EXHIBIT 10.4
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS. OMITTED INFORMATION HAS BEEN REPLACED BY [*].
STORAGE TECHNOLOGY CORPORATION
AND
LSI LOGIC STORAGE SYSTEMS, INC.
AMENDED AND RESTATED DISTRIBUTOR AGREEMENT
DATE: APRIL 15, 2004
CONTRACT [*]
TABLE OF CONTENTS
1. DEFINITIONS........................................................ 1
"AFFILIATE"........................................................ 1
"BUILD TO ORDER"................................................... 1
"CERTIFIED COMPATIBLE"............................................. 1
"CHANGE OF CONTROL"................................................ 1
"CO-BRANDED PRODUCTS".............................................. 1
"COMPATIBILITY".................................................... 2
"COMPETITOR"....................................................... 2
"COMPETITOR CHANGE OF CONTROL"..................................... 2
"CONFIDENTIAL INFORMATION"......................................... 2
"CONTRACT"......................................................... 2
"CONTROL".......................................................... 2
"DISTRIBUTORS"..................................................... 2
"DEAD ON ARRIVAL OR DOA"........................................... 2
"EPIDEMIC FAILURE"................................................. 3
"END OF LIFE"...................................................... 3
"END OF SERVICE"................................................... 3
"END USERS"........................................................ 3
"ENHANCEMENTS"..................................................... 3
"FIR MEASUREMENT".................................................. 3
"FIRMWARE"......................................................... 3
"FIT".............................................................. 3
"FORM"............................................................. 3
"FRU".............................................................. 3
"FUNCTION"......................................................... 3
"GENERAL PURPOSE COMPUTING APPLICATIONS" OR "GPC".................. 3
"HARDWARE"......................................................... 3
"HIGH PERFORMANCE COMPUTING APPLICATIONS" OR "HPC"................. 3
"INTELLECTUAL PROPERTY"............................................ 3
"INTEROPERABILITY"................................................. 4
"LEAD TIME"........................................................ 4
"LEVEL 3 SUPPORT".................................................. 4
"LIKE NEW"......................................................... 4
"MAINTAINABILITY".................................................. 4
"MAJOR CHANGE"..................................................... 4
"MODULES".......................................................... 4
"MTBR"............................................................. 4
"NET REVENUE"...................................................... 4
"OEM".............................................................. 4
"PLUG AND PLAY".................................................... 4
"PREMIUM SOFTWARE"................................................. 4
"PRIOR PRODUCTS"................................................... 4
"PRODUCT".......................................................... 5
"RECIRCULATION PROCESS"............................................ 5
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"REFERENCE SYSTEM"................................................. 5
"RELIABILITY"...................................................... 5
"RESIDUALS"........................................................ 5
"RMA".............................................................. 5
"ROADMAP AND SCHEDULE"............................................. 5
"SALES AND MARKETING PLAN"......................................... 5
"SDD".............................................................. 5
"SERVICE AND SUPPORT AGREEMENT".................................... 5
"SOFTWARE"......................................................... 5
"SOFTWARE TOOL".................................................... 5
"SPARE PARTS OR SPARES"............................................ 5
"SPECIFICATIONS"................................................... 5
"STANDARD STORAGE PRODUCTS"........................................ 5
"STOP ORDER"....................................................... 5
"STOP SHIP"........................................................ 6
"STORAGETEK CUSTOMER INFORMATION".................................. 6
"STORAGETEK INSTALLED BASE"........................................ 6
"SUBSIDIARIES"..................................................... 6
"SUBSTITUTE"....................................................... 6
"SYSTEM"........................................................... 6
"TRADEMARKS"....................................................... 6
"TRANSITIONED RESELLER ACCOUNTS"................................... 6
"UNIQUE COMPONENTS"................................................ 6
2. APPOINTMENT........................................................ 6
2.1 Appointment of StorageTek and its Affiliates as
Distributor................................................. 6
2.2 Additional Product Rights................................... 6
2.3 Other Distribution.......................................... 6
2.4 Competing Products.......................................... 6
2.5 Governmental Sales.......................................... 7
2.6 Independent Development..................................... 7
3. MARKETING, FORECAST AND ORDERS..................................... 7
3.1 Sales and Marketing Plan.................................... 7
3.2 Advertising................................................. 7
3.3 Marketing Development....................................... 7
3.4 Sales Support............................................... 7
3.5 Marketing, Training and Other Support; Pass Through
Benefits.................................................... 7
3.6 Forecasting................................................. 7
3.7 Purchase Orders; Acceptance; Contract Formation............. 8
3.8 Product Returns............................................. 8
3.9 Support of StorageTek Major Distributors for Stocking....... 9
3.10 Sales Pipeline Information.................................. 9
3.11 Credit Limit................................................ 9
3.12 Evaluation Units............................................ 9
4. PRICES AND PAYMENT................................................. 9
4.1 Pricing..................................................... 9
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4.2 Resale Pricing by StorageTek................................ 9
4.3 Quarterly Business Meetings................................. 9
4.4 Taxes....................................................... 9
4.5 Invoicing................................................... 9
4.6 Payment..................................................... 9
4.7 Interest.................................................... 10
5. CANCELLATION AND RESCHEDULING...................................... 10
5.1 SSI Delay................................................... 10
5.2 Rescheduling................................................ 10
5.3 Cancellation and Reconfiguration Before Shipment by
StorageTek.................................................. 10
5.4 Surplus Unique Components................................... 10
5.5 Reconfiguration After Shipment.............................. 11
5.6 Recirculation Process....................................... 11
6. SHIPMENT, DELIVERY AND SUPPORT..................................... 11
6.1 Shipping Terms.............................................. 11
6.2 Shipping Carrier; Drop Ship................................. 11
6.3 Delivery.................................................... 11
6.4 Service and Support......................................... 11
6.5 Spare Parts................................................. 11
6.6 Allocation.................................................. 12
6.7 Spare Part Obsolescence..................................... 12
7. TESTING AND ACCEPTANCE............................................. 12
7.1 Testing and Acceptance...................................... 12
7.2 Records..................................................... 12
7.3 StorageTek Participation.................................... 12
8. DOCUMENTATION...................................................... 13
9. PRODUCT MODIFICATIONS.............................................. 13
9.1 Manufacturing and Engineering; Co-branded Product Roadmap... 13
9.2 StorageTek Requested Changes................................ 13
9.3 Changes..................................................... 13
9.4 Interoperability............................................ 13
9.5 Mandatory Engineering Changes............................... 14
9.6 Engineering Evaluation Products............................. 14
9.7 Beta Products............................................... 14
9.8 Engineering Change Kits..................................... 14
10. PRODUCT DISCONTINUATIONS........................................... 15
10.1 Product Discontinuance...................................... 15
10.2 End of Life Notice.......................................... 15
10.3 Last Buy.................................................... 15
10.4 Spares Through End of Service............................... 15
11. SSI SOFTWARE....................................................... 15
11.1 Demonstration License....................................... 15
11.2 Diagnostic Tools and Support Licenses....................... 15
11.3 Distribution License........................................ 15
11.4 Keying of Software.......................................... 16
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11.5 Records..................................................... 16
11.6 Sublicense Restrictions; Copyright.......................... 16
11.7 Form and Delivery of Sublicenses To End Users............... 16
12. EXPORT............................................................. 16
12.1 StorageTek.................................................. 16
12.2 SSI......................................................... 16
13. WARRANTIES AND WARRANTY DISCLAIMERS................................ 16
13.1 Hardware and Firmware Warranty.............................. 16
13.2 Software Warranty........................................... 17
13.3 Title Warranty.............................................. 17
13.4 Technical Support Center Access............................. 17
13.5 FCC Compliance.............................................. 17
13.6 Returned Material Authorization............................. 17
13.7 New or Like New Warranty.................................... 18
13.8 Warranty for Evaluation Products............................ 18
13.9 Authority................................................... 18
13.10 Disclaimer.................................................. 18
14. LIMITATIONS OF LIABILITY........................................... 18
14.1 Damages..................................................... 18
14.2 HIGH RISK ACTIVITIES........................................ 19
15. INDEMNIFICATION.................................................... 19
15.1 Intellectual Property Indemnification by SSI................ 19
15.2 Intellectual Property Indemnification by StorageTek......... 20
15.3 StorageTek.................................................. 21
15.4 Product Liability........................................... 21
15.5 Transitioned Reseller Accounts.............................. 21
15.6 High Risk................................................... 22
15.7 Exclusive Remedies.......................................... 22
16. CONFIDENTIALITY.................................................... 22
16.1 Confidentiality............................................. 22
16.2 Use of Confidential Information............................. 22
16.3 Disclosure of Confidential Information...................... 22
16.4 Residuals................................................... 23
16.5 Termination................................................. 23
16.6 Legal Remedies.............................................. 23
16.7 Confidentiality and Meet-Comp Information................... 23
16.8 No Limitation............................................... 23
17. INTELLECTUAL PROPERTY.............................................. 24
17.1 Trademarks.................................................. 24
17.2 Co-branding................................................. 24
17.3 Intellectual Property....................................... 24
17.4 Use of Unique Components.................................... 25
18. TERM AND TERMINATION............................................... 25
18.1 Term........................................................ 25
18.2 Co-branded Product Access................................... 25
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18.3 Termination................................................. 25
18.4 Competitor Change of Control................................ 25
18.5 Effect of Discontinuation of Standard Storage Product or
Termination of this Agreement............................... 26
19. REGULATORY APPROVALS AND SAFETY.................................... 26
19.1 Regulatory Warranties....................................... 26
19.2 Compliance with Law......................................... 27
19.3 Asbestos Materials.......................................... 27
20. QUALITY ASSURANCE; COMPATIBILITY................................... 27
20.1 Quality Assurance........................................... 27
20.2 Plug and Play............................................... 27
20.3 Product Reliability......................................... 28
20.4 Annual Return Rate.......................................... 28
20.5 Failure Analysis............................................ 28
20.6 Epidemic Failure............................................ 28
20.7 Stop Shipment Process....................................... 29
20.8 ISO......................................................... 29
21. AUDIT RIGHTS....................................................... 29
21.1 Plant Audit................................................. 29
21.2 Other Audit Rights.......................................... 29
22. [INTENTIONALLY DELETED]............................................ 30
23. GOVERNMENT CONTRACTS............................................... 30
24. [INTENTIONALLY DELETED.]........................................... 30
25. DISPUTE RESOLUTION AND GOVERNING LAW............................... 30
25.1 Disputes.................................................... 30
25.2 Escalation.................................................. 30
25.3 Arbitration................................................. 30
25.4 Governing Law............................................... 31
26. GENERAL............................................................ 31
26.1 Assignment.................................................. 31
26.2 Publicity................................................... 31
26.3 Notices..................................................... 31
26.4 Amendments.................................................. 32
26.5 Independent Relationship.................................... 32
26.6 Counterparts................................................ 32
26.7 Entire Agreement............................................ 32
26.8 Non-Waiver of Rights........................................ 32
26.9 Force Majeure............................................... 32
26.10 Headings.................................................... 32
26.11 Guaranty.................................................... 32
26.12 Insurance................................................... 32
26.13 Severability................................................ 33
SCHEDULES
Schedule 1.1 -- Co-branded Products
Schedule 1.2 -- List of Competitors
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Schedule 1.3 -- Unique Components
Schedule 1.4 -- Specifications for Co-branded Products
Schedule 2.5 -- Federal Opportunities
Schedule 3.3 -- Market Development
Schedule 3.4 -- Sales Information
Schedule 3.5.2 -- Demo Units
Schedule 3.5.3 -- Training
Schedule 3.12 -- Evaluation Units
Schedule 4.1 -- Pricing Provisions
Schedule 4.1.1 -- Xxxx Up Schedule
Schedule 5.3 -- Cancellation Fees
Schedule 5.6 -- Recirculation
Schedule 17.2 -- Trademark
Schedule 20.4 -- ARR
EXHIBITS
Exhibit A -- Form of FIR Measurement
Exhibit B -- Co-branded Product Service and Support Agreement
Exhibit C -- Co-branded Product Roadmap and Schedule
Exhibit D -- StorageTek Software License Terms
Exhibit E -- Critical End Product Parameters
Exhibit F -- Form of Scorecard
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AMENDED AND RESTATED
DISTRIBUTOR AGREEMENT
THIS AMENDED AND RESTATED
DISTRIBUTOR AGREEMENT (this "AGREEMENT") is made
and entered into effective as of April 15, 2004 (the "EFFECTIVE DATE"), by LSI
LOGIC STORAGE SYSTEMS, INC., a Delaware corporation having its principal place
of business at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("SSI") and Storage
Technology Corporation, a Delaware corporation having its principal place of
business at Xxx XxxxxxxXxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("STORAGETEK"). SSI
and StorageTek are referred to individually as a Party and collectively as the
Parties.
RECITALS
LSI Logic Corporation, a Delaware corporation ("LSI LOGIC"), and StorageTek
entered into the Master Distribution Agreement for the Co-branded Products (the
"ORIGINAL AGREEMENT" on January 20, 2002 (the "ORIGINAL AGREEMENT EFFECTIVE
DATE") to pursue a strategic alliance, through which StorageTek and its
Subsidiaries could, as a master distributor, purchase Co-branded Products from
LSI Logic and its Subsidiaries, in particular SSI, in order to resell, license
or lease these Co-branded Products to End Users and Distributors worldwide. LSI
Logic assigned the Original Agreement to SSI on April 15, 2004.
The Parties have agreed to enter into this amended and restated agreement
under which SSI will be the developer and manufacturer of the Co-branded
Products and StorageTek and its Subsidiaries would, as a distributor, purchase
Co-branded Products from SSI in order to resell, license or lease these
Co-branded Products to End Users and Distributors worldwide pursuant to the
terms and conditions set forth in this Agreement.
In consideration of the mutual covenants in this Agreement, the Parties
agree:
1 DEFINITIONS
"AFFILIATE" -- with respect to any person or entity, any corporation,
partnership, limited liability company or any other person or entity that,
directly or indirectly through one or more intervening entities, Controls, is
Controlled by, or is under common Control with such person or entity. In
addition, for so long as LSI Logic owns or controls greater than 50% of the
voting stock of SSI, LSI Logic shall be deemed to be an Affiliate of SSI for the
purposes of this Agreement.
"BUILD TO ORDER" -- a manufacturing model implemented by SSI whereby each
Co-branded Product is built to meet the applicable Contract.
"CERTIFIED COMPATIBLE" -- any hardware, software, components or platforms
that SSI has certified as compatible with the Standard Storage Products.
"CHANGE OF CONTROL" -- with respect to a Party: (a) a sale or assignment,
by operation of law or otherwise, of all or substantially all of such party's
assets to an entity not an Affiliate of such party; (b) a merger or
consolidation by it with or into an entity that is not an Affiliate of such
party where, as a result of such transaction, the stockholders of the
unaffiliated entity own more than 50% of the combined entity; or (c) a sale of
beneficial ownership of a party's voting securities to an entity that is not an
Affiliate of such party, where such entity, as a result of such sale, owns more
than 50% of the outstanding voting securities of such party. For purposes
hereof, a "CHANGE OF CONTROL" of a material portion of SSI's Standard Storage
Products business or substantially all the assets related to the business that
sells the Standard Storage Products in accordance with clauses (a) through (c)
of this definition shall be deemed a "CHANGE OF CONTROL" of SSI. The Parties
agree that neither the sale of SSI's Class A common stock in SSI's initial
public offering and any secondary offering nor the distribution by LSI Logic of
its Class B common stock of SSI to its shareholders shall constitute a "CHANGE
OF CONTROL" for purposes of this definition.
"CO-BRANDED PRODUCTS" -- on a product by product basis, the Standard
Storage Products bearing a Trademark of both (i) SSI or its Subsidiaries and
(ii) StorageTek in accordance with Article 17, and Spare
1
Parts therefor sold under the Original Agreement and this Agreement by SSI or
any of its Subsidiaries to StorageTek or any of its Subsidiaries in accordance
with the terms of the Original Agreement or this Agreement, including without
limitation, those Standard Storage Products and Spare Parts therefor modified to
include Unique Components. As of the Effective Date, the Co-branded Products and
Spare Parts therefor are listed on SCHEDULE 1.1 (CO-BRANDED PRODUCTS), as
modified from time to time pursuant to this Agreement.
"COMPATIBILITY" -- with respect to a particular System or Enhancements to
that System, the ability of a part and the prior version of such part to operate
in conjunction with such System or Enhancements to such System; provided that
all updates, upgrades, bug fixes and patches to Software shall be downward
compatible to the [*] or as otherwise mutually agreed.
"COMPETITOR" -- the current competitors of each Party listed on SCHEDULE
1.2 (LIST OF COMPETITORS), their successors, and after the Effective Date any
other entity that is not an Affiliate of such Party that offers data storage
products that are customarily considered, by nationally recognized independent
storage industry analysts, to be comparable products to the Standard Storage
Products and/or StorageTek's information lifecycle management solutions, tape,
disk or network storage products.
"COMPETITOR CHANGE OF CONTROL" -- with respect to a Party, a Change of
Control wherein the "entity that is not an Affiliate of such Party" is a
Competitor of the other Party.
"CONFIDENTIAL INFORMATION" -- all information, data, knowledge and know-how
(in whatever form and however communicated), relating, directly or indirectly,
to the terms and conditions of this Agreement, the Co-branded Products or the
business of the Provider, as defined in Section 16.1, that is made available or
disclosed by the Provider or any of its officers, directors, partners, members,
employees, agents, affiliates or shareholders to the Recipient, as defined in
Section 16.1, in writing, electronically, verbally or through visual means, or
which the Recipient learns or obtains aurally, through observation or through
analyses, interpretations, compilations, studies or evaluations of such
information, data, knowledge or know-how; provided that any information provided
that is not provided in a written document must be reduced to writing within 30
days from disclosure and marked confidential information in order to considered
Confidential Information. Without limiting the foregoing, Confidential
Information shall include product roadmaps, architectures, specifications,
business plans, design plans, product strategies, product architectures,
drawings, software, data, prototypes, business strategies and information
related to customers, forecasts and shipping data. Confidential Information
shall not include information, data, knowledge and know-how that: (a) is in the
Recipient's possession prior to disclosure to Recipient; (b) is in the public
domain prior to disclosure to the Recipient or lawfully enters the public domain
through no violation of this Agreement after disclosure to Recipient; (c) is
developed independently by Recipient without reference to the Confidential
Information of Provider; (d) is furnished by Provider to a third party without a
restriction similar to those imposed herein; or (e) is rightfully disclosed by a
third party to Recipient without any restrictions of confidentiality. The term
"CONFIDENTIAL INFORMATION," as used in this Agreement, shall include, without
limitation, any writing, instrument, agreement, letter, memorandum, chart,
graph, blueprint, photograph, financial statement or data, telex, facsimile,
cable, tape, disk or other electronic, digital, magnetic, laser or other
recording or image in whatever form or medium.
"CONTRACT" -- an agreement for the purchase of Co-branded Products formed
pursuant to the terms of Section 3.7.
"CONTROL" -- consists of the ownership of 50% or more of the voting stock,
voting interests, voting membership interests or other voting equity interests
in an entity, or, in the case of a limited partnership, in the general partner
thereof.
"DISTRIBUTORS" -- those unaffiliated entities that are authorized by
StorageTek or its Subsidiaries to directly or indirectly: (a) sell, license or
lease the Co-branded Products to End Users, including original equipment
manufacturers, remarketers, value-added resellers, and value-added distributors
(including any or all of the Transitioned Reseller Accounts); or (b) provide
service and support for any of the Co-branded Products.
"DEAD ON ARRIVAL OR DOA" -- a Co-branded Product that will not function
when it is initially installed at an End User site and the Co-branded Product
was properly configured for the End User's environment and all
2
routine and customary installation procedures have been followed as outlined in
the co-branded SSI and StorageTek installation guide and StorageTek personnel
performing the installation have completed the defined training for installation
of such Co-branded Products.
"EPIDEMIC FAILURE" -- has the meaning set forth in Section 20.6.
"END OF LIFE" -- for each Co-branded Product and Spare Part, the date SSI
discontinues offering that Co-branded Product or Spare Part to StorageTek and
its Subsidiaries, which shall be no earlier than the date SSI and its
Subsidiaries discontinue offering the comparable Standard Storage Product or
Spare Part to substantially all of SSI's and its Subsidiaries other customers.
"END OF SERVICE" -- for each Co-branded Product, the later of: (a) [*]
after End of Life of that Co-branded Product; or (b) when SSI gives written
notice that SSI and its Subsidiaries will no longer provide any further service
and support of the comparable Product to substantially all of their customers.
"END USERS" -- those persons or entities who purchase, license or lease
Products for their own use and not for resale or further distribution for value.
"ENHANCEMENTS" -- enhancements, improvements, engineering changes and other
modifications to Products that do not: (a) rise to the level of a Major Change;
(b) rise to the level of a Substitute; or (c) constitute a new Product.
"FIR MEASUREMENT" -- the confirmed failures of field incident requirements
rate set forth on EXHIBIT A (FIR MEASUREMENT).
"FIRMWARE" -- that portion of the Software that is embedded in the Hardware
that is required for the basic operation of the Hardware and that does not
require key activation.
"FIT" -- the degree of precision with which surfaces of parts or components
of a Product are required to be produced to properly integrate with each other
during assembly or installation.
"FORM" -- the physical size, shape, structure, volume and area of a part
for a Product.
"FRU" -- a field replaceable unit.
"FUNCTION" -- the specific purpose of a part of any Product, including
performance, operating characteristics, and measurable effectiveness of the
Product.
"GENERAL PURPOSE COMPUTING APPLICATIONS" or "GPC" -- all computing
applications for which the Co-branded Products or the Standard Storage Products
may be used by End Users except for High Performance Computing Applications.
"HARDWARE" -- all Co-branded Products, excluding the Software contained
within the Co-branded Products.
"HIGH PERFORMANCE COMPUTING APPLICATIONS" or "HPC" -- computing
requirements typically used for specific computing applications that are not
used for general purpose business computing which typically require very high
performance as the main criteria, where typically pricing is highly competitive
and where service and support requirements of the product typically are much
less important to the End User than in the General Purpose Computing
Applications market segment. Examples of such applications include, but are not
limited to, high performance scientific applications, seismic processing,
complex simulations and large capacity video processing. "HIGH PERFORMANCE
COMPUTING APPLICATIONS" does not include computing applications that apply
broadly across various business markets, such as payroll, accounts payable
processing, data processing applications for general purpose computing and
e-commerce applications for general purpose computing.
"INTELLECTUAL PROPERTY" -- all of the following, or their substantial
equivalent or counterpart, in any jurisdiction anywhere in the world: (a)
patents, patent applications and patent disclosures; (b) trademarks, service
marks, trade dress, tradenames, logos and Internet domain names; (c) copyrights,
copyrightable
3
works, mask works and software; (d) moral rights; (e) trade secrets,
confidential information, inventions and know-how; and (f) any registrations and
applications for registration of any of the foregoing.
"INTEROPERABILITY" -- the ability of a Co-branded Product to operate at or
above its Specifications in conjunction with any other hardware, software or
platform on SSI's or its Subsidiaries' Certified Compatible list, as modified
from time to time.
"LEAD TIME" -- as of the Effective Date, Lead Time means [*] for any
Co-branded Product that is in general availability, [*] for any Co-branded
Products containing SATA disk drives and [*] for any Co-branded Product that has
not completed SSI's pilot program for such Co-branded Product. As SSI continues
to improve its manufacturing processes, Lead Time may decrease as mutually
agreed to by the Parties.
"LEVEL 3 SUPPORT" -- level 3 support as defined in EXHIBIT B (CO-BRANDED
PRODUCT SERVICE AND SUPPORT AGREEMENT).
"LIKE NEW" -- any Spare Parts or refurbished Products: (a) meet the current
engineering change level; (b) meet the applicable Specifications; (c) meet SSI's
workmanship standards; and (d) is functionally equivalent to a new Spare Part or
Product.
"MAINTAINABILITY" -- the ability to: (a) prevent the failure of a
Co-branded Product through preventative programs; (b) repair a Co-branded
Product; and (c) ensure the interchangeability of components or subassemblies
for a Co-branded Product.
"MAJOR CHANGE" -- a design change which materially affects a Product's
Form, Fit, Function, Reliability, Maintainability, Compatibility or
Interoperability.
"MODULES" -- the Hardware components of a System and its associated
Firmware as identified by SSI as "MODULES" as of the Effective Date are
identified on SCHEDULE 1.1 (CO-BRANDED PRODUCTS), which shall be updated from
time to time pursuant to this Agreement.
"MTBR" -- the mean time between replacement of FRUs.
"NET REVENUE" -- means the gross revenues from sales made by SSI and its
Subsidiaries to StorageTek and its Subsidiaries during a specified SSI fiscal
period less all amounts for adjustments, credits, rebates, returns, and reserves
related to such revenues in accordance with generally accepted accounting
principles.
"OEM" -- customers of SSI or its Subsidiaries that are not Affiliates of
SSI or its Subsidiaries who purchase Standard Storage Products or components or
Modules that are incorporated into such customer's branded products for resale
under the customer's branded or co-branded (including, without limitation, with
SSI) product.
"PLUG AND PLAY" -- a Co-branded Product that: (a) when installed according
to SSI's or its Subsidiaries' installation procedures, passes all SSI
installation verification tests and internal diagnostic routines and operates
properly in accordance with such Co-branded Product's specifications; (b) when
delivered meets the following criteria: (i) is correctly configured; (ii)
includes all the correct documentation and accessories; and (iii) is in the
correct packaging with appropriate shipping documents; and (c) meets the 30 day
FIR Measurement.
"PREMIUM SOFTWARE" -- all premium software, exclusive of SANtricity,
bundled partitions and operating systems, but including incremental sales of
partitions, and any other "data service" type software products that SSI may
introduce during the Term for which SSI charges separately.
"PRIOR PRODUCTS" -- (a) disk storage products offered by StorageTek or its
Subsidiaries prior to the Original Agreement Effective Date using Modules
supplied by SSI or its Subsidiaries under that certain existing OEM Agreement
(as defined in Section 24), which are known as the [*] and [*] products and are
substantially similar to Metastor products included in the Standard Storage
Products; (b) the [*] products previously offered by StorageTek or its
Subsidiaries in connection with its offering of the [*] and [*] products; and
(c) disk storage products previously manufactured by StorageTek or its
Subsidiaries using
4
modules supplied by SSI or its Subsidiaries or SSI's predecessors (including
Symbios) to StorageTek under any prior agreements between these parties.
"PRODUCT" -- any Co-branded Product or Standard Storage Product.
"RECIRCULATION PROCESS" -- has the meaning set forth in Section 5.6.
"REFERENCE SYSTEM" -- a standard System configuration as mutually defined
by StorageTek and SSI to be used for Demo Units.
"RELIABILITY" -- has the meaning set forth in Section 20.3.
"RESIDUALS" -- technical information and concepts in intangible form which
are retained in the unaided memory by persons who have had access to technical
Confidential Information (including ideas, concepts, know-how or techniques
contained therein) in the normal course of their use or review of the technical
Confidential Information.
"RMA" -- returned material authorization number.
"ROADMAP AND SCHEDULE" -- has the meaning set forth in Section 9.1.
"SALES AND MARKETING PLAN" -- has the meaning set forth in Section 3.1.
"SDD" -- the scheduled delivery date for a Contract as set by SSI in the
due to ship report provided weekly to StorageTek.
"SERVICE AND SUPPORT AGREEMENT" -- is the Service and Support Agreement
substantially in the form attached hereto as EXHIBIT B (CO-BRANDED PRODUCT
SERVICE AND SUPPORT AGREEMENT).
"SOFTWARE" -- the machine readable code consisting of: (a) the Firmware
embedded in the Hardware; (b) the basic storage management software for the
management of the Co-branded Products; (c) enhanced storage management software
for the Co-branded Products embedded in the Hardware and activated with a
security key for enhanced management and/or storage optimization; and (d) other
software sold or distributed by SSI or its Subsidiaries for use with the
Co-branded Products. Software products as of the Effective Date, and the
applicable royalty fees, if any, are listed in SCHEDULE 1.1 (CO-BRANDED
PRODUCTS), as modified from time to time pursuant to this Agreement.
"SOFTWARE TOOL" -- a software tool developed by SSI that will enable
StorageTek or its Subsidiaries' sales personnel to demonstrate the following
Co-Branded Products: the [*].
"SPARE PARTS OR SPARES" -- all parts and FRUs for the Products, including
those parts for the Co-branded Products listed as "SPARE PARTS" on SCHEDULE 1.1
(CO-BRANDED PRODUCTS), as modified from time to time pursuant to this Agreement.
"SPECIFICATIONS" -- means SSI's standard published specifications for the
Standard Storage Products and the standard published specifications for the
Unique Components attached to this Agreement as SCHEDULE 1.4 (SPECIFICATIONS FOR
CO-BRANDED PRODUCTS), as modified from time to time (a) by StorageTek as to the
Unique Components, and (b) by SSI for Product modifications in accordance with
Section 9 and as specified by SSI for new Products at the time the new Products
are incorporated into this Agreement.
"STANDARD STORAGE PRODUCTS" -- hardware products (including Modules and
Spare Parts) and software products and Systems: (a) offered by SSI or its
Subsidiaries as existing versions of SSI's or its Subsidiaries' E Series (except
for the LRM module products); (b) new products offered by SSI or its
Subsidiaries other than products that include Unique Components; and (c) any
Enhancements, Major Changes or Substitutes for the products and Systems
identified in subsections in (a) and (b). The Standard Storage Products, as of
the Effective Date, are listed on SCHEDULE 1.1 (CO-BRANDED PRODUCTS), which
shall be updated from time to time to include all new products Enhancements,
Major Changes and Substitutes described in clauses (b) and (c).
"STOP ORDER" -- a formal stoppage of production and shipment of Co-branded
Products by SSI requiring an approved Stop Order release to resume production or
shipment.
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"STOP SHIP" -- an informal stoppage of production and shipment of
Co-branded Products by SSI for which SSI estimates resolution of the problem
within 24 hours.
"STORAGETEK CUSTOMER INFORMATION" -- specific information identifying
StorageTek's End Users and Distributors.
"STORAGETEK INSTALLED BASE" -- all End Users to whom Co-branded Products
were sold, leased or otherwise distributed by StorageTek, its Subsidiaries or
Distributors during the Term of this Agreement and the Original Agreement.
"SUBSIDIARIES" -- with respect to any person or entity, any Affiliate of
such person or entity that, directly or indirectly through one or more
intervening entities, is Controlled by such person or entity.
"SUBSTITUTE" -- a replacement for a particular item of Hardware or Software
that has reasonably equivalent or improved Function, Maintainability,
Reliability, Compatibility and Interoperability as compared to the particular
item of Hardware or Software for which it is released to replace.
"SYSTEM" -- are those combinations of Hardware and Software identified as
"Systems" in SCHEDULE 1.1 (CO-BRANDED PRODUCTS), as modified from time to time
pursuant to this Agreement.
"TRADEMARKS" -- has the meaning set forth in Section 17.1.
"TRANSITIONED RESELLER ACCOUNTS" -- those reseller accounts for the
Metastor line of Standard Storage Products listed on SCHEDULE 1.50 (TRANSITIONED
RESELLER ACCOUNTS) of the Original Agreement.
"UNIQUE COMPONENTS" -- parts, features, components or software of
Co-branded Products that are developed, conceived, engineered or customized by
StorageTek or for StorageTek by a third party that is not SSI or an Affiliate of
SSI. Unique Components, as of the Effective Date, are listed on SCHEDULE 1.3
(UNIQUE COMPONENTS), which shall be modified from time to time after the
Effective Date pursuant to this Agreement.
2 APPOINTMENT
2.1 Appointment of StorageTek and its Affiliates as Distributor. Subject
to the terms of this Agreement, SSI for itself and its Subsidiaries appoint
StorageTek and its Subsidiaries as an authorized distributor of Co-branded
Products. Subject to the terms and conditions of this Agreement, SSI for itself
and its Subsidiaries grants to StorageTek and its Subsidiaries the right to use,
purchase (or license, with the right to sublicense, for Software contained
within the Co-Branded Products), and distribute the Co-branded Products on a
worldwide basis for: (a) resale, directly and indirectly through Distributors to
End Users; and (b) internal use. SSI will sell Co-branded Products that contain
Unique Components owned by StorageTek only to StorageTek unless StorageTek
directs otherwise and the Parties mutually agree as evidenced in writing by
authorized agents of the Parties.
2.2 Additional Product Rights. StorageTek shall have the option, on
behalf of StorageTek and its Subsidiaries, to add to SCHEDULE 1.1 (CO-BRANDED
PRODUCTS), as a Co-branded Product for distribution under this Agreement, any
Major Changes or Substitutes for any Standard Storage Product or any new
Standard Storage Product that are generally offered for sale by SSI or its
Subsidiaries.
2.3 Other Distribution.
2.3.1 SSI and its Subsidiaries reserve the right (without the use of
any StorageTek Confidential Information, except as otherwise permitted by
existing agreements between the Parties) with respect to the Standard
Storage Products, including under arrangements whereby SSI's Trademarks may
appear on such products, to sell directly and indirectly to OEMs, to
appoint other distributors and resellers and to End Users for any
application.
2.3.2 In addition to the provisions of Section 2.3.1, SSI and
StorageTek agree that they will work together to sell the Co-branded
Products to the HPC market for the mutual benefit of the Parties.
2.4 Competing Products. StorageTek, on behalf of itself and its
Affiliates, reserves the right to independently develop (such independent
development to be without the use of any SSI Intellectual Property,
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except to the extent use of such Intellectual Property is otherwise permitted by
existing agreements) or obtain from an unaffiliated third party vendor any
storage products.
2.5 Governmental Sales. SSI and its Subsidiaries and StorageTek will work
together to sell Co-branded Products to the U.S. federal government including
U.S. federal governmental agencies (collectively, the "US GOVERNMENT") as set
forth on SCHEDULE 2.5 (FEDERAL).
2.6 Independent Development. StorageTek and its Subsidiaries shall have
the right to develop product differentiation: (a) independently without the use
of SSI Intellectual Property; (b) with the use of SSI Intellectual Property
through existing agreements; (c) in either case of (a) or (b) above, to
integrate or incorporate a System with such product differentiation, provided
that StorageTek does not internally modify such System; or (d) if the parties
agree, pursuant to a mutually acceptable development agreement.
3 MARKETING, FORECAST AND ORDERS
3.1 Sales and Marketing Plan. StorageTek shall be solely responsible for
an annual sales and marketing plan ("SALES AND MARKETING PLAN"). StorageTek
shall disclose the Sales and Marketing Plan to SSI during periodic conference
calls and [*] meetings through out the calendar year as StorageTek deems
necessary. The Sales and Marketing Plan and the results from any of these sales
and marketing meetings shall be non-binding and without any remedy for failure
to implement or invest and dedicate resources.
3.2 Advertising. SSI shall provide to StorageTek and its Subsidiaries,
advertising content in connection with the resale of Co-branded Products at [*].
Unless otherwise provided in this Agreement, SSI and its Subsidiaries reserve
the right to charge StorageTek and its Subsidiaries for advertising, marketing
and training services to which the parties have mutually agreed upon in writing.
3.3 Marketing Development. The parties agree to provide the marketing
development support pursuant to the terms set forth on SCHEDULE 3.3 (MARKETING
DEVELOPMENT).
3.4 Sales Support. SSI shall dedicate [*] ("SSI SALES SUPPORT") to
StorageTek for the purposes of providing support for the sale of Co-branded
Products [*]. If SSI begins charging StorageTek for sales and systems
engineering resources, other than as currently reflected in the Federal
Agreement between the two Parties, StorageTek reserves the right to xxxx SSI for
cubicles, offices, phone service and/or other costs associated with providing
workspace to SSI employees working within a StorageTek office environment at the
same cost allocated for StorageTek employees using the same amenities. The SSI
Sales Support shall provide StorageTek with copies of its sales pipeline
information regarding StorageTek's sale of Co-branded Products. The Parties
agree that StorageTek will provide SSI with certain sales information as
described on SCHEDULE 3.4 (SALES INFORMATION).
3.5 Marketing, Training and Other Support; Pass Through Benefits.
3.5.1 Sales and Marketing Responsibility and Support. StorageTek
shall have primary responsibility for marketing the Co-branded Products, in
accordance with its Sales and Marketing Plan, but shall be supported by
SSI, at SSI's discretion, in development of its marketing, sales incentives
and marketing demonstration programs.
3.5.2 Demos/Marketing Units. SSI will make available to StorageTek
the initial demonstration units of the Reference Systems needed for the
global marketing by StorageTek, its Subsidiaries or its Distributors
pursuant to the terms and conditions set forth on SCHEDULE 3.5.2 (DEMO
UNITS).
3.5.3 Training. Sales and technical training for StorageTek and its
Subsidiaries and SSI and its Subsidiaries is described in SCHEDULE 3.5.3
(TRAINING). StorageTek and SSI agree to work jointly to establish software
sales competencies within the StorageTek's sales force, including
professional services, as a means to improving StorageTek's close rate for
software sales, an example being the instruction on, and the use of, SSI's
LogicStor suite of pre-tested solutions.
3.6 Forecasting. During the Term, StorageTek shall supply SSI with a [*],
non-binding forecast of StorageTek's and its Subsidiaries' anticipated
requirements for Co-branded Products for the then current
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quarter and the [*] quarters. All forecasts will be non-binding. The form of the
forecast will initially be transmitted either by fax or email. The Parties will
use the new web-based tool to provide such forecasts as soon as it is available,
and all forecasts provided thereunder shall also be non-binding, forward looking
on a [*] basis for a period of [*].
3.7 Purchase Orders; Acceptance; Contract Formation.
3.7.1 Form of Purchase Orders. The Parties will cooperate to
implement web-based order processing as soon as reasonably practical. Until
the web-based order process is implemented, StorageTek or its Subsidiaries
will submit purchase orders to SSI or its Subsidiaries by fax or by a
mutually acceptable electronic method.
3.7.2 Order Content and Lead Time. Orders placed by StorageTek and
its Subsidiaries under this Agreement shall be Build to Order and shall be
for the mutually agreed configurations of the Co-branded Products, if
configurations are applicable to the Co-branded Products being ordered. The
parties agree to pursue developing mutually agreed to standard product
configurations. Orders shall contain: (a) the identification of the
Co-branded Products to be purchased; (b) the price of each Co-branded
Product; (c) the quantity of each Co-branded Product; (d) the requested
delivery date and delivery instructions, subject to Section 6.3, including
drop shipment instructions, if any; and (e) other information customarily
included in a purchase order process. In the event StorageTek intends any
order it wishes to place with SSI is to be placed subject to a Government
Contract under Article 23 hereof or otherwise, StorageTek will cause the DX
or DO priority ratings to be conspicuously set forth on such Order. The
Parties will review Lead Time status together on a [*] basis.
3.7.3 Acknowledgment; Acceptance; Contract Formation. SSI or its
Subsidiaries shall acknowledge receipt of purchase orders by the close of
the next business day based on SSI's or its acknowledging Subsidiary's time
zone, and, in such acknowledgment, indicate either: (a) that it can deliver
the requested quantity in the time requested, in which case a Contract is
formed; or (b) the quantity that it reasonably expects it can deliver in
the time requested, which will be deemed a counteroffer from SSI or its
Subsidiaries that StorageTek or its Subsidiaries can accept, reject or
reject and submit a new purchase order. If StorageTek or its Subsidiaries
do not accept, reject or reject and submit a new purchase order within two
business days, the counteroffer shall be deemed rejected. A Contract is
formed when a purchase order is accepted by SSI or its Subsidiaries or a
counteroffer is accepted by StorageTek or its Subsidiaries. No preprinted
terms or terms inconsistent with the terms of this Agreement on any
purchase order or acknowledgement thereof shall be of any force and effect.
No preprinted terms or terms inconsistent with or in addition to, the terms
of this Agreement on any invoice shall be of any force and effect.
3.7.4 Commitment. This Agreement shall not obligate StorageTek or
its Subsidiaries to purchase any Co-branded Products except as specifically
set forth in a Contract. SSI and its Subsidiaries commit to delivering
Co-branded Products pursuant to a Contract in accordance with Section 5,
but shall have no other obligations or liabilities for failure to deliver
on time except as otherwise set forth in Section 6.3.
3.8 Product Returns.
3.8.1 Defective Products/Dead on Arrival (DOA). StorageTek and its
Subsidiaries shall have the right to return to SSI or its selling
Subsidiaries for full purchase price refund within [*] after the initial
delivery date to the Distributor, or if sold directly to the End User by
StorageTek or its Subsidiaries, the End User, any DOA Co-branded Product
and any Co-branded Product that fails to perform in accordance with the
Specifications. Co-branded Products returned to SSI or its Subsidiaries
under this Section 3.8.1 shall be returned ExWorks Incoterms 2000. Title
and risk of loss pass to SSI upon the delivery of the Co-branded Products
to the common carrier. SSI shall pay for any freight charges associated
with such returns.
3.8.2 Damaged Box Returns. StorageTek and its Subsidiaries shall
have the right to return to SSI or its selling Subsidiaries Co-branded
Products that have boxes that are or become damaged; provided however, that
StorageTek or its Subsidiaries will be responsible for paying all
associated reasonable re-
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testing and repackaging costs. Co-branded Products returned to SSI or its
selling Subsidiaries under this Section 3.8.2 shall be returned DDU
Incoterms 2000 or DDP Incoterms 2000, as applicable. Title and risk of loss
pass to LSI upon delivery of Co-branded Products to SSI or its Subsidiary.
StorageTek shall pay for any freight charges associated with such returns.
3.9 Support of StorageTek Major Distributors for Stocking. The Parties
will discuss, in good faith, programs to allow StorageTek's Distributors to
stock Co-branded Products. The Parties agree these discussions will occur no
later than [*].
3.10 Sales Pipeline Information. StorageTek shall use reasonable efforts
to provide to SSI sales pipeline information, other than specific customer data,
of StorageTek and its Affiliates relating to sales opportunities for the
Co-branded Products for the purpose of manufacturing and other related planning.
3.11 Credit Limit. In the event that StorageTek or any of its
Subsidiaries fails to make any payment required under this Agreement in a timely
matter, then SSI or its Subsidiaries may implement a credit limit in accordance
with their credit policies.
3.12 Evaluation Units. SSI shall make available to StorageTek evaluation
units of the Co-branded Products for the purpose of StorageTek's customers
evaluating them pursuant to the terms and conditions set forth on SCHEDULE 3.12
(EVALUATION UNITS).
4 PRICES AND PAYMENT
4.1 Pricing. The initial prices of Co-branded Products shall be as set
forth on SCHEDULE 1.1 (CO-BRANDED PRODUCTS). Pricing for any Co-branded Products
added to this Agreement after the Effective Date shall be as mutually agreed and
set forth in the updated SCHEDULE 1.1 (CO-BRANDED PRODUCTS). Pricing for the
Co-branded Products shall be subject to provisions on SCHEDULE 4.1 (PRICING
PROVISIONS). Orders placed before the effective date of any new price release
shall be priced under then current pricing structure. Orders placed after the
effective date of any new price release shall be priced in accordance with the
new price release.
4.2 Resale Pricing by StorageTek. StorageTek shall resell Co-branded
Products at pricing to be determined in its sole discretion.
4.3 Quarterly Business Meetings. The Parties shall meet quarterly, or
sooner if market conditions necessitate, to review any matters related to this
Agreement, including sales and marketing efforts and plans, market conditions,
sales consulting, distribution, Roadmap and Schedule, quality, service and
support, forecasts, and distribution.
4.4 Taxes. Prices do not include any taxes. Unless StorageTek or its
Subsidiaries provides SSI or its Subsidiaries with a tax exemption certificate
acceptable to the relevant taxing authorities, SSI or its Subsidiaries shall
invoice StorageTek or its Subsidiaries for all applicable taxes, including
sales, use, transfer, value added, export, property gross receipts and gains
taxes, fees, levies, charges, tariffs, duties, imposts and similar charges.
StorageTek or its Subsidiaries shall pay SSI or its Subsidiaries upon request
for such items (and interest or other penalties assessed, if due to StorageTek's
fault). After shipping, StorageTek or its Subsidiaries shall pay all taxes in
respect of the Co-branded Products, including without limitation, all property
taxes and all taxes based on the ownership, use or disposition of the Co-branded
Product.
4.5 Invoicing. Upon or after shipment of a Co-branded Product, SSI or its
Subsidiaries shall invoice (electronically if available) StorageTek or its
Subsidiaries for such Co-branded Products in U.S. dollars or other mutually
agreed upon currency. Each invoice will contain the appropriate information to
enable electronic payment by StorageTek or its Subsidiaries. Invoices must
reference a valid StorageTek purchase order number and contain date of shipment
from SSI's dock.
4.6 Payment. Payments for Co-branded Products are due and payable in
United States dollars within [*] from the date of invoice to StorageTek or its
Subsidiaries.
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4.7 Interest. If SSI or its Subsidiaries do not receive payment in
accordance with Section 4.6, StorageTek shall pay SSI or its Subsidiaries the
unpaid invoice amount plus interest on that amount from the date of the invoice
until the date it is paid at the rate of [*] or the maximum rate permitted by
law, whichever is less. However, in cases where the invoice is in good faith
dispute, StorageTek or its Subsidiaries shall not incur interest on the disputed
amount for so long as the problem is unresolved, for which payment shall be due
within [*] following resolution. SSI's entitlement to any interest specified
above shall be in addition to any other remedies SSI or its Subsidiaries may
have.
5 CANCELLATION AND RESCHEDULING
5.1 SSI Delay. SSI or its Subsidiaries shall notify StorageTek, or its
Subsidiaries that is the party to a Contract, of any Co-branded Product that
cannot be delivered on time in accordance with a Contract, prior to the SDD of
such Co-branded Product. If SSI or its Subsidiaries cannot deliver on time in
accordance with a Contract, then, unless otherwise mutually agreed, StorageTek
or its Subsidiaries shall have the option to either: (a) reschedule for up to
[*], which date can extend beyond the end of the current calendar quarter ([*])
without limitations or any liability; (b) request expedited freight at [*]; or
(c) cancel or reconfigure the Contract [*].
5.2 Rescheduling. After formation of a Contract, StorageTek and its
Subsidiaries may reschedule delivery of the Co-branded Product subject to the
following limitations:
5.2.1 StorageTek Delay Requests. Upon written notice to SSI or its
Subsidiaries before delivery, StorageTek and its Subsidiaries may
reschedule the delivery of the Co-branded Product for up to [*], which date
can extend beyond the end of the current calendar quarter ([*]). The
written notice of rescheduling may be electronic. Only [*] per original
Contract is allowed.
5.2.2 Moving Forward. SSI and its Subsidiaries agree to use their
commercially reasonable efforts to allow moving forward any scheduled
delivery of Co-branded Product as may be reasonably necessary to meet the
needs of any Distributor or End User or its Subsidiaries. In the event that
StorageTek or any of its Subsidiaries requests expedited delivery, SSI or
its Subsidiaries shall use reasonable efforts to accommodate such request
and advise StorageTek or its Subsidiaries whether SSI or its Subsidiaries
can accept the Contract in the time requested and of any additional costs
associated with expedited delivery. If StorageTek or its Subsidiaries
accepts such additional costs, in writing, then SSI or its Subsidiaries
shall use commercially reasonable efforts to deliver the Co-branded
Products in the expedited time requested, and StorageTek or its
Subsidiaries shall pay for such expedited products at their price plus the
agreed to additional costs of expediting.
5.3 Cancellation and Reconfiguration Before Shipment by
StorageTek. StorageTek or any of its Subsidiaries, at its discretion, may
cancel a Contract(s) or have Co-branded Products of a Contract(s) re-configured
at any time prior to the beginning of the manufacture of the Co-branded Product
without any penalty, or within the Co-branded Product's manufacturing process at
a charge as set forth on SCHEDULE 5.3 (CANCELLATION FEES).
5.4 Surplus Unique Components. StorageTek and its Subsidiaries shall be
responsible to pay for and purchase (or reimburse SSI or its Subsidiaries for)
any Unique Components rendered surplus, whether such components were on order to
the extent not able to be mitigated, in SSI's or its Subsidiaries' inventory or
in works in process when rendered surplus, except those on account of: (a)
termination of this Agreement by StorageTek due to material breach by SSI; or
(b) engineering changes made by SSI or its Subsidiaries without consent of
StorageTek. StorageTek and SSI or its Subsidiaries will mutually agree upon a
process by which SSI and its Subsidiaries will order and inventory Unique
Components based upon StorageTek's forecasts, and such process will be included
in SCHEDULE 1.3 (UNIQUE COMPONENTS) and will further define StorageTek's
liability for Unique Components. StorageTek retains the right to approve any
suppliers of Unique Components that are not Subsidiaries of SSI, such approval
not to be unreasonably withheld or delayed.
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5.5 Reconfiguration After Shipment. Upon the reasonable request of
StorageTek, SSI and its Subsidiaries agree to use commercially reasonable
efforts to reconfigure Co-branded Products shipped, and to perform revalidation
testing necessary to meet the Specifications, in accordance with the
prioritization schedule set forth by StorageTek. Any reconfiguration shall be
subject to the Recirculation Process. Subject to the provisions of this Section
5.5 and the Recirculation Process, StorageTek's Subsidiary located in Toulouse,
France ("STORAGETEK TOULOUSE") may reconfigure Co-branded Product at the request
of StorageTek or its Subsidiaries, for which SSI will provide Software, updates,
upgrades, Enhancements, patches and bug fixes on its website or through other
applicable transfer mechanism(s) to allow StorageTek Toulouse to complete
reconfigurations. In order for a Co-branded Product to be eligible for
reconfiguration under this Section 5.5, it must have shipped from SSI's or its
Subsidiaries' facilities at least [*] prior to the reconfiguration. In addition,
StorageTek shall maintain tracking records and on a [*] basis and shall provide
SSI with the serial numbers of all units reconfigured by StorageTek Toulouse.
SSI's obligation to provide warranty for any reconfigured Co-branded Product
shall be as set forth in the Recirculation Process. StorageTek or its
Subsidiaries may request that SSI certify StorageTek or its Subsidiaries to
reconfigure Co-branded Products in addition to the reconfigurations described in
this Section 5.5. StorageTek shall not pay any reconfiguration charges to SSI
for reconfigurations made by StorageTek or its Subsidiaries.
5.6 Recirculation Process. The Parties will comply with the provisions of
a re-circulation process, the details of which are set forth on SCHEDULE 5.6
(RECIRCULATION PROCESS).
6 SHIPMENT, DELIVERY AND SUPPORT
6.1 Shipping Terms. SSI or its Subsidiaries shall ship Co-branded
Products to StorageTek or its Subsidiaries EXW Incoterms 2000, if shipped
domestically within the United States, and FCA Incoterms 2000 for international
shipments or other shipments outside the United States. SSI or its Subsidiaries
may ship the Co-branded Products at its discretion from either Wichita, Kansas
or Cork, Ireland. Title and risk of loss for the Co-branded Products (other than
Software) shall pass and deemed to have been delivered to StorageTek or its
Subsidiaries upon SSI's or its Subsidiaries' delivery to the StorageTek
designated carrier for Co-branded Products shipped EXW Incoterms 2000 and upon
loading in the carrier's delivery vessel for Co-branded Products shipped FCA
Incoterms 2000.
6.2 Shipping Carrier; Drop Ship. StorageTek and its Subsidiaries shall
designate a carrier of choice on the purchase order. SSI and its Subsidiaries
agree to drop ship to destinations worldwide (subject to any restrictions
imposed by law) the Co-branded Products for StorageTek or its Subsidiaries, at
no additional cost, as requested in any Contract submitted by StorageTek or its
Subsidiaries. All shipments will contain packing slips. All shipping and
non-standard packaging costs agreed to in writing by StorageTek prior to the
Contract ship date will be borne by and billed directly to StorageTek or its
Subsidiaries; provided, however that StorageTek is not responsible for any
additional costs related to SSI delay pursuant to Section 5.1. SSI or its
Subsidiaries will make all arrangements for shipments of the Products in
accordance with StorageTek's or its Subsidiaries' reasonably designated
carriers.
6.3 Delivery. SSI and its Subsidiaries will use commercially reasonable
efforts to fulfill Contracts within the applicable Lead Time. SSI and its
Subsidiaries will fulfill (a) for the [*], and (b) beginning after the [*] (each
a "DELIVERY TARGET") as measured on a [*] basis. SSI shall communicate to
StorageTek on a [*] basis the Lead Times for all major components of the
Co-branded Products then currently on StorageTek's price list. StorageTek will
deliver to SSI a [*] report demonstrating SSI's performance to the Delivery
Target. [*].
6.4 Service and Support. Service and support for the Co-branded Products
shall be provided through End of Service as specified in the Service and Support
Agreement.
6.5 Spare Parts.
6.5.1 Pricing. StorageTek and its Subsidiaries shall obtain its
initial supply of Spare Parts from SSI or its Subsidiaries. Initial pricing
for Spare Parts is listed on SCHEDULE 1.1 (CO-BRANDED PRODUCTS) and SSI
agrees to offer StorageTek and its Subsidiaries a one-time discount on
StorageTek's initial buy
11
of Spare Parts. Most Favored Nation's pricing that applies to Spare Parts
during the term of this Agreement will be determined in accordance with
SCHEDULE 4.1 (PRICING PROVISIONS). After the Term through the End of
Service, Most Favored Nation's pricing for Spare Parts will be subject to
normal pricing adjustments reflected by industry practice encountered at
the End of Service; provided however, the prices will be no higher than the
cost of similar Spare Parts for any other customers for the Standard
Storage Products.
6.5.2 Availability. SSI or its Subsidiaries shall provide Spare
Parts for the Co-branded Products through End of Service, subject to SSI's
and its Subsidiaries' ability to obtain parts and components that comprise
the Spare Parts subject to prior notice and allocation as described in
Section 6.6. SSI or its Subsidiaries shall provide notification to
StorageTek of End of Life per terms of Section 10. SSI shall provide [*]
reports reflecting the number of days between the StorageTek request for a
Spare Part and the date that the Spare Part is delivered to StorageTek or
its Subsidiaries.
6.5.3 Emergency Spares. StorageTek may request an emergency shipment
of Spares ("CODE A SHIPMENT") shipment. SSI will have support for Code A
shipments [*]. SSI will use best commercially reasonable efforts to ship
Code A shipments within [*] of acceptance of an emergency Order from
StorageTek using the most expeditious shipping method, at [*]. Prices for
Code A shipments will be [*] over the price of Spares Parts as shown in
SCHEDULE 1.1 (CO-BRANDED PRODUCTS).[*].
6.5.4 Repairs of Out-of-Warranty Spares. SSI will provide repair
services for selected Spare Parts that are out-of-warranty at prices found
in SCHEDULE 1.1 (CO-BRANDED PRODUCTS). SSI shall use commercially
reasonable efforts to return repaired Spare Parts to StorageTek within [*]
from the date that SSI receives such Spare Parts for repair from StorageTek
("REPAIR CYCLE TIME").
6.6 Allocation. SSI and its Subsidiaries will use commercially reasonable
efforts to provide adequate manufacturing capabilities to meet its obligations
under Contracts. SSI will notify StorageTek immediately, but no more than [*]
after discovery whenever SSI identifies a reasonable likelihood that there is or
will be a materials or capacity constraint that could negatively affect SSI's
ability to meet Contract ship dates or StorageTek's existing or forecasted needs
for the Co-branded Products ("SUPPLY CONSTRAINT"). During any period of Supply
Constraint, SSI agrees, at a minimum, to reasonably allocate Co-branded
Products, Spare Parts, materials and capacity to StorageTek under whichever of
the following formulas would give StorageTek the [*] of Co-branded Products or
Spare Parts: [*]. The allocation shall be subject to any priority use for orders
for Code A shipments of Spare Parts received by SSI during such allocation
period. In addition, StorageTek and SSI will escalate any Supply Constraint to
their respective senior management as appropriate and SSI will use its
commercially reasonable efforts to eliminate the Supply Constraint as soon as
possible.
6.7 Spare Part Obsolescence. In the event that SSI or any of its
Subsidiaries makes an Enhancement, Major Change or mandatory engineering change
that effects the use of a Spare Part that renders StorageTek's inventory of such
Spare Part unusable, then SSI or its Subsidiaries shall [*].
7 TESTING AND ACCEPTANCE
7.1 Testing and Acceptance. Prior to delivery, SSI or its Subsidiaries
shall conduct an acceptance test at its plant on each unit of Co-branded
Products in accordance with SSI's then current test specifications.
7.2 Records. A complete record of inspections and tests performed on each
unit of Co-branded Products shall be kept by SSI or its testing Subsidiary for
at least [*]. Upon StorageTek's request in the event of a failure, at SSI's or
its Subsidiary's expense, SSI or its appropriate Subsidiary will provide
StorageTek or its Subsidiaries with a duplicate copy of the tests within [*] of
such request therefor.
7.3 StorageTek Participation. A representative from StorageTek may, upon
request and at its sole expense, witness the acceptance tests carried out by SSI
or its Subsidiaries if such request is made with reasonable notice and subject
to SSI's and its Subsidiaries' reasonable safety and security rules. Any such
witnessing of tests by StorageTek shall be conducted on a non-interference
basis.
12
8 DOCUMENTATION. SSI or any of its Subsidiaries shall create documentation in
the English language describing the Standard Storage Products at the expense of
SSI or its Subsidiaries. The Parties shall, acting reasonably, mutually agree as
to modifications to such documentation to describe the comparable Co-branded
Products, and, SSI, at its expense shall incorporate such modifications and
produce the associated media for End Users. SSI or its Subsidiaries shall ship
the documentation associated with the relevant Co-branded Products on CD-ROM or
other mutually agreeable media with each shipment of the relevant Co-branded
Product. To the extent that SSI translates any of the Documentation into
languages in addition to English for any of its other customers, SSI agrees to
provide the Documentation translations to StorageTek. SSI grants to StorageTek,
its Subsidiaries or its subcontractor, without additional charge, the right to
reproduce, copy, distribute, display, translate, modify and prepare derivative
works of all Documentation solely for use with the Co-branded Products. All
Documentation may be distributed under StorageTek's Trademarks, provided that
all legends, copyright notices, and license terms are reproduced therein in the
same form as provided by SSI. SSI will, at no additional charge to StorageTek,
include a standard user manual on a CD for each Co-branded Product delivered
under this Agreement.
9 PRODUCT MODIFICATIONS
9.1 Manufacturing and Engineering; Co-branded Product Roadmap. SSI shall
be responsible for manufacturing and continuing engineering of the Products. SSI
will be responsible for designating and maintaining all Specifications and
providing copies of the Specifications to StorageTek in accordance with SSI's or
its Subsidiaries' regular engineering change notice process(es). SSI shall be
responsible for the development roadmaps and schedules for current and future
Products ("ROADMAP AND SCHEDULE"). The initial Roadmap and Schedule for the [*]
following the Effective Date is attached as EXHIBIT C (CO-BRANDED PRODUCT
ROADMAP AND SCHEDULE). SSI shall provide an [*] Roadmap and Schedule to
StorageTek at least [*]. Each Roadmap and Schedule shall be prepared in
consultation with StorageTek but shall be at SSI's sole and final discretion.
All Roadmaps and Schedules are subject to change. SSI shall use commercially
reasonable efforts to keep the Co-branded Products current with the comparable
Standard Storage Products.
9.2 StorageTek Requested Changes. StorageTek may make requests of SSI to
develop Unique Components, Enhancements or Substitutes for the Products. SSI
shall consider all such requests and undertake the development of such requests
if commercially reasonable to SSI, and the Parties shall enter into development
agreements as deemed appropriate for any such projects SSI agrees to undertake.
9.3 Changes. In the event that a Major Change, Enhancement or Substitute
adversely affects the Compatibility Reliability, Maintainability, or
Interoperability of a Co-branded Product, then, unless such change is a
Mandatory Engineering Change (defined below), SSI shall first obtain
StorageTek's written approval for such Major Change, Enhancement or Substitute,
which approval shall not to be unreasonably withheld or delayed.
9.4 Interoperability.
9.4.1 Support. SSI agrees that SSI and its Subsidiaries shall
provide StorageTek with the following Interoperability support:
(a) SSI will consider requests by StorageTek and act in good
faith to add other components, configurations, hardware, software and
platforms to its "Certified Compatible" list as reasonably requested by
StorageTek;
(b) SSI will provide support for all new operating systems
listed on the "Certified Compatible" list by the later of (i) [*] from the
release of the operating system by its manufacturer or (ii) upon the next
available SSI Software release date and SSI typically provides three
Software releases per calendar year;
(c) SSI will provide support for the current operating systems
for all Co-branded Products listed on the "Certified Compatible" list at
current release [*] as the Parties shall mutually agree; provided that if
the Parties do not reach a mutual agreement within [*] of negotiation, then
the Parties agree to follow the escalation procedure in subsection (e)
below;
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(d) SSI will coordinate driver level certification with
StorageTek automated tape systems business unit through a SSI partner
manager;
(e) SSI will provide a Interoperability roadmap for current
and future Products, indicating additions and proposed deletions to the
"Certified Compatible" list (the "INTEROPERABILITY ROADMAP"); provided that
if SSI intends to delete any component from the Certified Compatible list,
SSI must give StorageTek [*] written notice prior to any such deletion to
the Certified Compatible list [*];
(f) SSI will provide StorageTek updated Interoperability
documentation on a [*] basis, which shall contain all of the proposed
changes to the Certified Compatible list that may occur in the next [*];
(g) SSI will provide [*] status reports on Interoperability
status indicating slips or pull ins of new Products, Substitutes or
Enhancements, accomplishments according to the previous report, releases of
new self certification tests and new adds or priority changes; and
(h) SSI will provide StorageTek with the self certifications
tests and process steps provided to any third party for the purpose of
self-certification to allow StorageTek to qualify the component on the
SSI's Certified Compatible list (the "REQUIRED TESTING"). If StorageTek
successfully completes the Required Testing, as "successful completion" is
described in the self-certification tests, then for purposes of StorageTek
sales of Co-branded Products, SSI will include the component for which
StorageTek has completed the Required Testing, on its Certified Compatible
list and provide interoperability support to StorageTek.
9.4.2 Requested Changes. StorageTek may make requests to change the
Interoperability Roadmap and to add other configurations and platforms to
its "Certified Compatible" list as reasonably requested by StorageTek. SSI
shall consider all such requests and reply to StorageTek in a timely
manner.
9.5 Mandatory Engineering Changes. SSI or any of its Subsidiaries may
issue, at its expense, upon notice to StorageTek but without any prior
evaluation or approval by StorageTek, any engineering change it determines may
be appropriate to remedy a system-down situation, to make any of the Products
safe or to comply with legal obligations (a "MANDATORY ENGINEERING CHANGE"). SSI
shall provide, at [*], any materials, parts or components required by the
Mandatory Engineering Change and will [*] for each Mandatory Engineering Change
installed by StorageTek or its Subsidiaries.
9.6 Engineering Evaluation Products. At StorageTek's request through a
no-cost purchase order, SSI or its Subsidiaries shall furnish to StorageTek or
its Subsidiaries for evaluation, all Major Changes, Substitutes and new
Co-branded Products up to [*] or in quantities as mutually agreed (the
"ENGINEERING EVALUATION UNITS"). The Engineering Evaluation Units will be
returned to SSI or its Subsidiaries within [*], or other evaluation period
agreed to in writing by the parties ("ENGINEERING EVALUATION PERIOD"), after
receipt by StorageTek or its Subsidiaries. Engineering Evaluation Units returned
to SSI or its Subsidiaries that are not in good working order, which were in
good working order when delivered to StorageTek or its Subsidiaries, or that are
not returned to SSI or its Subsidiaries within the Engineering Evaluation
Period, will be purchased by StorageTek or its Subsidiaries at a mutually agreed
reasonable price.
9.7 Beta Products. At StorageTek's request, through a [*] purchase order,
SSI shall furnish to StorageTek or its Affiliates for beta testing by
StorageTek, its Subsidiaries, Distributors and End Users, beta products for all
proposed Substitutes and new Co-branded Products in quantities as mutually
agreed (the "BETA UNITS"). The Beta Units will not be required to be returned to
SSI unless such products fail.
9.8 Engineering Change Kits. If SSI or its Subsidiaries determine that an
engineering field change is necessary for the Co-branded Products, then SSI or
its Subsidiaries shall issue engineering field change kits to StorageTek and its
Subsidiaries at [*].
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10 PRODUCT DISCONTINUATIONS
10.1 Product Discontinuance. SSI or its Subsidiaries shall not
discontinue any Co-branded Products during the Term of the Agreement unless SSI
or its Subsidiaries has previously released a Substitute for the discontinued
Co-branded Products.
10.2 End of Life Notice. SSI shall use its commercially reasonable
efforts to give StorageTek at least [*] prior written notice before End of Life
of any Co-branded Product. In the event StorageTek gives its customers an end of
life notice with respect to any of the Co-branded Products, StorageTek shall
promptly notify SSI in writing of such action.
10.3 Last Buy. StorageTek and its Affiliates may continue to place orders
for Co-branded Products and Spare Parts through the End of Life date, in the
ordinary course of business pursuant to this Agreement. In addition, StorageTek
and its Affiliates may submit noncancellable last time buy orders (which SSI and
its Subsidiaries may deliver up to [*] after the End of Life date) for any
discontinued Co-branded Product no later than [*] the End of Life date, and SSI
will fulfill those last buy orders before the End of Life date unless it is not
commercially reasonably practicable to obtain the Spare Parts therefor, in which
case SSI shall notify StorageTek in writing. SSI and its Subsidiaries shall
follow the notice and allocation process set forth in Section 6.6 prior to the
deadline for submitting last time buy orders if there is insufficient supply of
parts.
10.4 Spares Through End of Service. SSI shall continue to provide Spare
Parts until End of Service unless SSI is not reasonably able to obtain such
Spare Parts.
11 SSI SOFTWARE
11.1 Demonstration License. SSI grants to StorageTek, its Subsidiaries
and their Distributors, during the Term and for the sole purpose of performing
demonstrations of the Co-branded Products, a non-exclusive, non-royalty bearing,
worldwide, limited right and license to execute, store, display and use the
Software and the Software Tool in connection with each marketing unit,
Evaluation Unit, Engineering Evaluation Unit, Demo Unit and Beta Unit supplied
by SSI or its Subsidiaries under Sections 3.5.2, 3.12, 9.6 and 9.7,
respectively, and solely for evaluation and demonstration purposes. The license
pursuant to this Section 11.1 is transferable with an assignment of this
Agreement made in accordance with the terms and conditions of this Agreement.
11.2 Diagnostic Tools and Support Licenses. SSI grants to StorageTek and
its Subsidiaries solely for the purpose of providing service and support for the
Co-branded Products to Distributors and End Users of the Co-branded Products, a
non-exclusive, non-royalty bearing, worldwide limited right and license to load,
execute, store, display, use and copy any Software and diagnostic tools made
available by SSI or its Subsidiaries outside of SSI or its Subsidiaries for the
purpose of providing support or service to the Co-branded Products. The
foregoing includes the right to sublicense. Such license shall be transferable
with an assignment of this Agreement made in accordance with the terms and
conditions of this Agreement. All licenses under this Section 11.2 shall last
until the End of Service of all Co-branded Products sold hereunder.
11.3 Distribution License. SSI grants to StorageTek and its Subsidiaries,
during the Term and to the extent necessary or appropriate to perform its
obligations under this Agreement, a worldwide limited right and license to
distribute and sublicense the Software directly and indirectly through
Distributors or its Subsidiaries to End Users, subject to the terms and
conditions of this Agreement. Such license shall be exclusive with respect to
the Co-branded Products that contain Unique Components owned by StorageTek or
its Subsidiaries, and such license shall be non-exclusive with respect to all
other Co-branded Products. Such license shall be royalty free for Firmware, and
royalty bearing for all Software identified as a Software Product with an
indicated price on SCHEDULE 1.1 (CO-BRANDED PRODUCTS) unless otherwise allowed
under this Agreement. All licenses and sublicenses granted pursuant to this
Section 11.3 are perpetual and shall not be affected by the termination of this
Agreement. The license pursuant to this Section 11.3 is transferable with an
assignment of this Agreement made in accordance with the terms and conditions of
this Agreement.
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11.4 Keying of Software. SSI and its Subsidiaries shall control and
provide to StorageTek and its Subsidiaries any software keys necessary to
activate the Software, as requested by StorageTek or its Subsidiaries from time
to time.
11.5 Records. StorageTek shall keep clear, complete, and accurate records
of the number and types of Software that StorageTek furnishes to sublicensees or
uses internally.
11.6 Sublicense Restrictions; Copyright. Except as expressly permitted
under this Agreement, StorageTek and its Subsidiaries shall not, and shall not
knowingly permit their Distributors and End Users to: (a) sell, rent, loan,
disclose, communicate or otherwise make available the Software, or any portion
thereof, to any third person, except subcontractors or consultants of StorageTek
or its Subsidiaries; (b) use the Software; or (c) make any copies of or modify
the Software. Notwithstanding the prior sentence, an End User may transfer
Software that is Firmware with the transfer of any Hardware as permitted in the
agreement between the End User and StorageTek. StorageTek and its Subsidiaries
shall reproduce SSI's and its Subsidiaries' copyright notice, if any, and all
other proprietary legends on all copies of the Software that StorageTek or its
Subsidiaries make, including copies in Co-branded Product readable form. All
copies of Software shall be and remain the property of SSI or its Subsidiaries
or, if applicable, SSI's and its Subsidiaries' licensor.
11.7 Form and Delivery of Sublicenses To End Users. The terms of
Sublicenses by StorageTek, its Subsidiaries or Distributors granted under the
license of this Section 11.7 shall be substantially similar to the terms in the
form of EXHIBIT D (STORAGETEK SOFTWARE LICENSE TERMS) hereto, or as otherwise
mutually agreed to in writing by the Parties. The terms of any click through or
shrink-wrap agreements packaged by SSI in the Software shall not apply to
Sublicenses granted under this Agreement.
12 EXPORT
12.1 StorageTek. In performing under this Agreement, StorageTek agrees to
comply, and will cause its Affiliates, to comply, with all U.S. export
regulations applicable to the Co-branded Products and this Agreement, including
the Export Administration Regulations administered by the U.S. Department of
Commerce and the International Traffic in Arms Regulations administered by the
U.S. Department of State.
12.2 SSI. SSI and its Subsidiaries will cooperate with and provide
information to StorageTek and its Subsidiaries as reasonably requested by
StorageTek and its Subsidiaries, or as is otherwise necessary, from time to time
for the purpose of StorageTek's and its Subsidiaries' compliance with Section
12.1. In the event SSI or its Subsidiaries exports Co-branded Products, SSI and
its Subsidiaries shall comply, and will cause its Subsidiaries, to comply, with
all U.S. export regulations applicable to the Co-branded Products and this
Agreement, including the Export Administration Regulations administered by the
U.S. Department of Commerce and the International Traffic in Arms Regulations
administered by the U.S. Department of State.
13 WARRANTIES AND WARRANTY DISCLAIMERS
13.1 Hardware and Firmware Warranty. SSI warrants that all Hardware and
Firmware will be free from defects in workmanship and materials and will conform
to the Specifications for the warranty period as described below. This warranty
does not apply to any Hardware and Firmware that has been misused (including
static discharge, improper installation, repair or accident), neglected or
modified without SSI's express prior written consent. SSI's sole obligation to
StorageTek and its Subsidiaries for Hardware or Firmware failing to meet this
warranty is, at SSI's sole discretion, to replace or repair the Hardware and
Firmware; or, if SSI or its Subsidiaries are not reasonably able to repair or
replace the defective Hardware or Firmware within [*] after escalation to Level
3 Support, then SSI or its Subsidiary shall refund the purchase price of the
defective Hardware or Firmware. The foregoing remedies are conditioned upon: (a)
SSI or its Subsidiary receiving written notice of the warranty claim within the
applicable warranty period specified below; (b) after SSI's or its applicable
Subsidiary's written authorization pursuant to the RMA process set forth in
Section 13.6, the Hardware and its related Firmware, if any, having been
returned to SSI, or the applicable Subsidiary of SSI, freight prepaid; and (c)
SSI or the applicable Subsidiary of SSI, having determined the Hardware or
Firmware to be defective. This subparagraph (c) does not apply in those cases
where repair or replacement has already been escalated to Level 3 Support. SSI
similarly warrants any
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replacement or repaired Hardware or Firmware provided pursuant to this Section
13.1 but only for the unexpired term of the warranty applicable to the original
Hardware or Firmware that was repaired or replaced. For Hardware and Firmware,
SSI shall provide a [*] warranty period from date of delivery for the Hardware
and Firmware, except cache memory batteries and SATA drives. Cache memory
batteries included in the Hardware and Firmware are warranted for a [*] warranty
period commencing on the date of delivery. SSI warrants SATA drives for a [*]
warranty period commencing on the date of delivery. SSI and its Subsidiaries
similarly warrant that the Spare Parts shall be free from defects in
workmanship, and once installed will not cause the Hardware and Firmware to fail
to meet the warranty set forth above. Spare Parts to be installed as
replacements for defective parts in Co-branded Products that are under warranty
shall be warranted for the greater of: (i) their remaining term of the warranty
for such Co-branded Product; or (ii) [*] from delivery; and Spare Parts for
out-of-warranty Co-branded Products shall be warranted for [*] from delivery.
13.2 Software Warranty. SSI warrants to StorageTek and its Subsidiaries
that, for a period of [*] from delivery, the Software (other than the Firmware,
which is warranted under Section 13.1 above) will conform to the Specifications.
SSI's sole obligation to StorageTek and its Subsidiaries for Software that fails
to meet this warranty is, at SSI's and its Subsidiaries' sole discretion, to fix
or replace the defective Software, or if SSI or its Subsidiaries are not
reasonably able to fix or replace the defective Software within [*] after
escalation to Level 3 Support, then SSI or its Subsidiary shall refund the
license fee applicable to the affected Software.
13.3 Title Warranty. SSI warrants that: (a) SSI is the sole and original
author and owner of Software, as modified from time to time, without
encumbrances, or that SSI has acquired the necessary rights to grant the
licenses in this Agreement; and (b) SSI has the unrestricted right to enter into
and perform this Agreement. SSI warrants that the neither the Software nor
Firmware contain or will contain, without prior written notice to StorageTek,
any open source software, freeware or other software that is licensed under an
open source software license.
13.4 Technical Support Center Access. As part of its warranty obligations
in Sections 13.1 and 13.2, SSI or its Subsidiaries shall provide Level 3 Support
through its Technical Support Center telephone assistance on a [*] basis for
Hardware, Firmware and Software during the applicable warranty period specified
above. SSI or its Subsidiaries shall provide Level 3 Support for Software after
the applicable warranty period at the prices set forth on SCHEDULE 1.1
(CO-BRANDED PRODUCTS), with StorageTek to be charged therefor with respect to
End Users within 30 days after the applicable End User has paid for such
service. Xxxxx 0 Support for Hardware shall be as specified in the Service and
Support Agreement.
13.5 FCC Compliance. SSI warrants that all Co-branded Products, when
properly installed in the normal operating environment, will meet the
specifications for conducted and radiated emissions as set forth by the Federal
Communications Commission ("FCC") (Class "A") concerning electromagnetic
interference.
13.6 Returned Material Authorization. The following provisions of this
Section 13.6 shall only apply to Co-branded Products:
13.6.1 RMA. StorageTek and its Subsidiaries may obtain a replacement
Co-branded Product by contacting a customer service representative of SSI
or of its Subsidiaries to request a RMA number and providing either the
service ticket number when the problem has already been escalated to SSI
Level 3 Support or the following information: (a) the serial number of the
subsystem from which the failed Co-branded Product originated; (b) a brief,
written description of the failure, such description to include how the
failure was discovered, where the failure was discovered, and what action
was taken by StorageTek, its Subsidiaries or Distributors and/or a
third-party service organization to remedy the situation; and (c) the
location where the replacement Co-branded Product is to be shipped.
StorageTek and its Subsidiaries should also indicate whether a failure
analysis is requested. SSI or its Subsidiaries will issue a RMA number as
soon as reasonably practicable but not later than the next business day of
receiving the request.
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13.6.2 Replacement. SSI or its Subsidiaries will ship a replacement
Co-branded Product to the ship-to location specified by StorageTek as soon
as reasonably practicable but not later than [*] after issuing the RMA
number, and will invoice StorageTek or its Subsidiaries for the cost of the
replacement Co-branded Product as specified in the then-current price list.
Packaging material and a return address label will be included with the
replacement Co-branded Product for StorageTek's or it Subsidiaries' use in
returning the failed Co-branded Product to SSI or its Subsidiaries.
StorageTek or its Subsidiaries must return the failed Co-branded Product
within [*] if shipped with the United States [*] if shipped
internationally) from the date of issuance of the RMA number; except that
StorageTek or its Subsidiaries shall only be required to provide the
serialized plates from the disk drives if the disk drive replacement is for
a US Government site that is governed by a security classification that
expressly precludes the release of such drives. If StorageTek or its
Subsidiaries requests a failure analysis, the Co-branded Product shall be
returned as soon as reasonably practicable but not later than [*] from the
date of issuance of the RMA number. Upon receipt of the failed Co-branded
Product within such [*] period, as the case may be, SSI or its Subsidiaries
will credit StorageTek or its Subsidiaries for the cost of the replacement
Co-branded Product. If StorageTek or its Subsidiaries fails to return the
failed Co-branded product within such [*] period, as the case may be or if
SSI or its Subsidiaries reasonably determines that the replacement was not
required or covered by the applicable warranty, StorageTek or its
Subsidiaries must pay for the cost of the replacement Co-branded Product.
Shipping shall be DDU Incoterms 2000 or DDP Incoterms 2000, as applicable,
if the product is in warranty, and shall be EXW Incoterms 2000 if such
product is out of warranty.
13.7 New or Like New Warranty. SSI warrants that all Co-branded Products
ordered by StorageTek or its Subsidiaries shall be new or Like-New (in the case
of Co-branded Product containing components that completed the Recirculation
Process under Section 5.6); provided, however, that StorageTek acknowledges that
Spare Parts may be Like-New, provided that if, on a special case basis,
StorageTek's or its Subsidiaries' order for Spare Parts specifies that they must
be new to meet the requirements of the End User (e.g., to meet governmental
requirements), then all such replacement Co-branded Products therein shall be
new.
13.8 Warranty for Evaluation Products. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, SSI AND ITS SUBSIDIARIES PROVIDE ENGINEERING
EVALUATION UNITS AND BETA UNITS AND PRODUCTS FURNISHED PURSUANT TO SECTIONS 9.6
AND 9.7 HEREOF ON AN "AS-IS WHERE-IS" BASIS.
13.9 Authority. SSI warrants that it has all necessary or appropriate
right, power and authority to enter into this Agreement and perform its
obligations hereunder. StorageTek warrants that it has all necessary or
appropriate right, power and authority to enter into this Agreement and perform
its obligations hereunder.
13.10 Disclaimer. THE WARRANTY AND REMEDIES STATED IN THIS AGREEMENT ARE
EXCLUSIVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT, ARE DISCLAIMED.
14 LIMITATIONS OF LIABILITY
14.1 Damages. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, OR DATA,
WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF
ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, NEITHER PARTY'S CUMULATIVE LIABILITY UNDER A
CONTRACT OR WITH RESPECT TO THE CO-BRANDED PRODUCTS SUPPLIED THEREUNDER WILL
EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE UNDER THAT CONTRACT OR THIS
AGREEMENT FOR THE [*] PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION.
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14.2 HIGH RISK ACTIVITIES. THE CO-BRANDED PRODUCTS ARE NOT DESIGNED,
MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL PRODUCTS
REQUIRING FAIL-SAFE CONTROLS, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES,
AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE
SUPPORT, OR WEAPONS SYSTEMS WHERE FAILURE OF THE CO-BRANDED PRODUCT COULD LEAD
DIRECTLY TO DEATH, PERSONAL INJURY AND/OR SUBSTANTIAL PROPERTY DAMAGE. SSI AND
ITS SUBSIDIARIES EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY AND
ALL DAMAGES THAT MAY BE INCURRED DUE TO THE USE OF THE CO-BRANDED PRODUCTS IN
SUCH APPLICATIONS.
15 INDEMNIFICATION
15.1 Intellectual Property Indemnification by SSI. SSI or one or more of
its Subsidiaries shall defend and indemnify StorageTek and its Subsidiaries
against infringement of Intellectual Property as follows:
15.1.1 Indemnity. At SSI's expense, SSI shall defend, indemnify and
hold harmless StorageTek and its Subsidiaries, and its and their respective
officers, directors, members, partners, employees and agents, from and
against any and all claims, damages, costs, expenses (including, without
limitation, reasonable attorneys' fees and costs) or liabilities that may
result, in whole or part, from any claim brought alleging that any
Co-branded Product or other product, part or component, except for Unique
Components owned by StorageTek or its Subsidiaries and covered under
Section 15.2.1, furnished under this Agreement or Trademark(s) of
StorageTek or its Subsidiaries, infringes any Intellectual Property of any
third party; provided that StorageTek: (a) promptly notifies SSI in writing
of the claim; (b) provides SSI all reasonably requested information which
StorageTek and its Subsidiaries has concerning the claim; (c) reasonably
cooperates with and assists SSI or its Subsidiaries in defending the claim
at SSI's expense; and (d) grants SSI and its Subsidiaries authority to
defend and control the defense of the claim (provided StorageTek and its
Subsidiaries may participate in the defense to the extent it deems
appropriate at StorageTek's expense).
15.1.2 Options. If, as a result of a matter within the scope of the
indemnification provisions of Section 15.1.1, an injunction is issued
against the marketing or distributing of Co-branded Products, or if in
SSI's or its Subsidiaries' opinion a Co-branded Product is likely to become
the subject of a meritorious infringement claim, SSI or its Subsidiaries
shall, at its or their option and expense: (a) obtain for StorageTek or its
Subsidiaries that are the subject of such third party claim the right to
continue such marketing and distribution; (b) replace or modify the
Co-branded Product (and any similarly situated Co-branded Products) so that
the Co-branded Product(s) become non-infringing while being capable of
performing the same function without degradation of performance; or (c) if
SSI or its Subsidiaries determine that neither of (a) or (b) is
commercially reasonable, terminate the license for and repurchase such
Co-branded Product (and any similarly situated Co-branded Products) for a
sum equal to the original purchase price. If SSI or its Subsidiaries elects
to proceed under any of the options contained in this Section 15.1.2, such
election shall not limit its obligations under Section 15.1.1.
15.1.3 No Obligation. SSI and its Subsidiaries will not be obligated
to defend, or be liable under Section 15.1.1 or 15.1.2 for, costs or
damages if the infringement referenced in Section 15.1.1, or the injunction
referenced in Section 15.1.2, is a result of: (a) the combining with,
adding to, or modifying the Co-branded Product after shipment by anyone
other than SSI or its Subsidiaries if the Co-branded Product without such
combination, addition or modification would not be infringing; (b) use of
the Co-branded Product, or any part of the Co-branded Product, in the
practice of a process for which the Co-branded Product is not intended; (c)
failure by StorageTek or its Subsidiaries to use materials or instructions
provided by SSI or its Subsidiaries at no cost to StorageTek (other than
the cost of publication/media), the use of which would have rendered the
Co-branded Product non-infringing; or (d) the combination of any Trademark
or Unique Component owned by StorageTek or its Subsidiaries with a
Co-branded Product, if the Co-branded Product without such combination
would not infringe. For the avoidance of doubt, after the Effective Date
the reconfiguration activities of StorageTek Toulouse under Section 5.5
shall not be deemed a combination, addition or modification of a Co-Branded
Product
19
for purposes of clause (a) of this Section 15.1.3, provided such
reconfiguration activities only are done using system components and
Software obtained from SSI and the resulting configuration is reasonably
established by StorageTek to be one that SSI would have done consistent
with the specifications for Co-Branded Products had SSI performed the
reconfiguration activities.
15.1.4 No Limitations. SSI's or its Subsidiaries' duties and
obligations under this Section 15.1 shall not be limited by any provision
contained in this Agreement, including without limitation, the limitations
set forth in Section 14; provided, however, neither SSI nor its
Subsidiaries shall have any liability to StorageTek or its Subsidiaries
under the foregoing indemnity for StorageTek's or its Subsidiaries' lost
profits.
15.2 Intellectual Property Indemnification by StorageTek. StorageTek
shall defend and indemnify SSI and its Subsidiaries against infringement of
Intellectual Property as follows:
15.2.1 Indemnity. At StorageTek's expense, StorageTek shall defend,
indemnify and hold harmless SSI and its Subsidiaries, and its and their
respective officers, directors, members, partners, employees and agents,
from and against any and all claims, damages, costs, expenses (including,
without limitation, reasonable attorneys' fees and costs) or liabilities
that may result, in whole or part, from any claim brought alleging that any
Unique Component owned by StorageTek or its Subsidiaries or any Co-branded
Product in combination with any Unique Component or Trademark owned by
StorageTek or its Subsidiaries if such Co-branded Product without such
combination would not be infringing, or any Trademark of StorageTek or its
Subsidiaries infringes any Intellectual Property of any third party;
provided that SSI or its Subsidiaries: (a) promptly notify StorageTek in
writing of the claim; (b) provide StorageTek all reasonably requested
information which SSI and its Subsidiaries have concerning the claim; (c)
reasonably cooperates with and assists StorageTek in defending the claim at
StorageTek's expense; and (d) grants StorageTek authority to defend and
control the defense of the claim (provided SSI and its Subsidiaries may
participate in the defense to the extent it deems appropriate at its or
their expense).
15.2.2 Options. If, as a result of a matter within the scope of the
indemnification provisions of Section 15.2.1, an injunction is issued
against the making or supply of a Unique Component or Trademark owned by
StorageTek or its Subsidiaries or a Co-branded Product incorporating a
Unique Component or Trademark owned by StorageTek or its Subsidiaries, or
if in StorageTek's or its Subsidiaries' opinion a Unique Component is
likely to become the subject of a meritorious infringement claim,
StorageTek shall, at is option and expense: (a) obtain for SSI and its
Subsidiaries the right to make and supply the Co-branded Product
incorporating such Unique Component or Trademark; or (b) permit SSI and its
Subsidiaries to make and supply the Co-branded Product without the Unique
Component or Trademark (and any similarly situated Co-branded Products). If
StorageTek elects to proceed under any of the options contained in this
Section 15.2.2, such election shall not limit its obligations under Section
15.2.1.
15.2.3 No Obligation. StorageTek will not be obligated to defend, or
be liable under Section 15.2.1 or 15.2.2 for, costs or damages if the
infringement referenced in Section 15.2.1, or the injunction referenced in
Section 15.2.2, is a result of: (a) the combining with, adding to, or
modifying the Unique Component by anyone other than StorageTek or its
Subsidiaries or SSI or its Subsidiaries if the Unique Component without
such combination, addition or modification would not be infringing; (b) use
of the Unique Component, or any part of the Unique Component, in the
practice of a process for which the Unique Component is not intended; or
(c) failure by SSI to use materials or instructions provided by StorageTek
at no cost to SSI and its Subsidiaries (other than the cost of
publication/media), the use of which would have rendered the Unique
Component non-infringing.
15.2.4 No Limitations. StorageTek's duties and obligations under
this Section 15.2 shall not be limited by any provision contained in this
Agreement, including without limitation, the limitations set forth in
Section 14; provided, however, neither StorageTek nor its Subsidiaries
shall have any liability to SSI or its Subsidiaries under the foregoing
indemnity for SSI's or its Subsidiaries' lost profits.
20
15.3 StorageTek. StorageTek agrees to defend, indemnify and hold SSI, and
its and their respective officers, directors, members, partners, employees and
agents, harmless from and against any and all claims, damages, costs, expenses
(including, without limitation, reasonable attorneys' fees and costs) or
liabilities that may result, in whole or in part, from StorageTek's negligence
or willful misconduct in the distribution of the Co-branded Products pursuant to
this Agreement; provided that SSI or its Subsidiaries: (a) promptly notifies
StorageTek in writing of the claim; (b) provides StorageTek all reasonably
requested information which SSI and its Subsidiaries have concerning the claim;
(c) reasonably cooperates with and assists StorageTek in defending the claim at
StorageTek's expense; and (d) grants StorageTek authority to defend and control
the defense of the claim (provided SSI and its Subsidiaries may participate in
the defense to the extent it deems appropriate at its or their expense).
StorageTek's duties and obligations under this Section 15.3 shall not be limited
by any provision contained in this Agreement, including without limitation, the
limitations set forth in Section 14; provided, however, StorageTek's liability
with respect to property damage shall be limited to [*].
15.4 Product Liability. SSI agrees to defend, indemnify and hold
StorageTek and its Subsidiaries, and its and their respective officers,
directors, members, partners, employees and agents, harmless from and against
any and all claims, damages, costs, expenses (including, without limitation,
reasonable attorneys' fees and costs) or liabilities that may result, in whole
or in part, from any claim relating to the use or operation of a Co-branded
Product (including personal injury and property damage) except those wherein the
damage(s) is caused by a Unique Component owned by StorageTek or any of its
Subsidiaries; provided that StorageTek: (a) promptly notifies SSI in writing of
the claim; (b) provides SSI all reasonably requested information which
StorageTek and its Subsidiaries has concerning the claim; (c) reasonably
cooperates with and assists SSI or its Subsidiaries in defending the claim at
SSI's expense; and (d) grants SSI and its Subsidiaries authority to defend and
control the defense of the claim (provided StorageTek and its Subsidiaries may
participate in the defense to the extent it deems appropriate at StorageTek's
expense). Neither SSI nor its Subsidiaries shall be liable for any product
warranties made by StorageTek or its Subsidiaries or its or their Distributors
in excess of the product warranties made by SSI or its Subsidiaries. SSI's
duties and obligations under this Section 15.4 shall not be limited by any
provision contained in this Agreement, including without limitation, the
limitations set forth in Section 14; provided, however, SSI's and its
Subsidiaries liability with respect to property damage shall be limited to [*].
15.5 Transitioned Reseller Accounts.
15.5.1 SSI. SSI agrees to defend, indemnify and hold StorageTek and
its Subsidiaries, and its and their respective officers, directors,
members, partners, employees, and agents, harmless from and against any and
all claims, damages, costs, expenses (including, without limitation,
reasonable attorneys' fees and costs) or liabilities relating to any
Transitioned Reseller Account or any of SSI's other resellers or
distributors: (a) arising with respect to any act or failure to act by SSI
or its Subsidiaries; or (b) arising with respect to alleged violation by
SSI of any contract or course of dealing between SSI and such parties
whether before or after the Original Agreement Effective Date; (c) arising
from a claim of tortuous interference with contract; or (d) relating to the
termination of any contract or other arrangement with such parties;
provided that StorageTek: (i) promptly notifies SSI in writing of the
claim; (ii) provides SSI all reasonably requested information which
StorageTek and its Subsidiaries has concerning the claim; (iii) reasonably
cooperates with and assists SSI or its Subsidiaries in defending the claim
at SSI's expense; and (iv) grants SSI and its Subsidiaries authority to
defend and control the defense of the claim (provided StorageTek and its
Subsidiaries may participate in the defense to the extent it deems
appropriate at StorageTek's expense).
15.5.2 StorageTek. StorageTek agrees to defend, indemnify and hold
SSI and its Subsidiaries, and its and their respective officers, directors,
members, partners, employees, and agents, harmless from and against any and
all claims, damages, costs, expenses (including, without limitation,
reasonable attorneys' fees and costs) or liabilities relating to any
Transitioned Reseller Account: (a) arising under any contract or alleged
violation by StorageTek of any contract or course of dealing between
StorageTek and such Transitioned Reseller Account arising on or after such
Transitioned Reseller becomes a Distributor of StorageTek; or (b) except to
the extent StorageTek is indemnified by SSI pursuant to Section 15.5.1,
arising prior thereto if such liability is a result of StorageTek's direct
dealing with such
21
Transitioned Reseller Account; provided that SSI: (i) promptly notifies
StorageTek in writing of the claim; (ii) provides StorageTek all reasonably
requested information which SSI and its Subsidiaries has concerning the
claim; (iii) reasonably cooperates with and assists SSI or its Subsidiaries
in defending the claim at StorageTek's expense; and (iv) grants StorageTek
and its Subsidiaries authority to defend and control the defense of the
claim (provided SSI and its Subsidiaries may participate in the defense to
the extent it deems appropriate at SSI's expense).
15.5.3 Limitation. The Parties' duties and obligations under this
Section 15.5 shall not be limited by any provision contained in this
Agreement, including without limitation, the limitations set forth in
Section 14; provided, however: (a) SSI's liability under the
indemnification provisions contained in Section 15.5 shall be limited to
[*] by SSI and its Subsidiaries during calendar year [*] from the
applicable Transitioned Reseller Account, and (b) StorageTek's liability
under the indemnification provisions contained in Section 15.5 shall be
limited to [*] by SSI and its Subsidiaries in [*] from the applicable
Transitioned Reseller Account.
15.6 High Risk. StorageTek agrees to defend, indemnify and hold SSI and
its Subsidiaries, and its and their respective officers, directors, members,
partners, employees, and agents, harmless from and against any and all claims,
damages, costs, expenses (including, without limitation, reasonable attorneys'
fees and costs) or liabilities relating to StorageTek's or its Subsidiaries' use
of Co-branded Products as on-line control products requiring fail-safe controls,
such as in the operation of nuclear facilities, aircraft navigation or
communications systems, air traffic control, life support, or weapons systems
where failure of the Co-branded Product could lead directly to death, personal
injury and/or substantial property damage. StorageTek's duties and obligations
under this Section 15.6 shall not be limited by any provision contained in this
Agreement, including without limitation, the limitations set forth in Section
14; provided, however, StorageTek's liability with respect to property damage
shall be limited to [*].
15.7 Exclusive Remedies. The specific indemnities provided in this
Section 15 are the sole and exclusive remedy under this Agreement for the
subject matter to which they each pertain.
16 CONFIDENTIALITY
16.1 Confidentiality. Each Party will maintain and keep confidential the
Confidential Information of the other Party in accordance with this Section 16.
The Party to whom the Confidential Information belongs shall be referred to as
the "PROVIDER," and the party who receives the Confidential Information shall be
referred to as the "RECIPIENT."
16.2 Use of Confidential Information. The Recipient agrees to use the
Confidential Information solely for performing its duties and obligations under
this Agreement and for no other purpose.
16.3 Disclosure of Confidential Information. The Recipient shall protect
the Confidential Information by using the same degree of care to prevent
unauthorized use, dissemination or publication of the Confidential Information
as it uses to protect its own Confidential Information of like nature; provided
however, that in no event shall Recipient use less than a reasonable degree of
care to protect the Confidential Information. The Recipient shall keep the
Confidential Information confidential and shall not disclose the Confidential
Information to any person or entity other than such employees, contractors,
consultants, advisors, and legal and financial advisors of Recipient who have a
bona fide need to know and who are subject to a written obligation of
confidentiality substantially similar to the obligations contained herein. The
Recipient shall be responsible and liable for any use or disclosure of the
Confidential Information by such parties in violation of this Agreement. Nothing
contained herein shall be deemed to prevent disclosure of any of the
Confidential Information if such disclosure is legally required to be made in a
judicial, administrative or governmental proceeding pursuant to a valid subpoena
or other applicable order or to meet securities laws or regulatory requirements;
provided, however, the Recipient shall give Provider at least 10 days prior
written notice (unless less time is permitted by the applicable proceedings)
before disclosing any of the Confidential Information in any such proceeding or
to meet such laws or regulations and, in making such disclosure, the Recipient
shall disclose only that portion thereof required to be disclosed and shall take
all reasonable efforts to preserve the confidentiality thereof, including
obtaining protective orders and supporting the Provider in intervention.
22
16.4 Residuals. Notwithstanding anything to the contrary, either Party
(as the Receiving Party) shall be free to use for any purpose the Residuals
resulting from access to or work with the Confidential Information of the other
party (as the Provider), provided that the Recipient shall not disclose the
Confidential Information except as expressly permitted pursuant to the terms of
this Agreement. Furthermore, neither party shall intentionally memorize the
Confidential Information of the other party so as to reduce it to a non-
tangible form for the purpose of creating a Residual. The Recipient shall not
have any obligation to limit or restrict the assignment of such persons or to
pay royalties for any work resulting from the use of Residuals. However, this
subparagraph shall not be deemed to grant to the Recipient a license under the
Provider's copyrights or patents. In the absence of another applicable agreement
to the contrary, the Parties shall have the freedom to use Residual information
in the development, manufacturing, marketing, performance, maintenance, sale and
delivery of any products and services. This Agreement shall not be construed as
precluding either party or its employees, subject to the express terms of this
Agreement, from competing with the other or from independently and without
breach of this Agreement developing, having developed, acquiring or marketing
any other materials, products and services, irrespective of their similarity to
materials, products or services owned or marketed by the other party hereto.
16.5 Termination. Upon termination of this Agreement for any reason, the
obligation of confidentiality and of use and nondisclosure contained herein
shall continue to bind the Parties; provided however, that Recipient may
continue to use the Confidential Information to the limited extent required to
perform its obligations in connection with a specific Co-branded Product through
the End of Service, at which time the Recipient shall destroy and certify to the
Provider that it has destroyed, all such Confidential Information of the
Provider.
16.6 Legal Remedies. Recipient agrees that if this Agreement is breached,
or if a breach hereof is threatened, the remedy at law may be inadequate; and,
therefore, notwithstanding the provisions of Section 25, without limiting any
other remedy available at law or in equity, an injunction, restraining order,
specific performance and other forms of equitable relief or money damages or any
combination thereof shall be available to the Provider. The successful Party in
any action or proceeding brought to enforce the provisions of this Section 16
shall be entitled to recover the costs, expenses and fees incurred in any such
action or proceeding, including, without limitation, reasonable attorneys' fees
and expenses. All duties, obligations, rights, powers and remedies provided for
herein are cumulative, and not exclusive, of any and all duties, obligations,
rights, powers and remedies existing at law or in equity, and the Provider
shall, in addition to the duties, obligations, rights, powers and remedies
herein conferred, be entitled to avail itself of all such other duties,
obligations, rights, powers and remedies as may now or hereafter exist,
including, without limitation, the Uniform Trade Secrets Act and similar
statutes and rules of law pertaining to trade secrets and confidential and
proprietary information as applied by the law governing this Agreement.
16.7 Confidentiality and Meet-Comp Information. If StorageTek provides
SSI with STK Customer Information pursuant to the Meet Comp process, the parties
agree that the STK Customer Information shall be deemed Confidential Information
under this Agreement and shall be subject to the provisions of this Section 16
regarding treatment of Confidential Information as well as to the additional,
more restrictive provisions of this Section 16.7. For clarification purposes
only, Win/Loss Data shall be deemed Confidential Information under this
Agreement but shall not be subject to the provisions of this Section 16.7.
StorageTek shall provide the STK Customer Information to the authorized
representative(s) of SSI who is responsible for the activities of the SSI
Pricing Desk, which representative(s) may be changed by SSI at any time, (the
"Pricing Desk"). In addition to the Pricing Desk such STK Customer Information
may be provided to such other SSI employees who have a need to know such STK
Customer Information in order to perform their employment responsibilities for
SSI. SSI shall only use the STK Customer Information for the specific purpose of
SSI [*] of Co-Branded Products in accordance with the [*] and for no other
purpose. In addition, STK Customer Information may be provided to SSI's
accountants, attorneys and other advisers on a confidential basis in connection
with the services such parties are engaged by SSI to perform.
16.8 No Limitation. The obligations and duties set forth in this Section
16 and the liability of the Parties hereunder shall not be limited by any
provision contained in this Agreement, including without limitation, the
limitations set forth in Section 14.
23
17 INTELLECTUAL PROPERTY
17.1 Trademarks. With respect to the trademarks, trade names, trade dress
and logos of SSI and its Subsidiaries, and StorageTek and its Subsidiaries, used
with the Co-branded Products (each, a "TRADEMARK"), for the Term of this
Agreement:
17.1.1 The Trademarks of SSI and its Subsidiaries and the goodwill
and Intellectual Property rights associated with such Trademarks shall at
all times be and remain the property of SSI or its Subsidiaries, as the
case may be; the Trademarks of StorageTek and its Subsidiaries and the
goodwill and Intellectual Property rights associated with such Trademarks
shall at all times be and remain the property of StorageTek or its
Subsidiaries, as the case may be.
17.1.2 SSI and its Subsidiaries grants to StorageTek and its
Subsidiaries and its and their Distributors the limited right and license
to use and display the Trademarks of SSI and its Subsidiaries solely for
the purposes of marketing, promoting, distributing and selling the
Co-branded Products. StorageTek grants to SSI and its Subsidiaries the
limited right and license to apply the Trademarks of StorageTek and its
Subsidiaries to the Co-branded Products and their related documentation. A
Party shall first obtain the other Party's approval of any written
materials using or displaying the Trademarks not prepared by the owner of
the Trademark.
17.1.3 Each Party and its Subsidiaries recognizes the other Party's
and its Subsidiaries ownership of and title to their Trademarks and shall
not at any time during the Term of this Agreement or thereafter do or
suffer to be done any act or thing that will impair the rights of such
owner in the Trademarks.
17.1.4 Each Party and its Subsidiaries shall cooperate with the other
Party and its Subsidiaries in the registration of the Trademarks should the
owner thereof, at its sole discretion and at its cost and expense, decide
to register any of the Trademarks anywhere in the world.
17.1.5 During the Term of this Agreement and for a period of 5 years
thereafter, neither Party and its Subsidiaries shall contest the validity
or enforceability of the Trademarks of the other Party and its
Subsidiaries.
17.1.6 Each Party and its Subsidiaries shall notify the other Party
or its Subsidiaries of any third party's use of the Trademarks or similar
name, words, symbol or logo of which a Party becomes aware, and shall
cooperate with the owner of the Trademark in any action brought by it or
another to enforce or defend its rights in the Trademarks.
17.1.7 The Trademarks, as applied to the Co-branded Products and
their related documentation and marketing materials intended for
distribution to End Users when shipped by SSI or its Subsidiaries may not
be altered, removed or otherwise tampered with by either Party or their
Subsidiaries in any respect.
17.2 Co-branding. SSI shall apply Trademarks of the Parties or their
Subsidiaries together upon the Co-branded Products and their related
documentation and marketing materials distributed to End Users, except Spare
Parts, in accordance with the specifications set forth in SCHEDULE 17.2, as
amended from time to time by mutual agreement; provided however, that StorageTek
may request that SSI enlarge or reduce those impressions of the Trademarks as
used together, proportionately. Spare Parts may be, but are not required to be,
branded with the Trademarks of the Parties together. SSI and its Subsidiaries
shall not sell or distribute the Co-branded Products that bear the Trademarks of
StorageTek, directly or indirectly, to any Party other than StorageTek and its
Subsidiaries.
17.3 Intellectual Property. SSI grants, on behalf of SSI and its
Subsidiaries, to StorageTek and its Subsidiaries, the right and license to SSI's
Intellectual Property to the extent necessary to use, sell, offer to sell,
manufacture, solely as permitted in Section 18.5.2, import, display and
distribute the Co-branded Product solely in connection with SSI's and its
Subsidiaries' supply of Co-branded Products to StorageTek and its Subsidiaries
in accordance with the terms of this Agreement. Subject only to this Section
17.3, no right, license or immunity from suit under any of the either Party's or
its Affiliates' patents or copyrights is granted
24
under this Agreement by a Party or its Affiliates to the other Party or its
Affiliates either expressly, by implication, by estoppel or otherwise.
17.4 Use of Unique Components. Notwithstanding the provisions of section
17.3, SSI shall use Unique Components owned by StorageTek only in connection
with the making and supplying of Co-branded Products under the terms of this
Agreement. StorageTek grants, on behalf of StorageTek and its Subsidiaries, to
SSI and its Subsidiaries, the right and license to make, use, sell, offer to
sell, import, display and distribute the Unique Components solely in connection
with SSI's and its Subsidiaries' supply of Co-branded Products to StorageTek and
its Subsidiaries in accordance with the terms of this Agreement.
18 TERM AND TERMINATION
18.1 Term. Unless earlier terminated under this Section 18, the initial
term of the Agreement shall commence on the Effective Date and expire on the [*]
of the Effective Date of this Agreement ("INITIAL RENEWAL TERM"), and thereafter
shall automatically renew for an additional period(s) of [*] each (each, a
"RENEWAL TERM," and each Renewal Term, if any, together with the Initial Term,
collectively, the "TERM"), unless terminated by either Party by a written notice
[*] prior to the expiration the Initial Renewal Term or any subsequent Renewal
Term, if applicable.
18.2 Co-branded Product Access. If this Agreement terminates: (a) as a
result of the regular expiration of its Term; or (b) as a result of a material
breach by SSI, then if StorageTek has created significant differentiation
between Co-branded Products and the Standard Storage Products, the Parties will
negotiate in good faith to enter into an agreement for the sale of Co-branded
Products by SSI or its Subsidiaries to StorageTek and its Subsidiaries for a
longer period of time than that contemplated by this Agreement.
18.3 Termination. Notwithstanding Sections 18.1 and 18.2, this Agreement
may be terminated as follows:
18.3.1 Material Breach. Either Party may terminate this Agreement at
any time upon at least [*] prior written notice for a material breach by
the other Party, unless the material breach is cured, to the reasonable
satisfaction of the Party giving notice of material breach, within the [*]
notice period.
18.3.2 SSI Product Inadequacy. StorageTek may terminate this
Agreement at any time upon at least [*] prior written notice: (a) upon a
material failure by SSI with respect to Sections 20.2 and 20.3; or (b) if,
following a Competitor Change of Control of SSI, there is a material
degradation in performance under this Agreement as compared to SSI's
performance prior to the Competitor Change of Control; unless the failure
or degradation is cured, to the reasonable satisfaction of StorageTek,
within the [*] notice period; provided however, that prior to any exercise
of remedies in accordance with the terms of this Section 18.3.2, the
Parties shall enter into expedited mediation for a [*] period before
StorageTek exercises its rights.
18.3.3 Mutual Agreement. By mutual agreement of the Parties.
18.4 Competitor Change of Control.
18.4.1 StorageTek. In the event of a Competitor Change of Control
with respect to StorageTek, SSI shall have the option of either terminating
this Agreement or continuing under this Agreement. SSI may exercise its
termination option by written notice to StorageTek at any time on or prior
to the [*] after StorageTek notifies SSI in writing that such Competitor
Change of Control has occurred.
18.4.2 SSI. In the event of a Competitor Change of Control with
respect to SSI, StorageTek shall have the option of either terminating this
Agreement or continuing under this Agreement. StorageTek may exercise its
termination option by written notice to SSI at any time prior to the [*]
after SSI notifies StorageTek in writing that such Competitor Change of
Control has occurred and the date on which the termination shall occur,
which date shall not exceed [*] from the termination notice date. If
StorageTek determines during such [*] period not to exercise its
termination right, it may, by written notice to SSI within such period
continue under this Agreement, but be relieved of its obligations under
25
Section 17.2, in which case the "entity that was not Affiliated with the
Party" shall assume and be bound by the terms of this Agreement.
18.4.3 Non-Competitor Change of Control. Following a Change of
Control of SSI or StorageTek that is not a Competitor Change of Control,
this entire Agreement shall remain in full force and effect, and the
"entity that was not Affiliated with the Party" shall assume and be bound
to its terms.
18.5 Effect of Discontinuation of Standard Storage Product or Termination
of this Agreement. Following termination of this Agreement, the Parties agree:
18.5.1 Survival of Certain Terms. StorageTek shall be entitled to a
last buy of the Co-branded Products as provided in Section 10.3 as if each
Co-branded Product were a discontinued Co-branded Product (unless
StorageTek is in breach of this Agreement), and the Parties' obligations
shall continue to survive as to: (a) those provisions which survive by
their specific terms; (b) Sections 3.6, 3.7, 3.12, 4.1 (with respect to
Spares), 4.6, 4.7, 7.2, 9.3 (with respect to Spare Parts), 9.4 (with
respect to support), 9.8, 11.2 17.1.1, 17.1.3, 17.1.4, 17.1.5, 17.1.7,
17.3, and 18.5; and (c) Sections 5 and 6 (with respect to orders not
delivered prior to termination and Spare Parts) and 12, 13 (except 13.8),
14, 15, 16, 19, 20, 21.2 (for a period of [*] from termination) 23, 25 and
26. Termination will not prejudice either Party to require performance of
any obligation due at the time of termination in connection with Contracts
existing upon the effective date of termination. Termination will not
reduce the liability of any Party for a breach of this Agreement that
occurred prior to such termination.
18.5.2 SSI Breach. Upon termination of this Agreement due to any of
the following conditions: (a) commencement of any involuntary proceeding in
bankruptcy or insolvency action against SSI; or (b) discontinuance of
material Co-branded Products without a Substitute; or (c) if StorageTek
properly terminates this Agreement pursuant to Section 18.3.2(b), then, SSI
(including any SSI successor) shall, in its sole discretion either: (i)
provide StorageTek with alternative arrangements to continue to supply the
Co-branded Products or equivalent products reasonably acceptable to
StorageTek but on terms no less favorable than the terms provided to
StorageTek pursuant to this Agreement; or (ii) if alternative arrangements
are not made within [*] after termination, provide StorageTek with the
manufacturing rights which shall include the right and license, under SSI's
Intellectual Property Rights and otherwise, to manufacture, use, sell,
market and distribute Co-branded Products. Such license shall be non-
exclusive, shall terminate at the [*] from the event that gave rise to the
license (whichever is last to occur), shall apply only to the discretional
Co-branded Product if the termination was caused by the event described in
clause (b) above, and shall bear a royalty payable by StorageTek to SSI in
the amount of [*] that resulted to StorageTek as a result of the event that
gave rise to the license. The foregoing limited right to manufacture is
expressly limited and shall not arise except with respect to the
condition(s) as set forth in this Section 18.5.2. In addition to the
foregoing limited right to manufacture, StorageTek reserves all rights and
remedies as set forth in this Agreement.
18.5.3 Escrow. The parties acknowledge that they will meet no later
than 90 days after the Effective Date to discuss the means by which
StorageTek's may exercise its manufacturing license granted under Section
18.5.2 and the purchase of materials under the terms of SSI's supplier
contracts.
18.5.4 StorageTek Breach. Upon termination of this Agreement under
Section 18.3.1 due to material breach by StorageTek, StorageTek will
provide mutually agreed upon point of sale information to SSI. StorageTek
shall continue to provide support for the Co-branded Products sold by
StorageTek for an additional [*] period at pricing as set forth in the
Service and Support Agreement.
18.5.5 StorageTek Installed Base. During the Term of this Agreement,
SSI shall not directly fulfill any orders for Co-branded Products or
Standard Storage Products to the StorageTek Installed Base in the GPC
market.
19 REGULATORY APPROVALS AND SAFETY
19.1 Regulatory Warranties. SSI warrants that the Co-branded Products
meet the regulatory health or safety standards (e.g., UL, CSA, TUV/IEC, FCC)
listed in the applicable Specifications when being
26
properly used in accordance with such Specifications. SSI agrees to provide
StorageTek with copies of the approval certificates and/or reports it has
related to such standards.
19.2 Compliance with Law. SSI shall at all times comply with all
applicable laws, statutory regulations and enactments including, but not limited
to, those relating to health and safety at work and the control of hazardous
substances. SSI acknowledges and agrees that it shall take all reasonable action
to comply with the European Union directives, the Waste Electrical and
Electronic Equipment Directive and the Restrictions on the Use of Certain
Hazardous Substances in Electrical and Electronic Equipment Directive,
(collectively referred to as the "DIRECTIVES"), as applicable to the Agreement,
and shall, upon written request from StorageTek, provide reasonable assistance
to facilitate compliance with the Directives. In addition, SSI acknowledges and
agrees to also comply with all other country directives, regulations, and laws
that are related or similar to the Directives and upon written request, provide
reasonable assistance to facilitate compliance thereto.
19.3 Asbestos Materials. SSI shall not supply or use asbestos or
materials or equipment containing asbestos in the provision of the Co-branded
Products. All Co-branded Products supplied which contain or are manufactured
using ozone depleting substances (as defined by the Montreal Protocol) shall, be
clearly and securely, labeled by SSI as follows:
Warning: Contains or manufactured with, (insert chemical name of
substance(s)), a substance which xxxxx public health and the environment by
destroying ozone in the upper atmosphere
20 QUALITY ASSURANCE; COMPATIBILITY
20.1 Quality Assurance. SSI agrees to maintain a quality assurance system
to ensure that processes of design, sourcing, manufacture, test, failure
analysis, repair, packaging and shipping of the Co-branded Products is under
continuous control including in accordance with the performance specifications
contained in the Specifications and the critical end product parameters and
limits, attached to the Agreement as EXHIBIT E (CRITICAL END PRODUCT PARAMETERS)
(the "PARAMETERS"), which Schedule SSI will use reasonable efforts to provide
within [*] of the Effective Date. SSI will take appropriate corrective action
with regard to any deficiencies identified by either SSI or StorageTek as
specified in the response and escalation matrixes set forth on SCHEDULE 2 OF
EXHIBIT B (CO-BRANDED PRODUCT SERVICE AND SUPPORT AGREEMENT). SSI agrees to
participate in StorageTek's sourcing supplier scorecard process (the
"SCORECARD"). StorageTek will communicate to SSI Quality department on a [*]
basis the resulting field data for MTBR and FIR performance and on a [*] basis
the StorageTek Scorecard indicating a numerical basis relating to the Co-branded
Products' quality, delivery and pricing. The Scorecard will identify areas for
improvement by SSI and StorageTek may require SSI to deliver an action plan that
demonstrates a plan for this improvement. If StorageTek requests an action plan,
SSI will provide the action plan within [*] from StorageTek's delivery of the
Scorecard so long as StorageTek has provided SSI with MTBF and FIR Measurement
on a [*] basis. SSI will include in the action plan the minimum actions SSI will
take, who is accountable for the action resolution and a time frame when the
action is to be completed. SSI will provide StorageTek with a status of the
action plan on a [*] basis until SSI completes all identified actions. An
example of the Scorecard is set forth in EXHIBIT G (SCORECARD).
20.2 Plug and Play. StorageTek and SSI agree the "PLUG AND PLAY
MEASUREMENT" for the Products shall be equal to or less than the FIR Measurement
for the identified period established in EXHIBIT A (FIR MEASUREMENT), which may
be amended by the parties periodically. StorageTek will provide written notice
to SSI if the Plug and Play Measurement exceeds the FIR Measurement. In the
event that the Plug and Play Measurement increases beyond the FIR Measurement
for each [*] based on Co-Branded Product shipped to StorageTek and it
Subsidiaries for that [*], then SSI shall immediately develop and initiate a
corrective action plan with notice to and participation by StorageTek (if
StorageTek so elects) [*] to StorageTek in order to resolve any problems and to
reach the FIR Measurement. SSI will respond to and resolve any problems pursuant
to the response and escalation matrixes set forth on SCHEDULE 2 OF EXHIBIT B
(CO-BRANDED PRODUCT SERVICE AND SUPPORT AGREEMENT). SSI shall demonstrate to
StorageTek's satisfaction, via time-to-failure data, the applicable FIR
Measurement has been achieved. StorageTek shall also have the right to cancel
(without incurring any cancellation charges) any orders already submitted but
not yet delivered in the
27
event the Plug and Play Measurement increases beyond the FIR Measurement. Should
the Plug and Play Measurement continue to remain above the applicable FIR
Measurement for [*], SSI's Vice President and General Manager for SSI Wichita
will meet with StorageTek's Vice President of Quality in Louisville,
Colorado to
establish appropriate corrective actions.
20.3 Product Reliability. SSI agrees to ensure that over the applicable
warranty period for the Co-branded Products specified in Section 13 will meet
the quality and reliability standards as defined by the Specifications and the
Parameters ("RELIABILITY"). If over the Specifications' defined life of the
Product, the Product(s) fail to meet the Reliability standards, then SSI shall
use its reasonable commercial efforts to implement a corrective action plan and
will deliver, if applicable, engineering change orders, packaging changes, test
procedures, Software and Hardware changes, process changes that affect Form,
Fit, Function, Reliability, Maintainability, Compatibility or Interoperability,
[*] to StorageTek in order to achieve the Reliability standards. SSI will
implement a corrective action plan pursuant to the response and escalation
matrix set forth on SCHEDULE 2 OF EXHIBIT B (CO-BRANDED PRODUCT SERVICE AND
SUPPORT AGREEMENT). Should the Products fail to meet the Reliability standards
for [*], SSI's Vice President and General Manager of SSI Wichita will meet with
StorageTek's Vice President of Quality in Louisville,
Colorado to establish
appropriate corrective actions.
20.4 Annual Return Rate. SSI will track a [*] Annual Return Rate ("ARR")
for all disk drives, controllers, and environmental services modules (each an
"ARR COMPONENT") and will monitor the ARR monthly. SSI sets the goal for the ARR
(the "ARR GOALS") based on the MTBF as stated in the engineering specification
for the ARR Component as set forth on SCHEDULE 20.4 (ARR). SSI will calculate
the ARR Goal by taking [*]. If the actual ARR exceeds the ARR Goal for a period
of [*], SSI will immediately develop and initiate a corrective action plan with
notice to and participation by StorageTek (if StorageTek so elects) at no charge
to StorageTek in order to resolve any problems to bring performance below the
ARR Goals. The corrective action may include, but is not limited to, requesting
failure analysis of all failed/returned ARR Components. SSI will then pareto the
failure analysis results and each failure mechanism will be subject to
corrective action(s) either internally at SSI or at the sub-tier vendor,
depending on the corrective action needed. SSI will monitor the effectiveness of
the corrective actions by the Defective Parts Per Million's measured through
SSI's manufacturing process and the return rate from field failures as described
on SCHEDULE 20.4, (ARR). [*]. Should the actual ARR continue to remain above
the applicable ARR Goal for [*], SSI's Vice President and General Manager for
SSI Wichita will meet with StorageTek's Vice President of Quality in Louisville,
Colorado to establish appropriate corrective actions.
20.5 Failure Analysis. Within [*], SSI shall perform a formal failure
analysis to root cause for all field related failures or where a Product falls
outside of defined Reliability standards of the Specifications. SSI shall
provide StorageTek the results of the analysis, SSI's corrective action, data
regarding the effectiveness of the corrective action and disposition of Spare
Parts affected by the corrective action. In addition, design failure mode effect
analysis or process failure effect mode analysis, if deemed appropriate by SSI,
will be conducted as part of the corrective action process. If in any [*] SSI
fails to meet the minimum failure analysis "track to closure" performance
minimum in the Scorecard, SSI's Vice President and General Manager for will meet
with StorageTek's Vice President of Quality in Louisville,
Colorado to establish
appropriate corrective actions.
20.6 Epidemic Failure. In the event that StorageTek has determined that
the Co-branded Product contains one or more potential Epidemic Failure Defects,
StorageTek shall promptly give SSI written notice of all relevant details with
respect to such potential Epidemic Failure Defect(s). StorageTek may, at its
sole discretion, issue a stop shipment order pursuant to Section 20.7 to SSI for
the affected Product until the Epidemic Failure is corrected. In addition, SSI
shall, at StorageTek's option, either: (a) exchange the Product containing the
Epidemic Failure Defect for a new Product; (b) repair all Epidemic Failure
Defects at SSI's cost; or (c) accept return of the Product with Epidemic Failure
Defects and grant StorageTek credit or replacement, at StorageTek's option, for
the Product. "EPIDEMIC FAILURE DEFECT" means defects in design, procured
material or manufacturing resulting in the occurrence of multiple failures of
the same component(s) in Systems delivered to StorageTek or it's designee, for
the same single root cause after completion of root cause failure analysis by
SSI. "EPIDEMIC FAILURE" occurs when a product is not meeting Reliability
standards, and when a specific Epidemic Failure Defect represents [*] or more of
the annualized return rate for a
28
specific Product shipped to StorageTek and its Subsidiaries in a [*] period
using a Pareto analysis. For the purpose of calculating the Epidemic Failure
percentage, the defect to be measured shall be only the defined and specific
defect from the same components, parts or assemblies that are part of the
System. The existence of an Epidemic Failure shall be established in good faith
between StorageTek and SSI, as supported by service records for a Product and by
using the annualized return rate for the specified period that the monitored
Product is not in conformance with the applicable Specification.
20.7 Stop Shipment Process. SSI shall maintain a documented product stop
shipment process that is invoked in response to, and to establish containment
of, any Co-branded Product issues or defects that are identified to SSI by
StorageTek that actually or may potentially adversely affect data integrity,
safety or create other significant operation impacts to StorageTek or
StorageTek's End Users. At a minimum, the process will provide for:
(a) Status updates to StorageTek during the course of problem
resolution detailing actions taken and progress made toward resolution by
SSI, to be furnished at intervals agreed upon between StorageTek and SSI on
a case-by-case basis;
(b) Positive stop shipment of the Co-branded Product pending problem
resolution;
(c) Prompt notification to StorageTek at any time that SSI initiate's
a Stop Order or a Stop Ship that impacts shipment to StorageTek or its End
Users of a Co-branded Product;
(d) Prompt notification to StorageTek identifying any specific serial
number(s) of Co-branded Product or range of Co-branded Product that has
been previously delivered to StorageTek or StorageTek's End Users that may
be affected by the issue causing the Stop Ship or Stop Order; and
Immediate allocation of Co-branded Product pursuant to Section 6.6 and
appropriate SSI resources to resolve the problem on an urgent priority basis as
defined in the response and escalation matrix set forth on SCHEDULE 2 OF EXHIBIT
B (CO-BRANDED PRODUCT SERVICE AND SUPPORT AGREEMENT). SSI will include in its
communication of Stop Order to StorageTek, the type of problem (field issue;
manufacturing issue or component issue), description of the situation, customers
that are affected, parts that are affected, a failure analysis, what are SSI's
next actions, corrective action, delivery schedule and date and time for next
update on the situation.
20.8 ISO. SSI confirms that all of its processes are ISO 9001:2000 and
ISO 14001 certified and will maintain such certification throughout the term of
this Agreement. SSI also confirms that its process for the supply and service of
the Co-branded Products comply with these ISO quality standards. SSI will
promptly notify StorageTek if SSI fails to maintain these certifications.
21 AUDIT RIGHTS
21.1 Plant Audit. At StorageTek's sole expense, StorageTek may, upon 5
business days prior notice to SSI, conduct a commercially reasonable audit of
SSI's plant to assess effectiveness of SSI's quality and manufacturing
engineering and manufacturing processes, sourcing process, statistical process
control records, quality assurance procedures, packaging and shipping procedures
along with all associated quality records and procedures and functions relating
to Co-branded Products affected by the terms of this Agreement; provided,
however, that in the event that notice would unreasonably disrupt SSI's
business, then the Parties shall mutually agree upon a more reasonable time
period for such audit. Any discrepancies discovered as a result of the audit
will be jointly reviewed, with any remediation actions to be mutually agreed
upon, with time frames and milestones clearly documented and tracked by both
Parties.
21.2 Other Audit Rights. Each Party shall have the right to audit the
other Party's financial records not more than [*] per calendar year using a
nationally recognized accounting firm with 5 business days prior notice for the
purpose of confirming the other Party's compliance with this Agreement;
provided, however, that in the event such 5 business days prior notice would
unreasonably disrupt the audited Party's business, then the Parties shall
mutually agree upon a more reasonable time period.
29
22 [INTENTIONALLY DELETED]
23 GOVERNMENT CONTRACTS
The provisions of Executive Orders 11246 and 11375, relating to equal
employment opportunity, are hereby incorporated in this Agreement by reference
(the term "SSI" being substituted for "CONTRACTOR" unless the context of the
order otherwise requires), unless work performed by SSI under this Agreement is
exempted pursuant to such executive orders and the regulations thereunder. SSI
agrees to submit all reports, certifications, and other documents required by
such executive orders. In the event that any government contract to which
StorageTek becomes a party requires inclusion of certain provisions in
subcontracts awarded under such contract and in the further event that
StorageTek desires to place on SSI, under this Agreement, a purchase order
having such required subcontract provisions, SSI shall, if it has been advised
in writing of such provisions and accepts the purchase order, be bound by any of
such provisions as are additional to, different from or deletions from, certain
of the terms of this Agreement. Any purchase order placed by StorageTek on SSI
as a subcontract under such government contract shall conspicuously identify the
new provisions required under the government contracts. To the extent
applicable, each Party shall comply with Federal Acquisition Regulations.
24 [INTENTIONALLY DELETED.]
25 DISPUTE RESOLUTION AND GOVERNING LAW
25.1 Disputes. Except for claims related to intellectual property rights
or breach of confidentiality, prior to the filing of a written demand for
arbitration related to any dispute arising out of this Agreement, the Party
believing itself aggrieved (the "INVOKING PARTY") will call first for
progressive management involvement in the dispute negotiation by notice to the
other Party before the Invoking Party's right to institute any other dispute
resolution provisions of this Agreement.
25.2 Escalation. The Parties will use commercially reasonable efforts to
arrange personal meetings or telephone conferences as needed, at mutually
convenient times and places, between negotiations for the Parties at the
following successive management levels, each of which will have a period of
allotted time as specified below in which to attempt to resolve the dispute.
LEVEL ALLOTTED TIME
----- -------------
[*] [*]
[*] [*]
The allotted time for the first level negotiator will begin on the
effective date of the Invoking Party's notice. If negotiators at the management
level do not achieve resolution at the end of their allotted time, then the
allotted time for the negotiations at the final management level, if any, will
begin immediately.
25.3 Arbitration. If negotiators at the final management level do not
achieve resolution within the allotted time as specified above, either Party may
initiate binding arbitration by providing written demand for arbitration to the
Judicial Arbitration and Mediation Services ("JAMS") (with a copy to the other
Party), a copy of this Agreement and the administrative fee required by JAMS.
The arbitration shall be conducted in accordance with the JAMS Comprehensive
Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. sec.sec. 1-16, not
state law, shall govern the arbitrability of all claims. The written demand for
arbitration shall be sufficiently detailed to permit the other Party to
understand the claim(s) and identify witnesses and relevant documents. The
Parties shall share the remaining cost of the arbitration, including
arbitrator's fees, equally; provided, however, each Party shall bear the cost of
preparing and presenting its own case (including its own attorneys' fees). If
StorageTek is the first to file for arbitration in any dispute, then the
arbitration shall be held in San Francisco, California; and, if SSI is the first
to file for arbitration in any dispute, then the arbitration shall be held in
Denver,
Colorado. The arbitrator has no authority to award any indirect,
incidental, special, punitive, or consequential damages, including damages for
lost profits. The arbitrator's decision shall follow the plain meaning of the
Agreement and shall be final, binding, and enforceable in a court of competent
jurisdiction. If either Party fails to comply with the dispute resolution
process set forth herein (including
30
without limitation, non-payment of an arbitration award) and a Party is required
to resort to court proceedings to enforce such compliance, then the
non-complying Party shall reimburse all of the costs and expenses incurred by
the Party requesting such enforcement (including reasonable attorneys' fees).
Notwithstanding anything in this Section 25 to the contrary, in the case of
injunctive relief or other remedies with respect to intellectual property rights
and indemnifications or breach of confidentiality, either Party may bring suit
in a court of competent jurisdiction. If StorageTek is the plaintiff in any such
suit, then the Parties shall consent to the exclusive jurisdiction of the United
States District Court for the Northern District of California in San Francisco,
California; and, if SSI is the plaintiff in any such suit, then the Parties
shall consent to the exclusive jurisdiction of the United States District Court
for the District of
Colorado in Denver,
Colorado.
25.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of
Colorado, without regard to its
conflict of laws provisions.
26 GENERAL
26.1 Assignment. Except to the acquiror in a Change of Control, neither
Party may assign its rights or obligations under this Agreement without the
prior written consent of the other Party. Any purported assignment or transfer
of this Agreement in violation of this Section 26.1 shall be void and of no
force or effect.
26.2 Publicity. Any press release or publication regarding this Agreement
is subject to prior review and written approval of the Parties.
26.3 Notices. All notices and other communications under this Agreement
shall be in writing and delivered: (a) personally; (b) by registered or
certified mail with postage prepaid, and return receipt requested; (c) by
recognized overnight courier service with charges prepaid; or (d) by facsimile
transmission, directed to the intended recipient as follows:
IF TO SSI:
LSI Logic Storage Systems, Inc.
0000 Xxxxxx Xxxx
X/X XX-000
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Fax No. (000)000-0000
Attn: General Counsel (Legal Department)
WITH A COPY TO:
LSI Logic Storage Systems, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Fax No. (000)000-0000
Attn: President, SSI Logic Storage Systems, Inc.
IF TO STORAGETEK:
Storage Technology Corporation
Xxx XxxxxxxXxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Vice President and General Manager, Information Lifecycle Management
Solutions Group
Fax No. (000) 000-0000
31
WITH A COPY TO:
Storage Technology Corporation
Xxx XxxxxxxXxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Office of Corporate Counsel
Attn: Vice President, General Counsel
Fax No. (000) 000-0000
Either StorageTek or SSI may change the address to which notices and other
communications hereunder can be delivered by giving the other Party notice in
the manner herein set forth. A notice or other communication shall be deemed
delivered on the earlier to occur of: (i) its actual receipt; (ii) the fifth
business day following its deposit in registered or certified mail, with postage
prepaid and return receipt requested; (iii) the second business day following
its deposit with a recognized overnight courier service, with charges prepaid;
or (iv) the business day it is sent by confirmed facsimile transmission (if sent
before 5:00 p.m. local time of the receiving Party) or the next business day (if
sent after 5:00 p.m. of such local time).
26.4 Amendments. This Agreement may not be amended or modified, and no
provisions hereof may be waived, without the written agreement signed by
authorized representatives of each of the Parties. No documents or course of
action will be deemed to amend this Agreement by implication.
26.5 Independent Relationship. SSI and StorageTek are contractors
independent of one another. Nothing in this Agreement is intended to or will
constitute either Party as an agent, legal representative, or partner of the
other for any purpose.
26.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same document.
26.7 Entire Agreement. The Exhibits and Schedules to this Agreement are
incorporated in this Agreement by reference and made a part of this Agreement.
All references to this Agreement shall include this Agreement and all such
Schedules and Exhibits. This Agreement, together with the Exhibits and
Schedules, constitutes the entire agreement of the Parties concerning the
subject matter hereof, and supersedes all previous statements, representations,
and agreements, whether written or oral, concerning the subject matter hereof.
26.8 Non-Waiver of Rights. The failure of either Party to enforce any
provisions of this Agreement or any rights with respect to this Agreement will
in no way affect the validity of this Agreement. Such failure will not preclude
or prejudice such Party from later enforcing the same or any other provisions or
rights it may have under this Agreement.
26.9 Force Majeure. Neither Party will be liable for any failure of, or
delay in the performance of, its obligations under this Agreement for the period
that such failure or delay is due to acts of God, public enemy, civil war,
strikes, labor disputes or any interruption in, or failure of, information
systems, or any other cause beyond such Party's reasonable control. Each Party
will notify the other Party promptly of the occurrence of any such cause and
will carry out this Agreement as promptly as practicable after such cause is
terminated.
26.10 Headings. References in this Agreement to Articles, Sections,
Schedules and Exhibits shall be deemed to be references to Articles, and
Sections of, and Exhibits and Schedules to, this Agreement, unless the context
requires otherwise. Titles and headings in this Agreement are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
26.11 Guaranty. StorageTek and SSI respectively hereby guarantee the
performance of all of the duties and obligations of their Affiliates under the
terms of this Agreement.
26.12 Insurance. During the Term, both parties will keep in full force
and effect insurance policies covering: (i) commercial general liability
insurance; (ii) workers' compensation insurance; and (iii) such
32
other insurance as is required by law or that each party deems, in its
reasonable discretion, as appropriate for its business.
26.13 Severability. In the event one or more provisions contained in this
Agreement is held or found to be invalid, illegal or unenforceable under any
applicable law, rule or regulation, the validity, legality and enforceability of
the remaining provisions will not be affected or impaired.
33
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as
of the date first above written.
LSI LOGIC STORAGE SYSTEMS, INC. STORAGE TECHNOLOGY CORPORATION
Signed: /s/ XXXXXX XXXXXXXX Signed: /s/ XXXX XXXXXXXXX
-----------------------------------------------
----------------------------------------------- Name: Xxxx Xxxxxxxxx, C.P.M.
Name: Xxxxxx Xxxxxxxx Title: Chief Negotiating Officer
Title: President Date: April 15, 2004
Date: 4/15/04
34
SCHEDULE 1.1
CO-BRANDED PRODUCTS AND PRICES
SCHEDULE 1.2
LIST OF COMPETITORS
STORAGETEK COMPETITOR LIST
[*]
SSI COMPETITOR LIST
[*]
SCHEDULE 1.3
UNIQUE COMPONENTS
PART DESCRIPTION
---- -----------
[*] [*]
SCHEDULE 1.4
SPECIFICATIONS FOR CO-BRANDED PRODUCTS
[*]
SCHEDULE 2.5
FEDERAL OPPORTUNITIES
A. Federal Program. SSI and its Subsidiaries and StorageTek will work
together to sell Co-branded Products to the U.S. Government as set forth in this
Schedule 2.5, except to the Excluded Accounts unless otherwise agreed to by the
Parties. For purposes of this Schedule 2.5, the "EXCLUDED ACCOUNTS" include [*].
B. SSI Services. In connection with opportunities for sales of the
Co-Branded Products to the U.S. Government, SSI will provide StorageTek with a
[*] forecast updated on a [*] basis for projected sales. SSI will work with
StorageTek on such sales opportunities, including, without limitation, providing
StorageTek with sales and systems engineering support in connection with such
opportunities. SSI will provide reasonable assistance to StorageTek in training
StorageTek sales personnel, systems engineers and customer support engineers and
StorageTek resellers who are selling into the U.S. Government. SSI will also
provide post-sales support for strategic U.S. Government accounts or in order to
address specific customer satisfaction issues. Such support shall include,
without limitation, assistance in trouble-shooting and installation. SSI will
assign its U.S. Government sales organization an annual quota for sales of the
Co-Branded Product commensurate with that assigned by StorageTek to its U.S.
Government sales team. SSI and StorageTek shall participate in joint account
planning and sales strategy development on a [*] basis and SSI shall participate
in StorageTek U.S. Government sales meetings and account planning meetings. SSI
shall provide these services through the Term of this Agreement.
C. Right for SSI to Pursue Opportunities in the U.S. Government
Market. Beginning [*] after an opportunity with the U.S. Government is
identified by either StorageTek or SSI other than in the Excluded Accounts, as
defined below (the "OPPORTUNITY"), if StorageTek decides not to pursue the
Opportunity, SSI may send a written request to StorageTek of its desire to
pursue the Opportunity directly to sell Standard Storage Products to such
Opportunity. StorageTek shall have [*] from receipt of SSI's request to notify
SSI of its intent to continue to pursue the Opportunity. If StorageTek does not
notify SSI within this timeframe or notifies SSI that StorageTek's intent is not
to continue to pursue the Opportunity, SSI shall have the right to pursue the
Opportunity on its own to try to sell Standard Storage Products to such
Opportunity.
D. Compensation Rate.
(1) For sales to the U.S. Government, effective [*], StorageTek shall pay
SSI a commission (a "COMMISSION") equal to the lesser of:
(a) [*]; or
(b) [*].
(2) The parties acknowledge and agree that they may agree to remove certain
names from the Excluded Accounts. If any entities are removed from the Excluded
Accounts, the parties agree that SSI will be entitled to receive Commissions
from sales of Co-Branded Products to such entities.
(3) Within [*] of the end of each calendar quarter (a) unless and until
this Agreement is terminated, or (b) until with respect to the [*], StorageTek
shall pay SSI Commissions accrued during the immediately preceding calendar
quarter. Such payments shall be accompanied by a report that sets forth the
total gross sales revenue StorageTek will receive for each sale to the U.S.
Government, a calculation for the Commission paid to SSI for each such sale and
a running total of the amount of Commissions paid to SSI by StorageTek to date.
Solely for purposes of this Schedule 2.7, Commissions shall be calculated based
on a calendar year.
E. Term
This agreement shall be effective beginning on January 1, 2003 and continue
until [*].
SCHEDULE 3.3
MARKETING DEVELOPMENT
[*]
SCHEDULE 3.4
SALES INFORMATION
[*]
SCHEDULE 3.5.2
DEMO UNITS
[*]
SCHEDULE 3.5.3
TRAINING
SSI or its Subsidiaries will provide training to StorageTek's and its
Subsidiaries' employees as described below.
SALES TRAINING
Sales training courses are intended for sales personnel and field systems
engineers. SSI or its Subsidiaries and StorageTek or its Subsidiaries may, as
mutually agreed, jointly develop and offer, at no charge to either Party, sales
training materials regarding Co-branded Products for StorageTek and its
Subsidiaries and those employees of SSI or its Subsidiaries covered under the
Sales Consulting Agreement. Training on such materials or otherwise will be
offered as mutually agreed by the Parties. StorageTek shall pay the reasonable
expenses of such trainer(s). At least one such course shall be offered in the
United States no later than thirty (30) days after StorageTek's general
availability announcement of a Co-branded Product. StorageTek and its
Subsidiaries may also offer sales training to Distributors, and SSI or its
Subsidiaries may assist with such training as mutually agreed between the
Parties.
GENERAL TECHNICAL TRAINING
General technical training courses are intended to train a limited number
of employees of StorageTek on the technical aspects of Co-branded Products.
These employees will, in turn, train other StorageTek personnel as well as
personnel of its Subsidiaries and Distributors. SSI or its Subsidiary will
provide up to [*] technical training classes related to the Co-branded Products
for up to [*] StorageTek personnel (each class) at [*] StorageTek. Upon a Major
Change to any Co-branded Product, SSI will provide [*] technical training class
for up to [*] StorageTek personnel [*]. This general technical training will be
held either at SSI's Wichita, Kansas's training facility or, at SSI's option, at
SSI's Milpitas, California facility. StorageTek shall pay all expenses of its
personnel to attend such classes. Additional technical training courses may be
provided for StorageTek employees at SSI's [*] per class to cover [*] costs,
which [*] costs includes all [*] and [*]at the rates listed in Schedule 1.5.
Enrollment in each such class is limited to a maximum of [*] personnel, unless
otherwise agreed in writing by the Parties.
XXXXX 0 XXXXXXXXX XXXXXXXX
Xxxxx 0 technical training will be given only to StorageTek Level 3
technical personnel. SSI will provide [*] Xxxxx 0 training class related to the
Co-branded Products for up to [*] StorageTek Technical Support Engineers at [*]
StorageTek. Upon a Major Change to any Co-branded Product, SSI will provide [*]
class for up to [*] StorageTek Technical Support Engineers [*]. Training classes
will be conducted by SSI Technical Support Engineers to StorageTek Technical
Support Engineers. Training will be held at SSI's Wichita, Kansas's facility.
StorageTek shall [*] of its personnel to attend such classes.
TRAINING DISTRIBUTORS AND END USERS
Design and development activities for training classes intended for
Distributors and End Users, including updates, changes and new content for
training classes involving the Co-branded Products must be approved by both
Parties prior to beginning the work to avoid duplication of effort. Either Party
may develop the course material at its own cost. StorageTek is not required to
co-brand the training materials. SSI and its Subsidiaries offers courseware
under an annual subscription fee program, pricing for which is shown in SCHEDULE
1.1 (CO-BRANDED PRODUCTS) and the terms for which are set forth below. Pricing,
as updated from time to time.
StorageTek will manage all Distributor and End User training sessions for
the Co-branded Products within its Learning Management System. StorageTek may
subcontract the Distributor and/or End User training session(s) to SSI or its
Subsidiaries, in which case SSI or its Subsidiary will work with StorageTek's
designee to schedule the training session(s) in the Learning Management System,
enroll students, manage
payment and graduate students as they complete this training session(s).
StorageTek will manage all marketing initiatives for training session(s) at [*].
When SSI or its Subsidiaries conducts a revenue-generating training
session(s) at a facility of SSI or its Subsidiaries, SSI or its Subsidiaries
will collect [*] charged by StorageTek or its Subsidiaries. When StorageTek or
its Subsidiaries conducts a revenue-generating training session(s) at a facility
of StorageTek or its Subsidiaries, StorageTek will collect [*].
TRAINING DOCUMENTATION
StorageTek shall pay the cost of publishing and delivering training
materials to StorageTek's or its Subsidiaries' attendees to all training
sessions described in this Schedule.
LOGICSTOR
SSI agrees that it will provide any SSI training that is specific to
LogicStor to StorageTek at [*].
SUBSCRIPTION TO COURSEWARE MATERIALS
TERMS AND CONDITIONS
SUBSCRIPTION TERMS
For purposes of these terms and conditions "COURSEWARE" means: Level One
D-Series Technical Training and derivatives of this course including
Fundamentals of SANtricity Storage Management; and Level Two: SANtricity Storage
in a Real World Environment and derivatives of this course, and any additional
future training modules or courses to which the Parties mutually agreed.
Subscription to the Courseware is on an annual basis beginning on the
Effective Date and ending one calendar year later. For an annual subscription
fee described below, SSI grants StorageTek a non-exclusive, nontransferable
right and license to:
1. Receive one set of Courseware in both paper and electronic format.
Updates made to the Courseware through the subscription period will be
distributed via a unique password and ftp site. Each course requires a
separate subscription for that set of courseware.
2. Modify and customize the Courseware. The preface shall include
acknowledgement of copyright of original materials to SSI.
3. Produce as many copies as needed during the subscription period.
Continued use of the Courseware requires the annual subscription.
StorageTek does not have the right to resell or distribute the Courseware
to other training organizations. StorageTek does not have the right to use the
label "Authorized Training Center of SSI" on its course documents.
Acceptance of StorageTek's order for the Courseware will be effective upon
issuance of a confirmation letter, or confirmation e-mail if appropriate, or by
issuance of an invoice by SSI. The Courseware will be deemed accepted upon
receipt by StorageTek. In no event will SSI be liable for any loss, damage or
penalty resulting from a delay in delivery of updated and/or edited courseware.
PRICING AND PAYMENT TERMS
StorageTek shall pay SSI [*] of the StorageTek [*] in effect on the date of
delivery of the StorageTek course per individual and per course (the "FEE").
StorageTek must pay the Fee for courses taught to Distributors, End Users, and
other participants for which StorageTek charges a fee to attend. StorageTek will
not pay a Fee to SSI for courses given to StorageTek employees or for courses
provided at no charge either at a StorageTek or SSI facility.
StorageTek shall send a class roster to SSI with the dates of the class,
number of participants, name of training class, and the course fee for each
participant. StorageTek shall not be required to provide personally identifiable
information regarding the participants to SSI.
SSI shall invoice StorageTek based on the submitted class roster. In
addition to the Fees, StorageTek will be responsible for and will pay (or will
reimburse SSI, if applicable) all duties and sales, value added taxes or use
taxes imposed upon the sale, license, purchase, delivery, possession or use of
the Courseware.
Except for payments made in advance, payment terms are [*] from after
receipt of an invoice. Payment in advance of delivery is required if StorageTek
elects to purchase the courseware by credit card.
SSI shall reference StorageTek purchase order number [*] on all invoices.
Invoices shall be sent to: StorageTek
Attn: Accounts Payable MS: 0000
Xxx XxxxxxxXxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
TERM OF SUBSCRIPTION
The annual subscription shall automatically be renewed on a yearly basis
unless StorageTek notifies SSI of termination prior to the subscription renewal.
Upon termination of the subscription, StorageTek rights to use the Courseware or
any derivatives created from such Courseware shall terminate.
If StorageTek cancels the subscription during the term, SSI shall not issue
a refund for the remaining portion of the subscription period.
SSI reserves the right to cancel this subscription service for material
breach of these terms and conditions; provided that [*] of such cancellation is
given to StorageTek and StorageTek has not cured such material breach with such
[*] period.
SSI reserves the right to audit StorageTek's training records pursuant to
the provisions as outlined in Section 21.
CERTIFICATION
Subscription to the Courseware does not give StorageTek any rights to
testing or certification programs created by SSI. Authorized Training and
Testing Centers are separate programs that are in development at SSI, and SSI
reserves the right to issue the certification program and authorized training
center status. StorageTek may use the Courseware to qualify its employees and
its Distributors to perform installation and other services for the Co-branded
Products.
OWNERSHIP/DERIVATIVES OF COURSEWARE
SSI is the owner of all intellectual property rights in the Courseware
delivered to StorageTek pursuant to these terms and conditions, including all
copyrights therein. SSI grants StorageTek the right to use such Courseware as
contemplated under these terms and conditions. Subject to SSI's ownership of the
intellectual property rights in the original Courseware delivered to StorageTek,
StorageTek shall own all intellectual property rights in and to all
customizations, modifications and derivative works of the Courseware including
all copyrights therein made by StorageTek pursuant to the licenses contained
herein.
SOFTWARE LICENSE
All software utilized or distributed as part of the Courseware, or an
element thereof, is licensed pursuant to the license agreement accompanying the
software.
INDEMNIFICATION
Under this Agreement, SSI agrees to indemnify, defend and hold StorageTek,
and all its officers, directors, agents, employees and affiliates, harmless from
and against any and all third party claims for loss, damage, liability and
expense (including reasonable attorney's fees and costs) arising out claims that
the Courseware violates the rights of any third party.
Under this Agreement, StorageTek agrees to indemnify, defend and hold SSI,
and all its officers, directors, agents, employees and affiliates, harmless from
and against any and all third party claims for loss, damage, liability and
expense (including reasonable attorney's fees and costs) arising out the
StorageTek's customization, modifications and derivative works of the
Courseware.
DISCLAIMER OF WARRANTIES
SSI warrants that the Courseware does not violate any patent, copyright,
trade secret or other proprietary right of any third party and it has use
reasonable care in preparing the Courseware.
Except as specifically provided herein, the SSI courseware is provided on
an "As Is" and "As Available" basis, without warranty of any kind. SSI does not
warrant that the courseware will meet StorageTek's requirements, will be
uninterrupted, timely, secure, or error-free; or will produce results that are
reliable.
WITH RESPECT TO THE COURSEWARE, SSI EXPRESSLY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OR STATUTORY, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE
LEGALLY INVALID.
SCHEDULE 3.12
EVALUATION UNITS
[*]
SCHEDULE 4.1
PRICING PROVISIONS
[*]
SCHEDULE 4.1.1
XXXX UP SCHEDULE
[*]
SCHEDULE 5.3
CANCELLATION FEES
[*]
SCHEDULE 5.6
RECIRCULATION
[*]
SCHEDULE 17.2
TRADEMARK SAMPLE
[*]
SCHEDULE 20.4
ARR
[*]
EXHIBIT A
FORM OF FIR MEASUREMENT
[*]
EXHIBIT B
CO-BRANDED PRODUCT SERVICE AND SUPPORT AGREEMENT
CO-BRANDED PRODUCT
SERVICE AND SUPPORT AGREEMENT
This CO-BRANDED PRODUCT SERVICE AND SUPPORT AGREEMENT (this "AGREEMENT") is
made and entered into effective as of April 15, 2004 (the "EFFECTIVE DATE"), by
and between LSI Logic Storage System, Inc., a Delaware corporation having its
principal place of business at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000
("SSI"), and Storage Technology Corporation, a Delaware corporation having its
principal place of business at Xxx XxxxxxxXxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
("STORAGETEK").
1. OVERVIEW OF RELATIONSHIP
This Agreement is Exhibit B to the Distribution Agreement, and as part of
the Distribution Agreement, the Parties have agreed to service and support the
Co-branded Products as described in this Agreement. In the event of a conflict
between this Agreement and the Distribution Agreement with respect to service
and support of the Co-branded Products, the Distribution Agreement shall
prevail.
2. STRUCTURE OF AGREEMENT
It is intended by the Parties that each StorageTek Subsidiary and SSI shall
agree to the terms of this Agreement with regard to the service and support
activities described for each particular territory where the StorageTek
Subsidiaries sell StorageTek products generally. Each StorageTek Subsidiary will
evidence its agreement to the terms herein in respect of its own territories by
signing an Assumption Agreement with SSI in the form attached hereto as Appendix
A, with such changes as shall be necessary to make such assumption effective and
enforceable in such territory.
3. DEFINITIONS
Unless otherwise defined below or in this Agreement, capitalized terms used
herein without definition shall have the respective meanings set forth in the
Distribution Agreement.
"KEY" shall mean any numerical or alpha-numerical code which is necessary
to gain access to Software or Hardware features or functionality.
"LEVEL 1 SUPPORT" shall have the meaning set forth in Section 6.1.
"LEVEL 2 SUPPORT" shall have the meaning set forth in Section 6.2.
"SSI CERTIFIED COMPATIBLE LIST" shall mean the list of components or
configured systems, either from SSI or StorageTek or other third parties, that
operate compatibly with the Co-branded Products (e.g., a "system" might be
comprised of a server operating system, a Co-branded Product and third party
software) that SSI or its Subsidiaries have determined, in accordance with SSI's
procedures and testing, to be compatible with the Co-branded Products; provided
that the testing of such components may be completed by StorageTek, its
Subsidiaries or a third party. The SSI Certified Compatible List appears under
SSI's Hardware/Software Compatibility Matrices on the Metastor Reseller Partners
web site, and is updated from time to time. Subsequent to the date hereof, SSI
or its Subsidiaries may designate a different web site to StorageTek for the SSI
Certified Compatible List.
"SSI LEVEL 3 SUPPORT" shall have the meaning set forth in Section 6.4.
"PINNACLE" shall mean StorageTek's Pinnacle Problem Management System, or
such replacement system as StorageTek may implement during the term hereof, used
by StorageTek to track service and support problems for products that StorageTek
manufactures, sells and otherwise distributes.
"PROFESSIONAL SERVICES" shall mean any services offered by StorageTek to
enhance customer implementation, functionality or value of the Co-branded
Products using standard ADIM (i.e., "ADIM" herein means "Assessment, Design,
Implementation, Manage") methodology.
"SERVICE COMMITTEE" shall have the meaning set forth in Section 4.2.
"STORAGETEK LEVEL 3 SUPPORT" shall have the meaning set forth in Section
6.3.
4. ADMINISTRATION
StorageTek and SSI recognize that in order to deliver service and support
for the Co-branded Products and the SSI Certified Compatible List in a manner
that achieves the greatest customer satisfaction, it is important for the
respective support and service personnel of each of SSI or its Subsidiaries and
StorageTek or its Subsidiaries to have designated contacts for timely and
focused communication of issues. In addition, the Parties have agreed to
establish a joint Service Committee that will meet on a regular basis to handle
any service and support issues that may arise and are not routinely handled on a
day-to-day basis pursuant to this Agreement.
4.1 Designated Service Contacts. The service contacts for each of SSI and
StorageTek shall be designated at the [*] Service Committee review meetings and
updated from time to time at such meetings. At such time, appropriate contact
information shall be exchanged for dissemination to appropriate personnel of
SSI, StorageTek and their Subsidiaries. The initial StorageTek and SSI service
contacts are set forth in Schedule 1 to this Agreement.
4.2 Service and Support Committee. The Parties will establish a service
committee comprised of at least [*] and no greater than [*] individuals from
each of (i) StorageTek and its Subsidiaries and (ii) SSI and its Subsidiaries
(the "SERVICE COMMITTEE"). The Service Committee will be responsible for the
overall management of the service relationship for the Co-branded Products. The
Service Committee shall meet as frequently as such committee shall deem
appropriate (in person, by telephone or otherwise), but at least [*]. In
addition, the Service Committee shall conduct an organizational meeting within
[*] of the Effective Date. The Service Committee will review the service reports
and resolve any operating issues and other service and support matters.
5. RESPONSIBILITIES WITH RESPECT TO SERVICE AND SUPPORT
5.1 StorageTek Responsibilities. StorageTek will:
5.1.1 offer and provide basic installation of the Co-branded Products
in accordance with its then-current standard installation policies and in
accordance with SSI's published installation procedures; provided, however,
that StorageTek acknowledges that installation other than in accordance
with SSI's installation procedures may void the warranty of any Co-branded
Product not installed pursuant thereto;
5.1.2 at StorageTek's option and discretion, offer Professional
Services to End Users with respect to the Co-branded Products;
5.1.3 provide on an exclusive basis Xxxxx 0 Support and Xxxxx 0
Support through End of Service as described in Section 6.4 of the
Distribution Agreement for Co-branded Products and the SSI Certified
Compatible List in accordance with StorageTek's then-current policies;
5.1.4 contract with End Users for service and support of Co-branded
Products sold by StorageTek directly or indirectly through its distribution
channel partners. With respect to geographical locations outside of the
United States, StorageTek and its Subsidiaries shall undertake this
responsibility on a direct level with the particular territory; and
5.1.5 engage SSI Level 3 Support through the StorageTek Level 3
Support function, whereby StorageTek personnel designated as StorageTek
Level 3 Support personnel shall contact designated SSI Level 3 Support
personnel for service and support of the Co-branded Products and the SSI
Certified Compatible List, as more fully described in Section 6.3 below.
Level 1 Support and Level 2 Support provided by StorageTek or its
Subsidiaries pursuant to this Agreement shall meet specified quality performance
standards as mutually agreed upon from time to time by
the Parties and in accordance with StorageTek's standard guidelines. The initial
quality standards will be established at the first meeting of the Service
Committee.
5.2 SSI Responsibilities. SSI or one or more of its Subsidiaries will:
5.2.1 provide SSI Level 3 Support to StorageTek Level 3 Support for
Co-branded Products and SSI Certified Compatible List only through End of
Service as described in Section 6.4 of the Distribution Agreement in
accordance with, and subject to, the terms and conditions hereof;
5.2.2 at SSI's discretion and option, provide the services described
in Section 14.1; and
5.2.3 provide to StorageTek at no charge, replacement Keys as may be
necessary to activate or restart functions and features of previously
licensed Software. Such Keys will be available worldwide on a [*] basis
until the End of Service date for each Co-branded Product and provided
electronically.
SSI Level 3 Support provided by SSI or its Subsidiaries pursuant to this
Agreement shall meet specified quality performance standards as mutually agreed
upon from time to time by the Parties and in accordance with SSI's support
guidelines. The initial quality standards will be established at the first
meeting of the Service Committee.
5.3 SSI Level 3 Support for SSI Certified Compatible List. With respect to
any component that is listed on the SSI Certified Compatible List, SSI or its
Subsidiary(ies) will provide SSI Level 3 support to StorageTek and its
Subsidiaries during such time as such component appears on such list and for a
reasonable time if such component is removed from such list. SSI will provide
StorageTek with 180 days advance notice of SSI's intent to remove any such
component from such SSI Certified Compatible List and the StorageTek may
escalate the removal of the component, pursuant to Section 9.4.1(e) of the
Distribution Agreement.
5.4 Anomalies. The responsibilities of each of StorageTek and SSI above
are intended to apply for the Co-branded Products in the vast majority of
service and support requirements; provided, however, that on a case-by-case
basis, there may arise a scenario for service and support which requires the
Parties in good faith to agree upon different responsibilities as to each Party.
In such cases, the Parties agree to reasonably cooperate to address special End
User requirements, it being acknowledged that StorageTek will [*].
6 SUPPORT LEVELS -- DEFINITIONS AND PROCESSES.
The following definitions and processes shall be used by the Parties in
undertaking their respective responsibilities for the Co-branded Products under
this Agreement.
6.1 "Level 1 Support" shall mean that level of support for the Co-branded
Products that will be provided by StorageTek, including first line, End User
contact, most likely via a telephone call handling group provided by StorageTek.
Level 1 Support includes:
- First contact direct End User interaction
- Information collection and analysis
- Determination of service entitlement level
- Identification of whether the problem is known and has a known solution
- Troubleshooting and problem reproduction, as possible
- Problem report administration and tracking
6.2 "Level 2 Support" includes product experts who may serve as the
escalation point for Xxxxx 0 Xxxxxxx. Xxxxx 0 Support is expected to resolve all
known problems, installation and configuration issues, assist in firmware or
driver updates at the End User site, search SSI posted Technical Notes and other
technical information made available by SSI or its Subsidiaries that will assist
in providing problem resolutions. All pertinent data should be entered into
StorageTek's PINNACLE problem management system.
Should the Level 2 Support be unable to resolve a problem, either because
of lack of expertise (after consulting other Level 2 Support or StorageTek Level
3 Support personnel), exhausted troubleshooting knowledge, or expiration of the
allotted Level 2 Support resolution time, the Level 2 Support personnel will
escalate the problem to StorageTek Level 3 Support personnel pursuant to the
escalation matrix on Schedule 2.
Level 2 Support will continue to provide information to StorageTek Level 3
Support in order to accomplish resolution of the problem. Level 1 Support and/or
Level 2 Support shall engage and direct on-site service activities performed by
the End-User or service representatives in their attempts to resolve or remedy
the reported problem. This will include, but will not be limited to, the
replacement of Co-branded Products with Spare Parts or application of Co-branded
Product firmware or software releases and versions.
6.3 "StorageTek Level 3 Support" is the first point of contact for
technical issues between SSI Level 3 Support and StorageTek Level 3 Support,
with primary contact via PINNACLE or by telephone. StorageTek will designate
support specialists to serve as the highest level of problem resolution
capability, with the capability of understanding the design of the Co-branded
Products and the operating environment to be able to determine defect or
problem-related Co-branded Product or system operability.
Prior to escalating to SSI Level 3 Support, it is expected that StorageTek
shall provide all relevant error log and system information through the PINNACLE
system, which may include (but shall not be limited to):
- Log files from Co-branded Product, host system or operating environment
- Names and firmware revisions of hardware equipment
- Firmware revisions or levels
- Other output from devices or software in the configuration
- Such additional information from PINNACLE as may be identified and
reasonably requested from time to time by SSI
6.4 "SSI Level 3 Support" SSI Level 3 Support is expected to provide new
fixes and workarounds, replication for complex problems, resolution of problems
through generation of formal fixes and assistance requiring knowledge of SSI
Level 3 Support personnel of Co-branded Product source code. SSI Level 3 Support
will be provided by SSI technically competent personnel. In any instance where
StorageTek Level 3 Support has verified that, with respect to a problem
involving a Co-branded Product, the applicable components or system complies
with specifications and requirements set forth in the SSI Certified Compatible
List, StorageTek Level 3 Support will escalate the problem to SSI Level 3
Support pursuant to the escalation matrix on Schedule 2. SSI or its Subsidiaries
will be responsible for resolution of the problem, and will utilize commercially
reasonable efforts to resolve such problem. StorageTek and its Subsidiaries will
reasonably cooperate with SSI and its Subsidiaries to provide such additional
information and/or documentation as SSI or its Subsidiaries may deem necessary
or request, and, at SSI's or its Subsidiaries' request, StorageTek will permit
SSI or its Subsidiaries to contact directly End Users if further information may
be needed. In consideration for providing SSI Level 3 Support to StorageTek,
StorageTek will pay to SSI the applicable amounts set forth on Schedule 2 to
this Agreement.
Assigned SSI Level 3 Support technically competent personnel can be
contacted via PINNACLE or email to an established "support" alias, or by calling
SSI's support number at (000) 000-0000 (for StorageTek's and its Subsidiaries'
use only and not that of Distributors or End Users). Access to SSI Level 3
Support personnel will be available [*].
7. SEVERITY LEVELS -- DEFINITIONS AND GUIDELINES FOR RESOLUTION OF PROBLEMS.
The Parties agree to use the following Severity Level descriptions and
guidelines for resolution of problems associated with the service and support of
the Co-branded Products:
SEVERITY LEVEL RESPONSE
-------------- --------
[*]......................................................... [*]
[*]......................................................... [*]
[*]......................................................... [*]
[*]......................................................... [*]
8. WARRANTY MATTERS.
Except as provided herein, all warranty matters are addressed in the
Distribution Agreement. SSI and its Subsidiaries will have sole responsibility
for determining eligibility of a Co-branded Product for warranty service by SSI
or its Subsidiaries and SSI Level 3 Support on a Co-branded Product unit serial
number basis.
9. ENGINEERING CHANGE AND CODE REVISION PROCESSES.
Engineering changes and code revisions for Standard Storage Products that
are released generally to SSI customers through SSI's Internet site shall be
available to StorageTek on the same basis and by the same means to support Xxxxx
0 Support and Level 2 Support by StorageTek in respect of the Co-branded
Products and/or as mutually agreed and implemented by the Parties.
10. PRODUCT SERVICE PLAN.
StorageTek shall prepare a Co-branded Product service plan (the "PRODUCT
SERVICE PLAN") for each Co-Branded Product that defines the service delivery and
support philosophy, techniques, spares, tools, product requirements, and the
support infrastructure necessary to install, implement, maintain, and support
the End User in achieving the expected level of product function and
performance. The Product Service Plan is intended for use within StorageTek and
its Subsidiaries, and by other organizations outside of StorageTek who have
entered into a contract or agreement with StorageTek for the purpose of
distribution, integration, installation, implementation, maintenance, service or
support of a Co-branded Product. The Product Service Plan will be used by
StorageTek and SSI as the standard of performance to measure achievement of
product and service delivery goals for the Co-branded Products.
SSI will, in SSI's reasonable discretion, provide StorageTek with such
information as is then available with respect to a configuration or system to
assist StorageTek in preparing a Product Services Plan for the Co-branded
Products.
11. TECHNICAL TRAINING.
11.1 SSI Training.
11.1.1 Generally. Schedule 3.5.3 to the Distribution Agreement sets forth
the general training that SSI will provide to StorageTek Level 3 Support
personnel and the charges, if any, for that training.
11.1.2 Primus. SSI will provide StorageTek's Level 1 Support and Level 2
Support personnel with one-on-one, interactive training for the web-based
front-end of Primus, a knowledge information system. SSI will provide such
training free of charge to StorageTek.
11.2 StorageTek Training.
11.2.1 PINNACLE Training. StorageTek Level 3 Support personnel will
provide SSI Level 3 Support personnel with one-on-one, interactive training
sufficient for SSI to be able to effectively use the PINNACLE problem management
system. StorageTek will provide such training free of charge to SSI.
11.3 Other Training. As the Parties may mutually agree from time to time
at [*] review meetings.
12. LICENSE OF AND ACCESS TO DIAGNOSTICS/OTHER PROPRIETARY ITEMS.
12.1 Primus Knowledge Base License and Access. SSI is the owner of all
right, title and interest to a service and support database, and information
contained therein, which is identified by SSI as the Primus Knowledge Base.
Access to the Primus Knowledge Base is enabled with the use of Primus Software,
including the Primus eServer software and the Primus eSupport software. SSI is
licensed to use the Primus Software, including a license to the Primus eServer
software and the Primus eSupport software, for a specified number of Concurrent
Users. SSI hereby: (i) grants StorageTek limited permission to access via the
Internet, view, display, but not modify, SSI's Primus Knowledge Base information
system (A) solely for the purpose of and only to the extent necessary for
providing service and support of the Co-branded Products under this Agreement
and (B) subject to SSI's rights under, and the limitations set forth in, SSI's
license agreement with Primus; and (ii) pursuant to its rights under the Primus
software license, grants StorageTek permission to access and use the Primus
eServer software as a Concurrent User solely in connection with the Primus
Knowledge Base, and further grants StorageTek permission to provide an End User
of the Co-Branded Products with permission to access and use the Primus eSupport
software as a Concurrent User solely in connection with the Primus Knowledge
Base. In the event the number of Concurrent Users exceeds the specified number,
SSI and StorageTek shall cooperate in updating the Primus Software license to
accommodate the number of Concurrent Users in excess of the specified number,
wherein the license fees for the Concurrent Users in excess of the specified
number shall be at StorageTek's sole expense.
12.2 PINNACLE License and Access. StorageTek herein grants SSI a
nonexclusive, worldwide, royalty-free license to the portions of StorageTek's
PINNACLE system relating only to the Co-branded Products for the sole purpose of
providing Level 3 Support in respect of the Co-branded Products sold under the
Distribution Agreement, the SSI Certified Compatible List of components or
systems or any other SSI-approved activity under Section 14 hereunder and for no
other purpose. Such license shall include the right to view, display and modify
the information solely for purposes of tracking StorageTek service and support
and service problems relating to the Co-branded Products, the components or
systems that comprise the SSI Certified Configurations List and any SSI-approved
out-of-scope activities under Section 14.
12.3 Documentation. To the extent available, SSI will furnish such
documentation as may be reasonably requested by StorageTek and, in SSI's
reasonable judgment, be necessary or desirable in order for StorageTek to
provide Xxxxx 0 Xxxxxxx, Xxxxx 0 Support, and StorageTek Level 3 Support in
accordance with this Agreement, and, in SSI's reasonable discretion, for
StorageTek's provision of Professional Services and any SSI approved
out-of-scope services provided in accordance with Section 14. hereunder. SSI
grants to StorageTek and its Subsidiaries the worldwide, royalty-free right and
license to use and copy the installation, service and support documentation
associated with the Co-branded Products solely for the purposes of service and
support of such Co-branded Products in accordance with the terms of this
Agreement. The foregoing limited right includes the right of StorageTek or its
Subsidiaries to sublicense to Distributors. The foregoing right also includes
the right of StorageTek and its Subsidiaries to download and print and copy such
materials with the exception of SSI Level 3 Support technical training
materials, for which no right to copy is granted.
13. REPORTING AND RECORD KEEPING.
StorageTek and SSI will keep track of problems associated with the service
and support of the Co-branded Products in accordance with the processes and
using systems to be agreed upon at the first [*] meeting of the Service
Committee.
14. OUT OF SCOPE SUPPORT ACTIVITIES.
14.1 Support for Professional Services. As part of its professional
services offerings, at StorageTek's request, SSI may provide support, on a
case-by-case basis, for integration and proof of concept. SSI will provide such
support on a time and materials pricing basis, as described on Schedule 1 to
this Agreement, and in accordance with SSI's standard procedures. Products or
configurations for which SSI may provide integration and proof of concept
services in accordance herewith shall not be placed on the SSI Certified
Compatible List unless and until designated by SSI on SSI's Hardware/Software
Compatibility Matrices, as described in the definition above for "SSI Certified
Compatible List."
14.2 On-Site Support and Other Out-of-Scope Services. From time to time
StorageTek may request that SSI provide certain on-site support or other
services for Co-branded Products that are outside the scope of this Agreement.
Such request shall be submitted to SSI in writing (but in the case of emergency
on-site support requests, such request may be made by any expeditious means
available) with details of the services requested. If SSI has available
resources to undertake such request, SSI will provide StorageTek with an
estimate of the time and cost for performing such out-of-scope services. On-site
support will be provided at SSI's then current "time and materials" rate, plus
any per diem and travel expenses incurred by the SSI personnel. Such per diem
and travel expenses shall be in accordance with StorageTek's then-current
Expense Policy.
15. GENERAL PROVISIONS.
15.1 Term. Section 18.1 of the Distribution Agreement shall apply with
respect to the term of this Agreement.
15.2 Termination and Survival Obligations.
15.2.1 Upon a termination of the Distribution Agreement in accordance
with its terms: (a) this Agreement will survive until the applicable End of
Service date for the last Co-branded Product sold under the Distribution
Agreement; and (b) the Sections and Articles of the Distribution Agreement
expressly incorporated herein by reference to the Distribution Agreement
shall survive for purposes of this Agreement until the End of Service date
for the last Co-branded Product sold under the Distribution Agreement.
15.2.2 Notwithstanding anything in Section 15.2.1 above, this
Agreement may be terminated:
15.2.3 by the Parties upon mutual written consent thereto, having
taken into consideration and providing reasonably for implementation of any
survival provisions that may be reasonably necessary to effectuate the
Parties' respective service obligations as stated herein with respect to
any then-current (as of such date of termination) installed Co-branded
Products that are then under a service and support agreement with
StorageTek, directly or indirectly through its channel of distribution;
15.2.4 by StorageTek:
(a) if SSI commits a material breach under this Agreement, upon at
least [*] prior written notice for a material breach by SSI, unless the
material breach is cured, to the reasonable satisfaction of StorageTek,
within the [*] notice period; or
(b) if an event under Section 18.5.2(a) of the Distribution
Agreement occurs in respect of SSI and specific, continuing and adequate
assurances for the provision of the obligations of SSI hereunder are not
timely provided (in accordance with the particular insolvency or
applicable injunctive proceedings) in respect thereof; or
15.2.5 by SSI, if StorageTek commits a material breach under this
Agreement, upon at least [*] prior written notice for a material breach by
StorageTek, unless the material breach is cured, to the reasonable
satisfaction of SSI, within the [*] notice period.
15.3 Limitation of Liability. The limitation of liability provisions of
Section 14 of the Distribution Agreement shall apply with respect to any claims
for damages by either Party hereunder.
15.4 Equitable Remedies. Notwithstanding anything above to the contrary,
the Parties hereto acknowledge that, with respect to obligations which only the
breaching Party is capable of performing in accordance with the terms of this
Agreement, money damages would not be an adequate remedy at law if either Party
fails to perform its obligations hereunder, and accordingly agree that each
Party, in addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to seek to compel specific performance of the
obligations of any other Party under this Agreement, without the posting of any
bond, and if any action should
be brought in equity to enforce such provisions of this Agreement, none of the
Parties hereto shall raise the defense that there is an adequate remedy at law.
Except as otherwise provided by law, a delay or omission by a Party hereto in
exercising any right or remedy accruing upon any such breach shall not impair
the right or remedy or constitute a waiver of or acquiescence in any such
breach.
15.5 Nonexclusive Remedies. No remedy stated hereunder shall be exclusive
of any other remedy. All available remedies shall be cumulative.
15.6 Notices. Section 26.3 of the Distribution Agreement shall apply with
respect to notices given by the Parties under this Agreement, with an extra copy
of notices relating to this Agreement to be sent to:
For StorageTek: StorageTek Corporation
Xxx XxxxxxxXxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
MS: 5232
Fax: 000.000.0000
Phone: 000.000.0000
Attention: Manager, StorageTek Services Planning
For SSI: LSI Logic Storage System, Inc.
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxxx 00000
Fax: 000.000.0000
Phone: 000.000.0000
Attention: Director, Worldwide Service and Support
15.7 Dispute Resolution and Governing Law. Article 25 of the Distribution
Agreement shall apply with respect to governing law of and the resolution of
disputes of the Parties under this Agreement.
15.8 Other General Provisions Incorporated. Sections 26.1 through 26.6,
inclusive, 26.8 through 26.10, inclusive, and Section 26.12 of the Distribution
Agreement shall apply to this Agreement as if rewritten in whole herein.
15.9 Entire Agreement. Appendix A and the Schedules to this Agreement are
incorporated in this Agreement by reference and made a part of this Agreement.
All references to this Agreement shall include this Agreement and Appendix A and
all such Schedules. This Agreement, together with Appendix A and the Schedules,
and the Distribution Agreement constitute the entire agreement of the Parties
concerning the subject matter hereof, and supersede all previous statements,
representations, and agreements, whether written or oral, concerning the subject
matter hereof.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, StorageTek and SSI have executed this Agreement by
their duly authorized representatives, effective as of the Effective Date.
LSI LOGIC STORAGE SYSTEM, INC STORAGE TECHNOLOGY CORPORATION
By: /s/ XXXXXX XXXXXXXX By:
----------------------------------------- -----------------------------------------
Name: Xxxxxx Xxxxxxxx Name:
Title: President Title:
APPENDIX A
ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT (hereinafter, the "ASSUMPTION AGREEMENT") is
entered into between , a corporation organized under the laws of
(hereinafter "STORAGETEK SUBSIDIARY"), and LSI Logic Storage
System, Inc, a Delaware corporation, having its principal place of business at
0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("SSI"). The applicable "TERRITORY"
under this Assumption Agreement is . Capitalized terms not defined
herein shall have the meanings set forth in the Agreement (as defined in
paragraph 1 below).
1 BACKGROUND. Storage Technology Corporation ("StorageTek") and SSI
entered into a Co-branded Product Service and Support Agreement, dated as of
(the "Agreement"), a copy of which is attached hereto as Attachment 1,
pursuant to which StorageTek and LSI have agreed to provide certain service and
support activities in respect of the Co-branded Products (as defined therein).
Pursuant to that Agreement, the Parties contemplated that on a local geography
basis the applicable StorageTek Subsidiary or Distributor would assume and
perform StorageTek's obligations under such Agreement in the country in which
such entity is resident and provides, on a routine basis, service and support
for StorageTek products generally. StorageTek Subsidiary hereby agrees to
undertake such obligations by signing this Assumption Agreement below.
2. ASSUMPTION. Except as specifically modified in this Assumption
Agreement by paragraph 3 below, the StorageTek Subsidiary or Distributor hereby
assumes and agrees to be bound by each and every term and condition of the
Agreement with each reference to "StorageTek" under the Agreement.
3. TERMS THAT ARE TO BE CHANGED. For purposes of the Agreement, StorageTek
personnel (and not StorageTek Subsidiary or any Distributor personnel) will
serve as the designated StorageTek Level 3 Support personnel for contacting SSI
Level 3 Support under the Assumption Agreement.
4. NOTICES. Except as specified otherwise, notices and other
communications made or required under this Assumption Agreement by a party to
this Agreement shall be given in writing by mail and addressed to the parties at
their respective addresses as set forth below. Notices shall be effective as
described in the Agreement.
IN WITNESS WHEREOF, the undersigned StorageTek Subsidiary or Distributor
and SSI have executed this Agreement by their duly authorized representatives,
effective as of the Effective Date.
StorageTek Subsidiary or LSI LOGIC STORAGE SYSTEM, INC.
Distributor:
-------------------------------------------
By: By:
----------------------------------------- -----------------------------------------
Name: Name:
Title: Title:
Consented to by:
STORAGE TECHNOLOGY CORPORATION
By:
-----------------------------------------
Name:
Title:
SCHEDULE 1
RESPONSIBILITY NAME AND TITLE CONTACT INFORMATION
-------------- -------------- -------------------
STORAGETEK
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
SSI
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
SCHEDULE 2
2 PROBLEM ESCALATION. THE PARTIES WILL ESCALATE SEVERITY LEVELS AS SET
FORTH BELOW:
SEVERITY 1
ELAPSED SEVERITY 2
TIME SEVERITY 1 ESCALATION ELAPSED TIME SEVERITY 2 ESCALATION
---------- --------------------- ------------ ---------------------
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
SEVERITY 3
ELAPSED SEVERITY 4
TIME SEVERITY 3 ESCALATION ELAPSED TIME SEVERITY 4 ESCALATION
---------- --------------------- ------------ ---------------------
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
SUPPORT FEES
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
NOTES:
[*]
EXHIBIT C
CO-BRANDED PRODUCT ROADMAP AND SCHEDULE
[*]
EXHIBIT D
STORAGETEK SOFTWARE LICENSE TERMS
LICENSE AGREEMENT FOR
STORAGE MANAGEMENT SOFTWARE
READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE CONTAINED IN THIS
PACKAGE, EMBEDDED IN THE HARDWARE OR ACTIVATED BY SOFTWARE KEY, OR ANY OTHER
SOFTWARE ORDERED OR OTHERWISE ACQUIRED FROM STORAGETEK FOR USE WITH THE SYSTEM.
YOUR USE OF THE SOFTWARE CONSTITUTES YOUR ASSENT TO THE TERMS OF THIS AGREEMENT.
SIMILARLY, THE ACTIVATION OF A SOFTWARE KEY TO ENABLE ADDITIONAL FUNCTIONALITY
CONTAINED IN THE HARDWARE CONSTITUTES YOUR ASSENT TO THE TERMS OF THIS
AGREEMENT. IF YOU DO NOT WANT TO ENTER INTO THIS LICENSE AGREEMENT, DO NOT
REQUEST A SOFTWARE KEY, AND RETURN THE UNOPENED PACKAGE TO YOUR STORAGE
TECHNOLOGY CORPORATION SALES REPRESENTATIVE FOR CREDIT.
This Agreement governs your use of the SANtricity storage management
software, any additional functionality embedded in the firmware which You may
cause to be activated and any additional software or firmware you order or
otherwise acquire from StorageTek for use with the System (together the
"Software"). These terms and conditions apply unless You entered into a separate
written license agreement with Storage Technology Corporation ("StorageTek") for
the use of the Software, in which case that separate agreement shall govern.
LICENSE
Subject to the terms of this Agreement, StorageTek grants You a limited and
non-exclusive license to use and operate the Software on a StorageTek storage
system (the "System"). StorageTek grants You this license pursuant to its right
to sub-license the Software from LSI Logic Storage Systems, Inc. ("LSI"), the
owner of all right, title and interest in and to the Software. Nothing in this
Agreement provides You with any right in the Software except for the license
granted herein.
You may make a reasonable number of copies of the Software for backup and
archival purposes only.
Except as expressly permitted under this Agreement or by applicable law
without the possibility of contractual waiver, You may not copy, merge,
transmit, modify, reverse engineer, decompile or disassemble the Software, or
sublicense, rent, lease, assign or otherwise transfer the Software to anyone.
TERMINATION
Your license shall automatically terminate when You are no longer in
possession of the System or You violate the terms of this Agreement. Upon
termination of the license You shall immediately stop using the Software, and
purge and destroy any and all copies of the Software with notice to StorageTek
of such destruction or return the copies to StorageTek.
SUPPORT, WARRANTY AND LIMITATIONS
For a period of 90 days following the date of delivery of the Software to
You, StorageTek will provide world-wide telephone support 7 days a week, 24
hours. In the event additional support or on-site service is requested by You,
StorageTek may provide such "billable service" subject to the terms and
conditions of a service agreement. After the initial 90-day period, StorageTek
will provide support as it makes generally available for the Software, subject
to the terms of a StorageTek service agreement and Your payment of related
support fees. StorageTek reserves the right to discontinue support of obsolete
or superseded versions or releases of the Software.
StorageTek warrants for 90 days following delivery of the Software to You
that: (i) the media on which the Software is contained will be free of defects
in material and workmanship; and (ii) the Software will perform in accordance
with published specifications for the Software.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO
THE SOFTWARE. STORAGETEK DISCLAIMS, AND YOU HEREBY WAIVE, ANY AND ALL OTHER
EXPRESS OR IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE OR MERCHANTABILITY AND THE STATUTORY WARRANTY OF
NON-INFRINGEMENT. STORAGETEK DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE
UNINTERRUPTED OR ERROR-FREE, OR THAT USE OF THE SOFTWARE WILL MEET YOUR
REQUIREMENTS.
In case of breach of the warranty, StorageTek at its option will: (i)
replace the defective Software; (ii) repair or correct the defective Software so
they will operate in substantial conformance with published specifications for
the Software; or (iii) refund the license fee paid by You for the defective
Software. Any claim based on this warranty must be submitted in writing within
the applicable warranty period. The foregoing states Your sole and exclusive
remedy and StorageTek's sole and exclusive liability with respect to any breach
of the warranty.
Regardless of the basis for any claim, whether in contract, tort, or
otherwise, StorageTek will be liable to You only for the amount of Your actual
direct loss or damage relating to the Software, up to the license fee paid by
You for the Software.
Irrespective of the basis of the claim, StorageTek and its resellers,
licensors and developers of the Software will not be liable for any special,
indirect, punitive, incidental or consequential damages of any kind (including,
without limitation lost profits, loss of or damage to Your records or data, or
the cost of cover), nor will StorageTek be liable for any third party claims
unless specifically provided in this Agreement. Neither party may bring a legal
action under this Agreement more than two years after the cause of action arose.
INDEMNIFICATION
StorageTek will defend at its expense any third party legal action brought
against You to the extent that it is based upon a claim that the Software used
within the scope of this Agreement infringes a United States patent or United
States copyright. StorageTek will pay costs and damages finally awarded against
You in any action that are attributable to such claim, or any settlement amount
payable by You, provided that You: (i) notify StorageTek promptly in writing of
the claim; (ii) permit StorageTek to have sole control of the defense,
compromise or settlement, and (iii) cooperate fully with StorageTek in the
defense or settlement of the claim at no cost to StorageTek.
StorageTek will have no liability for any claim of infringement based on:
(i) use of superseded or altered versions or releases of Software if the
infringement would have been avoided by the use of a current unaltered version
or release of the Software, (ii) modification of the Software by You, or (iii)
the combination, operation, or use of the Software with hardware, software, or
data not furnished by StorageTek.
Should the Software become, or in StorageTek's opinion be likely to become,
the subject of an infringement claim, You will permit StorageTek, at
StorageTek's option and expense, to: (i) replace or modify the Software so that
it becomes non-infringing, (ii) obtain for You the right to continue using the
Software or (iii) grant You a credit in the amount of the license fee paid by
You for the Software.
The foregoing states the entire liability of StorageTek, its resellers,
licensors and developers of the Software, and Your exclusive remedy for any
claim of infringement or misappropriation of intellectual property rights
related to the Software.
EXPORT POLICY
You agree that You shall not directly or indirectly, export, re-export or
transship the Software in violation of any applicable export control laws or
regulations promulgated and administered by the governments of the countries
claiming jurisdiction over the parties or transactions. You acknowledge that
U.S. laws, regulations and requirements regulate the export of U.S. origin
products/technology and prohibit use, sale or re-export if You know, or have
reason to know, that such products/technology are for use in connection with the
design, development, production, stockpiling or use of nuclear, chemical or
biological weapons or missiles.
RESTRICTED RIGHTS
With respect to any acquisition of the Software by or for any unit or
agency of the U.S. Government, the Software shall be classified as "commercial
computer software" as defined in the applicable provisions of the Federal
Acquisition Regulation ("FAR") 12.212 dated October 1988. The Software was
developed entirely at private expense and no part of it was first produced in
the performance of a U.S. Government Contract. If the Software is supplied for
use by the Department of Defense ("DOD"), it is delivered subject to the terms
of this Agreement and in accordance with DOD FAR Supplement ("DFARS")
227.7202-1(a). If the Software is supplied for use by a Federal agency other
than DOD, it is restricted computer software delivered subject to the terms of
this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14
(ALT III), as applicable.
HIGH RISK ACTIVITIES
THE SOFTWARE AND HARDWARE PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR
INTENDED FOR USE OR RESALE AS ON-LINE CONTROL PRODUCTS REQUIRING FAIL-SAFE
CONTROLS, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, OR WEAPONS SYSTEMS
WHERE FAILURE OF THE SOFTWARE AND HARDWARE PRODUCTS COULD LEAD DIRECTLY TO
DEATH, PERSONAL INJURY AND/OR SUBSTANTIAL PROPERTY DAMAGE. YOU AGREE NOT TO USE
THE SOFTWARE AND HARDWARE PRODUCTS FOR ANY SUCH PURPOSES, AND LSI, STORAGETEK
AND THEIR AFFILIATES EXPRESSLY DISCLAIM AND ARE RELEASED FROM ANY RESPONSIBILITY
OR LIABILITY FOR ANY AND ALL DAMAGES THAT MAY BE INCURRED DUE TO THE USE OF THE
SOFTWARE AND HARDWARE PRODUCTS IN SUCH APPLICATIONS.
GOVERNING LAW
This Agreement is governed by the laws of the State of
Colorado.
EXHIBIT E
CRITICAL END PRODUCT PARAMETERS
[*]
EXHIBIT F
FORM OF SCORECARD
[*]
