Amendment No. 19 To the Purchase Agreement
Exhibit 10.7
Amendment No. 19
This Amendment No. 19 (“the Amendment”) to the Purchase Agreement dated January 25, 2000
(“Agreement”) by and among XXX Xxxxxxxxxxx, a Massachusetts corporation (“EMC”), and Brocade
Communications Systems, Inc., a corporation organized under the laws of the State of Delaware,
U.S.A., and having its principal place of business at 0000 Xxxxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx
00000 (“Brocade-US”), Brocade Communications Switzerland SarL, a corporation organized under the
laws of Geneva, and having its principal place of business at 00-00 Xxxxx xx l’Aeroport, Xxxx
Xxxxxxx 000 XX-0000 Xxxxxx 00, Xxxxxxxxxxx (“Brocade-Switzerland I”) and Brocade Communications
Services Switzerland SarL, a Swiss corporation, with headquarters 29, Route de l’Aéroport, Xxxx
Xxxxxxx 000, XX-0000 Xxxxxx 00, Xxxxxxxxxxx (“Brocade-Switzerland II”), (collectively “SUPPLIER”)
is made as of the last date signed below (“Effective Date”).
RECITALS
A. EMC provides certain support to its End Users (as defined in the Agreement), and has existing
support agreements with the End Users for the SUPPLIER hardware and software products.
B. SUPPLIER provides certain backline support to EMC pursuant to the Agreement where EMC escalates
certain support related issues to SUPPLIER for resolution, but SUPPLIER does not provide support
directly to the End User.
C. SUPPLIER and EMC desire to expand SUPPLIER’s level of support so that the End Users may contact
SUPPLIER directly for certain support issues after contacting EMC (“Enterprise Support”).
D. SUPPLIER and EMC desire to facilitate offering certain SUPPLIER professional services to End
Users, including also an “Onsite Engineer” where SUPPLIER will be placing a dedicated engineer at
the EMC location (“Professional Services”).
NOW, THEREFORE, in consideration of the foregoing and the following terms and conditions, the
parties hereby agree as follows:
AGREEMENT
1. Scope of the Agreement.
1.1 Acquiring Enterprise Support and Professional Services. To facilitate purchases under
this Amendment, from time to time, the parties may enter into individually negotiated and mutually
agreed to statements of work for the purchase of the Enterprise Support or Professional Services
(“SOW”). All purchases under this Amendment shall be documented by a SOW. Each SOW is an
individual agreement between the parties and this Amendment and the applicable portions of the
Agreement are hereby incorporated into each SOW, as applicable. In the event of any conflict among
the terms, the following order of precedence shall apply to any Enterprise Support or Professional
Services: (a) this Amendment, (b) the Agreement, (c) a SOW. Any terms or conditions of any order
that are inconsistent with or in addition to the terms and conditions of this Amendment are deemed
rejected and shall not be effective, notwithstanding an acknowledgement or acceptance of such
order.
1.2 Subcontracted Services. This Amendment is a subcontractor relationship where EMC
purchases Enterprise Support and Professional Services on its own behalf for SUPPLIER’s delivery to
the End User. Nothing herein, express or implied, is intended to nor shall be construed to confer
upon or give to any person, other than the parties to this Amendment, any interests, rights,
remedies or other benefits with respect to or in connection with any agreement or provision
contained herein or contemplated hereby. In particular, SUPPLIER will provide the Enterprise
Support or Professional Services to End Users on behalf of EMC only. SUPPLIER shall have no
contractual relationship, implied or otherwise, and no liability to such End User by virtue of this
Amendment or any delivery of any Enterprise Support or Professional Services provided hereunder.
[**]
1.3 SUPPLIER Entity for SOW. With respect to any Enterprise Support or Professional
Services to be delivered within the United States or its territories, this Amendment is entered
into, and all Enterprise Support and Professional Services shall be
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performed by or on behalf of Brocade-US. When the Enterprise Support is to be delivered outside
the United States or its territories or when Professional Services are bundled with Enterprise
Support or a Product, this Amendment is entered into, and shall be performed by or on behalf of
Brocade-Switzerland I. For Professional Services to be delivered outside the United States or its
territories at an End User location on a standalone basis (without accompanying Products or
Enterprise Support bundled with the Professional Services), this Amendment is entered into, and
shall be performed by or on behalf of Brocade-Switzerland II.
[**]
2. Enterprise Support Terms.
2.1 [**]
2.2 Covered Software and Covered Hardware. For each purchase of Enterprise Support,
SUPPLIER and EMC shall complete an SOW to designate the Covered SAN, software covered under this
Amendment (“Covered Software”), the hardware covered under this Amendment (“Covered Hardware”) (the
Covered Software and Covered Hardware shall be collectively referred to as the “Covered
Product(s)”. SUPPLIER has no obligation to support any Products not specifically set forth in an
SOW provided however in certain emergency situations Brocade may register such Products when an End
User calls for support and immediately begin providing support to such Products, subject to payment
of the applicable fees and the terms of this Amendment. If the parties desire to add additional
current or future Products to this Amendment, the parties shall sign a new SOW for such additional
Products and EMC shall pay the corresponding fees.
2.3 [**]
2.4 Tech Enterprise Support. Provided that EMC has paid the applicable fees, SUPPLIER will
provide Enterprise Support for the Covered Products in the Covered SAN, as is described in an SOW.
Provided that EMC has paid the applicable Enterprise Support fees and subject to the terms and
conditions set forth below, SUPPLIER will provide telephone, email and online assistance for the
Covered Products listed on an SOW based on the applicable Severity and Priority levels as described
below (“Tech Enterprise Support”). Whenever EMC submits a Tech Enterprise Support issue to
SUPPLIER related to the Covered Products (“Problem”), SUPPLIER will classify the Problem according
to the “Customer Priority” level that defines the Problem, based on the Customer Priority level
descriptions located in the Service Plan Policies Document at SUPPLIER’s website, which document
may be updated from time to time in SUPPLIER’s discretion. The target response times and
resolution efforts will be tied to the applicable Severity and Priority levels assigned to the
Problem. Additional charges may apply if EMC contacts SUPPLIER when it is later determined that
the cause was not related to the Covered Products. SUPPLIER will only provide Enterprise Support
for the baseline licensed Software, and will not support any customizations or unique
implementations of the Software under its general Enterprise Support obligations, and any such
support will be provided on a time and material basis. EMC will not be responsible to pay SUPPLIER
for any travel and expenses that SUPPLIER incurs when providing on-site Enterprise Support. If
SUPPLIER determines that an on-site visit is required, SUPPLIER shall agree directly with the End
User as to whether SUPPLIER will be reimbursement for its travel and expenses.
2.5 Third Party Product Enterprise Support. As part of the Products, SUPPLIER may provide
certain third party products bundled with the Product or as a standalone product. SUPPLIER’s
obligation (if any) to provide EMC with support for third party products is subject to this
Amendment and is limited to providing EMC with support that SUPPLIER receives from the applicable
third party product provider. SUPPLIER will provide details of such support to EMC upon request.
To the extent that an agreement authorizing SUPPLIER to sell or Enterprise Support the third party
product is terminated or expires prior to termination of SUPPLIER’s support obligations for such
third party product, then SUPPLIER’ obligation to provide Enterprise Support to EMC for such third
party product, and EMC’s obligation to pay SUPPLIER for such Enterprise Support, shall
automatically terminate simultaneously with the termination or expiration of the relevant third
party product agreement.
2.6 Third Party Product Interoperability. Due to interoperability requirements and the
nature of SAN environments, EMC agrees that the use of any third party products which have not been
recommended or certified by SUPPLIER may cause errors in the operation of the Products or may cause
additional resolution time for SUPPLIER under its Enterprise Support obligations hereunder. EMC
acknowledges that use of any such third party products shall release SUPPLIER from the performance
of SUPPLIER’s Enterprise Support obligations related thereto. SUPPLIER may be prepared in
SUPPLIER’ absolute discretion to provide additional services to resolve any such problems in such
circumstances, but shall not be obliged to do so.
3. Professional Services Specific Terms.
3.1 Scope of Agreement. Provided that EMC has paid for the Professional Services, SUPPLIER
will perform the Professional Services as described in the applicable SOW or on the SUPPLIER price
list.
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3.2 Working Hours. Except for any Professional Services with explicitly stated extended
work hours, all Professional Services shall be performed during normal business hours (Monday to
Friday, 8:30 am to 5:30 pm, local time). EMC shall inform SUPPLIER in advance if any off-shift
services will be required and SUPPLIER shall inform EMC of any additional charges that may be
associated with performing Professional Services outside of normal business hours. EMC agrees to
pay SUPPLIER any applicable additional charges for such off-shift Professional Services performed.
3.3 Facilities. EMC agrees to provide the facilities reasonably necessary for SUPPLIER to
perform the Professional Services, including a safe and suitable workspace for the SUPPLIER
employees or contractors performing the Professional Services, as well any required equipment and
software. For security and safety reasons, an EMC representative shall be available on-site
whenever SUPPLIER employees or contractors are performing the Professional Services at such
facilities.
3.4 Prerequisites. Prior to the commencement of the Professional Services, EMC agrees to
take all the prerequisite steps identified by SUPPLIER prior to SUPPLIER performing the
Professional Services, including without limitation, (a) ensuring that all manufacturers’ labels
(such as serial numbers) are in place, accessible, and legible, (b) obtaining authorization to have
SUPPLIER service a Covered Product that EMC or End User do not own, (c) purchasing and installing
the required software and obtain a license for SUPPLIER to use such software, and (d) testing all
hardware and software necessary to perform the Professional Services, and all such hardware and
software documentation shall be made available to SUPPLIER, and (e) any other prerequisites
identified by SUPPLIER. EMC acknowledges that any failure to perform the prerequisites may result
in voiding the warranty for the particular service, delays and/or cause additional charges to
apply. IT IS END USER’S RESPONSIBILITY TO ENSURE THAT END USER HAS COMPLETE BACKUPS OF ALL DATA
PRIOR TO COMMENCEMENT OF ANY SERVICES. BROCADE ASSUMES NO RESPONSIBILITY FOR LOST DATA.
3.5 Scheduling Professional Services. Promptly following receipt and execution of an SOW,
SUPPLIER shall contact EMC’s representative to schedule the Professional Services. All
Professional Services must be started within one hundred eighty (180) days of the date of the SOW.
If EMC is unable or unwilling to have SUPPLIER perform the Professional Services during this
period, or if SUPPLIER is unable to perform the Professional Services owing to EMC’s failure to
make the appropriate facilities available or to perform the necessary prerequisites, SUPPLIER shall
have no further obligation to EMC with respect to the Professional Services.
3.6 Acceptance Procedures. Upon completion of the Professional Services which require
acceptance, [*] following the delivery date to evaluate the Professional Services. On or before
the tenth (10th) day following such delivery, EMC (or an End User where EMC is not onsite) shall
provide SUPPLIER with either (1) a written acceptance of the Professional Services; or (2) written
notice of rejection describing in detail the deficiency that is the basis for the rejection. A
deficiency is a material non-conformity of the Professional Services to the acceptance criteria
stated in the applicable SOW, or in the absence of such criteria, a material non-conformity to the
description of the Professional Services set forth in the SOW. In the event that EMC rejects the
Professional Services in accordance with the afore-described procedure, SUPPLIER will use diligent
efforts to correct the deficiency promptly. The Professional Services and any associated
deliverables that are re-performed or redelivered shall be subject to EMC’s acceptance in
accordance with this provision. In the event EMC fails to accept or reject the Professional
Services within 10 days after SUPPLIER’s completion of the applicable Professional Services, or
accept or reject re-performed Professional Services within 10 days after SUPPLIER’s completion of
the applicable Professional Services, the Professional Services shall be deemed accepted by EMC,
and EMC shall have no further right to reject the Professional Services.
3.7 Onsite Engineer Specific Terms. SUPPLIER has a specific Professional Service offering
where SUPPLIER provides an onsite engineer (OSE) to perform ongoing Professional Services at the
customer facilitates. For each OSE SOW completed by the parties, the following terms shall apply.
The OSE shall not provide any Enterprise Support for the Products unless EMC has purchased
Enterprise Support directly from SUPPLIER. If the OSE provides certain Enterprise Support related
services, then such services shall be provided pursuant to the Enterprise Support section of this
Amendment. Any Professional Services provided by an OSE shall not be subject to the acceptance and
warranty provisions set forth above; and such Professional Services shall be billed monthly on an
“as occurred” basis, unless another billing time frame is set forth in the applicable SOW. For
OSE’s purchased on an annual basis, the availability of an OSE is subject to the local employment
laws and SUPPLIER shall have the right to substitute certain OSE(s) in order to comply with such
laws.
3.8 Subcontractors. SUPPLIER may engage subcontractors to perform Professional Services
under this Amendment, and SUPPLIER shall be responsible for the satisfactory performance of the
Professional Services of all such subcontractors it may engage.
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4. Consideration.
4.1 Prices of Professional Services and Enterprise Support. SUPPLIER’s base pricing is set
forth in Attachment C or in the then-current SUPPLIER price list. The pricing in
Attachment C is separate from the pricing terms set forth in the Agreement. [**] Payment shall be
made to the applicable SUPPLIER entity signing the SOW.
4.2 Enterprise Support Term and Renewal. As it applies to each SOW for Enterprise Support,
the initial term will begin on the effective date of such Enterprise Support and shall continue
until the next anniversary of the Effective Date of the Agreement (“Partial Year”) so that the
yearly term of the Enterprise Support SOW will be coterminous with the yearly renewal term for the
Agreement. Thereafter, each Enterprise Support SOW will be automatically renewed on a yearly basis
unless either party notifies the other in writing of its election to terminate an individual
Enterprise Support SOW at least ninety (90) days prior to the termination of the Partial Year or
for any subsequent year. [**]
4.3 Audit Rights. SUPPLIER shall have the right to audit compliance with the terms herein
upon reasonable notice to the EMC. In the event that an End User’s actual number of ports and/or
users exceeds its authorized numbers (with the difference being the “Unauthorized Access”), EMC
shall within thirty (30) days from the date of the invoice pay SUPPLIER all license and Support
fees due for the Unauthorized Access at SUPPLIER then-current list rates. Payment of such late
fees shall not limit any other rights SUPPLIER may have against EMC for such Unauthorized Access.
5. Warranties and Disclaimers.
5.1 Professional Services Warranty. SUPPLIER warrants [**]: (a) following the completion
of the Professional Services, in the case where no acceptance procedure is applicable and (b)
following acceptance of the Professional Services, otherwise, that all Professional Services will
be performed in a professional and xxxxxxx-like manner by appropriately trained personnel, using
generally accepted industry standards and practices. As SUPPLIER’s sole liability and EMC’s
exclusive remedy for a breach of this warranty, if the Professional Services are not provided as
warranted, SUPPLIER will, at its sole discretion, either: (1) correct any material non-conformances
in the Professional Services deliverables; (2) re-perform the Professional Services; or (3) credit
EMC for the amount paid for the nonconforming Professional Services. This warranty does not apply
to the extent they relate to (a) any specifications, code, diagnostic or other tools, or any other
materials provided by EMC or the End User; (b) the integration, operation, modification, or use of
the Professional Services or any deliverables in any manner not authorized by SUPPLIER, (c) any
Professional Services or Enterprise Support provided by an Onsite Engineer, and (d) any changes to
the storage area network (“SAN”) environment after the services were rendered.
5.2 No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR PROVIDED FOR IN THE
AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AMENDMENT ARE DELIVERED “AS IS” AND
NEITHER BROCADE NOR ITS SUPPLIERS MAKES ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
WITH RESPECT TO THE PRODUCTS, ANY RELATED DOCUMENTATION OR SERVICES, AND BROCADE SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT WITH RESPECT THERETO.
6. Effect of Termination and Survival. Notwithstanding any other obligation hereunder,
upon any termination of this Amendment, EMC shall return to SUPPLIER each and every copy, and EMC
shall not retain any copies, of any SUPPLIER Confidential Information. The following provisions
shall survive termination or expiration of the Agreement: 4 (“Consideration”), 5.2 (“No Other
Warranties”), and 6 (“Effect of Termination and Survival”).
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their duly authorized
representatives set forth below as of the Effective Date.
| XXX XXXXXXXXXXX | ||||
By:
|
By: | |||
Signature
/s/ Xxxx Xxxxxxx
|
Signature /s/ Xxxxxxx X. Xxxxxxx | |||
Name (Print)
|
Name (Print) | |||
Xxxx
Xxxxxxx |
Xxxxxxx X. Xxxxxxx | |||
Title
|
Title | |||
Dir
WW Sales Operations |
Sr. Vice President GMO | |||
Date
4/25/07
|
Date 3/12/07 | |||
BROCADE COMMUNICATIONS
|
BROCADE COMMUNICATIONS SERVICES | |||
SWITZERLAND SÀRL
|
SWITZERLAND SÀRL | |||
By:
|
By: | |||
Signature
/s/ Xxxxx XxXxxxx
|
Signature /s/ Xxxxx XxXxxxx | |||
Name (Print)
|
Name (Print) | |||
Xxxxx
XxXxxxx |
Xxxxx XxXxxxx | |||
Title
|
Title | |||
Director |
Director | |||
Date
26 April 2007
|
Date 26 April 2007 |
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ATTACHMENT A
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ATTACHMENT B
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ATTACHMENT C
PRICING
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