitted continued use of the Software in conjunction with the
operation of the Products so long as they are not in breach of an end user
license agreement substantially similar to EMC's end user license agreement
attached hereto as Exhibit I, and (ii) EMC shall retain a nonexclusive,
worldwide license to use and execute the then-current version of the Software
internally (in object code form only) for the sole purpose of assisting End
Users with the maintenance of the Products purchased from EMC.
4.3 SUPPLIER will [*] EMC [*] units which [*], to be functionally equivalent to
[*] units of each new hardware release of the Product(s), for evaluation,
testing, demonstration, support and other non-production corporate purposes.
SUPPLIER shall sell to EMC certain units of Product incorporating new software
releases prior to the general production release date for such versions [*] at
the agreed volume pricing, with the understanding that SUPPLIER will
upgrade/re-certify such Product for a mutually agreed upon charge to EMC.
SUPPLIER will provide EMC with the opportunity to test each release of the
Product before the Product is made widely available for customer distribution.
EMC, at its sole discretion, will determine whether to utilize this test
opportunity. EMC [*] for any type of testing, certification or quality assurance
for the Product.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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4.4 As between EMC and SUPPLIER, the rights in the Products are and will remain
the sole and exclusive property of SUPPLIER and its vendors, if any, whether the
Products are separate or combined with any other products. SUPPLIER's rights
under this Section, will include, but not be limited to (i) all copies of the
Software for the Products, in whole or in part; (ii) all intellectual property
rights in the Products; and (iii) all modifications to, and derivative works
based upon the Products. Notwithstanding the foregoing, nothing in this
Agreement shall be construed to grant SUPPLIER any ownership rights in any "EMC
Custom Features" incorporated into any version of any of the Products. EMC
Custom Features means any functionality, APIs, source code or schematics which
EMC wishes to incorporate into a version of the Products and which SUPPLIER
agrees in writing to incorporate into the Products. Any agreed upon EMC Custom
Features will be incorporated into this Agreement in Exhibit B or by a written
amendment to Exhibit B or Exhibit C, as applicable. All EMC Custom Features
shall be solely owned by EMC regardless of inventorship, and shall not be
included in any SUPPLIER standard product other than the Product without EMC's
prior written consent.
4.5 EMC hereby grants to SUPPLIER, and SUPPLIER hereby accepts a royalty-free,
personal, worldwide, non-exclusive, non-transferable right and license to use
those EMC marks designated by EMC solely on Product and collateral materials
provided to EMC or on behalf of EMC. SUPPLIER shall use EMC, the EMC logo, EMC's
brand name for the Product, and any other EMC ▇▇▇▇ only during the term of this
Agreement, only in connection with its manufacture, distribution and support of
the Product for EMC in accordance with the terms of this Agreement, and only in
accordance with EMC's written guidelines for such usage. SUPPLIER shall not use
any such EMC marks in connection with any business conducted by SUPPLIER other
than dealings with the Products in accordance with the terms of this Agreement.
SUPPLIER agrees that its use of the EMC marks shall not create in its favor any
right, title or interest therein and acknowledges EMC's exclusive right, title
and interest thereto. SUPPLIER agrees that it will not use, without EMC's prior
written consent, any ▇▇▇▇ which is likely to be similar to or confused with any
of EMC's trademarks.
5.0 PRODUCT DOCUMENTATION
5.1 SUPPLIER shall provide EMC with one (1) electronic master copy and twenty
(20) hardcopy sets of current documentation for each Product immediately
following the execution of this Agreement solely for internal use and for the
purpose of the qualification, sale, service, and support of Product under this
Agreement. Each set of documentation shall include all similar documentation
generally provided to SUPPLIER's OEM customers. Additional copies of Product
Documentation and changes thereto may be ordered by EMC. SUPPLIER shall provide
EMC with all updates and changes to such documentation, as they become available
to SUPPLIER.
5.2 SUPPLIER hereby grants EMC a worldwide, non-exclusive, nontransferable right
and license to prepare derivative works based on the Product Documentation for
reproduction, publication, training, distribution and use solely in connection
with Products purchased under this Agreement; provided, however, that EMC shall
have no right to publish or distribute any Product Documentation which is marked
as SUPPLIER Confidential Information except as allowed under Section 11.4. EMC
shall preserve SUPPLIER's copyright and other notices, and shall not remove such
notices from the Product Documentation. However, EMC shall have all right,
title, and interest in that portion of the altered Product Documentation
prepared by EMC. If EMC modifies and introduces errors into the Product
Documentation, SUPPLIER has no liability for such errors.
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6.0 PRICE AND PAYMENT
6.1 The prices to be paid by EMC for any Products ordered pursuant to this
Agreement are set forth in Exhibit A. These prices are the [*] during the term
of this Agreement. SUPPLIER agrees to meet upon reasonable request from EMC to
negotiate pricing from to time-to-time to meet changing market conditions.
6.2 [*].
6.3 All prices and fees described or contemplated under this Agreement are in
U.S. dollars. Product pricing does not include federal, state, or local excise,
sales, or use taxes, except those taxes that are based on SUPPLIER's income. If
such taxes are applicable, they shall be set out as a separate line item on
SUPPLIER's invoice. EMC agrees to pay, indemnify and hold SUPPLIER harmless from
all applicable taxes (other than taxes based upon SUPPLIER's net income), unless
EMC procures and provides to SUPPLIER an exemption certificate in a form
reasonably acceptable to SUPPLIER and to the appropriate taxing authority.
6.4 Payment terms for all Products sold to EMC by SUPPLIER shall be net [*] days
from the date of [*] provided that [*] is issued on or after the day the
applicable Product(s) is shipped from SUPPLIER to EMC. Payment of an invoice
shall not constitute or imply acceptance of the Product or relieve SUPPLIER of
any obligations assumed under this Agreement, nor prevent EMC from asserting any
other rights it may have under this Agreement. All payments are to be made to
the following lock box:
Brocade Communications, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
6.5 Payments may also be made by wire transfer to the account listed below. If
EMC elects to make payments by wire transfer, EMC will pay the wire transfer
charges.
Comerica Bank-California
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #: [*]
Account Name: [*]
Account #: [*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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7.0 PURCHASE ORDERS
7.1 EMC shall submit a written purchase order for all Products ordered from
SUPPLIER. Purchase orders shall specify EMC's part numbers, Product model
numbers, quantity ordered, shipping destination, carrier, and shipment dates.
SUPPLIER shall acknowledge in writing to EMC its receipt and acceptance or
rejection of such purchase order within [*] days of SUPPLIER's receipt of each
purchase order. SUPPLIER's acceptance shall neither change nor add to the
provisions of this Agreement. For EMC purchase orders for quantities of Products
within EMC's forecasts, SUPPLIER shall accept such purchase orders at lead-time,
provided such purchase orders comply with the terms of this Agreement. If within
[*] days from SUPPLIER's receipt of a purchase order EMC does not receive
written notice from SUPPLIER rejecting the purchase order and specifying the
reasons for such rejection, the purchase order shall be deemed accepted by
SUPPLIER. In the event of a conflict between the provisions of this Agreement
and the terms and conditions of EMC's purchase order, the provisions of this
Agreement shall prevail. Any additional terms contained in EMC's purchase orders
or SUPPLIER's order acknowledgements shall not be binding unless accepted by the
other party in writing.
7.2 Promptly after the Effective Date, EMC shall deliver to SUPPLIER a list of
EMC's designated procurement agents and shall update such list from time to time
as necessary to keep such list current. EMC's designated procurement agents
shall be the only persons authorized to issue written or electronic purchase
orders or changes to purchase orders. EMC Logistics Partners shall be authorized
to buy Products from Supplier under the prices, payment terms, and shipment
terms of this Agreement for the sole purpose of providing customer fulfillment
for EMC; provided, however, that SUPPLIER shall be entitled to alter or
terminate payment or credit terms with respect to an EMC Logistics Partner that
does not make timely payments as specified pursuant to this Agreement.
7.3 EMC agrees to use commercially reasonable efforts to provide SUPPLIER with
monthly rolling forecasts for six (6) months of EMC's estimated Product purchase
requirements. These forecasts are good faith estimates only and EMC shall not be
liable to SUPPLIER for failure to purchase any of the forecasted Product from
SUPPLIER.
7.4 Product lead-time shall be no more than [*] calendar days from receipt of
EMC's purchase order until shipment by SUPPLIER to EMC.
7.5 RE-SCHEDULE
7.5.1 PUSH-OUT: EMC shall have the right and ability to reschedule any
purchase order with no less than [*] days notice, [*]. All notices of changes
will be communicated in writing or in some other communication acceptable to the
parties
7.5.2 UPSIDE: EMC and SUPPLIER shall mutually agree on upside
quantities and reasonable buffer stock amounts to be available for delivery to
EMC at the end of each calendar quarter as part of the forecasting process.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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7.6 EMC shall have the right to cancel delivery for any purchase order [*],
provided however, that SUPPLIER must be notified in writing of the cancellation
at least [*] days prior to the scheduled ship date. In the event EMC cancels an
order more than [*] days prior to the scheduled ship date without re-booking a
net new incremental order of the same or greater quantity for delivery within
[*] days of the originally scheduled delivery date; EMC shall be liable for the
[*] in SUPPLIER's [*] as required to support EMC's forecast and purchase orders.
SUPPLIER shall use commercially reasonable efforts to mitigate EMC's liabilities
for said [*]. If EMC cancels an order inside [*] days of the scheduled delivery
date, EMC shall be liable for the full purchase price of the cancelled Product.
7.7 Purchase order numbers shall be referenced on all correspondence, invoicing,
and packing slips relating to each order.
8.0 SHIPPING, DELIVERY AND PACKAGING
8.1 Delivery shall be F.O.B. SUPPLIER's United States point of manufacture
freight collect. Title and risk of loss shall pass to EMC upon delivery to the
carrier. EMC may modify its routing instructions from time to time and will
provide SUPPLIER with an updated version of any such modified instructions.
8.2 EMC and SUPPLIER may mutually agree on a drop-ship program in the US which
will be attached in Exhibit J. In cases when EMC directs SUPPLIER to ship
Product to an End User, [*], EMC shall provide the name and billing number of
its preferred freight carrier. SUPPLIER shall be responsible for any freight
charges incurred for Product shipped outside the routing instructions to
include, but not be limited to, use of other than EMC preferred carriers. If
there are any conflicts between the current version of routing instructions
provided to SUPPLIER and the contents of this Section 8, the current routing
instructions will prevail.
8.3 Time and rate of delivery are of the essence of this Agreement. The shipment
dates shall be those specified in each purchase order issued under this
Agreement. Shipments will be considered on time if they are made no more than
[*] business days earlier or no days later than the shipment date specified in
the EMC purchase order. If EMC agrees to take partial shipments of any order,
each such partial shipment shall be deemed a separate sale.
8.4 If SUPPLIER anticipates or becomes aware that it will not supply the Product
on the shipment date acknowledged by SUPPLIER, for any reason to include but not
be limited to material shortage, process changes, capacity limitations or causes
due to common carriers, SUPPLIER shall notify EMC immediately after SUPPLIER has
knowledge of the situation. The notification may be communicated by facsimile,
telephone, electronic mail or any other method agreed to by the parties,
provided that SUPPLIER shall use reasonable efforts to obtain EMC's actual
acknowledgment of the notice of anticipated delay. SUPPLIER and EMC will jointly
develop alternatives to resolve any late shipment of the Product, including use
of [*]. SUPPLIER will develop recovery plans with new committed shipment dates
and communicate such plans to EMC within [*] of missed shipments. If SUPPLIER is
unable to ship the Product on the acknowledged ship date, through no fault of
EMC, EMC may require SUPPLIER to [*] and [*] at SUPPLIER's [*]. In the event
SUPPLIER has an [*], SUPPLIER shall use an [*] for [*] than that of any [*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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8.5 All shipments shall be [*] unless otherwise specified by EMC's designated
procurement agents. Prepay and ▇▇▇▇ shipment shall be used only when specified
by EMC's designated procurement agents. In the event that prepay and ▇▇▇▇ is
used, SUPPLIER shall indicate the number of shipping containers, weight of each
shipment and carrier name on the invoice. Risk of loss shall pass to EMC at the
FOB point.
8.6 Each shipment of the Product by SUPPLIER shall include a packing slip which
contains at a minimum, (i) SUPPLIER name, (ii) box number (e.g., 1 of 3, 2 of
3), (iii) receiving address, (iv) EMC's purchase order number, (v) EMC's part
number, (vi) shipping quantity, (vii) date of shipment, and (viii) RMA number
when applicable per Exhibit G.
8.7 All Product shall be packaged, marked and otherwise prepared in accordance
with EMC's specifications attached as Exhibit B and provided to SUPPLIER, all
applicable government regulations as attached in Exhibit X, which may be amended
by mutual agreement from time to time, and if none are specified or required,
with good commercial practices to obtain lowest transportation rates while
maintaining the safety of the Product. All Product shall be private labeled in
accordance with EMC branding instructions as outlined in Exhibit B. Packaging
for export shipments from the United States may also be subject to specific
instructions. SUPPLIER will notify EMC of any charges incurred by SUPPLIER for
such export shipments prior to invoicing EMC for these charges.
8.8 SUPPLIER will provide the following information about its Product in writing
within [*] of receiving a written request from EMC: i) country of origin; ii)
NAFTA preference criteria; iii) harmonized scheduled tariff classification
number; and iv) export commerce control number ("ECCN"). Upon request by EMC and
subject to EMC's reasonable assistance, SUPPLIER will prepare all international
shipping documentation, including commercial invoice, NAFTA certificate,
Shipper's Letter of Instruction, Shipper's Export Declaration and any other
necessary documentation, for international shipments upon request from EMC.
9.0 INSPECTION AND ACCEPTANCE
9.1 Inspection and acceptance or rejection of the Product by EMC will be made
within [*] days after shipment. Failure to inspect and accept or reject the
Product shall not relieve SUPPLIER from warranty responsibility for the Product.
Products not accepted or rejected in writing within [*] days after shipment
shall be deemed accepted by EMC. Products not fully complying with the
requirements of this Agreement shall be disposed of by EMC, at EMC's option, by
either (i) returning the Product(s) to SUPPLIER, at SUPPLIER's expense; (ii)
holding the Product(s) at SUPPLIER's expense subject to SUPPLIER's reasonable
disposition instructions; (iii) accepting the Product(s) at a mutually agreed
upon [*]; (iv) requiring that SUPPLIER promptly replace the Product(s); or (v)
requiring that SUPPLIER provide on-site technical assistance at no charge to
EMC. SUPPLIER shall refund any payments made for Product(s) not accepted under
this Section [*] of the returned Product from EMC to SUPPLIER.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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10.0 WARRANTY
10.1 SUPPLIER warrants that all Product shipped under this Agreement (except for
[*] or other units provided [*]) will for a period of [*] months from the date
of shipment of the Product: (i) conform to and perform in accordance with EMC's
and SUPPLIER's specifications and descriptions set forth in Exhibit B,
SUPPLIER's samples and to any drawings agreed upon between the parties under
normal use and operation; (ii) be free from defects in design, materials and
workmanship; and (iii) be Year 2000 Compliant. Except with regard to repaired
Products, SUPPLIER further warrants that only new materials will be used in the
Products. All warranties made in this Agreement shall survive inspection, test,
acceptance and payment.
10.2 Notwithstanding the foregoing, SUPPLIER's warranty in 10.1 does not apply
with respect to the performance of the Gigabit Interface Converter ("GBIC")
module that SUPPLIER may use in the manufacture of the Products, other than the
GBIC modules have been tested in SUPPLIER's process as mutually agreed and meet
the functional Product specifications in Exhibit B. With regard to GBIC modules,
EMC agrees that it shall only be entitled to warranties, if any, as allowed by
the manufacturers of such modules. Despite this disclaimer of warranty, SUPPLIER
will provide replacement parts at no-charge as a service to EMC for verified
GBIC failures that occur within [*] months of the date of shipment to EMC. In
addition, SUPPLIER will use diligent efforts to provide technical assistance and
support in the event of any failure of the GBICs to conform to the applicable
GBIC warranty including but not limited to providing failure verification and
analysis down to the major sub-component level (i.e. laser diode or passive
component, etc.).
10.3 Product repaired under this Agreement shall be warranted for the longer of
[*] months or the balance of the original Product warranty.
10.4 SUPPLIER further warrants that, upon payment of the purchase price
therefore, EMC shall receive good title to each Product free and clear of all
liens, encumbrance, and claims, and in performing under this Agreement, SUPPLIER
shall, and each Product delivered under this Agreement shall, comply with all
applicable federal, state and local, laws, statutes, ordinances, rules,
regulations and codes as listed on Exhibit X and will support EMC's efforts to
[*] upon EMC's written request.
10.5 SUPPLIER further warrants that each Product has been, and will continue to
be regulatory compliant as detailed in Exhibit B. Each Product shall bear
appropriate labels indicating compliance with the requirements of this Exhibit
B.
10.6 The above warranties shall not apply to Products which have been damaged as
a result of misuse, neglect, accident; have been improperly wired, repaired, or
altered by anyone other than SUPPLIER or an authorized repair agent; or have had
their serial numbers removed, defaced or altered. SUPPLIER's sole obligation
hereunder shall be, at SUPPLIER's expense(including all transportation expenses)
and at SUPPLIER's option, to repair or replace Products covered in the above
warranties.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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10.7 THE FOREGOING WARRANTIES SET FORTH IN THIS SECTION 10 ARE IN LIEU OF, AND
SUPPLIER EXPRESSLY DISCLAIMS, ALL OTHER REPRESENTATIONS, WARRANTIES OR
CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
11.0 PRODUCT SUPPORT
11.1 SUPPLIER will provide technical support to EMC for the Product as described
in Exhibit F.
11.2 Upon determination that a Product is defective, EMC must contact SUPPLIER
to obtain a Return Material Authorization ("RMA") in accordance with Exhibit G.
11.3 SUPPLIER will provide repair for the Product to EMC in accordance with
Exhibit H.
11.4 SUPPLIER shall, provide [*] instructor level training course for EMC's
personnel each year during the term of this Agreement. [*] Such training shall
commence on the date specified by EMC provided that EMC gives SUPPLIER at least
thirty (30) days prior written notice. The initial [*] courses shall cover in
detail, the software, the installation, adjustment, operation, test and
maintenance of each Product. Subsequent to this initial training, SUPPLIER shall
provide [*] course focused on the software and functionality revisions between
each of SUPPLIER's major operating system (OS) dot (.) releases (i.e. 2.2 vs.
2.3). Each class shall accommodate up to [*] of EMC's employees and shall be
conducted in either Massachusetts or California as determined by EMC. SUPPLIER
shall provide hard copies of the course outline, training guides, and all other
necessary materials for each Product to each trainee and [*] to EMC. SUPPLIER
shall also provide EMC with [*] complete set of instructor training aids, [*],
used by SUPPLIER for each course during each class. EMC shall have the [*] and
distribute copies of all training materials and related documents and video
taped training, under EMC's name, solely to internal trainees in training
courses offered by EMC solely in conjunction with EMC's or EMC's authorized
resellers' sale, service and support of the Product. Such training courses shall
be offered on a no-fee basis. EMC shall not have the right to modify this
material other than to change the name and logo. EMC shall provide a reasonable
quantity of appropriate Products for use as training aids when classes are
conducted at EMC's facility. If requested by EMC, SUPPLIER shall provide more
than [*] training courses pursuant to the provisions of this paragraph, however,
EMC [*] SUPPLIER's [*] provided in any [*] month period.
11.5 The initial release of the Product shall comply with [*] as specified in
Exhibit B. From time to time, during the term of this Agreement, the [*] may
update or introduce [*] applicable to the Product. Whenever this happens,
SUPPLIER shall update the Product to be current with these new standards on a
mutually agreed schedule after adoption of the standard by the [*]. In addition,
SUPPLIER will use its commercially reasonable efforts to ensure that the Product
will remain compatible with both the EMC specified operating system (Symmetrix
microcode) and the operating system of the CPU upon which the Product operates.
SUPPLIER will use its commercially reasonable efforts to ensure that the
compatibility will occur within [*] days of general availability of the
operating system(s). SUPPLIER will use its commercially reasonable efforts to
ensure that the Product will be updated to include any mutually agreed "[*]"
requested by EMC in accordance with the milestones set forth in Exhibits B and
D.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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11.6 SUPPLIER agrees to offer to sell all generally available product features
and functions to EMC as early as it does to any of its other customers. [*]
11.7 EMC and SUPPLIER agree that SUPPLIER will participate in the EMC ACT
Program, and will be provided with EMC loaner equipment for use in SUPPLIER's
interoperability test labs under the terms and conditions attached as Exhibit L.
12.0 EMC REQUESTED CHANGES
12.1 EMC may request, in writing, that SUPPLIER evaluate [*] a change to the
method of packing, packaging, or shipment, or evaluate an engineering change to
the Product which is not a Mandatory Engineering Change (as defined in Section
13 below). Such request will include a description of the proposed change
sufficient to permit SUPPLIER to evaluate its feasibility.
12.2 Acceptance of such proposed changes shall not be unreasonably withheld by
SUPPLIER. If such proposed change is accepted by SUPPLIER, SUPPLIER shall notify
EMC in writing within [*] business days from date of request, of the terms and
conditions under which it would make the change requested by EMC. SUPPLIER's
written evaluation shall state the cost, if any, created by the changes and the
date SUPPLIER will be able to implement such change. If the proposed change does
result in a cost increase to EMC, EMC must provide prior written approval to
SUPPLIER before the change is implemented. In the case of evaluating the effect
such changes may have on regulatory agency certifications, the above referenced
[*] day period may be extended to take into account the time periods necessary
for those regulatory agencies to carry out their evaluations.
13.0 MANDATORY CHANGES
13.1 In the event that changes are required to make the Products conform to
safety/regulatory agency requirements or provided for in Exhibits B and C, as
amended from time to time ("Mandatory Engineering Changes"), SUPPLIER shall
immediately implement the Mandatory Engineering Changes in new production of the
Product without charge to EMC.
13.2 SUPPLIER and EMC shall discuss and mutually agree upon one or more of the
following remedies for implementing Mandatory Engineering Changes on previously
delivered Product. All such changes shall be [*] to EMC. SUPPLIER shall use best
efforts to immediately implement the selected remedies.
13.2.1 EMC may request an RMA number and return the affected Product to
SUPPLIER or an authorized repair facility for repair or replacement. SUPPLIER
shall pay the transportation costs of shipping affected Product to and from EMC,
EMC customer's locations, or a location designated by EMC.
13.2.2 EMC may request and SUPPLIER will ship Mandatory Engineering
Change kits for Products. SUPPLIER shall provide EMC with installation
instructions necessary to implement the Mandatory Engineering Changes at EMC's
or EMC's customer's locations.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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13.2.3 SUPPLIER may be asked to provide on-site technical assistance
at the appropriate location to install the Mandatory Engineering Change.
13.2.4 EMC may request that a SUPPLIER-approved third party
maintenance organization install the Mandatory Engineering Change kits for the
affected Product.
13.3 SUPPLIER shall provide EMC with written notice of any Mandatory Engineering
Changes as soon as possible after SUPPLIER knows of such change.
13.4 EMC shall have the option to cancel open purchase orders without penalty if
the Mandatory Engineering Changes are incompatible with or adversely affect
performance of Products purchased by EMC and such changes are not made
compatible with the Products or EMC is not provided with an acceptable remedy
within [*] calendar days after SUPPLIER receives notification from EMC of its
intent to cancel its open purchase orders.
14.0 SUPPLIER REQUESTED CHANGES
14.1 Both parties recognize that there may be optional changes proposed by
SUPPLIER affecting form, fit or function which are not Mandatory Engineering
Changes ("Optional Engineering Changes"). Optional Engineering Changes may also
include changes in processes or materials. SUPPLIER shall provide EMC copies of
all Engineering Change Notices affecting Form, Fit, Function (as defined below),
active components, or reliability. SUPPLIER will also provide copies of Process
Change Notification forms related to mutually agreed upon EMC specific
manufacturing or test processes that would affect the following:
14.1.1 Form: Defined as a change in the dimensions or the external
appearance of the Product.
14.1.2 Fit: Defined as a change that affects the physical
interchangeability of the Product or a field replaceable unit ("FRU") of the
Product.
14.1.3 Function: Defined as a change that introduces a capability not
available in previous connectivity interface, software, firmware, or operator
interface or affects the interchangeability of the FRUs within the Product.
14.2 The notice required in sub-Section 14.1, above, shall include a written
description of the proposed change, including the reason for the change and the
expected effect of the change on the Product, including its price. SUPPLIER will
send such change proposals to EMC's designated supplier engineer, via mail,
Email, or fax, as agreed between the parties. SUPPLIER will evaluate whether the
changes, if accepted by EMC, would be likely to require EMC to re-qualify the
Product and will include a recommendation for or against re-qualification. In
the event EMC does not acknowledge or respond to SUPPLIER's written notice
within [*] days, such change will be deemed to have been accepted.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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14.3 If the Optional Engineering Changes to Form, Fit or Function of the Product
proposed by SUPPLIER in EMC's sole opinion necessitate evaluation by EMC of
compatibility with EMC's systems and/or specifications, SUPPLIER upon EMC's
reasonable request, shall provide EMC with up to [*] sets of evaluation
products, parts or designs which incorporate the proposed changes. EMC shall
have the right to accept, reject or mutually agree to an alternate plan for
SUPPLIER's proposed Optional Engineering Changes and will inform SUPPLIER of its
approval or rejection of those changes in writing within [*] days from receipt
of the evaluation products, parts or designs provided to EMC, or within [*] days
of EMC's receipt of notice of such changes, whichever is later. Such approval
shall not be unreasonably withheld.
14.4 If EMC rejects the Optional Engineering Changes, EMC may require SUPPLIER
to continue supplying the unaltered Product or to provide EMC with opportunities
for a last time buy of the unaltered Product.
14.5 SUPPLIER will phase-in changes as mutually agreed accepted by EMC into
Product on EMC's open purchase orders and into Product going through SUPPLIER's
repair process at no charge.
14.6 Unless EMC specifically rejects such changes, each version of the Product
will possess at least the same features and functions, if not more, than are
offered by SUPPLIER in the Product or similar product offered by SUPPLIER for
the same server/host environment. SUPPLIER shall introduce all new non-exclusive
features or functions for the Product as early as the introduction in any other
similar SUPPLIER products for that environment.
14.7 Any changed Product resulting from application of these Sections 11, 12, 13
and 14 shall be considered added as Product to this Agreement, and subject to
its terms and conditions.
15.0 PRODUCT WITHDRAWALS
15.1 SUPPLIER will notify EMC in writing at least [*] days prior to Product
withdrawal. During the withdrawal notice period, EMC may issue purchase orders
with normal lead-time up until the last time buy. Last-time-buy purchase orders
must be non-cancelable for any Product requested to be delivered in the last [*]
days of the notice period. Product withdrawal shall not affect SUPPLIER's
obligation to fill purchase orders previously issued hereunder.
15.2 SUPPLIER shall provide Product repair service for the Product to EMC at a
reasonable price and lead time, until the end of [*] years after Product
withdrawal, pursuant to terms and conditions set forth in Exhibit H, Product
Repair. The foregoing notwithstanding, EMC shall have no obligation to order any
Product repair service from SUPPLIER.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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16.0 CONTINUITY OF SUPPLY
16.1 If SUPPLIER discontinues its manufacturing and selling activities in the
field of Product for whatever reason; or EMC becomes entitled to terminate this
Agreement because of the occurrence of any of the conditions, with respect to
SUPPLIER, cited in Sections 3.3, 3.4, or 3.5:
Then SUPPLIER shall instruct its contract manufacturer to directly accept
purchase orders from EMC at the then prevailing prices and terms for the [*] of
(i) [*] days, or (ii) the remainder of the then-current term of this Agreement
(or in the event of the termination of this Agreement under Section 3.4 by EMC
for material breach by SUPPLIER, the remainder of the then-current term assuming
no termination had occurred).
17.0 PRODUCT QUALITY
17.1 SUPPLIER shall participate in the supplier quality plan as required in
Exhibit E and shall meet or exceed the quality and reliability requirements
stated in Exhibit E.
18.0 REVIEW AND PLANNING MEETINGS
18.1 SUPPLIER hereby appoints its Director of Operations as its liaison to
monitor SUPPLIER's performance and delivery of Product under this Agreement. EMC
hereby appoints its designated Supplier Business Manager as its liaison to
monitor SUPPLIER's performance and delivery of Product hereunder. These liaisons
will also be responsible for coordinating meetings and discussions and reports
provided for in this Agreement. The names, telephone and facsimile numbers of
the liaisons will be provided by the parties to each other and the liaisons may
be changed by written notice from one party to the other.
18.2 EMC's designated Supplier Business Manager will conduct quarterly supplier
performance review and planning reviews with SUPPLIER's EMC account management
team. EMC and SUPPLIER will determine the location and times for these meetings.
The purpose of these meetings are listed below:
18.2.1 Review SUPPLIER's performance over the past quarter;
18.2.2 Review action items and resolution;
18.2.3 Identify opportunities and areas of improvement;
18.2.4 Agree on commitments, set target dates, and define "persons"
responsible;
18.2.5 Review appropriate SUPPLIER reports; and
18.2.6 Review SUPPLIER quality and reliability improvement plans.
18.3 EMC will conduct Quarterly Marketing and Technical Reviews with the
appropriate members of SUPPLIER's Technical and Marketing teams. The purpose of
these meetings is defined in Exhibit B.1
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18.4 EMC shall use diligent efforts to coordinate the timing of and attempt to
consolidate all three (3) meetings as listed in this Section 18 to minimize
impact on SUPPLIER.
19.0 REPORTS
19.1 Recurring reports to be provided by SUPPLIER and EMC under this Agreement
are listed in Exhibit E, "Supplier Quality Plan," and Exhibit H, "Product
Repair". All reports will be made available in electronic form or as otherwise
mutually agreed. There shall be no charge to EMC for any reports required under
this Agreement.
20.0 LIABILITY FOR INJURY AND LIMITATION OF LIABILITY
20.1 SUPPLIER shall indemnify and hold EMC harmless against all claims asserted
by End Users, EMC's resellers or other third parties as a result of SUPPLIER's
breach of any of its warranties in Sections 10.4 and 10.5 herein, and SUPPLIER
[*] and [*] EMC [*] all claims, suits, losses, expenses and [*] directly or
indirectly caused by any Product or through the [*] or any [*], provided that,
in either case (i) EMC has notified SUPPLIER promptly in writing of any such
claims, (ii) SUPPLIER shall have sole control of the defense of such claims and
all negotiations for its settlement and compromise, and (iii) EMC shall
reasonably cooperate with SUPPLIER in the defense or settlement of such claims.
SUPPLIER shall carry and maintain ▇▇▇▇▇▇▇'▇ Compensation and general liability
insurance coverage to satisfactorily cover SUPPLIER's obligations under this
Section.
20.2 EXCEPT AS TO SUPPLIER'S OBLIGATIONS UNDER SECTION 20.1 (LIABILITY FOR
INJURY) AND SECTION 22 (INFRINGEMENT) NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
PROFITS, ARISING OUT OF THIS AGREEMENT OR ANY PERFORMANCE HEREUNDER, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20.3 EXCEPT AS TO BREACHES OF SECTION 21 (CONFIDENTIAL INFORMATION & PUBLICITY)
AND SUPPLIER'S OBLIGATIONS UNDER SECTION 22 (INFRINGEMENT), IN NO EVENT SHALL
SUPPLIER'S TOTAL LIABILITY PER OCCURRENCE UNDER THIS AGREEMENT EXCEED THE [*] OF
(i) [*], OR (ii) [*] OF THE TOTAL REVENUES RECEIVED BY SUPPLIER FROM EMC DURING
THE [*] IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE IMPOSITION OF
LIABILITY.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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21.0 CONFIDENTIAL INFORMATION & PUBLICITY
21.1 Either party may, in connection with this Agreement, disclose to the other
party information considered confidential and proprietary information of the
disclosing party ("Confidential Information"). Information shall be considered
Confidential Information if identified as confidential in nature by the
disclosing party at the time of disclosure, or which by its nature is normally
and reasonably considered confidential, such as information related to past,
present or future research, development, or business affairs, any proprietary
products, materials or methodologies, or any other information which provides
the disclosing party with a competitive advantage. The receiving party shall
protect the disclosing party's Confidential Information with the same degree of
care that it regularly uses to protect its own Confidential Information from
unauthorized use or disclosure. No rights or licenses under patents, trademarks
or copyrights are granted or implied by any disclosure of Confidential
Information. Sections 21.1 and 21.2 shall survive the expiration or termination
of this Agreement for a period of [*] years.
21.2 The obligations of confidentiality imposed by this Agreement shall not
apply to any Confidential Information that: (a) is rightfully received from a
third party without accompanying markings or disclosure restrictions; (b) is
independently developed by employees of the receiving party who have not had
access to such Confidential Information; (c) is or becomes publicly available
through no wrongful act of the receiving party; (d) is already known by the
receiving party as evidenced by documentation bearing a date prior to the date
of disclosure; or, (e) is approved for release in writing by an authorized
representative of the disclosing party.
21.3 Neither party will originate, or authorize, assist or permit another party
to produce, any written publicity, news release, marketing collateral or other
publication or public announcement whether to the press, actual or potential
customers, stockholders, or others, relating to this Agreement, to any amendment
hereto or to performance hereunder or to the existence of an arrangement between
the parties or shall in any manner disclose, advertise, or publish the fact that
SUPPLIER has furnished or contracted to furnish the Products to EMC without the
prior written consent of the other party. Notwithstanding anything in this
Agreement to the contrary, i) EMC shall not unreasonably withhold approval of
disclosure of the Agreement for the purpose of SUPPLIER complying with any SEC
or legal regulations and ii) SUPPLIER shall allow EMC to propose the exact
timing of the initial public release regarding the relationship provided that
EMC provides no less than [*] days written notice and opportunity to review and
approve the release. The existence, terms and conditions of this Agreement are
considered the Confidential Information of both parties.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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22.0 INFRINGEMENT
22.1 SUPPLIER warrants that neither any Product nor any part of any Product
infringes any copyright or trade secret right of any person or entity and that,
to SUPPLIER'S knowledge, neither the Product nor any part of the Product
infringes [*] patent or trademark issued in the [*] set forth in Exhibit K.
SUPPLIER shall indemnify and hold EMC harmless from and against any claims,
demands, suits, actions or judgments brought against EMC (including reasonable
attorney's fees and costs) to the extent such action is based upon a claim that
any Product purchased hereunder infringes a patent issued in the [*] set forth
in Exhibit K, or any copyright or trade secret right of any third party,
provided that EMC gives SUPPLIER prompt written notice of any infringement
claim, available information, reasonable assistance, and sole authority and
control to settle or defend the claim, at SUPPLIER's expense. SUPPLIER reserves
the right to choose the attorneys who may pursue any action on its behalf, but
EMC may be represented in any such action by its own attorneys at its own
expense.
22.2 If any Product should become, or in SUPPLIER's opinion is likely to become,
the subject of claim for infringement of a patent, copyright, or any
intellectual property right of any third party, SUPPLIER shall, at SUPPLIER's
expense and option either procure for EMC the right to continue using the
Product, or replace or modify the Product so that its use and resale becomes
non-infringing, provided that any replacement or modified Product meets
substantially the same specifications as the original, maintains the same form,
fit, function and quality, [*]. If SUPPLIER is unable to accomplish either
remedy set forth in this Section, then SUPPLIER shall grant EMC a credit for the
then-current purchase price of a replacement Product and accept its return.
22.3 SUPPLIER shall have no liability to EMC to the extent that a claim of
infringement is based upon: (i) compliance with specifications or designs
provided by EMC; (ii) the combination of the Product with other product or
devices not purchased hereunder where the Product itself would not be
infringing; or (iii) modifications of the Product made by EMC where unmodified
Product would not be infringing.
22.4 THE FOREGOING PROVISIONS OF THIS SECTION 22 STATE EMC'S SOLE AND EXCLUSIVE
REMEDY FOR ANY ALLEGED INFRINGEMENT BY THE PRODUCTS OF ANY THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
23.0 FIBRE ALLIANCE MEMBERSHIP
23.1 During the term of this Agreement, each party will maintain a corporate
voting membership in the Fibre Alliance or it's successor, and shall perform all
obligations, including payment of dues and attendance at meetings, required to
keep its membership in good standing. Each party agrees to cast a vote on all
matters that come before the alliance, but each party will vote independently of
the other party.
24.0 MISCELLANEOUS PROVISIONS
24.1 This Agreement shall be governed by and construed in accordance with the
laws of the state of [*] without regard to conflict of laws principles.
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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24.2 The parties are and shall remain at all times, independent contractors in
the performance of this Agreement and nothing herein shall be deemed to create a
joint venture, partnership or agency relationship between the parties. Neither
party shall have the right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of the other except as may be
expressly provided otherwise in this Agreement. Each party shall be solely
responsible for the performance of its employees hereunder and for all costs and
expenses of its employees, to include but not be limited to employee benefits.
24.3 The failure of either party to insist upon or enforce strict conformance by
the other party of any provision of this Agreement or to exercise any right
under this Agreement shall not be construed as a waiver or relinquishment of
such party's right unless made in writing and shall not constitute any
subsequent waiver or relinquishment.
24.4 To be valid, amendments or modifications to the Agreement must be in
writing and signed by authorized representatives of both parties. Any verbal
agreements, discussions, and understandings, expressed or implied, shall not
constitute amendments to this Agreement.
24.5 If any provision of this Agreement is finally held by a court of competent
jurisdiction to be illegal or unenforceable, the legality, validity, and
enforceability of the remaining provisions of this Agreement shall not be
affected or impaired.
24.6 The provisions of this Agreement which by their nature survive termination
or expiration of the Agreement, including but not limited to the provisions of
Section 1 (Definitions), Subsection 3.6 of Section 3 (Term and Termination),
Section 4 (Intellectual Property Rights), Subsection 5.2 of Section 5
(Documentation), Subsection 6.2, 6.4, and 6.5 of Section 6 (Price and Payment),
Section 9 (Inspection and Acceptance), Section 10 (Warranty), together with
Exhibit X, Subsections 11.1, 11.2 and 11.3 of Section 11 (Product Support),
Subsection 15.2 of Section 15 (Product Withdrawals), Section 16 (Continuity of
Supply), Section 20 (Limitation of Liability), Section 21 (Confidential
Information), Section 22 (Infringement), together with Exhibit X, Section 24
(Miscellaneous), Section 25 (Entire Agreement), Exhibit F (Technical Support),
Exhibit G (RMA Procedure), Exhibit H (Product Repair), and Sections 9, 10, 11,
12, 13, 14 and 15 of Exhibit L (ACT Product Test Agreement) of this Agreement
shall survive the termination or expiration of this Agreement. Outstanding
purchase orders accepted by SUPPLIER shall survive the termination of this
Agreement, unless EMC cancels the purchase orders.
24.7 Neither party shall be responsible for any delay in performing this
Agreement to the extent that such delay is caused by fire, flood, hurricane,
earthquake, explosion, war, strike, embargo, government law or regulation,
action of civil or military authority, or act of God.
24.8 Neither party may assign any rights hereunder without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
Any assignment of rights shall not work as a novation of obligations hereunder
without written agreement. Any attempt to assign any rights, duties or
obligations hereunder without the other party's written consent will be void.
Notwithstanding the above, either party may assign this Agreement to a surviving
entity in connection with any merger, acquisition or consolidation of not less
than a majority ownership in the merged, acquired or consolidated company by the
surviving entity.
24.9 If either party commences litigation to enforce any provision of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and expenses of litigation, including fees and expenses of any
appeal.
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24.10 Unless otherwise expressly provided for, all notices, requests, demands,
consents or other communications required or pertaining to this Agreement must
be in writing and must be delivered personally or sent by certified or
registered mail (postage prepaid and return receipt requested) to the other
party at the address set forth below, or to any other address given by either
party to the other party in writing:
SUPPLIER: Brocade Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
EMC: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: VP Supply Base Management Commercial
CC: Chief Counsel
In case of mailing, the effective date of delivery of any notice, demand, or
consent shall be considered to be 5 days after proper mailing.
24.11 Technical Contacts
With respect to all other communications between the parties, the principal
contacts are noted below:
SUPPLIER:
Brocade Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: EMC Program Manager
EMC:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Brocade Program Manager - Supplier Base
Technical
Attn: Brocade Program Manager - Open Systems
Engineering
This information may be changed by written notice between the parties and
without the necessity of amending this Agreement.
24.12 The section and paragraph headings of this Agreement are intended as a
convenience only, and shall not affect the interpretation of its provisions.
24.13 The parties agree that the terms and conditions of this Agreement shall
prevail, notwithstanding the contrary or additional terms in any purchase order,
sales acknowledgment, confirmation or any other document issued by either party
effecting the purchase and/or sale of Products.
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24.14 Neither party will export, re-export or resell any Product or technical
data without first complying with all applicable export laws, orders and
regulations and obtaining all necessary governmental permits, licenses and
clearances.
24.15 Nothing in this Agreement shall be construed as preventing EMC from
developing, acquiring, marketing, selling, supporting or maintaining products
similar to or competitive with Product, or from entering into agreements with or
providing specifications for competitors of SUPPLIER, provided that in so doing,
EMC does not breach its obligations under Section 21.
25.0 ENTIRE AGREEMENT
25.1 The following exhibits are part of this agreement and are
incorporated herein by this reference:
A PRODUCT AND REPAIR PRICING.............................................
B PRODUCT SPECIFICATION AND REQUIREMENTS ................................
C QUALITY ASSURANCE,PRODUCT DEVELOPMENT LIFECYCLE,
AND ESCLATION PROCEDURES...............................................
D SCHEDULES AND PROGRAM COORDINATION.....................................
ATTACHMENT [*] STANDARD APPROVED
BY STANDARDS COMMITTEE.................................................
E SUPPLIER QUALITY PLAN
F TECHNICAL SUPPORT
G RMA PROCEDURE
H PRODUCT REPAIR
I END-USER SOFTWARE LICENSE AGREEMENT....................................
J DROP SHIP PROCESS
K INDEMNITY COUNTRY LIST.................................................
L ACT AGREEMENT..........................................................
X REGULATORY COUNTRY LISTING.............................................
* Certain information on this page has been omitted and filed separately with
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omitted portions.
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25.2 This Agreement, including all Exhibits, constitutes the entire
Agreement between the parties and supersedes all prior or
contemporaneous agreements, discussions, and understandings
between the parties, either express or implied.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives, effective as of the date first above set
forth.
SUPPLIER CORPORATION ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By:_____________________________ By:__________________________________
(Signature) (Signature)
Name:___________________________ Name:________________________________
(Please Print or Type) (Please Print or Type)
Title:__________________________ Title:_______________________________
Date:___________________________ Date:________________________________
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EXHIBIT A
PRODUCT AND REPAIR PRICING
EMC APPROVED LOGISTICS PARTNERS
PRICING
Model # Description Unit Price
--------- ----------- ----------
EM-2802-XXXX 16 Port Switch, [*]
EM-2802-YYYY 16 Port Switch, [*]
X1006 SWL GBIC* single [*]
XBR-000023 LWL GBIC** single [*]
XEM-000010 Power Supply FRU, EMC Color [*]
XEM-000003 Fan Assembly [*]
SW-20000X-XX Extended Fabric License Upgrade Key 2.x [*]
* SUPPLER to use [*] SWL GBIC's as primary source, [*] as secondary source. All
GBIC's, integrated and FRU's, to be tested as specified in Exhibit C.
**SUPPLIER to use [*] LWL GBIC's as primary until [*] is fully qualified. All
GBIC's, integrated and FRU's, to be tested as specified in Exhibit C.
EMC APPROVED LOGISTICS PARTNERS
[*]
EMC to provide details within 30 days of the Agreement execution.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT B:
PRODUCT SPECIFICATION AND REQUIREMENTS
This Specification and Requirements document describes the progression of
features required by EMC to form a departmental-level switch product. Section
1.0 describes the initial product EMC will OEM from SUPPLIER. Subsequent
sections describe the follow-on actions necessary to fully develop the required
product.
1.0 PHASE I REQUIREMENTS:
The following items to be available for EMC General Availability per the
schedule defined in Exhibit D.
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1.1 PRODUCT DESCRIPTION
EMC will initially OEM the model [*], [*]. This will be available as two
different model numbers. [*] and will be painted in EMC colors, as detailed by
EMC specifications. All licensable software components will be licensed and
enabled. The combination of hardware, firmware, and software revisions for
Product will be under EMC control.
--------------------- ------------------ ---------------------------------------
PACKAGING
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
DESIGN
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
ZONING
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
MANAGEMENT
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
DIAGNOSTICS
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
ENVIRONMENT [*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
POWER [*] [*]
--------------------- ------------------ ---------------------------------------
REGULATORY [*] [*]
COMPLIANCE
--------------------- ------------------ ---------------------------------------
[*] [*]
--------------------- ------------------ ---------------------------------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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1.2 FIBRE ALLIANCE COMPATIBILITY
SUPPLIER shall implement all [*], etc.) as defined in Attachment Y
(included in exhibit D) and delivered as part of [*].
1.3 EMC CUSTOM FEATURES:
1.3.1 [*]
SUPPLIER shall cooperate with EMC to create [*] capability and [*]
capability for maintenance of the Product. [*] is the capability [*]
with the Product. [*] is the capability [*] configure, maintain, or
diagnose issues. This functionality will be a combination of SUPPLIER
software and EMC software. The SUPPLIER commits to work with EMC to
design and implement such capability. It is agreed that only the
specific EMC implementation of [*] is an EMC Custom Feature. This
functionality is required in Phase I release of the Product.
1.3.2 ADDITIONAL
Additional EMC Custom Features will be defined through the course of
this project and be added to this Exhibit from time to time as an
amendment to this Agreement.
2.0 PHASE II REQUIREMENTS
The following items are to be available for EMC General Availability per the
schedule defined in Exhibit D.
2.1 GENERAL REQUIREMENTS:
2.1.1 [*]: Product will support a minimum of [*] each with
at least [*] to support maximum performance [*]
[*] will be available with the [*]
2.1.2 [*] support: [*]
2.1.3 [*]
2.1.4 [*]
2.1.5 [*]
2.1.6 [*]
2.1.7 [*]
2.1.8 [*]
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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2.2 API REQUIREMENTS:
[*] will be supplied at a minimum on the following [*]. The
implementation of these [*] will not rely on [*]. Additional [*] will be
supported in the future. All of the aforementioned is related to [*].
[*] shall be enabled at a future date when available [*].
SUPPLIER will provide [*] for Product that allows for control and
monitoring of the features identified below.
[*]
[*] considers the deployment of the above [*] to be separate and
distinct from any [*] for purposes of internal development of
[*] and [*] which invoke [*] on negotiated [*], reasonably
acceptable [*]. Such [*] will include a [*] to distribute the
[*] of version of the [*] solely as incorporated into the [*]
and as incorporated into a [*] to be distributed to [*]
(provided that such [*] may not be [*]). Furthermore, [*] will
[*] the [*] on a [*] to [*] on negotiated [*] to [*]. [*] shall
not [*] that [*] recommends, provided that nothing herein shall
be construed to obligate [*] to [*] if 1) [*] that such [*]
would result in [*] or [*] protection of [*] or 2) cause the [*]
to be disclosed to [*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
3 PHASE III REQUIREMENTS
The following items to be available for EMC General Availability per the
schedule defined in Exhibit D.
3.1 GENERAL REQUIREMENTS:
3.1.1 E-Port Compatibility Features:
[*]
3.1.2 Fibre Alliance:
[*]
3.1.3 EMC Custom Features:
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3.2 API REQUIREMENTS:
[*]
Functions:
[*]
4.0 PHASE IV REQUIREMENTS:
The following items are to be available for EMC General Availability per
schedule defined in Exhibit D.
4.1 GENERAL REQUIREMENTS:
4.1.1 [*]:
SUPPLIER shall implement [*] on all [*], [*]. Specific
design changes to be detailed at a design review to be
held between the companies not later than [*].
Software test and diagnostic support for this function
shall be provided with Fabric OS [*].
4.1.2 Fibre Alliance:
[*].
4.1.3 Performance monitoring:
[*]
4.1.4 [*] support:
[*]
4.1.5 [*]:
4.1.6 EMC Custom Features:
[*]
4.2 API REQUIREMENTS:
[*]
FUNCTIONS:
- [*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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5.0 SUPPLIER ENHANCEMENTS AND CHANGES TO PRODUCT
SUPPLIER will provide EMC information about the features, functions and products
described in Section 11.6 of the Agreement. Information about these changes
shall be provided in the form of a specification and in a timely manner to allow
EMC to comment and react to the proposed enhancements and or changes.
SUPPLIER shall allow EMC, as early as exposure to others, to review and shall
include EMC as a participant in any specification or presentation made to
industry standard bodies or consortiums from SUPPLIER'S initiation of the
initiative. Such initiatives as plug-fests, SNIA proposals, Focus-Group work,
etc. shall be included.
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EXHIBIT C:
QUALITY ASSURANCE, PRODUCT DEVELOPMENT LIFECYCLE, AND
ESCALATION PROCEDURES
1.0 QUALITY ASSURANCE
1.1 [*] PROCESS
SUPPLIER shall perform a [*] on [*] whenever a [*] is initiated. Any [*]
within the documented [*] shall be identified and corrected [*].
SUPPLIER shall perform a mutually agreed upon [*] whenever [*] is
initiated. Any failures shall be identified and corrected [*].
1.2 MANUFACTURING PRODUCTION TEST PROCESS
1.2.1 SUPPLIER [*].
1.2.2 SUPPLIER [*].
1.2.3 SUPPLIER [*].
1.2.4 SUPPLIER [*].
1.3 SPARE PARTS
Supplier shall test spare parts in [*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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2.0 OVERVIEW OF PRODUCT DEVELOPMENT LIFE CYCLE
Each of the product phases for PRODUCT will go through design, development, and
delivery phases. These design, development, and delivery phases are outlined for
the purpose of determining EMC and SUPPLIER responsibilities.
2.0.1 CONCEPT EXPLORATION PHASE
This phase is used to scope the interdependencies of
various pieces of Product and complete the initial
design and specification work for the development of
Product. It will result in requirements.
2.0.2 REQUIREMENTS PHASE
This phase is used to define and document Detailed
Requirements (Functional Specifications) for SUPPLIER's
Product.
2.0.3 DESIGN PHASE
This phase is used to complete the design effort and
produce final versions of detailed requirements
documents and test plan.
2.0.4 IMPLEMENTATION PHASE (ALPHA)
This phase is used to develop and test of individual
components. Combine and test components as a
functionally complete product. The Product delivered at
the end of this phase is considered `Alpha'.
2.0.5 INTEGRATION AND VERIFICATION PHASE
This phase is used to integrate SUPPLIER's Product with
EMC hardware and software, including performance
analysis and tuning of SUPPLIER's Product and target
operating system. Verification testing to ensure that
SUPPLIER's Product meets their stated requirements. The
Product delivered at the end of this phase is considered
`Beta'.
2.0.6 BETA PHASE
The Beta Phase starts upon delivery by SUPPLIER of the
Beta version of SUPPLIER's Product and ends with the
final acceptance of SUPPLIER's Product by EMC. The Beta
Phase will be performed under responsibility of EMC. EMC
will provide technical support for EMC software and
hardware. SUPPLIER will provide technical support for
Product.
2.0.7 GENERAL AVAILABILITY (GA)
Complete and close the Beta Phase. SUPPLIER will provide
EMC with Product for EMC first article acceptance
testing.
2.1 PROGRAM MONITORING
The appropriate Phase for each SUPPLIER's Product will contain a more detailed
description of the SUPPLIER's Product "Product Definition", identify project
coordination contacts and specify project deliverables of SUPPLIER and EMC and
their completion dates. The appropriate Product Definition for each release of
SUPPLIER's Product, together with the body of this document, will be the basis
and guide for conducting the Program Monitoring.
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An initial version of the appropriate Product Definition will be created before
the start of each release. An updated version will be created upon completion of
the Concept Exploration phase. Further detailing and refinement will take place
during the project as needed, in mutual agreement between EMC and SUPPLIER.
2.2 PROJECT DELIVERABLES AND ACCEPTANCE CRITERIA
This section gives an overview of the deliverables of the various project phases
and the acceptance criteria that will be applied to these deliverables. A more
detailed specification of deliverables will take place as part of the project
planning and scheduling process.
2.2.1 CONCEPT EXPLORATION AND REQUIREMENTS PHASES
SUPPLIER deliverables
Requirements (Functional Specifications): This document will formulate the
requirements for each of the features. In addition, requirements in the
following areas may be included:
Description of each SUPPLIER component specific utility,
including command line syntax gui descriptions, general
functional description, and diagnostic strategy.
Description of the fault limiting and error recovery policies.
Revisions of the Requirements will be issued during the project as needed. Both
EMC and SUPPLIER shall agree upon revisions.
EMC deliverables
The Product Specification document is written by EMC to provide SUPPLIER with
input covering at least the following subjects:
Target Platform Identification.: What hardware and software
platforms and configurations must be supported.
Performance Requirements: Expected performance of the Product
and how performance shall be measured.
Applicable Standards: What industry standards are applicable for
this product and how conformance shall be determined.
Enumeration and description of product features deemed essential
by EMC.
Product packaging and installation requirements.
Acceptance Criteria: A specification of detailed acceptance criteria for
Product, not covered by this document (if any).
Pass Criteria of Phase
Detailed Requirements documents has been delivered from SUPPLIER
to EMC and EMC provides written approval of Requirements
document.
The other deliverables described above have been delivered and
meet the definition of content as given above.
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2.2.2 DESIGN PHASE
SUPPLIER deliverables
A detailed Engineering Specification shall further breakdown the requirements
document from the Concept Phase. The document will provide reasonable evidence
that the defined requirements will be met. The format of the documents is left
to the discretion of the responsible designer.
EMC deliverables
Review and approve design document and provide feedback.
Pass Criteria of Phase
The deliverables mentioned above have been delivered with EMC requested changes
made and meet the definition of content as given above.
2.3.4 IMPLEMENTATION PHASE (ALPHA)
SUPPLIER Deliverables
The Test Plan will describe the manner in which the Integration and Verification
Test of SUPPLIER's Product is performed and formulate the pass criteria for
these test activities. It will cover functional conformance tests, load/stress
tests, performance tests and white-box tests (Targeted Tests). It will not
contain a detailed description of individual test cases. Revisions of the Test
Plan will be issued as needed. Both EMC and SUPPLIER shall agree upon revisions.
Test Tools
Alpha version of Product: This will be a functionally complete, but neither
fully tested nor performance tuned version of SUPPLIER's Product. It will
include preliminary machine readable documentation (installation guidelines,
online help, end-user documentation) and test report. The test report will
include, all known bugs of the Alpha Version and pass or fail status against
test plan as well as why failures occurred.
EMC Deliverables
There are no new EMC deliverables in this phase, but previously supplied
deliverables may have to be updated.
Pass Criteria of Phase
Test plan and Test report delivered.
SUPPLIER Alpha Version of Product has been delivered and successfully passes the
Alpha test suite.
Concurrence between EMC and SUPPLIER that any exceptions noted in the Test
Report or outstanding Incident Reports are reasonable.
Concurrence between EMC and SUPPLIER that the Test Plan objectives have been
met.
The other deliverables described above have been delivered and meet the
definition of content as given above.
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2.2.4 BETA PHASE
Beta Objectives
Validate customer requirements
Validate new function in different real-world applications/environments
Generate customer success stories and references
Review documentation set
Validate support process
Validate training
Validate any escalation process between companies
Beta Program Entrance Criteria
EMC
1. Internal Sales Order generated
2. EMC agreement on level of function and platform support
3. Signed Beta/ACT/Non-Disclosure Agreement from Customers
SUPPLIER
1. Engineering Quality Assurance underway, with all acceptance tests executed.
2. Documented List of Known Defects
3. Draft Install Document
4. Draft User Document
5. Draft Release Notes
6. No Severity 1 defects
SUPPLIER deliverables
User Guide (DRAFT).
Updated Test Report.
Updated requirements (Functional Specification)
Beta Version of Product, including documentation: Verification Test Suite and
Test Reports as described above will be delivered as part of the Beta Version.
It will also include Machine Readable Documentation (release notes with build
and installation guidelines, online help, end-user documentation - versions from
which SUPPLIER's Product are derived, and a description of software specific
deviations).
The Beta Phase starts upon delivery by SUPPLIER of the Beta Version of software
and/or hardware. The Beta Phase will be performed under responsibility of EMC
and end upon final acceptance of SUPPLIER's Product by EMC. SUPPLIER will
provide technical support and will modify SUPPLIER's Product to resolve any
exceptions uncovered during this phase.
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EMC deliverables
Beta Agreements signed by customers.
Pass Criteria of Phase
Beta Program Exit Criteria as defined by EMC
SUPPLIER
All Documentation revised with updates
Written Known Defect List
Beta Site Summary Reports
No Sev 1 or Sev 2 Defects(unless exception) - Systems Outage or System
Degradation
No Data Corruption
No Application Failures
SUPPLIER start initiation of general availability
items above have been delivered and meet the definition of content as given
above.
2.2.5 GENERAL AVAILABILITY
SUPPLIER deliverables
Updated Test Report.
Final version of SUPPLIER's Products ready for general availability.
EMC deliverables
Written approval to SUPPLIER that all obligations for Phase have been met.
Pass Criteria of Phase
Items above have been delivered and meet the definition of content as given
above.
2.3 OVERALL RESPONSIBILITIES
This section will cover the deliverables of both companies required to develop
SUPPLIER's Products. It will also outline the phases leading to the development
of the final products.
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SUPPLIER responsibilities
SUPPLIER will develop the SUPPLIER software/firmware and hardware components and
ensure compatability with the EMC hardware and EMC software and Fibre Alliance.
The SUPPLIER's Product will be developed at the SUPPLIER facilities, using
development and test systems provided by SUPPLIER.
SUPPLIER will provide, test plans, definition of test environment and
maintenance documentation to EMC.
SUPPLIER will test and validate the SUPPLIER's Product and provide EMC with test
reports.
SUPPLIER shall implement all current and future Fibre Alliance content in
accordance with this Agreement.
EMC responsibilities
EMC will review and provide input to SUPPLIER requirements document.
EMC will provide SUPPLIER employees with relevant technical information on the
EMC hardware and software needed to perform the development of the SUPPLIER's
Product, and contribute to the technical design and decision process by
participating in technical meetings.
EMC will also perform reviews and acceptance testing (after the delivery of the
Alpha code) on an ongoing basis throughout the entire process of the development
of SUPPLIER's Product by SUPPLIER. EMC testing will not replace any testing done
by SUPPLIER.
The Beta Test will be performed and arranged by EMC.
In order to fulfill these tasks in an efficient manner and to enable transfer of
software related technology, EMC employees may work with SUPPLIER employees at
SUPPLIER facilities and/or EMC facilities during the project. Detailed
agreements will be reflected in the appropriate Product Definition for each
phase of the project.
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3.0 PROBLEM ESCALATION AND REPORTING
3.1 PROBLEM SEVERITY LEVELS AND RESPONSE TIME
3.1.1 SUPPLIER will provide support to EMC [*].
3.1.2 SUPPLIER will respond and engage within [*] of EMC
contacting SUPPLIER in regard to a defect.
3.1.3 The incident priority scheme described below will be
used.
Severity Level 1: [*].
Severity Level 2: [*].
Severity Level 3: [*].
Severity Level 4: [*].
SUPPLIER will use its best efforts to fix Priority 1 incidents and commercially
reasonable efforts for Priority 2, 3, and 4 incidents reported by EMC
engineering within the times listed below:
---------------- --------------------
Severity Time to fix
================ ====================
1 [*]
---------------- --------------------
2 [*]
---------------- --------------------
3 [*]
---------------- --------------------
4 * [*]
---------------- --------------------
* will be [*]
3.2 CUSTOMER SERVICE ESCALATION PROCEDURE
3.2.1 EMC Customer Escalation requirements are defined in
Exhibit F, Technical Support
3.3 ENGINEERING ESCALATION PROCEDURE
3.3.1 Contacts:
SUPPLIER will identify hardware and software engineering
resources to work with EMC on engineering issues. At least [*]
and [*] shall be [*] to SUPPLIER's engineering contact.
3.3.2 [*] resources:
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT D:
SCHEDULES AND PROGRAM COORDINATION
1.0 SCHEDULE
The following schedule framework will define the delivery dates for the
development and delivery phases as defined in Exhibits B and C. Within these
phases, additional specifications and technical requirements are expected to be
needed beyond the high-level requirements defined in Exhibit B. These
specifications and requirements will be provided by EMC along the course of the
project and will become part of the product requirements.
Fabric OS SUPPLIER Code Freeze Beta Start GA date*
--------- -------------------- ---------- --------
Phase I [*] [*] [*] [*]
Phase II [*] [*] [*] [*]
Phase III [*] [*] [*] [*]
Phase IV [*] [*] [*] [*]
* [*]
Within the above schedule framework, detailed schedules of deliverables
(specifications and other program materials) as defined in Exhibits B and C,
shall be agreed upon within [*] of [*]. SUPPLIER has agreed that the [*], as per
this agreement, shall be [*] and [*] as [*] prior to any additional [*] from
SUPPLIER. SUPPLIER has agreed that the [*] , as per this agreement, shall be [*]
and [*] as [*], prior to any additional [*] from SUPPLIER. SUPPLIER has further
[*] that the [*], as per this agreement, shall be included in the [*] of
SUPPLIER's [*] and the [*] of [*]. SUPPLIER shall incorporate these features in
SUPPLIER's [*] and will [*] for their [*].
Additional schedules, product deliverables, and content beyond those defined in
the Exhibits of this Agreement will be mutually agreed upon between the
companies and will be provided as amendments to this Agreement.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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2.0 PROJECT COORDINATION CONTACTS
Within [*] days of signing this Agreement, each party will designate a number of
project coordination contacts, as follows:
Product Business Manager: responsible for all interactions on product
requirements and public communications.
Engineering Technical Manager: to oversee the development and quality of
SUPPLIER's Product.
Engineering Program Manager: to expedite critical issues.
These contacts or their designees will participate, as necessary, in project
meetings and status reviews to discuss project status and address any project
related concerns. Contact persons for sales coordination will be specified
seperately.
-------------------------------- ------------------ -------------------
SUPPLIER EMC
-------------------------------- ------------------ -------------------
Product Business Manager [*] [*]
-------------------------------- ------------------ -------------------
Engineering Technical Manager [*]r [*]
-------------------------------- ------------------ -------------------
Engineering Program Manager [*] [*]
-------------------------------- ------------------ -------------------
SUPPLIER shall assign a dedicated Engineering Program Manger to handle EMC
business.
3.0 PROGRAM COORDINATION FORUMS
SUPPLIER and EMC will hold a [*] conference call to monitor program status, open
issues, design issues, bugs, schedules, and any other item relevant to the
program. Based on the program status, additional meetings may be needed and
shall be mutually agreed upon by SUPPLIER and EMC.
A [*] program meeting will be held between the companies. Technical
representatives for SUPPLIER and EMC will be present in person. This forum will
be used as a high-level tracking and monitoring tool for the program. In
addition to program reviews, parties will review product roadmap, technology
roadmap, and planning activities. SUPPLIER shall respond to EMC's technology
recommendations within [*] of the meeting. SUPPLIER shall provide EMC with an
update within [*]of major changes in product direction.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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ATTACHMENT Y
FCMGMT-MIB
DEFINITIONS ::= BEGIN
IMPORTS
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT E
SUPPLIER QUALITY PLAN
1.0 INTRODUCTION
1.1 This document is the Quality Plan for SUPPLIER and defines the quality
systems SUPPLIER will use to ensure that they meet the quality and
on-time-delivery expectations of EMC.
1.2 With reasonable notice, EMC shall have the right to inspect and audit any
SUPPLIER manufacturing or administrative site that supplies goods or services.
EMC shall have the right to review relevant documents pertaining to quality
information, procedures, certificates of conformance, etc. affecting materials
received, at EMC's request.
2.0 DEFINITIONS
2.1 DOA (Dead-On-Arrival): Those [*] EMC customers within [*].
2.2 IQ (Installation Quality process): Any [*] in the first [*] initiates an IQ
process to start. [*].
2.3 CLCA (Closed Loop Corrective Action process): Any failure within the [*],
initiates a CLCA process. [*].
2.4 Quality Failure: Any failure that occurs during the [*] is considered in the
calculation for the parts-per-million ("ppm") failure rate. This includes any
and all functional and non-functional failures [*] that do not meet EMC's
specifications. [*].
2.5 Reliability Failure: Any failure that occurs after the [*] of [*] after [*].
2.6 Serious Failures. Serious failures are defined [*].
2.7 Critical Failures: Critical Failures are defined [*].
2.8 Purge: [*].
2.9 ORT: (Ongoing Reliability Testing):
2.10 Routine Questions and Issues: Those questions and issues that do not
address Quality Failures, Purges, or Quality Issues.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3.0 PERFORMANCE REQUIREMENTS
3.1 The [*] stated in this section are requirements but the [*] are goals.
SUPPLIER will work with EMC to define and work toward these goals and
requirements. EMC will measure SUPPLIER during the [*] supplier performance
reviews using these quality numbers.
3.2 The [*] remedial action [*] in the form of [*] a [*]
MTBF QTY TOTAL
FITS
[*] [*] [*] [*]
[*] [*] [*] [*]
[*]
[*] [*]
[*]
Supplier agrees to [*] for the Product [*]. Supplier and EMC will jointly work
together to increase the [*] during the [*] toward a goal of [*].
--------------------------------------------------------------------------------
QUARTER 1Q2000 2Q2000 3Q2000 4Q2000
--------------------------------------------------------------------------------
[*] [*] [*] [*] [*]
GOAL
--------------------------------------------------------------------------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
3.3 [*] Inspection Audit -- Supplier will perform an [*] on [*] of product until
EMC and supplier agree to move to a [*] approach. The [*] inspection audit will
include, but not limited to, the following:
3.3.1 [*]
3.3.2 [*]
3.3.3 [*]
3.3.4 [*]
3.3.5 [*]
4.0 TECHNICAL RESPONSIVENESS/SUPPORT
4.1 Routine Questions and Issues: SUPPLIER will provide [*] acknowledgment, by
electronic mail ("email"), facsimile ("fax") or other method of communication
agreed to by the parties, of all EMC requests for assistance with Routine
Questions and Issues, including but not limited to questions regarding Product
service and support. EMC shall have access to SUPPLIER's order fulfillment
personnel, quality and/or technical personnel to assist EMC. SUPPLIER shall use
[*] efforts to respond to EMC's requests for assistance within [*] of receipt of
the request.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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4.2 Failure Analysis: [*] shall perform failure analysis on all failed Products
[*]. Failure analysis will be a [*]. Failure analysis [*] must be completed
within [*]. At EMC's request, the parties will meet to review [*] provided under
this sub-Section.
4.3 Quality Issues: Quality issues must be responded to by SUPPLIER within [*]
that such an issue exists. SUPPLIER will use [*] to completely close the [*]
with [*] that will [*]. This is expected to occur within [*] to [*], depending
on the nature of the issue.
4.4 Critical Failures: Critical Failures shall be considered to be highest
priority [*].
4.5 EMC requires that communications be in writing or electronic mail, if
requested.
5.0 GENERAL PARTNERSHIP REQUIREMENTS
5.1 SUPPLIER will:
5.1.1 Provide EMC with regular updates to Product futures/roadmaps.
5.1.2 Participate in Concurrent Engineering design reviews.
5.1.3 Participate in quarterly performance reviews and annual on-site audits.
5.1.4 Have [*] quality and reliability improvement plans and share those
periodically with EMC. 5.1.5 Have pro-active problem notification and resolution
with potential to adversely effect delivery, quality or price. This includes any
[*] or [*] that could impact shipments or quality.
5.2 EMC and SUPPLIER will each provide the other with the names and telephone
numbers of direct contacts. These lists will be updated as necessary.
6.0 KEY PROCESSES
6.1 SUPPLIER must comply with the SUPPLIER's ESD Policy.
6.2 SUPPLIER must utilize [*] techniques in maintaining [*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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7.0 QUALITY DATA PROVIDED
Each party shall provide the other with the information summarized in the table
below. SUPPLIER will email the required information to EMC Quality personnel.
--------------------------------------------------------------------------------
Field Metrics Owner Available
--------------------------------------------------------------------------------
[*] EMC [*]
Quality Rep
--------------------------------------------------------------------------------
[*] EMC [*]
Quality Rep
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] SUPPLIER [*]
Quality Rep
--------------------------------------------------------------------------------
[*] SUPPLIER [*]
Quality Rep
--------------------------------------------------------------------------------
[*] SUPPLIER [*]
Quality Rep
--------------------------------------------------------------------------------
8.0 CORRECTIVE ACTION PROCESS
8.1 All [*] and [*] shall be resolved to root cause. These issues will be
tracked by the EMC Supplier Engineer and communicated back to SUPPLIER.
8.2 [*]
8.3 Upon determining the [*] failure, [*] a corrective action plan, [*].
8.4 If SUPPLIER encounters a [*] on a Product sent from EMC, they will arrange
for the Product to be sent back for [*].
8.5 When Product under warranty is sent to SUPPLIER, SUPPLIER [*] and thus `own'
the defective Product. If SUPPLIER returns the Product to EMC for further
analysis under sub-Section 8.4, above, SUPPLIER will [*].
9.0 REPAIR PROCESS
[*] test and inspection [*] shall be performed on field return Product prior to
its return to EMC.
10.0 RELIABILITY ASSURANCE
SUPPLIER shall implement a method used to monitor the reliability of the
Product. SUPPLIER will provide EMC [*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT F
TECHNICAL SUPPORT
1.0 SUPPORT LEVEL
1.1 EMC will provide all first-call technical support to its customers.
SUPPLIER's technical support group will provide no services directly to EMC's
customers, except as described herein. All technical support, as described in
Sections 1 through 6 of this Exhibit, and Product Support under this Agreement
will be provided at no charge to EMC, unless specified otherwise.
1.2 EMC shall ensure that its field personnel are trained in the installation,
setup, and operational issues involving the Product. The SUPPLIER technical
support group will provide technical support to EMC's trained engineering staff
as needed to resolve installation, setup and operational issues involving the
Product.
1.3 SUPPLIER will provide engineering level support to EMC's engineering staff
as needed to isolate problem cause, make bug fixes to SUPPLIER supplied code,
and produce the object code required by EMC to support and update the Products.
1.4 SUPPLIER technical support will be available via telephone during normal
working days between the hours of 8:00 AM and 5:00 PM, Pacific Time. Support
between [*], is available via answering service, [*]. Calls placed via the
answering service will receive response from a SUPPLIER technical support
representative within [*].
1.5 Technical information [*] will be made available as developed [*].
1.6 In the course of its investigations, SUPPLIER's technical support group may
require that EMC's personnel be able to obtain [*]. EMC will ensure that its
support staff has the equipment and the training necessary to obtain this
information as follows:
[*]
Fibre Channel Products:
Any fibre analyzer trace, [*].
Equipment List
1.7 In those cases where SUPPLIER personnel are required to make direct phone or
field contact with a customer of EMC to obtain problem information, EMC will
designate EMC's representative to be present for the duration of the customer
contact.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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2.0 PROBLEM ESCALATION
2.1 When the SUPPLIER technical support group determines that it is unable to
resolve the problem with its own resources, it will escalate the problem.
2.2 In those cases where [*], SUPPLIER will provide [*], for that purpose. If it
is determined that [*].
2.3 If the SUPPLIER technical support group determines that the problem may be
due to a defect in the SUPPLIER supplied Product, the problem will be escalated
to SUPPLIER engineering via the normal SUPPLIER System Problem Report ("SPR")
process. Priorities are in accordance with those defined in Exhibit C Section
3.0.
3.0 TECHNICAL CONTACTS
3.1 SUPPLIER and EMC will establish contacts to report problems, track status,
exchange technical information, track build requirements, make bug fixes and
coordinate the transfer of software files to and from a customer account on the
SUPPLIER Support website.3.2 SUPPLIER
3.2.1 Technical Support Administrator. SUPPLIER will establish the Technical
Support Administrator as the central contact point for receiving written problem
reports and sending problem resolution status via Email or FAX. All verbal
contacts with Technical Support should be made via supplied telephone numbers.
3.2.2 Development Engineering. SUPPLIER will [*] and provide engineering level
support to EMC's engineering staff.
3.3 EMC
3.3.1 Problem Administrator. EMC will establish [*] as the counterpart to the
SUPPLIER Technical Support Administrator to send problem reports and receive
problem status.
3.3.2 Engineering. EMC will designate specific members of their engineering
staff who are authorized to have engineering level contact with the designated
SUPPLIER Engineer. However, EMC specified contacts are required to send problem
reports and receive problem status via the Technical Administrator Support.
4.0 PROBLEM AND STATUS REPORTING
4.1 All problem reports will be submitted in a standard format using the sample
form below. All reports will be submitted to the SUPPLIER Technical Support
Administrator via Email or FAX.
PROBLEM REPORT SAMPLE FORM
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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4.2 The SUPPLIER Technical Support Administrator will [*]; and, if the [*] from
the [*].
4.3 In the event a [*], the [*] will [*].
4.4 SUPPLIER will use its [*] to record and track the status of all EMC reported
problems.
5.0 SOFTWARE MAINTENANCE RELEASES
5.1 As part of the support program, SUPPLIER will provide production quality
software maintenance releases as mutually agreed [*] to EMC. Maintenance
releases will contain [*] and [*]. At a minimum, SUPPLIER will provide
maintenance releases in accordance with the schedule set forth in Exhibit B [*].
5.2 Maintenance releases will be derived by [*].
5.3 The standard versions on which maintenance releases are based [*]. SUPPLIER
will give EMC at least [*] days advance notice of upcoming standard releases, as
well as offer EMC beta versions of all SUPPLIER standard releases should they be
available.
5.4 Maintenance releases will typically be delivered to EMC for quality
assurance ("QA") testing at about the time the SUPPLIER standard version is
production released, but no less than [*] after EMC's request. Maintenance
releases will be available for access by EMC in a secured account on the
SUPPLIER web Server.
5.5 SUPPLIER will provide basic unit test of all code supplied to EMC, however,
[*].
5.6 During the [*] is made [*]. In addition, [*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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6.0 [*] RELEASES
6.1 [*].
6.2 [*].
6.3 [*]:
6.4 [*].
7.0 MAINTENANCE AIDS
7.1 Subject to the terms and conditions of this Agreement, SUPPLIER grants to
EMC a personal, non-exclusive, world-wide, no-cost, royalty-free and
non-transferable right to use the Maintenance Aids listed in this Exhibit in
connection with Products covered by an EMC warranty or Service Agreement during
the term of that warranty or Service Agreement for the sole purpose of assisting
EMC in providing warranty and maintenance services on the Products for Customers
under the applicable warranty or Service Agreement. "Maintenance Aids" are
hardware, software and other aids owned by SUPPLIER and used by SUPPLIER in
furnishing maintenance services.
7.2 No title to or ownership of the Maintenance Aids is transferred to EMC, and
any references to "sale" or "purchase" of the Maintenance Aids shall be deemed
to mean "license on the terms contained in this Agreement." EMC shall reproduce
and include SUPPLIER's copyright and other proprietary notices on and in any
copies, including but not limited to physical and electronic copies of the
Maintenance Aids. Neither EMC or any of its agents, independent contractors or
consultants shall modify, enhance, supplement, create derivative works from,
reverse assemble, reverse engineer, reverse compile or otherwise reduce the
Software to human readable form without SUPPLIER's prior written consent.
7.3 In the event that new releases of the Maintenance Aids or additional
Maintenance Aids are developed by SUPPLIER during the term of the Agreement,
SUPPLIER will promptly notify EMC of the availability of such Maintenance Aids.
At EMC's request, such additional Maintenance Aids will also be licensed to EMC
on the terms herein and shall automatically be included as Maintenance Aids
under this Exhibit.
7.4 SUPPLIER shall provide EMC with copies of Maintenance Aids documentation in
English and as available, other language text and numeric forms, as are
available from SUPPLIER. EMC acknowledges that there may not be documentation
available for all Maintenance Aids. Except as provided herein, EMC shall have no
right to copy the documentation for the Maintenance Aids.
7.5 SUPPLIER will use reasonable efforts to notify EMC of a planned
discontinuance of the Maintenance Aids at least [*] days in advance of such
discontinuance by SUPPLIER.
7.6 Upon termination or expiration of the continuing support period under this
Agreement, EMC will immediately discontinue use of the Maintenance Aids and
return, the all copies of the Maintenance Aids to SUPPLIER, within [*] days of
such expiration or termination.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT G
RMA PROCEDURE
1.0 When defective Product must be returned to SUPPLIER for repair or
replacement, EMC shall contact SUPPLIER to obtain an RMA number. EMC shall
submit the information required on SUPPLIER's return material authorization
("RMA") form and return the unit for repair or replacement.
2.0 Upon [*] of the completed [*] of each item noted. If [*] SUPPLIER will [*]
will be returned [*]. Upon [*] of the [*] SUPPLIER will [*].
3.0 Upon [*] of the [*] the [*] and [*] it to [*]. All [*] will be [*]. SUPPLIER
will [*] or with [*] and [*] will be [*].
4.0 If the returned Product is under warranty, SUPPLIER shall provide the
repairs or a replacement unit to EMC at no charge.
5.0 If the returned product is not under warranty and is determined by SUPPLIER,
in its sole judgment, not to be repairable, the following applies:
6.0 If the [*] is [*] but SUPPLIER [*] that [*] will be [*] of such and given
the [*] to have the [*] at the [*]. If SUPPLIER [*] that the [*] will be
notified and [*] to have the Product [*].
7.0 SUPPLIER shall return to EMC or to a location designated by EMC, freight
prepaid by SUPPLIER, the [*] within [*] days from the date the Product is
received at SUPPLIER.
8.0 EMC agrees to verify all failures prior to [*] and to supply details about
the failure conditions and attributes as requested by SUPPLIER. In the event
there is [*] with more than [*] of [*] to [*] for [*] over any [*] period, EMC
and SUPPLIER agree to meet at either party's request to establish a corrective
[*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT H
PRODUCT REPAIR
This Exhibit sets forth the terms and conditions which govern the repair of the
Products. Notwithstanding anything that may be construed to the contrary, EMC
shall not have an obligation to purchase any Product repair from SUPPLIER under
the Agreement. SUPPLIER may ship a repaired unit against an EMC open Purchase
Order for new product or against a specific purchase order as requested by EMC.
1.0 REPAIR CYCLE TIME
SUPPLIER shall provide a maximum of [*] day standard cycle time on repair
Product.
2.0 PRODUCT SUPPORT AND PRODUCT SUPPORT DURATION
2.1 At EMC's request, SUPPLIER shall provide the Product support described in
sub-Section 2.2, below. SUPPLIER shall provide Product support during the term
of the Agreement and for a period of not less than [*] years following
withdrawal of a Product as described in Section 15.0 of this Agreement. Charges
for out of warranty Product repair are provided in Exhibit A to this Agreement.
2.2 Product support shall include, but not be limited to Product: (i) testing;
(ii) repair; (iii) upgrades where practical or mandatory; (iv) SUPPLIER's
standard reporting; (v) failure analysis, and (vi) closed loop corrective
action.
3.0 SCRAP
3.1 SUPPLIER shall make [*] efforts to repair all Product per EMC's
specifications in Exhibit C.
3.2 Once a Product has been returned [*] SUPPLIER shall submit a scrap request
to EMC's Supplier Engineer for review and authorization. SUPPLIER's requests for
scrap authorization shall include the following information:
3.2.1 [*].
3.2.2 [*].
3.23 [*].
3.3 EMC shall provide a timely response to SUPPLIER's scrap requests.
3.4 SUPPLIER may be [*] to [*] and [*]. EMC shall notify SUPPLIER of this
requirement [*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT I
[EMC2 LOGO] Agreement Number: _____________
CUSTOMER AGREEMENT
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ To: Designated Site:
___________________________________ ___________________________
___________________________________ ___________________________
___________________________________ ___________________________
Customer Contact: ____________________ Phone Number: ______________
Hardware Install Contact: _______________ Phone Number: ______________
Support Contact: ______________________ Phone Number: ______________
Support Contact: ______________________ Phone Number: ______________
EMC's goal is to provide our customers with the best enterprise storage
solutions in the industry. To this end, everyone in EMC's organization is
dedicated to providing the highest quality Equipment, Software and Services.
This master Agreement establishes a simplified yet comprehensive way of doing
business with EMC. First, this single Agreement covers all of EMC's Products --
not only the sale of Equipment, but also the licensing of Software and the
provisioning of Product Maintenance and Professional and Training Services.
Second, this Agreement eliminates the need for a separate agreement each time an
EMC Product is needed. All that is required is an Order which must reference the
Agreement Number.
Any Affiliate identified by Customer may also place an Order under this
Agreement. Customer agrees to be responsible for the actions and obligations of
such Affiliate.
Customer hereby acknowledges that Customer has read and understands this
Agreement and agrees to the terms and conditions stated herein. This Agreement
may only be amended by an addendum that is duly signed by both parties. Such an
addendum would only apply to a single order unless it clearly states otherwise.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ CUSTOMER
EMC SIGNATURE BLOCK CUSTOMER SIGNATURE BLOCK
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1. DEFINITIONS
AFFILIATE: Affiliate shall mean any entity that directly or indirectly controls,
is controlled by, or is under common control with Customer. Control means
control of more than fifty percent (50%) of outstanding shares or securities or
an equivalent ownership interest.
AGREEMENT NUMBER: The number provided on the front page of this Agreement.
CORE SOFTWARE: EMC microcode and firmware that enable a Designated EMC System to
perform its basic functions. Core Software does not include any Enterprise
Storage Software.
DESIGNATED EMC SYSTEM: Equipment which is delivered to Customer at the
Designated Site pursuant to this Agreement and is identified by the serial
number set forth on the cabinet.
DESIGNATED SITE: Customer's facility where the Host CPU or Designated EMC System
is located.
ENTERPRISE STORAGE SOFTWARE: Software licensed by EMC other than Core Software
and Maintenance Aids, which consists of:
I. HOST-BASED SOFTWARE: Software that is licensed for use on one or more
Host CPUs, as designated by EMC and,
II. SYMMETRIX-BASED SOFTWARE: Software that is licensed for use on the
Designated EMC System and, if applicable, one or more Host CPUs, as designated
by EMC.
EQUIPMENT: Items of hardware sold by EMC hereunder. The Equipment may be newly
manufactured or remanufactured.
EQUIPMENT AND CORE SOFTWARE PRODUCT MAINTENANCE: A level of support for
Equipment and Core Software provided by EMC as described below.
ENTERPRISE STORAGE SOFTWARE PRODUCT MAINTENANCE: A level of support for
Enterprise Storage Software provided by EMC as described below.
HOST CPU: A central processing unit designated by Customer for operation with
the Designated EMC System.
MAINTENANCE AIDS: Hardware, software and other aids used by EMC in furnishing
Product Maintenance.
ORDER: An EMC generated order form or a customer order that references the
Agreement Number.
PRODUCT MAINTENANCE: Equipment and Core Software Product Maintenance and
Enterprise Storage Software Product Maintenance.
PRODUCTS: Equipment, Software and Services provided by EMC.
PROFESSIONAL SERVICES: Professional consulting services provided by EMC to
Customer as described below.
SERVICES: Product Maintenance, Professional Services and Training Services and
any other services provided under this Agreement.
SOFTWARE: Core Software, Enterprise Storage Software and any other software
licensed by EMC to Customer. Software does not include Maintenance Aids.
SOFTWARE RELEASE: New revisions by EMC consisting of:
I. MAINTENANCE RELEASE: A new revision of Software that includes
corrections, updates and minor modifications to existing features.
II. NEW RELEASE: A new revision of Software that expands or extends
currently existing features, functions or capabilities.
III. NEW VERSION: A new revision of Software that includes substantial
new features, functions or capabilities.
TRAINING SERVICES: Training services provided by EMC to Customer as described
below.
2. EQUIPMENT AND CORE SOFTWARE
A. LICENSE: Each Designated EMC System purchased under this Agreement shall
include a fully paid up license to use the associated Core Software.
B. INSTALLATION: EMC will initially install Equipment and/or Core Software
ordered by Customer at the Designated Site at no additional charge if (a) the
Designated Site is within the service area of one of EMC's service
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locations, (b) Customer promptly notifies EMC of receipt of the Equipment and/or
the Core Software and permits EMC access to the Equipment and/or Core Software
at the Designated Site during EMC's normal business hours, and (c) the Equipment
or Core Software have not been modified without EMC's written consent and/or
subject to unusual physical or environmental stress, accident, neglect, misuse
or other damage not caused by EMC.
C. SUPPORT:
(1). Continuous Support: Equipment and Core Software Product Maintenance shall
be subject to the terms of this Agreement and shall include (a) EMC keeping the
Equipment and Core Software in good operating condition in conformance with
applicable specifications, which includes remedial maintenance and the
installation of engineering changes deemed necessary by EMC; (b) 24-hour
English-language help line service, seven days per week, via telephone or other
electronic media; (c) Maintenance Releases and New Releases; (d) documentation
updates, as they become available; and (e) replacement of the Core Software at
no charge if the media becomes destroyed or damaged so that such Core Software
becomes unusable.
(2). Non-continuous Support: In the event Customer was not under warranty or
Product Maintenance for the Equipment and Core Software, Equipment and Core
Software Product Maintenance will commence upon EMC's certification that such
Product is in good operating condition. Certification services shall be at EMC's
then-current rates. Customer may receive the current release of the Equipment
and Core Software by paying the omitted past maintenance fees for such Equipment
and Core Software.
3. ENTERPRISE STORAGE SOFTWARE
A. LICENSE: Customer shall be licensed to use the Enterprise Storage Software so
long as Customer complies with the terms of this Agreement.
B. SUPPORT: Enterprise Storage Software Product Maintenance shall be subject to
the terms of this Agreement and shall include the following: (a) 24-hour
English-language help line service, seven days per week, via telephone or other
electronic media; (b) Software Release; (c) documentation updates, as they
become available; and (d) replacement of the Enterprise Storage Software at no
charge if the media becomes destroyed or damaged so that such Enterprise Storage
Software becomes unusable.
4. PROFESSIONAL SERVICES
A. SCOPE: Each Order for Professional Services shall be referred to as a
"Statement of Work" and shall be signed by (and may only be modified in writing
and signed by) an authorized representative of Customer and EMC. Professional
Services shall be provided by EMC in accordance with the agreed Statement of
Work. Both parties anticipate that the Professional Services will be performed
in several phases, where the results of a preliminary phase will likely impact
the scope of services provided during a subsequent phase.
B. STAFF RESPONSIBILITY AND REPLACEMENT: EMC shall assume sole responsibility
for the supervision of its consultants assigned to perform the Professional
Services. If one of EMC's consultants resigns or is unable to complete his or
her assigned portion of the Professional Services for any reason, EMC shall
replace such consultant with a consultant of substantially equivalent
qualifications under the same terms and conditions as are set forth in the
Statement of Work.
C. ADJUSTMENTS TO MILESTONE COMPLETION DATES: If Customer is unable to provide
information, support or assistance reasonably requested by EMC to perform the
Professional Services in a timely manner as described in the applicable
Statement of Work, then the completion date(s) for milestones identified in such
Statement of Work shall be extended by the amount of time equal to the delay in
Customer's response, as reasonably determined by EMC. Similarly, if Customer
requests in writing the replacement of one of EMC's consultants, then the
completion date(s) for milestones identified in such Statement of Work shall be
extended by the amount of time required by EMC to replace that consultant (not
to exceed 30 days) and the amount of time required to acclimate the replacement
consultant to the Professional Services to be performed pursuant to that
Statement of Work, as reasonably determined by EMC.
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D. PROPRIETARY RIGHTS TO WORK PRODUCT
(1). Proprietary Rights and Work Product: All patents, copyrights, trade
secrets, methodology, ideas, inventions, concepts, know-how, techniques or other
intellectual property developed, provided or used by EMC during the course of
this Agreement are and remain the property of EMC ("Proprietary Rights"). All
written reports, analyses and other working papers delivered by EMC to Customer
in the performance of EMC's obligations under any Statement of Work ("Work
Product") belong to Customer. Nothing in this Agreement shall preclude EMC from
developing, using or marketing services or materials which are similar or
related to Work Product developed or performed pursuant to this Agreement.
(2). Customer Property: Any tangible materials furnished by Customer for use by
EMC in connection with the Professional Services shall remain Customer's sole
property. All such materials shall be returned to Customer upon receipt by EMC
of final payment for all Professional Services.
(3). Customer License: Upon payment in full by Customer to EMC in accordance
with the payment provision contained in the Statement of Work applicable to any
particular Work Product, Customer, to the extent that Proprietary Rights are
contained in the Work Product, is licensed to use Proprietary Rights on a
non-exclusive, non transferable, royalty-free, worldwide basis for its own
internal use. Customer shall not sublicense or otherwise transfer to any third
party any rights to use Proprietary Rights.
5. TRAINING SERVICES
A. COURSES: EMC courses are listed in EMC's catalogs for Training Services and
on EMC's website. These courses can be ordered by following the directions in
the catalog or the website. Customized Training Services can be ordered as
Professional Services.
B. REFUNDS: For Training Services courses offered through the catalog, refunds
upon cancellation shall be as follows: (a) EMC will provide a full refund if
written notice of cancellation is received two (2) weeks or more prior to the
scheduled beginning of the selected catalog course; and (b) EMC will provide a
50% refund if written notice of cancellation is received less than two (2) weeks
prior to the scheduled beginning of the selected catalog course.
C. SATISFACTION: If Customer is not reasonably satisfied with a catalog course,
EMC will issue Customer a full credit toward another standard catalog course,
upon written notice of such dissatisfaction.
6. GENERAL TERMS
A. ORDERS: Any Order must refer to the Agreement Number and must include
information necessary to complete the associated transaction.
B. SOFTWARE:
(1). EMC grants to Customer a non-exclusive, non-transferable license to use the
Software solely in conjunction with the Designated EMC System or Host CPU, as
applicable, for which the Software was licensed.
(2). Customer shall not, without EMC's prior written consent, provide, disclose
or otherwise make available Software in any form to any person other than
Customer's employees, independent contractors or consultants, who shall use the
Software solely for Customer's internal business purposes in a manner consistent
with this Agreement. Customer shall be fully responsible to EMC for the actions
of its employees, independent contractors and consultants.
(3). Customer may make one copy of the Software for back-up and archival
purposes for use only in the case of a malfunction of Software, EMC Designated
System or Host CPU, as applicable.
(4). Customer may, only after written notice to EMC, change the location of a
Designated EMC System or Host CPU upon which the licensed Software is used to a
replacement location. If Customer moves the Software to another Designated EMC
System or Host CPU which has a different model number than the originally
Designated EMC System or Host CPU, Customer agrees to pay, if applicable, an
upgrade fee based on EMC's then-current
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price and upgrade policy and, at the next support anniversary date, agrees to
pay applicable fees based upon the replacement model number.
(5). If Customer is granted a license to use Software in conjunction with a
Statement of Work (a "Project License"), Customer shall have a non-transferable
right to use the Software only for the purpose of conducting a specific project
under such Statement of Work. The Project License term shall be for one (1) year
or the completion of the project, whichever occurs first.
(6). Customer shall not use the Software on any device other than the Designated
EMC System or Host CPU, as applicable, except that the Enterprise Storage
Software may be temporarily transferred to a replacement Designated EMC System
or Host CPU, as applicable (and deleted from the original Designated EMC System
or Host CPU) if the Designated EMC System or Host CPU is inoperable due to
malfunction or initiation of a disaster recovery program or is otherwise not
able to use the Enterprise Storage Software.
(7). Ownership: No title to, or ownership of, the Software is transferred to
Customer, and any references to "sale" or "purchase" of the Products, with
respect to the Software, shall be deemed to mean "license on the terms contained
in this Agreement." Customer shall reproduce and include EMC's copyright and
other proprietary notices on and in any copies, including but not limited to
partial, physical or electronic copies of the Software. Neither Customer nor any
of its agents, independent contractors or consultants shall modify, enhance,
supplement, create derivative works from, reverse assemble, reverse engineer,
reverse compile or otherwise reduce to human readable form the Software without
EMC's prior written consent. If Customer requires access to the source code of
the Software in order to achieve interoperability of the Software with other
software in the European Union or Norway, Customer shall provide EMC with
written notice. EMC can then decide either: (i) to perform the work in order to
achieve such interoperability and charge EMC's then-current rates for such work
to Customer; or (ii) to permit Customer to reverse engineer parts of the
Software in order to obtain such source code, but only to the extent necessary
to achieve such interoperability. Customer shall promptly report to EMC any
violation of this clause and shall take such further steps as may be reasonably
requested by EMC to remedy any such violation and to prevent future violations.
(8). Secondary Purchaser: Customer's right to use the Software may not be
assigned, sublicensed or otherwise transferred; provided however, that if
Customer sells or transfers the Designated EMC System, EMC shall offer to
license the Core Software and to render Equipment and Core Software Product
Maintenance to any bona fide end user (hereinafter "Secondary Purchaser") to
whom Customer has transferred the Designated EMC System pursuant to EMC's
then-current standard terms and conditions, so long as such Secondary Purchaser
is not deemed, in EMC's reasonable discretion, to be a competitor of EMC's.
Whenever the Core Software is licensed to a Secondary Purchaser in accordance
with this Paragraph, EMC shall offer to provide de-installation services for
Customer and re-installation and certification for Equipment and Core Software
Product Maintenance for the Secondary Purchaser at EMC's then-current applicable
fees.
C. PRODUCT MAINTENANCE
(1). Warranty Period: Product Maintenance shall be provided at no additional
cost during the respective warranty periods for (i) purchased Equipment which
shall include Core Software and (ii) licensed Enterprise Storage Software.
(2). Continued Support: Prior to the end of the warranty period or after any
subsequent continued support period, Customer shall be invoiced for continued
Product Maintenance for Equipment, Core Software and/or Enterprise Storage
Software; provided Customer may decline any subsequent invoicing in writing
sixty (60) days prior to the end of the applicable warranty or continued support
period.
(3). Support Procedures: Customer shall designate in writing a reasonable number
of authorized contacts, as determined by Customer and EMC ("Support Contacts"),
who shall initially report problems and receive support from EMC hereunder. A
change to the authorized Support Contacts by Customer must be submitted in
writing to EMC by one of Customer's duly authorized representatives.
(4). Software Releases: EMC shall provide Software Releases as part of Product
Maintenance. A Software Release does not include new Products. A Software
Release is treated as Software and is covered by the license to the original
Software.
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(5). Alterations and Attachments: EMC does not restrict Customer from making
alterations or installing other products in or with the Equipment at Customer's
expense, but Customer will be responsible for any inspection fees and/or
additional charges resulting from such activities; if the alterations or
attachments prevent or hinder EMC's performance of Product Maintenance, Customer
will, upon EMC's request, take appropriate action to facilitate EMC's
performance of Product Maintenance.
(6). Maintenance Aids: Maintenance Aids (including diagnostic tools) for aiding
the provision of Product Maintenance are owned by EMC and provided at Customer's
site for use by EMC's personnel. Customer agrees to use its best efforts to
prevent the unauthorized use or disclosure of Maintenance Aids. Customer will
not allow copies to be made of any Maintenance Aids. Customer further agrees to
allow EMC, upon reasonable notice, to enter the Designated Site(s) to remove
Maintenance Aids. Nothing hereunder grants to Customer a license to make use of
Maintenance Aids in any way.
(7). Replacement Parts: All Equipment and Software (or parts thereof) that are
replaced under Product Maintenance shall be owned by EMC. Customer shall return
what has been replaced upon EMC's request.
D. CUSTOMER'S RESPONSIBILITIES: Customer shall promptly fulfill the following
responsibilities at no charge to EMC.
(1). Customer agrees to (i) promptly notify EMC when Products fail; (ii) allow
EMC access to any Product needed to perform Services or implement the terms of
this Agreement; (iii) furnish necessary facilities (suitable work space,
computers, power, light, phone, software and equipment reasonably required by
EMC); and (iv) maintain site environment consistent with Product specifications.
Customer shall ensure that EMC is licensed or otherwise permitted to use any
software which Customer makes available for EMC's use.
(2). Customer agrees to notify EMC of any movement of the Product when such
movement is by anyone other than EMC and agrees to allow EMC to inspect the
Product at the new location at EMC's then-current rate for such inspections.
(3). Customer shall appoint representatives to provide EMC assistance and
information in connection with EMC's performance of Product Maintenance and
Professional Services. Each Customer representative shall be familiar with
Customer's requirements and shall have the expertise and capabilities necessary
to permit EMC to undertake and complete such Services.
E. PAYMENT TERMS
(1). Products: Customer shall pay EMC's invoiced amount for the Products.
(2). Equipment and Core Software Product Maintenance: EMC shall invoice an
additional amount to Customer for (i) service calls outside of EMC's service
area; (ii) service for causes not attributable to normal usage or wear; and
(iii) refurbishment services.
(3). Enterprise Storage Software: Customer shall pay a one-time license fee for
Enterprise Storage Software. Unless Customer has prepaid for Enterprise Storage
Software Product Maintenance, EMC shall invoice Customer for such Enterprise
Storage Software Product Maintenance prior to the end of the warranty period at
EMC's then-current price.
(4). Professional Services: Customer shall pay EMC the agreed amounts in the
Statement of Work upon invoice.
(5). General: Subject to credit approval by EMC, payment for Products is due net
thirty (30) days from the date of EMC's invoice. If payment is delayed, EMC may
charge Customer interest at a rate equal to the lesser of 1.5% per month or the
maximum lawful interest rate under applicable law from the due date until
payment is received by EMC. All payments shall be in US dollars. Notwithstanding
the foregoing, payment for Training Services for courses offered through EMC's
course catalog shall be made prior to the start of the course.
(6). Security Interest: Customer hereby grants to EMC a purchase money security
interest in Equipment and Software purchased or licensed by Customer and all
proceeds thereof for the full amount of the purchase price and any costs and
charges incurred by EMC in connection therewith. At EMC's request, Customer
shall sign any documents, including one or more financing statements, and take
any other action required by law to perfect the security interests that may be
granted hereunder. Upon full payment by Customer, such security interests and/or
security filings shall be released.
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F. DELIVERY: Delivery of Equipment and Software will be F.O.B. common carrier at
EMC's plants. Unless Customer instructs EMC to use a particular common carrier,
EMC will select a common carrier and arrange for shipment and insurance at
Customer's expense. At EMC's option, Software may be delivered via the internet
or by similar means.
G. ACCEPTANCE: Acceptance will occur for Equipment and/or Software to be
installed by EMC: (a) upon successful completion of EMC's standard acceptance
procedures to be performed by EMC during installation; or (b) thirty (30) days
after shipment by EMC if EMC is unable to install because of Customer's acts or
omissions to act. Acceptance for other Equipment and/or Software not to be
installed by EMC shall occur seven (7) days after shipment by EMC of such
Equipment and/or Software.
H. PRODUCT CHANGES: EMC reserves the right, at its expense, to make changes to
the Products: (a) upon reasonable notice to Customer, when such changes do not
adversely affect interchangeability or performance of the Products; (b) when EMC
believes changes are required for purposes of safety or reliability; or (c) when
EMC is required by law to do so. Customer shall give EMC reasonable access to
the Products for such purpose; failure to permit EMC to effect these changes
shall allow EMC to terminate Product Maintenance for all affected Products
without liability and without refunding to Customer any fees already paid for
such Product Maintenance.
I. DOCUMENTATION: EMC will provide Customer with one (1) then-current end-user
manual set with each article of Equipment and Software shipped under this
Agreement. Additional manuals or updates may be obtained from EMC. Customer
shall have a non-exclusive, non-transferable right to use such documentation
only at the Designated Site for its own internal use. Customer shall have no
right (i) to permit any third party to access or use such documentation, or (ii)
to copy or create derivative works of such documentation, whether for Customer's
internal use or otherwise.
J. PATENT AND COPYRIGHT
(1). If Customer notifies EMC promptly in writing of any action (and all prior
related claims) brought against Customer alleging that Customer's sale, use or
other disposition of any Equipment, Customer's use of any Software or its
receipt of any Service infringes a valid United States patent or copyright, EMC
will defend that action at its expense and will pay the costs and damages
awarded against Customer in the action, provided (i) that EMC shall have sole
control of the defense of any such action and all negotiations for its
settlement or compromise and (ii) Customer provides all reasonable assistance
requested by EMC. If a permanent injunction is obtained in such action against
Customer's use or receipt of such Product or if in EMC's opinion such Product is
likely to become the subject of a permanent injunction, EMC will at its option
and expense either procure for Customer the right to continue using or receiving
such Product, replace or modify such Product so that it becomes non-infringing
or pay Customer a refund based on a straight line depreciation of the price of
such Equipment and/or Software over five (5) years upon return of the Equipment
and/or Software to EMC or refund the unused amounts paid to EMC for discontinued
Product Maintenance, as the case may be.
(2). EMC shall have no liability to Customer if the alleged infringement is
based on (i) use, sale or receipt of any of the Products in combination with
other equipment, software or services not provided by EMC; (ii) use of any of
the Products in a manner or for a purpose for which they were not designed;
(iii) use of the Software, when use of a Software Release which EMC has made
commercially available would have avoided such infringement; (iv) any
modification to any of the Products not made by EMC, or any modifications to any
of the Products made by EMC pursuant to Customer's specific instructions; or (v)
any intellectual property right owned or licensed by Customer or any of its
Affiliates.
(3). THIS PATENT AND COPYRIGHT SECTION STATES EMC'S ENTIRE LIABILITY WITH
RESPECT TO ALLEGED INFRINGEMENTS OF PATENTS, COPYRIGHTS AND OTHER INTELLECTUAL
PROPERTY RIGHTS BY THE PRODUCTS OR ANY PART OF THEM OR BY THEIR OPERATION, USE
OR RECEIPT.
K. WARRANTY
(1). Warranty for Equipment and Software
(a). EMC warrants that the Equipment and the Core Software shall be free from
material defects in materials and workmanship and that the Equipment and the
Core Software shall perform substantially in accordance with EMC's written
specifications for such Equipment and Core Software for two (2) years from
Acceptance, under normal use
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and regular recommended service. Notwithstanding the above, Equipment known as
EDM products is only warranted for one (1) year from Acceptance.
(b). EMC warrants that the Enterprise Storage Software shall, under normal use,
perform substantially in accordance with EMC's written specifications for such
Enterprise Storage Software. The warranty period for Enterprise Storage Software
shall be for a period of ninety (90) days from Acceptance.
(c). EMC's entire liability and Customer's exclusive remedy under the above two
warranties described in the two preceding paragraphs shall be for EMC to use
reasonable efforts to remedy material defects covered by these warranties within
a reasonable period of time or, at EMC's option, either to replace the
non-conforming Equipment or Software or to refund the amount paid by Customer
for such Equipment or Software, as depreciated on a straight line basis over a
five (5) year period upon return of such Equipment or Software to EMC. EMC does
not warrant that the operation of the Software will be uninterrupted or error
free, or that all Software defects can be corrected. All Equipment and Software
that is replaced pursuant to this paragraph shall be owned by EMC. Customer
shall return the replaced Equipment and Software to EMC upon EMC's request.
(2). Warranty for Services: EMC shall perform Services in a workmanlike manner
and in accordance with each Statement of Work, if applicable.
(3). Disclaimer of Warranties: EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY
SECTION, EMC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY
OPERATION OF LAW OR OTHERWISE, OF ANY PRODUCTS FURNISHED UNDER OR IN CONNECTION
WITH THIS AGREEMENT. EMC DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND THOSE WARRANTIES
ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
L. LIMITATIONS ON PRODUCT MAINTENANCE AND WARRANTIES:
(1). EMC shall not be required to support any releases of any Software other
than the current release and the immediately prior release of such Software.
Enterprise Storage Software Product Maintenance does not include Equipment
upgrades. Product Maintenance for a Software Release other than the current or
immediately prior release will be provided on an as available basis at EMC's
standard time and material fees. In the event that Customer was not under
warranty or Product Maintenance for such Software, Customer may receive the
current release of such Software by paying (x) a one-time reinstatement fee and
(y) omitted past maintenance fees for such Software.
(2). Product Maintenance and the warranties described above do not include
services required or efforts to remedy, repair or replace Products as a result
of: (i) accident or neglect; (ii) problems relating to or residing in other
hardware, software or services with which the Products are used; (iii)
installation of the Products not in accordance with EMC's instructions or their
specifications; (iv) use of the Products in an environment, in a manner or for a
purpose for which they were not designed; and (v) installation, modification,
alteration or repair of the Equipment or the Software by anyone other than EMC
or its authorized representatives. EMC will have no service or warranty
obligations whatsoever with respect to Equipment that has been moved without
EMC's consent, Software which is installed on hardware other than Equipment or
Host CPU, or Equipment or Software on which the original identification marks
have been removed or altered.
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M. DISCLAIMER AND LIMITATIONS OF LIABILITY
(1). EXCEPT AS IS PROVIDED IN THE ABOVE PATENT AND COPYRIGHT SECTION, EMC'S
LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SALE OF
EQUIPMENT, THE LICENSE OF SOFTWARE, THE PROVISION OF SERVICES AND THE USE,
PERFORMANCE, RECEIPT OR DISPOSITION OF SUCH EQUIPMENT, SOFTWARE OR SERVICES,
WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE
LESSER OF THE [*] PAID BY CUSTOMER (OTHER THAN REIMBURSEMENT OF EMC'S EXPENSES)
FOR SUCH EQUIPMENT, SOFTWARE AND/OR SERVICES DURING THE IMMEDIATELY PRECEDING
[*] OR[*]. EMC'S LIABILITY FOR DAMAGES SHALL BE LIMITED TO DAMAGES CAUSED BY
EMC'S SOLE NEGLIGENCE, AND IS FURTHER LIMITED BY THE WARRANTY SECTION OF THESE
GENERAL TERMS AND CONDITIONS. CUSTOMER WAIVES THE RIGHT TO BRING ANY CLAIM
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MORE THAN EIGHTEEN MONTHS
AFTER THE CAUSE OF ACTION UPON WHICH THE CLAIM IS BASED.
(2). IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON
OR ENTITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES
(INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE
DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SALE OF
EQUIPMENT, THE LICENSE OF SOFTWARE, THE PROVISION OF SERVICES, AND THE USE,
PERFORMANCE, RECEIPT OR DISPOSITION OF SUCH EQUIPMENT, SOFTWARE OR SERVICES,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
LOSSES.
N. TERMINATION
(1). Equipment and Core Software Product Maintenance: Customer may terminate
Equipment and Core Software Product Maintenance for a Product by giving sixty
(60) days prior written notice. No refunds for Equipment and Core Software
Maintenance shall be made upon such termination. In addition, either party may
terminate Equipment and Core Software Product Maintenance for failure of the
other party to comply with the terms of this Agreement provided that the
terminating party has given thirty (30) days written notice specifying the
failure and the other party has not remedied such failure within such time. EMC
reserves the right to change the scope of Product Maintenance, provided that
Customer receives at least ninety (90) days prior written notice of such
changes.
(2). Software Licenses:
EMC shall have the right to terminate without liability any of Customer's
licenses to the Software granted pursuant to this Agreement if Customer fails to
comply with the terms and conditions of this Agreement and then fails to cure
such failure within thirty (30) days after receiving written notice thereof from
EMC. Upon notice of termination, Customer shall immediately cease to use all
copies of the terminated Software, and shall return or destroy the terminated
Software and all portions and copies thereof.
(3). Termination of Professional Services and Training Services:
(a). Suspension of Services: EMC may suspend without liability its performance
of the Professional Services and Training Services if Customer is in arrears of
any financial obligation to EMC.
(b). Termination Rights: If a party materially breaches the terms of this
Agreement in relation to a Statement of Work, the other party shall give the
breaching party written notice of such breach. If the breaching party fails to
cure such breach within thirty (30) days after notice thereof, then the
non-breaching party may terminate all Statements of Work. However, termination
of a Statement of Work does not terminate this Agreement. In addition, either
party may terminate all Statements of Work upon written notice if the other
party shall become insolvent or bankrupt or makes an arrangement with its
creditors or go into liquidation.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(c). Payments Upon Termination: If Customer elects to discontinue any of the
Professional Services prior to the completion of the next milestone to be
achieved under a Statement of Work, Customer shall pay to EMC the next
outstanding milestone payment (and all prior milestone payments) on such
Statement of Work.
(4). Survival of Terms: Termination of this Agreement shall not prejudice any
rights or relieve any obligations of either party that have arisen on or before
the date of termination. EMC and Customer agree that Sections 3A, 4D, 6 B, C(4)
and (6), E, H, I, J, K, L, M, N (2) and O shall survive the termination of this
Agreement.
O. MISCELLANEOUS
(1). ASSIGNMENT: Customer shall not assign this Agreement or any of its
rights or obligations hereunder without EMC's prior written consent. EMC may
assign this Agreement and its rights hereunder without Customer's prior consent:
(i) to any individual or business entity controlling, controlled by or under
common control with EMC; or (ii) to the purchaser of all or substantially all of
EMC's assets or stock, through merger, consolidation or otherwise.
Notwithstanding anything contained in this provision to the contrary, no later
than ten (10) days after shipment of Equipment, Customer may notify EMC in
writing of its designation of a leasing company to finance any Equipment through
a conventional equipment financing lease. In connection therewith, EMC, Customer
and the leasing company must sign a mutually agreeable assignment agreement. If
the foregoing notice is not received by EMC within the specified ten-day period
or such assignment agreement is not executed within ten (10) days after such
Customer's notice, then Customer shall pay the purchase price and all applicable
taxes on the due date stated in the original invoice.
(2). ENTIRE AGREEMENT: This Agreement is the complete statement of the
contract between Customer and EMC with respect to the Products. No modification
or amendment of this Agreement shall be binding unless it is in writing and
signed by authorized representatives of Customer and EMC. In the event of any
conflict or inconsistency between the terms of this Agreement and any Order, the
terms of this Agreement shall control and prevail.
(3). GOVERNING LAW: This Agreement shall be governed, interpreted and
construed in accordance with, and any arbitration hereunder shall apply, the
laws of the Commonwealth of Massachusetts, USA, excluding: (i) its conflict of
laws rules and (ii) the United Nations Convention on Contract for the
International Sales of Goods.
(4). ARBITRATION: Any dispute, controversy or claim arising out of or
relating to this Agreement or to a breach hereof, including its interpretation,
performance or termination, shall be finally resolved by arbitration. The
arbitration shall be conducted by one (1) arbitrator appointed jointly by EMC
and Customer or, if they cannot agree, by the President of the American
Arbitration Association ("AAA"). The arbitration shall be conducted in English
in accordance with the commercial arbitration rules of the AAA. The arbitration,
including the rendering of the award, shall take place in Boston, Massachusetts,
USA and shall be the exclusive forum for resolving such dispute, controversy or
claim. The decision of the arbitrator shall be binding upon the parties hereto,
and the expense of the arbitration (including without limitation the award of
reasonable attorney's fees to the prevailing party) shall be allocated as
determined by the arbitrator. The decision of the arbitrator shall be executory,
and judgment thereon may be entered by any court of competent jurisdiction.
Notwithstanding anything contained in this provision to the contrary, EMC shall
have the right to institute judicial proceedings against the other party or
anyone acting by, through or under such other party, in order to enforce the
EMC's rights hereunder through reformation of contract, specific performance,
injunction or similar equitable relief.
(5). APPLICABLE TAXES: In addition to the charges due under this
Agreement, Customer is responsible and shall pay or reimburse EMC for all sales,
use, excise, withholding, VAT, personal property and other similar taxes, duties
or tariffs resulting from this Agreement, except for taxes based on EMC's net
income.
(6). USE OF NAME: EMC may use Customer's name in lists of EMC's
customers.
(7). SEVERABILITY: If any provision of this Agreement is held by a court
of competent jurisdiction to be unenforceable because it is invalid or in
conflict with any law of any relevant jurisdiction, the validity of the
remaining provisions shall not be affected.
(8). EXPORT: Customer agrees to comply with all applicable United States
export control laws and regulations, and will obtain any export and/or re-export
authorization required under the Export Administration
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Regulations of the US Department of Commerce and other relevant regulations
controlling the export of the Products or related technical data.
(9). US GOVERNMENT DATA RIGHTS: The Software is "commercial computer
software" or "commercial computer software documentation." If Customer is a unit
or agency of the United States Government, then the United States Government's
rights with respect to the Software are limited by the terms of this Agreement,
pursuant to FAR Section 12.212(a) and/or DFARS Section 227.7202-1(a), as
applicable.
(10). NOTICES: All notices to EMC shall be in writing, directed to EMC
at EMC's address indicated on the first page of this Agreement, to the attention
of EMC's Office of the General Counsel. All notices to Customer shall be in
writing, directed to the address and individual indicated on the first page of
this Agreement. Notwithstanding the foregoing, if a contact person is
designated, such as is the case with Professional Services, notices shall be
sent to such designated contact persons in addition to notices to be sent as
stated above.
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EXHIBIT J
DROP SHIP PROGRAM
Drop ship program to be developed and inserted in this exhibit within 30 days of
Agreement execution.
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EXHIBIT K
INDEMNITY [*] LIST
[*]
* Certain information on this page has been
omitted and filed separately with the
Commission. Confidential treatment has been
requested with respect to the omitted portions.
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EXHIBIT L
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
ADVANCED CUSTOMER TESTING
PRODUCT TEST EXHIBIT
BETWEEN
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("EMC")
AND
BROCADE COMMUNICATIONS INC. (SUPPLIER)
--------------------------------------
("SUPPLIER")
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
ADDRESS
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------
CITY, STATE, ZIP
SUPPLIER and EMC hereby agree that from time to time SUPPLIER may perform
testing of EMC Products. EMC Products subject to such testing as shall be
identified in a Schedule to this Exhibit L in the form of Schedule A hereto.
Testing shall be conducted in accordance with this Product Test Exhibit L and
the applicable Schedule (collectively the "Exhibit L").
The following terms and conditions shall apply to this Exhibit L:
1. DEFINITIONS
1.1 PRODUCT TEST SITE ("PTS"): SUPPLIER's facility listed on the Schedule.
1.2 DESIGNATED EMC SYSTEM(s): The storage system(s) delivered by EMC to the
PTS pursuant to this Exhibit L or pursuant to a previous Exhibit L between
SUPPLIER and EMC and identified by the serial number set forth on the storage
system cabinet.
1.3 EQUIPMENT: The items of hardware furnished by EMC under this Exhibit L
and listed on the Schedule. The Equipment may be newly manufactured,
re-manufactured and/or provided by a third party.
1.4 HOST CPU: A SUPPLIER-designated central processing unit that is
permitted to use the Enterprise Storage Software for operation with the
Designated EMC System at the PTS.
1.5 CORE SOFTWARE: Those programs, microcode and firmware provided by EMC to
SUPPLIER which enable the Designated EMC System to perform its basic storage
functions. Core Software does not include any Enterprise Storage Software.
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1.6 ENTERPRISE STORAGE SOFTWARE: The separately identified programs listed
on the Schedule.
1.6.1 SYMMETRIX-BASED SOFTWARE: Enterprise Storage Software which
operates on the Designated EMC System.
1.6.2 HOST-BASED SOFTWARE: Enterprise Storage Software which operates on
the Host CPU.
1.7 SOFTWARE: The Core Software and the Enterprise Storage Software.
1.8 EMC PRODUCTS: The Equipment and/or Software provided under this Exhibit
L including those items listed on the Schedule hereto.
2. PRODUCT TEST PURPOSE
EMC's product tests are conducted to analyze the functionality,
performance, compatibility and reliability of the EMC Product(s). All tests are
conducted jointly between EMC and SUPPLIER and may require frequent interaction
between EMC personnel and a technical representative from SUPPLIER's data center
operation. SUPPLIER will be given specific test plan(s) and objectives of
individual product test(s). Additionally, SUPPLIER will provide EMC the
opportunity to correct any failure related to the EMC Products, at a mutually
convenient time and within a reasonable timeframe, in order to continue product
testing.
3. PRODUCT TEST PLAN
3.1 UPON SUPPLIER'S AGREEMENT TO CONDUCT A PRODUCT TEST, EMC WILL PROVIDE A
PRODUCT TEST PLAN (PTP). THE PTP WILL CONTAIN SPECIFIC INFORMATION REGARDING
PRODUCT TEST DYNAMICS INCLUDING BUT NOT LIMITED TO OBJECTIVES, HARDWARE AND/OR
SOFTWARE REQUIREMENTS, INSTALLATION PROCEDURES, TEST OPERATIONS, TEST DATA AND
REPORTING REQUIREMENTS, DELIVERABLES, AND POINTS OF CONTACT. PRIOR TO PRODUCT
TEST COMMENCEMENT, SUPPLIER WILL BE EXPECTED TO REVIEW THE PTP AND PROVIDE
CHANGES AND/OR RECOMMENDATIONS TO THE PRODUCT TEST, IF NECESSARY, BASED ON
KNOWLEDGE OF SUPPLIER'S RESOURCES, OPERATING ENVIRONMENT AND SCHEDULES.
3.2 EMC SHALL, AT NO COST TO SUPPLIER, DELIVER THE APPLICABLE PRODUCTS TO
SUPPLIER AND, AS NECESSARY, HELP SUPPLIER INSTALL SUCH PRODUCTS. EMC SHALL
PROVIDE SUPPLIER WITH NECESSARY DOCUMENTATION TO ENABLE SUPPLIER TO TEST THE
PRODUCTS.
4. PRODUCT TEST TIMELINE
Upon finalization of the PTP, a technical representative(s) from
SUPPLIER's data center operation and EMC representative(s) will establish a
product test Timeline. This requirement will establish a mutually agreed
duration to the time-critical product test(s) to be conducted.
5. PRODUCT TEST SUSPENSION
SUPPLIER has the right to temporarily suspend the EMC Product tests
should the EMC Products create conditions that negatively impact the SUPPLIER's
test environment. If it is necessary to de-install the EMC
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Products in order to correct the problem, only EMC is authorized to de-install
the EMC Products, with the exception of Host Software, which SUPPLIER is
authorized to de-install upon request by EMC. Should SUPPLIER de-install the EMC
Products, EMC reserves the right to terminate this Exhibit L and demand return
of the EMC Products.
6. INAPPROPRIATE USE OF EMC PRODUCT(S)
SUPPLIER shall not directly or indirectly use any of the EMC Products
for any other purpose, except for those purposes expressly stated in this
Exhibit L, or mutually agreed to in writing by both the SUPPLIER and EMC. EMC is
not liable whatsoever for any SUPPLIER losses, either equipment, data and/or
monetary, resulting from such use.
7. EMC PRODUCT TEST RESULTS REPORTING
7.1 In order to determine and/or confirm performance capabilities of the EMC
Products in SUPPLIER's specific hardware and software environment, SUPPLIER
agrees to provide EMC with data relating to the use of the EMC Products
including but not limited to: (1) data relating to the use of the Products in an
interoperability test environment; and (2) data resulting from tests performed
according to the PTP defined under section 3 of this Exhibit L.
7.2 Any and all test data will be considered Confidential Information as
that term is defined herein and is subject to the provisions of section 21 of
this Agreement. On occasion, select EMC prospects will receive information
related to the testing of the EMC Products without the mention of SUPPLIER's
name. Use and publication of test data is at the sole discretion and control of
EMC.
7.3 Prior to the disclosure of information specifically related to SUPPLIER,
EMC will obtain prior written approval from SUPPLIER.
8. POINTS OF CONTACT
The exclusive points of contact with respect to the transmission and
control of test data under this Exhibit L are designated by the respective
parties as follows:
EMC: SUPPLIER:
[*] [*]
------------------------------- ---------------------------------------
(Name) (Name)
ACT Manager Vice President, Interoperability
------------------------------- ---------------------------------------
(Title) (Title)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ---------------------------------------
(Address) (Address)
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------- ---------------------------------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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9. OWNERSHIP OF RIGHTS
9.1 All applicable rights in patents, copyrights and trade secrets in the
EMC Products shall remain in EMC, exclusively.
10. SOFTWARE LICENSE
10.1 EMC grants to SUPPLIER a non-exclusive, non-transferable license
(without the right to sublicense) to use the Software included with Equipment
during the term of this Exhibit L, solely in conjunction with such Equipment,
and only for SUPPLIER's own internal purposes. If no Equipment is furnished by
EMC hereunder, EMC grants to SUPPLIER a non-exclusive, non-transferable license
(without the right to sublicense) to use the Software furnished under this
Exhibit L, solely in conjunction with a Designated EMC System, and only for
SUPPLIER's own internal purposes. No right is granted to use the Software on
more than one Designated EMC System, as applicable, at any one time.
10.2 EMC grants to SUPPLIER a non-exclusive, non-transferable license
(without the right to sublicense) to use Host Software provided by EMC under
this Exhibit L on the applicable Host CPU during the term of this Exhibit L,
solely in conjunction with a Designated EMC System, and only for SUPPLIER's own
internal purposes. No right is granted to use the Software on more than one Host
CPU, as applicable, at any one time
10.3 SUPPLIER shall not provide, disclose or otherwise make available
Software or any information contained therein, in any form, to any person other
than SUPPLIER's employees or independent contractors without EMC's prior written
consent. SUPPLIER agrees to take appropriate action by instruction, Exhibit L or
otherwise with SUPPLIER's employees and by Exhibit L with independent
contractors with respect to use, disclosure, protection and security of the
Software. This Subsection 10.3 shall survive any termination of this Exhibit L
or of the licenses hereunder.
10.4 SUPPLIER may make one copy of the Software for back-up and archival
purposes for use only in an emergency.
10.5 No title to, or ownership of, the Software or the information it
contains is transferred to SUPPLIER, and any references to "sale" or "purchase"
of the EMC Products, with respect to the Software, shall be deemed to mean
"license on the terms contained in this Agreement." EMC considers the
information contained in the Software owned or created by EMC to be trade
secrets of EMC.
10.6 SUPPLIER shall reproduce and include EMC's copyright, trade secret, and
other proprietary notices on and in any copies, including, but not limited to,
partial, physical or electronic copies of the Software. Neither SUPPLIER nor any
of SUPPLIER's employees shall reverse assemble, reverse compile, reverse
engineer or otherwise translate the Software in whole or in part.
10.7 Neither SUPPLIER nor any of SUPPLIER's agents or third party contractors
shall modify, enhance, supplement, create derivative works from, reverse
assemble, reverse engineer, reverse compile or otherwise reduce the Software to
human readable form without the prior written consent of EMC. SUPPLIER shall
promptly report to EMC any violation of this clause and shall take such further
steps as may be reasonably requested by EMC to remedy any such violation and to
prevent future violations.
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11. WARRANTY
All EMC Products furnished under this Exhibit L are provided on an "AS
IS", "WHERE IS" basis. EMC DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR PARTICULAR PURPOSE. No representation or other affirmation of
fact, including but not limited to statements regarding capacity, suitability
for use or performance of EMC Products, whether made by EMC employees or
otherwise, shall be deemed to be a warranty by EMC for any purpose or give rise
to any liability of EMC whatsoever unless contained in this Exhibit L.
12. PATENTS AND COPYRIGHTS
12.1 EMC shall have no liability to SUPPLIER for any action (and all prior
related claims) brought against SUPPLIER alleging that SUPPLIER's sale, use or
other disposition of any EMC Products infringes a valid United States patent or
copyright. In the event of such an action, EMC retains the right to terminate
this Exhibit L and re-take possession of the EMC Products.
12.2 THIS SECTION 12 STATES THE ENTIRE LIABILITY OF EMC WITH RESPECT TO
ALLEGED INFRINGEMENTS OF PATENTS AND COPYRIGHTS BY THE EMC PRODUCTS OR ANY PART
OF THEM OR BY THEIR OPERATION.
13. EXPORT CONTROL
Regardless of any disclosure made by SUPPLIER to EMC of an ultimate
destination of the EMC Products, SUPPLIER will not export, either directly or
indirectly, any EMC Products without first obtaining a license, as required,
from the U.S. Department of Commerce or any other applicable agency or
department of the United States Government.
14. LIMITATIONS OF LIABILITY
EMC'S LIABILITY FOR DAMAGE TO PROPERTY SHALL BE LIMITED TO [*] DIRECTLY
CAUSED BY THE [*] OF EMC. EMC'S LIABILITY TO SUPPLIER SHALL IN NO EVENT EXCEED
[*]. SUPPLIER SHALL NOT BRING ANY CLAIM ARISING UNDER THIS AGREEMENT MORE THAN
[*] MONTHS AFTER SUCH CLAIM HAS ACCRUED.
15. TERMINATION
15.1 This Exhibit L may be terminated by either party for any reason by
giving thirty (30) days prior written notice to the other party.
15.2 No later than [*] days after completion of this Exhibit L, or
immediately upon termination of this Exhibit L or the Agreement by SUPPLIER or
EMC, SUPPLIER will either make EMC Products available to EMC for return, or
return the EMC Products to EMC (F.O.B. destination prepaid), with reasonable
expenses reimbursed by EMC, wherever EMC may direct, in the same condition as
delivered by EMC except for normal wear and tear.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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15.3 Upon termination of this Exhibit L, SUPPLIER shall destroy all
non-original copies of Software and certify such destruction to EMC in writing.
16. MISCELLANEOUS PROVISIONS
16.1 All notices required to be given hereunder shall be in writing and shall
be deemed to have been given and sufficient in all respects when (i) delivered
by the Postal Service of the United States, by certified or registered mail,
return receipt requested, postage prepaid, or (ii) delivered by overnight
courier, postage prepaid, to the parties at their respective addresses set forth
below or at such other address as the intended SUPPLIER may specify in a notice
pursuant to this paragraph.
If to EMC, to:
[*]
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to SUPPLIER, to:
[*]
Brocade Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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71
SCHEDULE A
PRODUCT SCHEDULE
TO
ADVANCED CUSTOMER TESTING ("ACT") EXHIBIT L
BETWEEN
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Brocade Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
("EMC") ("SUPPLIER")
ITEM MODEL QUANTITY
**To be completed by both parties within 15 days of the signing of this Exhibit
L.**
Designated Site: Host CPU:
EXHIBIT X
FIBRE CHANNEL SWITCH EMC REGULATORY AND PRODUCT SAFETY REQUIREMENTS
BROCADE SILKWORM 2800
----------------------------------------------------------------------------------------------------------------------------
COUNTRY / ▇▇▇▇ Markings which apply COMMENTS
----------------------------------------------------------------------------------------------------------------------------
FCC EMC Complete.
----------------------------------------------------------------------------------------------------------------------------
CE EMC/Safety \Declaration of conformity and EMC/Safety reports complete.
EMC must create CE Declaration of Conformity for EMC specific
part number.
----------------------------------------------------------------------------------------------------------------------------
VCCI EMC Letter of Conformity to VCCI: Complete for Brocade part number.
Must obtain multiple listing for EMC part number.
----------------------------------------------------------------------------------------------------------------------------
UL Safety Agency Complete for Brocade part number.
Must obtain multiple listing for EMC part number.
----------------------------------------------------------------------------------------------------------------------------
CSA Safety Agency Complete for Brocade part number.
Must obtain multiple listing for EMC part number.
----------------------------------------------------------------------------------------------------------------------------
TUV Safety Agency Complete for Brocade part number.
Must obtain multiple listing for EMC part number.
----------------------------------------------------------------------------------------------------------------------------
NEMKO Safety Agency Complete for Brocade part number.
----------------------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------------------
Must obtain multiple listing for EMC part number.
----------------------------------------------------------------------------------------------------------------------------
CB REPORT Separate reports available for the switch and power supply
under Brocade part numbers.
Must obtain new report for EMC part numbers.
----------------------------------------------------------------------------------------------------------------------------
NORTH AMERICA
----------------------------------------------------------------------------------------------------------------------------
United States UL, FCC Complete for Brocade part number.
Must obtain UL multiple listing for EMC part number.
----------------------------------------------------------------------------------------------------------------------------
Canada CSA, ICES Complete for Brocade part number.
Must obtain CSA multiple listing for EMC part number.
----------------------------------------------------------------------------------------------------------------------------
WESTERN EUROPE
----------------------------------------------------------------------------------------------------------------------------
United
Kingdom/Ireland CE Complete
----------------------------------------------------------------------------------------------------------------------------
Benelux CE Complete
----------------------------------------------------------------------------------------------------------------------------
France CE Complete
----------------------------------------------------------------------------------------------------------------------------
Germany TUV-GS,CE Complete
Must obtain TUV multiple listing for EMC part number
----------------------------------------------------------------------------------------------------------------------------
Austria CE Complete
----------------------------------------------------------------------------------------------------------------------------
Spain/ Portugal/
Italy CE Complete
----------------------------------------------------------------------------------------------------------------------------
SCANDINAVIAN COUNTRIES
----------------------------------------------------------------------------------------------------------------------------
Switzerland/Austria CE Complete
----------------------------------------------------------------------------------------------------------------------------
Sweden NEMKO, Safety Agency Complete
Must obtain NEMKO multiple listing for EMC part number
----------------------------------------------------------------------------------------------------------------------------
Norway NEMKO/Nemko CB report Complete
MUST OBTAIN NEMKO MULTIPLE LISTING FOR EMC PART NUMBER
----------------------------------------------------------------------------------------------------------------------------
Finland NEMKO, Safety Agency Complete
Must obtain NEMKO multiple listing for EMC part number
----------------------------------------------------------------------------------------------------------------------------
Denmark NEMKO, Safety Agency Complete
Must obtain NEMKO multiple listing for EMC part number
----------------------------------------------------------------------------------------------------------------------------
EASTERN EUROPE
----------------------------------------------------------------------------------------------------------------------------
Russia GOST, Safety Agency requires EMC EMC and Safety reports available for submittal to GOST (not
yet done by a GOST approved lab)
----------------------------------------------------------------------------------------------------------------------------
ASIA PACIFIC
----------------------------------------------------------------------------------------------------------------------------
Japan VCCI Complete for Brocade part number.
Must obtain multiple listing for EMC part number
----------------------------------------------------------------------------------------------------------------------------
Australia C-Tick, EMC Brocade has no legal entity in Australia. Needs to be
submitted for certification by OEM. Brocade will provide all
the necessary data.
----------------------------------------------------------------------------------------------------------------------------
New Zealand C-Tick, EMC Brocade has no legal entity in New Zealand. Needs to be
submitted for certification by OEM. Brocade will provide all
the necessary data. CLARiiON has reports
----------------------------------------------------------------------------------------------------------------------------
SOUTH EAST ASIA
----------------------------------------------------------------------------------------------------------------------------
Taiwan BSMI, EMC Must create report with EMC part number and submit to BSMI.
Brocade will provide all the necessary data.
----------------------------------------------------------------------------------------------------------------------------
Korea RRL, EMC Needs to be submitted for certification by OEM.
Brocade will provide all the necessary data
----------------------------------------------------------------------------------------------------------------------------
Singapore PSB, Safety Agency Approval not mandatory.
Reports available if OEM wants to obtain certification
----------------------------------------------------------------------------------------------------------------------------
Indonesia No Known Requirements No certification effort planned by Brocade currently
----------------------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------------------
INDIAN CONTINENT
----------------------------------------------------------------------------------------------------------------------------
India No Known Requirements No certification effort planned by Brocade currently
----------------------------------------------------------------------------------------------------------------------------
Malaysia No Known Requirements No certification effort planned by Brocade currently
----------------------------------------------------------------------------------------------------------------------------
Thailand No Known Requirements No certification effort planned by Brocade currently
----------------------------------------------------------------------------------------------------------------------------
AFRICA
----------------------------------------------------------------------------------------------------------------------------
South Africa SABS Declaration of conformity available Product Marking not
required. Currently, Brocade does not plan to have SABS
marking on Standard Brocade label.
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