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Exhibit 10.12
OEM PURCHASE AND LICENSE AGREEMENT
BETWEEN
XXX XXXXXXXXXXX
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
AND
MCDATA CORPORATION
000 Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0000
40-00-109-00
OEM AGREEMENT NUMBER
2
TABLE OF CONTENTS
Section Title Page
1 DEFINITIONS.............................................................................1
2 TERM and TERMINATION....................................................................3
3 SCOPE AND TERRITORY OF..................................................................4
4 INTELLECTUAL PROPERTY
RIGHTS..................................................................................4
5 CREDIT AND PAYMENT TERMS................................................................6
5.1 Payment.................................................................................6
6 TITLE AND RISK OF LOSS..................................................................6
7 FORECASTS, ORDERS, AND DELIVERY.........................................................6
7.1 Forecasts...............................................................................6
7.2 Purchase Orders.........................................................................6
7.3 Acceptance of Purchase Orders...........................................................8
7.4 Spares..................................................................................8
7.5 Shipment/Delivery and Export/Import.....................................................9
8 PRODUCTS................................................................................10
8.1 Process Changes.........................................................................10
8.2 Product Design Changes and Field Modification Orders....................................10
8.3 Most Favored Nations....................................................................12
8.4 Labeling and Regulatory Compliance......................................................12
8.5 Product Discontinuance..................................................................13
8.6 Market Exclusivity......................................................................13
8.7 Review and Price Changes................................................................13
9 WARRANTY................................................................................13
9.1 Product Warranty........................................................................13
9.2 Software Warranty.......................................................................14
9.3 Title Warranty..........................................................................14
9.4 Disclaimer..............................................................................15
9.5 Marketing Rights Warranty...............................................................15
9.6 Epidemic Defects........................................................................15
9.7 Plug and Play Failures..................................................................15
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10 TECHNICAL SUPPORT, REPAIRS, AND TRAINING................................................16
10.1 Training................................................................................16
10.2 Technical Support Terms.................................................................16
10.3 Beta Unit Test..........................................................................16
11 INDEMNIFICATIONS........................................................................17
12 PRODUCT DOCUMENTATION AND SOFTWARE MEDIA:
REPRODUCTION, MODIFICATION, AND DISTRIBUTION RIGHTS.....................................18
13 IDENTIFICATION OF PRODUCTS AND TRADEMARK RIGHTS.........................................19
13.1 Identification of Products..............................................................19
13.2 Operational Provisions..................................................................19
14 CONFIDENTIALITY OF INFORMATION..........................................................19
15 LIMITATION OF LIABILITY.................................................................20
16 GENERAL PROVISIONS......................................................................21
16.1 Governing Law...........................................................................21
16.2 Waiver..................................................................................21
16.3 Compliance with Laws....................................................................21
16.4 Notices.................................................................................21
16.5 Assignment..............................................................................21
16.6 Fibre Alliance Membership...............................................................22
16.7 Force Majeure...........................................................................22
16.8 Conflict................................................................................22
16.9 Contract Changes........................................................................22
16.10 Manufacturing Rights and Escrow.........................................................22
16.11 Survival................................................................................24
16.12 Headings................................................................................24
16.13 Independent Contractors.................................................................24
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17 EXHIBITS................................................................................25
A. PRODUCT AND DOCUMENTATION PRICING
B. PART 1 QUALITY ASSURANCE, AND ESCALATION PROCEDURES
PART 2 McDATA QUALITY PLAN
C. TECHNICAL SUPPORT AND SOFTWARE MAINTENANCE
D. RMA PROCEDURES
E. PRODUCT REPAIR
F. EMC CUSTOMER AGREEMENT
G. OPERATIONAL PROVISION
H. FIBRE CHANNEL SWITCH EMC REGULATORY AND
PRODUCT SAFETY REQUIREMENTS
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MCDATA CORPORATION
OEM PURCHASE AND LICENSE AGREEMENT
This OEM Purchase and License Agreement ("Agreement") is entered into by and
between McDATA Corporation ("McDATA"), 000 Xxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, and XXX Xxxxxxxxxxx, 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000
("EMC"), and commences on the date accepted and executed by McDATA ("Effective
Date").
McDATA and EMC agree as follows:
1. DEFINITIONS.
1.1 "EMC" means the buying entity executing this Agreement, and all Subsidiaries
or Affiliates thereof which (i) order and/or receive Products and/or Services,
and/or (ii) license Software pursuant to the provisions of this Agreement.
"Affiliates" means, with respect to EMC, any corporation or other organization,
whether incorporated or unincorporated, which is an affiliate of EMC as
"affiliate" is defined in Rule 12.2 of the Exchange Act. "Subsidiary" means with
respect to EMC, any corporation or other organization, whether incorporated or
unincorporated, of which (a) at least a majority of the securities or other
interests having by their terms ordinary voting power to elect a majority of the
Board of Directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by EMC or by any one of more of its Subsidiaries or by EMC and one or more of
its Subsidiaries or (b) EMC or any other Subsidiary of EMC is a general partner
(excluding any such partnership where EMC or any Subsidiary of EMC does not have
the majority voting interest in such partnership).
1.2 "CUSTOMER" means any entity to which EMC sells, rents, leases, or
distributes McDATA Products, including EMC's Resellers and End User Customers.
1.3 "RESELLER" means any business entity which EMC utilizes to sell, market and
service Products and sublicense Software for eventual use by End User Customers
in accordance with the terms of this Agreement and any License(s) (as defined in
Section 4 of this Agreement) relating thereto.
1.4 "END USER CUSTOMER" means any entity which purchases McDATA-manufactured
Products from EMC and/or licenses Software associated therewith for its use in
accordance with McDATA's then-current published specifications, configurations,
and compatibility guidelines for data communications networking.
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1.5 "END USER CUSTOMER SOFTWARE" means, and is limited to, the machine-readable
Object Code Software e.g., the system diskette, any supporting software
diskette(s) and/or the firmware embedded in all ROM, PROM or equivalent
components of Product, including the systems manual(s) supplied with each
Product, and any Software Feature Option(s) which is sublicensed pursuant to the
terms of this Agreement.
1.6 "FOB MCDATA'S DOCK" means that McDATA fulfills its obligation to deliver the
Products to EMC when such Products are handed over to EMC with export
documentation, at McDATA's dock, into the charge of the carrier named by EMC.
EMC shall arrange for transportation from McDATA's dock to the designated ship
to address, and agrees to pay all transportation costs.
1.7 "OBJECT CODE SOFTWARE" means End User Customer Software supplied to EMC by
McDATA (i) the machine-executable instructions and all associated descriptive
material and documentation for each processor within each Product supplied by
McDATA pursuant to this Agreement, and (ii) subsequent updates and/or
enhancements provided by McDATA pursuant to this Agreement. Such Software may be
provided to EMC on magnetic media or in written or graphic form which performs,
describes, or illustrates the performance of all on-line functions, off-line
utilities, and diagnostics pertinent to the Product.
1.8 "PRODUCTS" means certain McDATA data communication equipment, hardware,
related features, conversions, options, other accessories, Spares (as defined
below) and Software (as defined below) which EMC is authorized to purchase and
distribute, either as referenced in Figure A-1 and A-2 of Exhibit A of this
Agreement on the Effective Date of this Agreement, or as referenced in
modifications and additions to Exhibit A which EMC and McDATA may agree upon
from time to time. Any reference in this Agreement to the purchase, distribution
or sale (or any like term) of the Products herein shall be deemed to infer the
license of the Software. As specified in Section 4.2.3, title to the Software
shall always remain in McDATA. The specification is referenced by a part number
in Exhibit A.
1.9 "SERVICES" means the technical support, repairs, and training provided by
McDATA to EMC under this Agreement.
1.10 "SOFTWARE" means the collective reference to End User Customer Software,
Object Code Software, Software Feature Option(s), device drivers and firmware
included in the Product and any other software which may be listed on Figure A-1
and A-2.
1.11 "SOFTWARE FEATURE OPTION(S)" means an optional feature for Object Code
Software, as available from time to time, which enables special attributes
and/or provides additional functionality, and which will be delivered to EMC
upon receipt of its purchase order and payment of an additional license fee, if
applicable.
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1.12 "SPARES" means all parts, components or Field Replaceable Units (FRUs) of
Products used for maintaining installed Products which are generally made
available by McDATA for separate sale.
1.13 [*]
1.14 [*]
2. TERM AND TERMINATION.
2.1 Subject to the provisions of sub-Sections 2.2, 2.3, 2.4 and 2.5 below, the
initial term of this Agreement shall be for a period of five (5) years from the
Effective Date. Either party shall have the option to extend this Agreement for
successive periods of one (1) year each on ninety (90) days prior written notice
to the other party, subject to negotiated modification, if any, to this
Agreement.
2.2 EMC may terminate this Agreement at any time, without cause, by giving
McDATA at least [*] prior written notice. Termination of this Agreement will not
relieve the parties of any obligations incurred prior to the date of
termination.
2.3 In addition to the termination rights specified in sub-Section 2.2, above,
either party may immediately terminate this Agreement upon written notice if the
other party:
2.3.1 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; or
2.3.2 is dissolved or liquidated, or has a petition for dissolution or
liquidation filed with respect to it; or
2.3.3 is subject to property attachment, court injunction, or court
order which substantially and negatively affects its operations; or
2.3.4 makes an assignment for the benefit of creditors; or
2.3.5 ceases to function as a going concern or to conduct its
operations in the normal course of business.
2.4 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 thirty (30) days after receiving written notice
thereof.
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2.5 During the notice period under 2.1 or 2.2, EMC may issue additional
purchase orders with deliveries to be scheduled not later than [*].
3. SCOPE AND TERRITORY OF AGREEMENT.
3.1 McDATA agrees to sell Products and 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 shall not be obligated to purchase any Products or product support
from McDATA hereunder.
3.2 EMC is authorized to market the Products and sublicense the
Software directly or through Resellers worldwide.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1 Subject to Section 4.2, McDATA grants EMC all appropriate rights
and licenses worldwide, at no additional charge beyond its price for the
Products, under McDATA'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 provided EMC and such third
parties have entered into written agreements with terms and conditions providing
that the Software may only be distributed in object code form pursuant to
written license terms (which may be incorporated into EMC's or third parties'
own license agreement) under which each End-user Customer agrees (a) to operate
and use the Software for its own internal business purposes, in the form of
object code only, without the right to further license or sublicense, (b) not to
reverse assemble, reverse compile, or reverse engineer the Software in whole or
in part, except as specifically permitted by law, and (c) to require its
employees and consultants, by a suitable agreement, to abide by these license
restrictions, 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 McDATA hereby grants to EMC a non-exclusive, worldwide,
revocable (except as expressly provided in Section 4.2.4), royalty-free right
and license, under all copyrights, patents, patent applications, trade secrets
and other necessary intellectual property rights of McDATA, to (i) use, execute,
and display Software of McDATA used in the operation and support of the Product,
including upgrades, updates, bug fixes or modified versions or backup copies of
the same, 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 User
Customers, and (iii) authorize, license and sublicense third parties to do any,
some, or all of the foregoing provided EMC and such third parties have entered
into written agreements with terms and conditions providing that the Software
may only be distributed
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in object code form pursuant to written license terms (which may be incorporated
into EMC's or third parties' own license agreement) under which each End User
Customer agrees (a) to operate and use the Software for its own internal
business purposes, in the form of object code only, without the right to further
license or sublicense, (b) not to reverse assemble, reverse compile, or reverse
engineer the Software in whole or in part, except as specifically permitted by
law, and (c) to require its employees and consultants, by a suitable agreement,
to abide by these license restrictions. EMC shall distribute the Software to End
User Customers pursuant to EMC's end user license agreement, attached hereto as
Exhibit F, as updated by EMC from time to time.
4.2.2 Neither EMC nor EMC's Resellers shall have the 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 McDATA 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 F, 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 Except as otherwise specified in a written agreement between EMC
and McDATA, As between EMC and McDATA, the rights in the Products are and will
remain the sole and exclusive property of McDATA and its vendors, if any,
whether the Products are separate or combined with any other products. Unless
otherwise limited by such written agreement, McDATA'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.
4.4 EMC hereby grants to McDATA, and McDATA 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. McDATA shall use EMC,
the EMC logo, EMC's brand name for the Product, and any other EMC xxxx 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. McDATA shall not use any such EMC marks in connection with any business
conducted by McDATA other than dealings with the Products in accordance with the
terms of this Agreement. McDATA agrees that its use of
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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. McDATA
agrees that it will not use, without EMC's prior written consent, any xxxx which
is likely to be similar to or confused with any of EMC's trademarks.
5. CREDIT AND PAYMENT TERMS.
5.1 PAYMENT. Terms of payment are [*]. Payment of an invoice shall not
constitute or imply acceptance of the Product or relieve McDATA of any
obligations assumed under this Agreement, nor prevent EMC from asserting any
other rights it may have under this Agreement. Each Product shipment shall be
invoiced by McDATA upon shipment, and paid for by EMC when due, without regard
to other scheduled deliveries. All prices and fees described in this Agreement
are in United States dollars and all payments hereunder shall be made in United
States Dollars (i) by electronic wire transfer for international shipments, or
(ii) by electronic wire transfer or check for domestic shipments.
6. TITLE AND RISK OF LOSS. Except as set forth in Section 4.2.3 with regard to
title to the Software, title to Products purchased by EMC and the risk of loss
or damage in the goods shall pass to EMC upon shipment.
7. FORECASTS, ORDERS, AND DELIVERY.
7.1 FORECASTS. [*]. Forecasts are EMC's good faith estimates of intended total
purchases of Products, and are not commitments to buy. Any commitments to buy
are only valid upon EMC's issuance of purchase orders as defined in Section 7.2
below.
7.2 PURCHASE ORDERS.
7.2.1 Purchase Order Content, Lead-Time, Rescheduling and Cancellation.
EMC shall, from time to time, release purchase orders to McDATA for Products and
Spares based on its forecasted requirements. Purchase orders are EMC's
commitments to buy Products and Spares from McDATA. Such purchase orders shall
be in writing and identify quantity, model, EMC part number, shipping
destination, carrier, and shipment dates and prices.
EMC reserves the right, subject to the provisions of Section 7.2.7 herein, to
submit purchase change orders specifying changes in the original configuration
of any Product(s) or the ship to address stated on such purchase order.
In the event EMC has submitted a purchase order for Products or Spares in
accordance with the terms hereof, and McDATA fails to ship or ships late such
Products or Spares, or partial shipments thereof, EMC may cancel or reschedule
such purchase order, or portion thereof, with no penalties.
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Product lead-time shall be no more than [*] from receipt of EMC's purchase order
until shipment by McDATA to EMC.
7.2.2 Reschedule/Push-Out. EMC shall have the right and ability to reschedule
any purchase order [*]. All notices of changes will be communicated in writing
or in some other communication acceptable to the parties.
7.2.3 Reschedule/Upside. EMC and McDATA 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. [*]
7.2.4 EMC shall have the right to cancel delivery for any purchase
order without McDATA's consent, provided however, that McDATA must be notified
in writing of the cancellation [*]. In the event EMC cancels an order more than
[*] without re-booking a net new incremental order of the same or greater
quantity for delivery within ninety (90) days of the originally scheduled
delivery date, EMC shall be liable for the EMC unique material in McDATA's
pipeline as required to support EMC's forecast and purchase orders. McDATA shall
use commercially reasonable efforts to mitigate EMC's liabilities for said
unique material. If EMC cancels an order inside thirty (30) days of the
scheduled delivery date, EMC shall be liable for the full purchase price of the
cancelled Product.
7.2.5 Purchase Order Quantities in Excess of Forecast Quantities. If
any purchase order released by EMC specifies a quantity of Products in excess of
the quantity defined in the current forecast document, McDATA shall not be
obligated to deliver the excess quantity within the time period specified on
EMC's purchase order; however, McDATA shall use its best efforts to do so.
7.2.6 EMC may transmit purchase orders by facsimile. Orders are
considered binding upon receipt by McDATA of said facsimile, subject to
acceptance as set forth in 7.3 below.
7.2.7 Change Orders; Configuration Changes. For purpose of this
Agreement, a change order is EMC's notification to McDATA to release Product to
the Customer specified on the change order. McDATA agrees to receive EMC's
purchase change orders specifying changes in the configuration of any Product at
any time prior [*], and McDATA agrees to use its best efforts to accommodate
such change order, provided [*]. McDATA agrees to receive EMC's purchase change
orders specifying changes in ship to address for any Product at any time prior
to [*], and provided all export documentation which is required to be supplied
by EMC is available on a timely basis, McDATA agrees to accommodate such change
order. In the event McDATA cannot satisfy any such change order without
impacting scheduled delivery, it will apprise EMC of the possibility of a delay
and of the revised ship date within [*] of its receipt of such Purchase Change
Order such that EMC can manage the situation with its customer.
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7.3 ACCEPTANCE OF PURCHASE ORDERS. Purchase orders shall be considered as
accepted by McDATA unless McDATA provides EMC with written notice of any
discrepancy or the reason for rejection within [*] after receipt of such
purchase order. Unless EMC is in material breach of this Agreement, McDATA shall
not reject any purchase order which complies with the terms of this Agreement.
All such purchase orders shall be governed by the terms and conditions of this
Agreement, and none of the terms or conditions of EMC's purchase order or
McDATA's acceptance shall be applicable if they are in conflict with the terms
or conditions of this Agreement.
7.4 SPARES.
7.4.1 Spare Parts Orders. EMC has full responsibility for stocking
Spares at levels sufficient to satisfy its Reseller and End User Customer
requirements. As outlined in McDATA's Spares, Repair and Upgrade Catalog, Spares
to support Products currently in production may be ordered from 8:00 to 5:00 MT
in two ways: "Normal Spares" and "Emergency Spares". [*].
7.4.2 Other Vendors. Nothing contained herein shall prohibit EMC from
purchasing Spares or replacement parts from any other vendor, provided, however,
that McDATA shall have no warranty responsibility with respect to such Spares
purchased from any other vendor. This Agreement does not grant EMC a license to
purchase Spares which infringe any of McDATA's patent or other intellectual
property rights. Except as to Product failures caused by defective Spares
acquired from sources other than McDATA, the purchase and use by EMC of such
Spares or expendables (fuses and diskettes) acquired from sources other than
McDATA shall not affect McDATA's warranty responsibility for the affected
Products.
7.5 SHIPMENT/DELIVERY AND EXPORT/IMPORT. After appropriate export and import
licenses are secured by McDATA, each item of Product sold hereunder will be
shipped FOB McDATA's Dock, Broomfield, CO. EMC may specify the type of
conveyance and/or carrier for shipment. EMC shall also specify in writing, at
least thirty (30) calendar days prior to the requested delivery date of such
Products, the location to which the Products are to be shipped.
As used in this Agreement, shipment and delivery are synonymous. For purposes of
this Agreement, shipment and delivery occur upon delivery of Products by McDATA
at McDATA's factory to the common carrier specified by EMC.
McDATA will provide the following information about its Product in writing
within two weeks of receiving a written request from EMC: i) country of origin;
ii) NAFTA preference criteria; (if applicable) iii) harmonized scheduled tariff
classification number, and iv) export commerce control number ("ECCN"). Upon
EMC's request, McDATA, at its expense, 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 any international shipments of Product to be made by or on
behalf of EMC, provided the Product can be shipped to the requested destination
under a General License, validated license or other license
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under the U.S. Export Administration Regulations. If a validated or other
specific prior license is required under the U.S. Export Administration
Regulations, EMC shall, on McDATA's request provide sufficient information
concerning the destination and intended use for McDATA to obtain the export
licenses and other export documentation required. McDATA shall not be required
to ship any product to any embargoed countries under the export control
regulations of the United States. In addition, McDATA will identify in Exhibit H
any countries to which Product may not be exported under any form of license
under the U.S. Export Administration Regulations, and shall update such Exhibit
on EMC's request. EMC shall not export or reexport any Product to any such
country or countries.
Time and rate of delivery are of the essence of this Agreement. The delivery
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
three (3) 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.
If McDATA anticipates or becomes aware that it will not supply the Product on
the shipment date stated on the purchase order, for any reason to include but
not be limited to material shortage, process changes, capacity limitations or
causes due to common carriers, McDATA shall notify EMC immediately after McDATA
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 McDATA shall obtain EMC's actual acknowledgment of the
notice of anticipated delay. McDATA and EMC will jointly develop alternatives to
resolve any late shipment of the Product, including use of premium routing. [*].
8. PRODUCTS. McDATA agrees to sell to EMC the Products listed in Figure A-1 and
A-2 of Exhibit A of this Agreement, as it may be amended from time-to-time, at
the prices specified in Figure A-1 and A-2 of Exhibit A, and under the terms
specified in this Agreement. These prices are the maximum prices and will not
increase during the term of this agreement with the exception of any agreed to
increases pursuant to section 8.7.
8.1 PROCESS CHANGES.
Changes to McDATA's controlled manufacturing or repair
processes may be periodically reviewed by EMC, and any significant changes [*]
or the type of stress testing performed will be mutually agreed to in advance by
McDATA and EMC. Quality information on field and process performance will be
furnished to EMC on a monthly or quarterly basis.
8.2 PRODUCT DESIGN CHANGES AND FIELD MODIFICATION ORDERS.
8.2.1 Design Changes. In the event McDATA proposes a change to the
Products or Software which affects the form, fit or function of the Products and
such change will be
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implemented for all of McDATA's customers purchasing similar products with
similar specifications from McDATA, or if such change would directly affect any
EMC custom features, McDATA agrees to provide EMC prior notification of such
change, and give EMC an opportunity to comment on and approve such change. On
such notice, McDATA will state a date by which EMC's comment and approval are
required; such date shall be a minimum of [*]. If EMC has not responded on or
before that date, McDATA will assume EMC has no comments and approves such
change, and will proceed with the change process. If the changes proposed by
McDATA in EMC's sole opinion necessitate evaluation by EMC of compatibility with
EMC's systems and/or specifications, McDATA, upon EMC's request, shall provide
EMC with an agreed upon amount 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 McDATA's proposed changes and will
inform McDATA of its approval or rejection of those changes in writing within
[*]. In any event, EMC's approval shall not be unreasonably withheld. If EMC
rejects the changes, EMC may require McDATA to continue supplying the unaltered
Product or to provide EMC with opportunities for a last time buy of the
unaltered Product. For changes accepted by EMC, McDATA will make field change
kits necessary to install such changes available to EMC within [*]. Kits for
Products may be purchased by EMC at McDATA's then current charge. McDATA will
incorporate changes accepted by EMC into Product on EMC's open purchase orders
and into Product going through McDATA's repair process at no charge.
McDATA shall have the right to make any other design changes to the Products
which do not affect the form, fit or function and do not affect an EMC custom
feature at any time prior to shipment. EMC shall have the right to review any
such change to ensure that such change does not affect the form, fit or function
of the Products.
8.2.2 Field Modification Orders. To the extent that McDATA determines
that any Product in the field requires modification, and that such Product is
retrofitable, McDATA shall supply EMC with Field Modification Order (FMO) kits
for changes. Each FMO kit will include the necessary parts, instructions, and
documentation to assist EMC in the proper installation of such FMO kits. There
shall be no charge to EMC for Mandatory Change FMO kits; pricing for EMC
Initiated Change FMO kits shall be announced. Installation of such FMO kits
shall be EMC's responsibility.
If McDATA determines that a Mandatory Change shall be incorporated into some or
all previously shipped units and if such change is not retrofitable, McDATA
agrees, at its expense and option, to either rework or replace each
non-conforming FRU previously delivered to EMC; however, EMC is responsible for
removing and returning to McDATA each such non-conforming FRU (using the
procedures outlined in McDATA's "Spares, Repairs and Upgrade Catalog"), and
reinstalling the reworked or replaced unit.
In the event such Mandatory Change is required for safety reasons, the
parties agree to discuss in good faith reimbursing a portion of EMC's costs for
replacing such non-conforming FRUs. The parties will mutually agree on the time
required to complete installation of such safety-
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related Mandatory Change, and McDATA's reimbursement to EMC will be the above
agreed upon time at EMC's then-current internal service rate.
8.2.3 Obsoleted Spares. In the event that McDATA shall have obsoleted
through Mandatory Changes any Spares, EMC shall have the right to return and
receive full credit for any inventory of such Spares. [*].
8.2.4 Change Information. McDATA shall supply EMC on a quarterly basis
a summary of all applicable engineering change orders (ECOs) issued by McDATA
during the preceding period which affect the Products.
8.3 MOST FAVORED NATIONS. If McDATA makes generally available any new or
improved product, McDATA agrees to give EMC the right to purchase such new
model, options, features or improvements under the terms and conditions of this
Agreement, at prices mutually agreed to by McDATA and EMC in accordance with the
terms of this Agreement.
8.3.1 [*]
8.3.2 McDATA 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.
McDATA warrants to EMC that the prices offered for such product do not exceed
those offered to other customers purchasing products similar or identical to the
products in like or lesser quantities and upon similar terms and conditions. [*]
EMC shall have the right to request an independent audit regarding the subject
matter of this section 8.3.
8.4 LABELING AND REGULATORY COMPLIANCE.
8.4.1 All Product shall be packaged, marked and otherwise prepared in
accordance with applicable specifications provided to McDATA from time to time,
all applicable government regulations as attached in Exhibit H, 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 J.
Packaging for export shipments from the United States may also be subject to
specific instructions. McDATA will notify EMC of any charges incurred by McDATA
for such export shipments prior to invoicing EMC for these charges.
8.4.2 McDATA will provide the following information about its Product
in writing within two weeks 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"). McDATA,
will prepare all international shipping documentation, including commercial
invoice, NAFTA certificate, Shipper's Letter of Instruction,
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Shipper's Export Declaration and any other necessary documentation, for
international shipments upon request from EMC.
8.4.3 EMC Modification. EMC represents that in no event shall EMC alter
any Product in any way to modify the performance characteristics of that Product
without the prior written permission of McDATA. The appropriate identification
labels, regulatory agency marks and verification of FCC Class A Compliance or
the licensed agency number are indicated on the Products at the time of
shipment. EMC shall not modify any regulatory agency marks or labels affixed to
the Products by McDATA. McDATA hereby disclaims any liability for the
possession, use, resale, or operation of any Products which, as a result of an
alteration by EMC or any third party (unless such third party is a McDATA
authorized third party service provider), affects its compliance with the
applicable regulations and/or requirements as stated above.
8.5 PRODUCT DISCONTINUANCE. McDATA reserves the right to discontinue Products by
notifying EMC in writing [*] prior to the discontinuance date, subject to a
mutually agreed upon end of life plan. Prior to such discontinuance date, EMC
may place with McDATA a final binding purchase order for such discontinued
Product. Such final binding purchase order may specify that the requested
Products be shipped to EMC or EMC's Customers [*].
8.6 MARKET EXCLUSIVITY. EMC shall have exclusive marketing and distribution
rights to the [*] and its successors. [*]
8.7 REVIEWS. Either party hereto may request at any time, but not more often
than once each quarter following EMC's General Availability, a meeting to
discuss significant changes in market conditions, technology, business
circumstances, product cost or volume considerations, or other relevant factors
and the other party agrees to meet as soon as practicable with the requesting
party to negotiate in good faith product price or quantity adjustments. The
parties agree that minutes from said meetings shall be provided to the senior
management of each company for review, and that any product price or quantity
adjustments agreed to in such meetings will become effective only after being
confirmed in a writing signed by both parties.
9. WARRANTY
9.1 PRODUCT WARRANTY. McDATA warrants that the Products (except Object Code
Software) purchased will, under normal use and service, conform to Product
specifications at the time of shipment and be free from defects in material and
workmanship for [*] from the date of shipment.
McDATA will, as mutually agreed upon and without charge to EMC, promptly repair
or replace, any Product which is determined to be defective and which is
returned to McDATA within this warranty period, provided the Product has not
been damaged, subjected to misuse, altered, improperly repaired or maintained by
EMC or third parties in a manner which McDATA reasonably determines to have
adversely affected performance or reliability. McDATA's liability
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hereunder is limited to the indemnification under Section 11.3 and the repair or
replacement of the defective Product, and if neither repair nor replacement is
possible, a refund of the monies paid for such non-conforming Product, and does
not include any labor related to the removal and/or subsequent reinstallation
thereof. McDATA agrees that if a FRU under warranty is returned by EMC to McDATA
three (3) times, McDATA shall replace such FRU. Details of McDATA's policies
regarding the repair or replacement of warranty returns will be reviewed and
negotiated in good faith by the parties hereto. McDATA shall provide EMC a
quarterly report by serial number of the FRUs that have been returned to McDATA
three (3) times. EMC shall have the right to audit such report. Product may
consist in part of used components which are warranted as equivalent to new when
used in the Product.
As mutually agreed upon, returns to McDATA will be transacted for credit only or
credit and replacement will be delivered at no charge to McDATA; returns to EMC
will be delivered at no charge to EMC.
The above warranty extends solely to EMC (and shall not be transferred or
assigned in any manner) and all warranty claims must be generated by EMC. Repair
or replacement of component parts by McDATA shall not extend or decrease the
Product warranty.
9.2 SOFTWARE WARRANTY. McDATA warrants that the licensed Object Code Software
will, under normal use and service, substantially conform to Product
Specifications and be free from defects in material and workmanship for ninety
(90) calendar days from the date of first production of any version.
McDATA's sole obligation under this warranty shall be to repair or replace any
defective Object Code Software media and/or to remedy any non-conformance of the
Object Code Software to enable it to materially conform to the functional
specifications set forth in its applicable documentation, and if neither is
possible, a refund of the monies paid for such non-conforming Product, and the
indemnification under Section 11.3.
This warranty is only effective when the Object Code Software is used on or in
conjunction with the Product(s) to which it relates. Further, the warranties are
contingent upon proper use of the Object Code Software by EMC or EMC's
Customers, and will not apply if the Object Code Software has been modified
without the prior written consent of McDATA. McDATA makes no warranty that use
of the Object Code Software will be uninterrupted or error-free.
9.3 TITLE WARRANTY. Except as set forth in Section 4.2.3 with regard to title to
the Software, McDATA warrants that EMC shall receive good title to all Products
delivered to EMC under this Agreement free and clear of all liens, encumbrances
or other claims, and in performing under this Agreement McDATA shall, and each
Product delivered under this Agreement shall, comply with all applicable
country, state and local, laws, statutes, ordinances, rules, regulations and
codes. McDATA further warrants that each Product when shipped has been, and will
continue to be regulatory compliant as detailed in Exhibit H and the applicable
Product specifications. Each
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Product shall bear appropriate labels indicating compliance with these
requirements. McDATA's sole obligation and EMC's sole remedy for breach shall be
repair or replacement of non-conforming Product, at EMC's option, and if neither
is possible, a refund of the monies paid for such non-conforming Product and the
indemnification under Section 11.3.
9.4 DISCLAIMER. THE WARRANTIES AND CONDITIONS SET FORTH HEREIN AND THE
OBLIGATIONS AND LIABILITIES OF McDATA HEREUNDER ARE IN LIEU OF, AND EMC HEREBY
WAIVES, ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS, INCLUDING,
WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE
Except as specifically authorized in this Agreement, each party acknowledges and
agrees that it will not make any representations or warranties on behalf of the
other.
9.5 MARKETING RIGHTS WARRANTY. McDATA hereby warrants that it has the
unrestricted worldwide right to manufacture, transfer, sell, and/or deliver to
EMC the Products purchased hereunder. Further, McDATA agrees that it will not
assume or assert any restriction which would prevent the EMC and its Resellers
from using and marketing such Products anywhere in the world.
9.6 EPIDEMIC DEFECTS. McDATA will repair or replace, at no charge to EMC, any
epidemic defects found to exist in the Products at any time prior to [*]
(Epidemic Failure Period). For purposes of this Agreement, epidemic defects
shall mean a defect rate of [*] or more occurring with the same Product or
related products for the same root cause over any consecutive [*] day period
(Epidemic Defects). In the event McDATA's Products failure rate exceeds the
Epidemic Defects during the Epidemic Failure Period, EMC has the option of
having McDATA, at McDATA's expense: (a) sort, screen, repair and/or replace
EMC's Product, including installed Products, Products pending installation, and
Spares which are subject to such failure; and (b) conduct a thorough
investigation into the failure's root cause, and with EMC's concurrence,
implement corrective action. The parties will mutually agree with EMC on the
time required to complete servicing/correcting such Products, and McDATA's
reimbursement to EMC will be the above agreed upon time at EMC's then-current
internal service rate.
9.7 PLUG AND PLAY FAILURES. In the event a Product fails within [*] of
installation (Plug and Play Failure), provided such Product is within the
warranty provisions herein, EMC's technical support personnel will work with
EMC's Product Support Engineers (trained on the McDATA Products) and McDATA to
attempt to remedy such technical difficulty or replace the failed part with one
of EMC's Spares and return the failed part to McDATA. Upon return of the failed
part, McDATA will analyze the Plug and Play Failure, and repair or replace such
part in accordance with the terms outlined in Section 9.1 or 9.2 and fix the
root cause of such failure, and develop a mutually agreeable cure plan. A Plug
and Play Defect is hereby defined as (i) a Product that fails at the time of
installation; or (ii) a defect resulting from incompleteness in fulfilling a
purchase order which is detected at the time of installation; or (iii) a defect
in the accuracy in fulfilling a purchase order which is discovered at the time
of installation.
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(a) In the event a Plug and Play Defect in a Product is detected, and such
Product is within the warranty provisions herein, EMC's technical support
personnel will work with McDATA to attempt to remedy such technical difficulty
or replace the failed part with one of EMC's Spares and return the failed part
to McDATA. Upon return of the failed part, McDATA will analyze the Plug and Play
Defect, and repair or replace such part in accordance with the terms outlined in
Section 9.1 or 9.2, and fix the root cause of such failure, and develop a
mutually agreeable cure plan.
(b) In the event a Plug and Play Defect is detected which results from the
incompleteness or inaccuracy in fulfilling a purchase order, EMC will report the
defect to McDATA, and McDATA will cure the defect, and will analyze the defect,
identify the cause of the incompleteness or inaccuracy, and develop a plan to
fix the cause.
10. TECHNICAL SUPPORT, REPAIRS, AND TRAINING.
10.1 TRAINING. McDATA shall provide [*] instructor level training course for EMC
personnel per each major functional release during the term of this Agreement.
Subsequent courses will be provided at McDATA's then-current rate. Such training
shall commence on the date specified by EMC provided that EMC gives McDATA at
least thirty (30) days prior written notice. The course shall cover in detail,
the Software, the installation, adjustment, operation, and maintenance of each
Product. Subsequent to this initial training, McDATA shall provide [*] course
focused on the Software and functionality revisions between each of McDATA's
major operating system (OS) releases (i.e. 2.x vs. 3.x). Each class shall
accommodate up to [*] of EMC's employees and shall be conducted in Colorado.
McDATA shall provide hard copies of the course outline, training guides, and all
other necessary materials for each Product to each trainee and one electronic
copy in addition to a hard copy to EMC. McDATA shall also provide EMC with [*]
of instructor training aids, in both hard copy and electronic forms, used by
McDATA for each course during each class, provided at least one of EMC's
attendees is a trainer. EMC shall have the right to reproduce and distribute
copies of all training materials and related documents, 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 at McDATA's then-current rates.
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.
10.2 TECHNICAL SUPPORT TERMS. Additional terms and conditions governing
technical support by McDATA and/or EMC, repairs and training are set forth in
and attached hereto as Exhibit C, D and E.
10.3 BETA UNITS. [*]
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11. INDEMNIFICATIONS.
11.1 McDATA agrees to indemnify, defend and hold EMC harmless from any and all
claims, demands, suits, actions, judgements, damages, liabilities, costs and
expenses (including reasonable attorney's fees and costs) arising from any third
party claims brought or awarded against EMC that Products infringe any patent or
copyright, or trade secret, provided EMC promptly notifies McDATA in writing of
the claim, and grants to McDATA the sole control of the defense of any action
and all negotiations for settlement and compromise, but provided that EMC's
consent is required for any settlement that calls for payments in excess of the
liability cap specified in Section 15, such consent not to be unreasonably
withheld. EMC is entitled to be represented in any such action by its own
attorneys at its own expense. McDATA shall not be liable for any claim of
infringement to the extent that it is based upon any Product or Software which
is altered or modified without McDATA's authorization.
In the event the Products become, or in McDATA's opinion are likely to become,
the subject of an infringement, McDATA shall have the right, at its option and
expense, to (i) obtain the rights to continued use of such Product, or (ii)
replace or modify the Product so that it is no longer infringing, or (iii)
refund to EMC the price paid for the Product less a reasonable amount for use,
damage or obsolescence in accordance with a straight-line depreciation schedule
over a five (5) year life.
The foregoing remedies are the sole remedies for infringement of any
intellectual property rights.
11.2 EMC agrees to indemnify, defend and hold McDATA harmless from any and all
claims, demands, suits, actions, judgements, damages, liabilities, costs and
expenses (including reasonable attorney's fee's and costs) arising from any
third party claim brought or awarded against McDATA as a result of any claim,
judgment or adjudication against McDATA to the extent based upon any material
breach of this Agreement or misrepresentation by EMC in conducting its
activities under this Agreement, including without limitation any claims
relating to the modification of the Products by EMC or by third parties that
modified the performance or contents of the Products, or to the sale or
distribution of non-McDATA goods or services in conjunction with the Products,
provided that McDATA promptly notifies EMC in writing of the claim, and grants
to EMC the sole control of the defense of any action and all negotiations for
settlement and compromise, but provided that McDATA's consent is required for
any settlement that calls for payments in excess of the liability cap specified
in Section 15, such consent not to be unreasonably withheld. McDATA is entitled
to be represented in any such action by its own attorneys at its own expense.
11.3 McDATA shall indemnify and defend EMC against all claims, suits, losses,
expenses and liabilities arising from any third party claim brought against EMC
alleging bodily injury, personal injury, death, and property damage directly
caused by the failure of any Product to conform to its specification or to any
applicable laws or regulations or through the negligence of McDATA or any person
for whose actions McDATA is legally liable, provided that, in either case (i)
EMC has notified McDATA promptly in writing of any such claims, (ii) McDATA
shall have sole control of the
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defense of such claims and all negotiations for its settlement and compromise,
provided that EMC's consent is required for any settlement that calls for
payments in excess of the liability cap specified in Section 15, such consent
not to be unreasonably withheld and (iii) EMC shall reasonably cooperate with
McDATA in the defense or settlement of such claims. EMC is entitled to be
represented in any such action by its own attorneys at its own expense. McDATA
shall carry and maintain Xxxxxxx'x Compensation and general liability insurance
coverage to satisfactorily cover McDATA's obligations under this Section.
McDATA shall not be liable for any claims under Section 11.3 to the extent that
they are based upon any Product that has been damaged, submitted to misuse,
altered, improperly installed, repaired or maintained by EMC or third parties in
a manner which McDATA reasonably determines to have adversely affected
performance or reliability.
12. PRODUCT DOCUMENTATION AND SOFTWARE MEDIA REPRODUCTION, MODIFICATION, AND
DISTRIBUTION RIGHTS.
12.1 McDATA hereby agrees that it will prepare for EMC a customized version of
McDATA's standard documentation for the Products. Such documentation will
include planning, installation and operation, service and user guides, as
appropriate. McDATA retains ownership of such McDATA-customized documentation.
However, EMC shall have all right, title, and interest in, and sole liability
for, any portion of the altered Product Documentation prepared by EMC. Any costs
associated with the preparation of the McDATA-customized Product documentation
are set forth in Exhibit A of this Agreement.
12.2 McDATA shall provide EMC with master copies of the Software in electronic
form and the documentation in both hard copy and electronic form. Except as
otherwise provided in Exhibit A hereof, and subject to the retention of all
copyright notices and/or confidentiality legends, EMC shall have the right to
copy any McDATA-supplied or McDATA-customized Product documentation and Software
media for use internally by its employees and Resellers and for publicity and
training purposes. EMC shall have the right to reproduce such Product
documentation and Software from the masters supplied to it by McDATA. EMC shall
provide McDATA with a copy of such reproduced Product documentation and Software
media for verification, and McDATA agrees to perform such verification on the
first version of any release within [*] business days of receipt of such
reproduction(s). Further, EMC shall have the right to reproduce and distribute
such Product documentation and software media to its Resellers and End User
Customers. Such license shall continue during the term of this Agreement and for
[*] years after the date of last shipment by EMC of the Products purchased under
this Agreement. McDATA shall provide EMC with all updates and changes to such
documentation as they become available to McDATA.
13. IDENTIFICATION OF PRODUCTS AND TRADEMARK RIGHTS.
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13.1 IDENTIFICATION OF PRODUCTS. McDATA and EMC hereby agree that Products sold
hereunder will be labeled and marketed by EMC under EMC's trademarks. McDATA
shall have the right to affix and EMC shall not remove or cover over a nameplate
indicating model number, serial number, patent number and/or patent pending
legends, and any other markings which may be required by law or by regulatory
agencies. McDATA and EMC agree that, in sales promotions, advertising literature
and any other public references, McDATA and EMC will identify such Products as
EMC's Products.
13.2 OPERATIONAL PROVISIONS. Special provisions for identifying Products being
purchased by EMC are set forth in the attached Exhibit D.
14. CONFIDENTIALITY OF INFORMATION.
14.1 Both parties may, in connection with this Agreement, disclose to the other
party information considered confidential and proprietary information of the
disclosing party ("Proprietary Information"). Information shall be considered
Proprietary 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, Software, materials or methodologies, or any other information which
provides the disclosing party with a competitive advantage. Such Proprietary
Information may include, but is not limited to, trade secrets, know-how,
inventions, techniques, processes, programs, schematics, data, customer lists,
financial information, and sales and marketing plans. Each party shall at all
times during the term of this Agreement and for five (5) years after its
termination, keep in confidence and trust all such Proprietary Information and
shall not use such Proprietary Information without the prior written consent of
the other party, except (i) as permitted by the terms of this Agreement, (ii) as
may be necessary to fulfill its obligations under this Agreement, and/or (iii)
to operate, maintain, or support the Products. Furthermore, neither party shall,
without the prior written consent of the other party, disclose such Proprietary
Information to any person except to those of its employees, Resellers, or
consultants who need to know such Proprietary Information to fulfill that
party's obligations under this Agreement or to operate, maintain, or support the
Products, provided that such employees, Resellers, or consultants are parties to
written agreements with EMC such party to keep in confidence such Proprietary
Information; such agreements will meet the minimum requirements outlined in this
Section 14.1 attached hereto, or versions thereof adapted to Resellers, or
consultants, in accordance with any applicable local laws, and such party shall
use reasonable commercial efforts to prosecute material violations of such
agreements with respect to the Proprietary Information.
It is understood that each party is not granting to the other party any rights
in the Confidential Information, and all right, title and interest in the
Confidential Information shall remain the property of the disclosing party.
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Upon termination of this Agreement and upon request, the receiving party shall,
on a reasonable commercial efforts basis, promptly return all Proprietary
Information under its control and all copies thereof to the disclosing party,
except that the receiving party shall be permitted to retain such copies of the
Proprietary Information as are necessary to operate, maintain, or support
Products previously purchased pursuant to this Agreement.
The non-disclosure provisions of this Section shall not apply to information
which (i) becomes publicly available through no act of the receiving party; (ii)
is required to be disclosed by the law of any government which has jurisdiction
over such information, provided that the disclosing party is given prior notice
of any such disclosure; (iii) was previously known at the time of its receipt
without similar restrictions; (iv) is released by written mutual agreement of
McDATA and EMC; (v) can be shown by the receiving party to have been provided by
the disclosing party to others without similar restrictions; or (vi) can be
documented, by adequate written records, to have been independently developed by
the receiving party without reference to or use of any Proprietary Information.
14.2 McDATA will not 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 without the prior written approval of EMC. Notwithstanding the
above, EMC shall not unreasonably withhold approval of disclosure of the
Agreement for the purpose of McDATA complying with any SEC or legal regulations.
The existence, terms and conditions of this Agreement are considered EMC
Confidential Information.
14.3 The parties agree that any violation of this or any other agreement
covering nondisclosure of Proprietary Information or publication or any
unauthorized disclosure of Proprietary Information shall constitute a violation
of the terms of this Agreement. Both parties acknowledge that it is the
responsibility of each party to take all reasonable measures to safeguard the
Proprietary Information to prevent its unauthorized use.
15. LIMITATION OF LIABILITY.
EXCEPT AS TO McDATA's OBLIGATIONS UNDER SECTION 11.1 for intellectual property
infringement, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) DUE TO
FAILURE TO PERFORM ITS OBLIGATIONS IN CONNECTION WITH THIS AGREEMENT.
THE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE SALE OF EQUIPMENT, THE LICENSE OF
SOFTWARE, THE PROVISION OF SERVICES AND THE USE, PERFORMANCE, RECEIPT OR
DISPOSITION OF SUCH EQUIPMENT, SOFTWARE OR
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SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT
EXCEED [*]
16. GENERAL PROVISIONS.
16.1 GOVERNING LAW. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of New York of the United
States of America.
16.2 WAIVER. 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 no waiver of any
right or remedy on one occasion by either party shall be deemed a waiver of such
right or remedy on any other occasion.
16.3 COMPLIANCE WITH LAWS. Each party shall comply with all applicable laws,
including, without limitation, the export control laws of the United States of
America, any export control regulations of the United States, and any applicable
laws or regulations of those countries involved in transactions concerning the
exporting, importing and re-exporting of Products purchased under application of
these terms and conditions.
16.4 NOTICES. Notices required hereunder shall be in writing, and shall be
deemed given when transmitted by facsimile (provided such facsimile is
subsequently confirmed in writing within five (5) business days of the facsimile
date) or deposited with an express delivery service with guaranteed third day
delivery, prepaid, addressed as follows:
To McDATA: With an additional copy to:
McDATA Corporation McDATA Corporation
000 Xxxxxxxxxxx Xxxxxxx 000 Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000 Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn.: Contract Operations Attn.: Vice President of Marketing
Facsimile # (000) 000-0000 and Sales
Facsimile # (000) 000-0000
To EMC: With an additional copy to:
XXX Xxxxxxxxxxx XXX Xxxxxxxxxxx
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn.: Supply Base Management Attn.: Manager of Enterprise Storage
Facsimile # (000) 000-0000. Systems
Facsimile # (000) 000-0000
16.5 ASSIGNMENT. Neither party shall assign this Agreement or any rights
hereunder without the prior written consent of the other party, which consent
shall not be unreasonably withheld. It shall be deemed reasonable for either
party to withhold consent to an assignment involving one of its
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competitors. 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 change of control, such
as a merger, acquisition or consolidation of not less than a majority ownership
in the merged, acquired or consolidated company by the surviving entity upon
giving sixty (60) days prior written notice to the non-assigning company.
16.6 FIBRE ALLIANCE MEMBERSHIP.
During the term of this Agreement, each party will maintain a corporate voting
membership in the Fibre Alliance or its 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.
16.7 FORCE MAJEURE. Neither party shall be responsible for any failure to
perform or delay in performing any of its obligations due to causes beyond the
reasonable control of the party, including but not limited to acts of God, war,
riot, embargoes, acts of civil or military authorities, fire, floods, accidents,
strikes, or shortages of transportation, facilities, fuel, energy, labor, or
materials. In the event of such delay, either party may defer the performance
for a period equal to the time of such delay.
16.8 CONFLICT. If any provision of this Agreement is finally held by a court of
competent jurisdiction to be illegal or unenforceable, or in conflict with any
law having jurisdiction over this Agreement, the validity of the remaining
portions or provisions hereof shall not be affected thereby.
16.9 CONTRACT CHANGES. Except as provided herein, this Agreement may not be
modified or amended except by an instrument in writing signed by duly authorized
representatives of both parties. The parties acknowledge that from time to time
McDATA and EMC may wish to implement changes to this Agreement. On an ongoing
basis, these changes will be executed in accordance with a formalized written
process, and the overall Agreement may be amended annually with mutual written
agreement of both parties.
16.10 MANUFACTURING RIGHTS AND ESCROW.
16.10.1 Manufacturing Rights. In the event (a) of a material breach
which has not been cured pursuant to the provisions of Section 2.4 herein, (b)
of proceedings in bankruptcy or insolvency invoked by or against McDATA, or in
the event of the appointment of an assignee for the benefit of creditors or a
receiver, (c) McDATA is no longer in business, and provided EMC has complied
with all its payment obligations under this Agreement, or (d) if McDATA
voluntarily or involuntarily ceases the manufacture of the Products for sale to
EMC, McDATA agrees that it shall authorize EMC to produce or have produced the
Products, or future enhancements to the Products,
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by sources other than McDATA. Such authorization shall be in the form of a
worldwide, nonexclusive manufacturing rights license agreement between the
parties to make or have made, sell, offer for sale or import the Products, which
agreement will license EMC to receive and utilize McDATA's source code,
engineering drawings and specifications, manufacturing documentation, test
procedures and associated intellectual property (collectively McDATA
Intellectual Property). Such license shall be irrevocable and in force for [*].
The terms and conditions of such manufacturing rights license shall be agreed
upon within [*] from the Effective Date. EMC will pay McDATA a license fee on a
quarterly basis of [*] of EMC's gross revenues directly attributable to the sale
of the Designated Products for such McDATA Intellectual Property. Following the
[*] license period, EMC shall return all of McDATA's escrowed material
documentation to McDATA within thirty (30) calendar days.
Further, EMC agrees that McDATA or its assigns shall have the right to approve
any subcontractor EMC may use pursuant to this section, which approval shall not
be unreasonably withheld by McDATA.
Additionally, McDATA agrees that in the event McDATA discontinues a Product
pursuant to Section 8.5 of this Agreement, upon written request by EMC, McDATA
shall grant the foregoing manufacturing rights to EMC for such discontinued
Product.
In the event EMC is selling the Product in a country which requires that a
certain percentage of that Product be manufactured in such country, EMC shall
notify McDATA in writing of such requirement and request that McDATA provide a
manufacturing facility in such country. EMC shall specify the time frame within
which such manufacturing facility must be completed. McDATA may, at its option,
either provide such manufacturing facility within the time frame required, or
grant limited manufacturing rights to such Product in such country.
16.10.2 Escrow. Within sixty (60) calendar days from the Effective
Date, EMC and McDATA shall (a) identify an escrow agent (Escrow Agent)
acceptable to both parties and (b) execute an agreement with the Escrow Agent
(Escrow Agreement) for the pre-arranged holding and releasing of the Software,
including without limitation, the EFC Management and Service Software and any
other software elements of the Products and all documentation and McDATA's
source code, engineering drawings and specifications, manufacturing
documentation, test procedures and associated intellectual property
(collectively the Escrow Material). Within sixty (60) calendar days from the
Effective Date, McDATA shall also concurrently appoint and legally empower a
Trustee and Administrator of said Escrow Agreement.
Within [*] after the announced general availability of any of the Products,
McDATA shall deposit with the Escrow Agent the most current production level of
the Escrow Material, as defined in the Escrow Agreement. Thereafter, McDATA
shall within [*] after the release of an update to the Products, deposit updated
Escrow Material with the Escrow Agent.
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McDATA agrees to bear all costs arising out of compliance with this Section
16.8, including without limitation, the costs of establishing and maintaining
the escrow of the Products, and of any and all documentation preparation
necessary to meet the requirements of this Section.
In addition to any other rights and remedies available to EMC, in the event (a)
of a material breach which has not been cured pursuant to the provisions of
Section 2.4 herein, (b) of proceedings in bankruptcy or insolvency invoked by or
against McDATA, or in the event of the appointment of an assignee for the
benefit of creditors or a receiver, (c) McDATA is no longer in business, and
provided EMC has complied with all its payment obligations under this Agreement,
or (d) if McDATA voluntarily or involuntarily ceases the manufacture of the
Products, EMC shall be entitled to demand release of the Escrow Materials
pursuant to the provisions of the Escrow Agreement within five (5) business days
of the occurrence of any such event, and the Escrow Agreement shall state that
EMC shall be entitled to receive the Escrow Materials pursuant to the provisions
of the Escrow Agreement.
Title to the Escrow Material shall remain in McDATA at all times. EMC
acknowledges that the Escrow Material, and all copies thereof, and all
copyright, patent, trade secret and other proprietary rights therein, are and
remain the valuable property of McDATA.
16.11 SURVIVAL. Each party's obligations under the Agreement and/or any purchase
order which, by their nature, would continue beyond the termination,
cancellation, or expiration of this Agreement or any purchase order, including
without limitation, those in Sections 2.5, 4.2, 4.3, 8.5, 9, 10, 11, 12, 13, 14,
15, and 16 of the Agreement shall survive termination, cancellation or
expiration of this Agreement or any purchase order. Further, Sections 1.0.2 and
2.4.2 of Exhibit C, and Exhibit D, shall survive termination, cancellation or
expiration of this Agreement, subject to EMC's payment to McDATA of mutually
agreed upon prices.
16.12 HEADINGS. The headings provided in this Agreement are for convenience only
and shall not be used in interpreting or construing this Agreement.
16.13 INDEPENDENT CONTRACTORS. 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. Pricing and other payments under this Agreement are and
shall be based upon arms length negotiations between the parties.
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17.0 EXHIBITS. The following Exhibits are incorporated herein by reference:
Exhibit A PRODUCT AND DOCUMENTATION PRICING
Exhibit B PART 1 QUALITY ASSURANCE, AND ESCALATION PROCEDURES
PART 2 McDATA QUALITY PLAN
Exhibit C TECHNICAL SUPPORT AND SOFTWARE MAINTENANCE
Exhibit D RMA PROCEDURES
Exhibit E PRODUCT REPAIR
Exhibit F EMC CUSTOMER AGREEMENT
Exhibit G OPERATIONAL PROVISIONS
Exhibit H FIBRE CHANNEL SWITCH EMC REGULATORY AND PRODUCT SAFETY REQUIREMENTS
This Agreement and the applicable Exhibits identified above are the
complete agreement between McDATA and EMC with respect to the Products on Figure
A-1 and A-2 of Exhibit A of this Agreement and replace all prior oral or written
representations or agreements between the parties with respect to such Products.
This Agreement shall not be effective until executed by EMC and
accepted by an authorized representative of McDATA.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
by their duly authorized representatives.
Executed and agreed to: Accepted and agreed to:
MCDATA CORPORATION (MCDATA) XXX XXXXXXXXXXX (EMC)
By: /s/ Xxxx X. XxXxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- -----------------------------------------
Name: Xxxx X. XxXxxxxxx Name: Xxxxxxx Xxxxxxx
------------------------ ---------------------------------------
Title: CEO and President Title: Vice President, Corporate Procurement
----------------------- -----------------------------------
Effective Date: May 19, 2000 Effective Date: May 19, 2000
-------------- -----------------------------
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EXHIBIT A
PRODUCT AND DOCUMENTATION PRICING
1 PRODUCT PRICING
1.1 Prices. EMC shall purchase Products from McDATA at the prices listed on the
attached Figure A-1.
1.2 EMC and McDATA agree that the prices in Exhibit A include all applicable
features identified in the Product specifications as of the Effective Date. EMC
and McDATA agree that the annual software maintenance fees in Exhibit A will
include the delivery of software updates if and when available.
1.3 Taxes. All prices for Products and Services provided under this Agreement
are exclusive of any taxes, duties or government levies (including, but not
limited to, value added, property, sales, use, privilege, excise, or similar
taxes) imposed by the United States, the Territory, or any other governmental
entity. Any such taxes or amounts in lieu thereof which are charged to or
payable by McDATA (exclusive of taxes based on McDATA's net income) will be
invoiced to and paid by EMC in the manner set forth in Section 6 in this
Agreement. The parties acknowledge and agree that as of the Effective Date, duty
drawback does not apply to the Products. In the event the import of the Product
components changes, this section shall be modified to account for duty drawback.
1.4 [*].
2 DOCUMENTATION
2.1 Product Documentation. As stated in Section 12 of this Agreement, McDATA
will prepare for EMC a customized version of McDATA's standard documentation for
the Products. [*]
2.2 Other Document Requests
2.2.1 Manual Files. [*]
2.2.2 Illustrations. [*]
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FIGURE A-1
[*]
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FIGURE A-2
[*]
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EXHIBIT B, PART 1
QUALITY ASSURANCE, AND
ESCALATION PROCEDURES
1.0 QUALITY ASSURANCE
1.1 DVT PROCESS
[*].
1.2 MANUFACTURING PRODUCTION TEST PROCESS
Test processes will be designed, documented, monitored and have a
closed loop corrective action process in place to assure Products are
meeting stated quality and reliability goals and testing as referenced
in Exhibit B, PART 2 of this Agreement including but not limited to the
following:
1.2.1 [*].
1.1 SPARE PARTS
Spare parts shall be equal in quality to finished system-level
Product. McDATA shall test spare parts in component test and system
test as described in section 1.2.
2.0 PROBLEM ESCALATION AND REPORTING
2.1 PROBLEM SEVERITY LEVELS AND RESPONSE TIME
2.1.1 DATA will provide support to EMC [*].
2.1.2 McDATA will respond and engage [*] EMC contacting
McDATA in regard to a defect.
2.1.3 The incident priority scheme described below will be
used.
[*]
2.2 CUSTOMER SERVICE ESCALATION PROCEDURE
2.2.1 EMC Customer Escalation requirements are defined in
Exhibit C, Technical Support
2.3 ENGINEERING ESCALATION PROCEDURE
2.3.1 Contacts:
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McDATA will identify hardware and/or software engineering
resources to work with EMC on escalated engineering issues.
This will include the appropriate engineering resources
dependent upon the nature of the problem. [*]
2.3.2 Dedicated resources:
Appropriate McDATA engineering personnel shall be dedicated to
resolving EMC escalated issue until both parties agree issue
is resolved.
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EXHIBIT B, PART 2
MCDATA QUALITY PLAN
1.0 INTRODUCTION
1.1 This document is the Quality Plan for McDATA and defines the quality systems
McDATA 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
McDATA manufacturing site that supplies goods or services related to the
Products. 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 failures occurring at EMC customers within [*]
after installation.
2.2 IQ (Installation Quality process): Any failure in the first [*] at a
customer site initiates an IQ process to start. [*].
2.3 CLCA (Closed Loop Corrective Action process): [*].
2.4 Quality Failure: Any failure that occurs during the first [*] after
installation at an EMC customer site [*].
2.5 Reliability Failure: Any failure that occurs after the first [*] of
operation after installation at EMC's customer's site. [*]
2.6 Serious Failures. [*]
2.7 Critical Failures: [*]
2.8 Purge: Discrepancy issue with a particular lot or date code of the Product
[*].
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.
3.0 PERFORMANCE REQUIREMENTS
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3.1 The [*] numbers stated in this section are goals for the program. McDATA
will work with EMC to define and work toward these goals and requirements. EMC
will measure McDATA during the quarterly supplier performance reviews using
these reliability numbers.
3.2 [*]
3.3 [*]
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: [*]
4.2 Failure Analysis: [*]
4.3 Quality Issues: [*]
4.4 Critical Failures: [*]
4.5 EMC requires that communications be in writing or electronic mail, if
requested.
5.0 GENERAL PARTNERSHIP REQUIREMENTS
5.1 McDATA will:
5.1.1 Participate in Concurrent Engineering design reviews.
5.1.2 Participate in [*] performance reviews and [*] -site audits.
5.1.3 Have [*] quality and reliability improvement plans and share those
periodically with EMC.
5.1.4 Have pro-active problem notification and resolution with potential to
adversely effect delivery, quality or price. [*]
5.2 EMC and McDATA 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 McDATA must comply with the McDATA's ESD Policy.
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7.0 QUALITY DATA PROVIDED
Each party shall provide the other with the information summarized in the table
below. McDATA will email the required information to EMC Quality personnel.
[*]
8.0 CORRECTIVE ACTION PROCESS
8.1 [*]
8.2 [*]
8.3 [*]
8.4 [*]
8.5 [*]
9.0 REPAIR PROCESS
[*]
10.0 RELIABILITY ASSURANCE
[*]
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EXHIBIT C
TECHNICAL SUPPORT AND SOFTWARE MAINTENANCE
1. TECHNICAL SUPPORT
1.0 BY MCDATA:
1.0.1 TECHNICAL SUPPORT. McDATA will provide telephone support
to EMC as is reasonably required and will, in good faith, cooperate with EMC to
solve any technical difficulty specific to the Products which cannot be resolved
by EMC's field service personnel trained to service and maintain the Products.
[*]
1.0.2 REPAIRS. McDATA shall repair all returned Products in
accordance with the McDATA Returned Material Procedure. [*]
1.0.3 TRAINING. McDATA shall make available to EMC [*]
training courses and materials designed to instruct EMC's technical support
personnel in the operation, repair (down to the field replaceable unit level)
and maintenance of the Products. [*]
1.0.4 FEE CHANGE. The support fees outlined herein are subject
to change upon [*] written notice to EMC.
1.1 BY EMC: EMC's technical support group will attempt to remedy
technical difficulties encountered by EMC's Customers. If EMC is unable to
resolve such technical difficulties, EMC's designated, trained technical support
group will act as the interface between McDATA's service support organization
and EMC's field service organization. [*]
2. SOFTWARE MAINTENANCE. McDATA shall make available to EMC the following
services:
2.1 SOFTWARE SUPPORT. If EMC discovers program errors which cause the
Software not to perform according to Product Specifications in effect at the
time of shipment, McDATA shall use reasonable efforts to correct such errors.
[*]
2.2. PROGRAM ERRORS. McDATA and EMC recognize that Software
non-conformities are of varying severity and require different levels of
responsiveness.
[*]
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2.3 SOFTWARE UPDATE SERVICE. McDATA will provide EMC with Software and
documentation updates as they become available.
In the event of proceedings in bankruptcy or insolvency invoked by or against
McDATA, or in the event of the appointment of an assignee for the benefit of
creditors or a receiver, or in the event McDATA is no longer in business, McDATA
will provide EMC with written notification of known issues and in-progress
repairs for existing Software problems.
2.4 LIMITATIONS.
2.4.1 Should McDATA announce the availability of a new
Software release which enhances and supersedes a previous release, McDATA will
discontinue maintenance support for the previous release and shall provide [*]
notice to EMC prior to the effective date of such maintenance discontinuation.
[*]
2.4.2 For a period of [*] from the date of the last shipment
to EMC of a discontinued Product utilizing the Software, McDATA shall make
available to EMC such Software maintenance services as may reasonably be
required for such Products at McDATA's then-current prices for such services.
3. REVIEW OF REPAIR PROCEDURES. McDATA agrees that EMC has the right to
review McDATA's procedures, processes, records, and facility as such relate to
the repair of the Products.
4. DIAGNOSTIC COVERAGE. The Product Functional Specifications outline the
diagnostic coverage for the Products. [*]
Further, recovery of reliability will be in accordance with McDATA's Product
Support Procedure No. 000-000000-000.
5. REPORTS. On a [*] basis, McDATA will provide EMC with product
reliability, field level, and factory reliability reports.
6. SERIAL NUMBER TRACKING. [*]
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EXHIBIT D
RMA PROCEDURE
1.0 When defective Product must be returned to McDATA for repair or replacement,
EMC shall contact McDATA to obtain an RMA number. [*]
2.0 [*]
3.0 [*]
4.0 If the returned Product is under warranty, McDATA shall provide the repairs
or a replacement unit to EMC at no charge.
5.0 If McDATA and EMC mutually agree that the returned product is not under
warranty and is not repairable, the following applies:
5.1 [*]
5.2 [*]
5.3 [*]
6.0 [*]
7.0 [*]
8.0 [*]
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EXHIBIT E
PRODUCT REPAIR
This Exhibit sets forth the terms and conditions which govern the repair of the
Products. [*]
1.0 REPAIR CYCLE TIME
McDATA shall provide a maximum of [*] cycle time on repair Product.
2.0 PRODUCT SUPPORT AND PRODUCT SUPPORT DURATION
2.1 At EMC's request, McDATA shall provide the Product support described in
sub-Section 2.2, below. McDATA shall provide Product support during the
term of the Agreement and for a period of [*] 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 McDATA's
then-current Spares, Repair and Upgrade Catalog and will be agreed to
as part of the repair quote process in Exhibit D.
2.2 Product support shall include, but not be limited to Product: (i)
testing; (ii) repair; (iii) upgrades where practical or mandatory; (iv)
McDATA's standard reporting; (v) failure analysis, and (vi) closed loop
corrective action.
3.0 SCRAP
3.1 McDATA shall make commercially reasonable efforts to repair all Product
per the applicable Product specifications agreed to in writing by EMC
and McDATA..
3.2 [*]
3.2.1 [*].
3.2.2 [*].
3.2.3 [*].
3.3 EMC shall provide a timely response to McDATA's scrap requests.
3.4 [*]
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EXHIBIT F
[EMC LOGO] Agreement Number: _________
CUSTOMER AGREEMENT
XXX Xxxxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Xxxx 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.
XXX XXXXXXXXXXX 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.
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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 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.
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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.
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
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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 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.
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(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
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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.
(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.
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(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.
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.
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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 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
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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.
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 ACTUAL AMOUNTS PAID BY CUSTOMER (OTHER THAN REIMBURSEMENT OF EMC'S
EXPENSES) FOR SUCH EQUIPMENT, SOFTWARE AND/OR SERVICES DURING THE
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IMMEDIATELY PRECEDING 12 MONTH PERIOD OR ONE MILLION US DOLLARS ($1,000,000).
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.
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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
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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 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 ss. 12.212(a) and/or DFARS ss. 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 G
OPERATIONAL PROVISIONS
1. LOGOS. EMC-Provided Logos. McDATA will apply EMC's adhesive-backed logo
to the Products if EMC supplies the logos, and if EMC provides clear
instructions as to placement. [*]
2. IDENTIFICATION OF PARTS. McDATA shall use all reasonable efforts to
comply with EMC's procedures regarding the identification of parts,
marking and serialization, [*].
3. PACKING AND SHIPPING CONTAINERS. McDATA agrees to package all Products,
Spares and replacement components in accordance with procedures
mutually agreed to by McDATA and EMC.
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EXHIBIT H
FIBRE CHANNEL SWITCH EMC REGULATORY AND PRODUCT SAFETY REQUIREMENTS
CONNECTRIX 2
-------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
COUNTRY / AGENCY MARKINGS WHICH APPLY COMMENTS
--------------------------------------------------------------------------------------------------------------------------
NORTH AMERICA
--------------------------------------------------------------------------------------------------------------------------
United States / FCC FCC statement [*]
--------------------------------------------------------------------------------------------------------------------------
United States / UL UL [*]
--------------------------------------------------------------------------------------------------------------------------
Canada / CSA CSA [*]
--------------------------------------------------------------------------------------------------------------------------
Canada / Industry Canada ICES statement [*]
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
EASTERN EUROPE / OTHER
--------------------------------------------------------------------------------------------------------------------------
CB REPORT Individual country markings [*]
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
WESTERN EUROPE
--------------------------------------------------------------------------------------------------------------------------
Europe Union CE-Marking [*]
--------------------------------------------------------------------------------------------------------------------------
Europe / TUV TUV xxxx [*]
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
Germany TUV-GS xxxx [*]
--------------------------------------------------------------------------------------------------------------------------
Germany TUV-GS xxxx [*]
--------------------------------------------------------------------------------------------------------------------------
SCANDINAVIAN COUNTRIES
--------------------------------------------------------------------------------------------------------------------------
Switzerland/Austria CE-Marking Same requirements as European Union above.
--------------------------------------------------------------------------------------------------------------------------
Sweden / XXXXX XXXXX xxxx [*]
--------------------------------------------------------------------------------------------------------------------------
Norway / NEMKO XXXXX xxxx [*]
--------------------------------------------------------------------------------------------------------------------------
Finland / FIMKO FIMKO xxxx [*]
--------------------------------------------------------------------------------------------------------------------------
Denmark / XXXXX XXXXX xxxx [*]
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
EASTERN EUROPE
--------------------------------------------------------------------------------------------------------------------------
Russia / GOST XXXX xxxx [*]
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
ASIA PACIFIC
--------------------------------------------------------------------------------------------------------------------------
Japan / VCCI VCCI statement [*]
--------------------------------------------------------------------------------------------------------------------------
Australia / ACA C-Tick w/EMC supplier code [*]
--------------------------------------------------------------------------------------------------------------------------
Australia / ACA No Known Requirement. [*]
--------------------------------------------------------------------------------------------------------------------------
New Zealand / ACA Covered by Australia. Covered by Australia.
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
SOUTH EAST ASIA
--------------------------------------------------------------------------------------------------------------------------
Taiwan / BSMI BSMI ID # and statement [*]
--------------------------------------------------------------------------------------------------------------------------
Korea / RRL [*]
--------------------------------------------------------------------------------------------------------------------------
Singapore / PSB Type approval label [*]
--------------------------------------------------------------------------------------------------------------------------
Indonesia No Known Requirements [*]
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
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INDIAN CONTINENT
--------------------------------------------------------------------------------------------------------------------------
India No Known Requirements [*]
--------------------------------------------------------------------------------------------------------------------------
Malaysia No Known Requirements [*]
--------------------------------------------------------------------------------------------------------------------------
Thailand No Known Requirements [*]
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
AFRICA
--------------------------------------------------------------------------------------------------------------------------
South Africa / SABS No Known Requirements [*]
--------------------------------------------------------------------------------------------------------------------------
53
