EXHIBIT 10.5
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 OMITTED INFORMATION HAS BEEN REPLACED BY [*].
OEM PURCHASE AGREEMENT
This Agreement is entered into and made effective as of February 15, 1995,
by and between Symbios Logic, Inc., a corporation organized under the laws of
Delaware and having its principal place of business at 0000 Xxxxxxxx Xxxxx, Xxxx
Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Seller"), and AT&T Global
Information Solutions Company, a corporation organized under the laws of the
State of Maryland and having its principal office at 0000 Xxxxx Xxxxxxxxx Xxxx.,
Xxxxxx, Xxxx 00000 (hereinafter referred to as "AT&T").
1.0 Background.
1.1 AT&T is in the business of producing and marketing computer and
information processing systems and related equipment, supplies and
services. Seller manufactures and sells products related to the business of
AT&T, and AT&T desires to purchase certain products from Seller. Seller is
willing to sell such products to AT&T, subject to the terms and conditions
set forth herein, to which the parties hereby agree.
1.2 This Agreement is entered into contemporaneously with an Agreement
for the Purchase and Sale of Assets between the parties (the "Purchase and
Sale Agreement"), and terms not defined herein shaft have the meaning
assigned in that Agreement.
2.0 Definitions. The following terms, in singular and/or plural forms of
the same term as and wherever used herein, shall have the meanings set forth in
this Section.
2.1 "Products" -- RAID and mass storage subsystem products as
described in the Specifications, together with associated software and
Documentation and including any and all modifications, changes and
improvements made to such Products during the term of this Agreement.
2.2 "Part" -- Any component, subassembly or other module of Products
or other products as described in Section 5.5.
2.3 "Purchase Order" or "Order" -- Any purchase order issued by AT&T
for the purpose of ordering Products or Parts pursuant to this Agreement.
Purchase Orders may be submitted in written form, or in any electronic form
to which the parties may mutually agree.
2.4 "Seller Intellectual Property Rights" -- All United States and
foreign patents, applications for patent, copyrights, mask works, trade
secrets and other intellectual property rights relating to the design and
manufacture of Products and Parts, and which are now or hereafter owned,
controlled or possessed by Seller, including any such rights licensed to
Seller by any third party.
2.5 "Seller Know-How" -- All information and data of Seller (whether
confidential or not) which is necessary and sufficient to manufacture,
assemble, test, operate, maintain and repair Products and Parts, and which
is now or hereafter owned, controlled or possessed by Seller, including all
drawings, specifications, test information, software (including source and
object code listings and supporting documentation), manuals, basic process
steps and vendor lists.
2.6 "Seller Technical Assistance" -- Assistance provided to AT&T by
Seller in making use of the Seller Know-How in the manufacture, assembly,
testing, operation, application, maintenance and repair of Products and
Parts.
2.7 "Specifications" -- The specifications for the Products attached
hereto as Exhibit A, including any and all modifications, amendments or
changes thereto made pursuant to this Agreement.
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2.8 "Affiliate" -- Any person controlling, controlled by, or under
common control with the referenced person. For the purposes of Section 15,
any agent or contractor providing services to AT&T pursuant to a written
agreement shall be deemed an Affiliate of AT&T.
3.0 Purchase Orders.
3.1 Placement of Purchase Orders. Seller agrees to sell Products and
Parts to AT&T in accordance with the terms and conditions of this
Agreement. Specific quantities of Products and Parts shall be ordered by
AT&T for purchase by the placement of Purchase Orders. However, this
Agreement is not a Purchase Order. AT&T shall have no obligation to
purchase any Products or Parts hereunder until AT&T has placed a Purchase
Order, and then only to the extent of the Products or Parts covered under
such purchase Order. Buyer and Seller shall develop a non-binding [*]
forecast on a [*] for committed Products. In addition, at the 4th-Quarter
quarterly storage technology meeting (Section 24.4), Buyer will provide
under non-disclosure a non-binding [*].
3.2 Acceptance or Rejection of Purchase Orders. Seller agrees to
accept and acknowledge, on AT&T's acknowledgement form, Purchase Orders
placed by AT&T in conformance with the terms of this Agreement. Seller
agrees to provide order acceptance and committed ship dates within [*] of
Purchase Order. Seller shall not reject a Purchase Order for Products or
Parts for reason of quantity purchased or delivery dates, whenever the same
is within the availability and schedules for such Products or Parts
specified in Exhibit B.
3.3 Cancellation of Purchase Orders. AT&T may terminate any Purchase
Order [*]. AT&T's maximum liability to Seller on account of such
cancellation shall be as specified on the AT&T Purchase Order. Further,
AT&T shall have no liability to Seller if any Purchase Order is canceled as
a result of this Agreement being terminated under Sections 8.2, 9.2, 10.3,
10.5, or 18.2 (if termination is due to Seller's breach).
3.4 Rescheduling of Products. AT&T may [*], provided notice of such
increase is given to Seller at least [*] prior to the scheduled delivery
date, and provided that in its role as a supplier to Seller, GIS-Columbia
is able to deliver key parts ordered under any Seller purchase order
sufficient to [*]. Seller shall use its best efforts to deliver [*]. AT&T
may [*] beyond the scheduled delivery date, provided notice of such [*] is
given to Seller at least [*] prior to the scheduled delivery date. If
Products rescheduled under this Section 3.4 are subsequently canceled,
cancellation charges provided for in Section 3.3 above shall be based on
the rescheduled delivery date rather than the original scheduled delivery
date, [*] as a result of rescheduling, in which case AT&T will, at Sellers
request, negotiate in good faith the appropriate cancellation charge, which
shall in no event be [*].
3.5 Purchase Commitment. For a period of [*], AT&T Global Information
Solutions Company will purchase at least [*] of its requirements for those
Products identified on Exhibit B as "Committed Products" and Replacement
Products of Committed Products therefor (as defined in Section 24.1),
except if such Product has been discontinued. This commitment shall only
exist to the extent that Seller is able to meet AT&T's specifications and
requirements for price, performance, quality, and delivery schedule.
3.6 Right to Offer New Products. For a period of [*], AT&T Global
Information Solutions Company shall use its Best Efforts to permit Seller
to bid on the design, development, and/or manufacture of any new RAID or
SCSI products (excluding SCSI hard disk drives and SCSI host adapters), and
will exercise reasonable judgment in determining whether to accept an offer
by Seller to design, develop, and/or manufacture such products, taking into
account factors such as price, delivery time, performance, and suitability
to AT&T's needs. This commitment shall not apply to AT&T development or
procurement activity commenced prior to the Closing Date.
3.7 Special Requirements. The parties will cooperate in good faith to
develop a procedure that will provide AT&T with expedited delivery of
certain Products, in order to provide reasonable flexibility to AT&T to
meet unique customer requirements. This procedure may, but will not
necessarily, involve an
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inventory consignment arrangement that will be memorialized in one or many
Consignment Agreements by AT&T site or Product substantially in the form of
Exhibit F.
4.0 Prices.
4.1 Product and Part Prices. The prices for Products purchased
hereunder shall be as specified in Exhibit B. The prices for Parts
purchased hereunder shall be as specified on the Parts List provided to
AT&T pursuant to Section 5.1, less the discount specified in Exhibit B.
4.2 [*]. Seller represents that the prices charged for the OEM
Products and Parts set forth in Exhibit B purchased hereunder by AT&T [*].
However, the parties shall meet and negotiate in good faith price increases
or decreases that may be appropriate by taking into account changes in
market conditions, competition and cost reduction programs of Seller.
4.3 Failure to Meet AT&T Requirements. If Seller is unable, for any
reason, to supply any portion of AT&T's requirements of the Products or
Parts as established by Purchase Orders, such portion shall be considered
to have been purchased from Seller for purposes of determining price when
price is based on Product or Part quantity purchased by AT&T. This Section
4.4 shall not, however, affect any other remedy to which AT&T may be
entitled on account of Seller's inability to supply AT&T's requirements.
5.0 Parts List, Identification and Availability.
5.1 Parts List. A complete Parts List for each Product shall be
provided by Seller to AT&T at least [*] for Parts delivery specified in
Exhibit B prior to the first delivery of that Product ordered by AT&T under
this Agreement, showing for each Part.
(1) Seller part number and generic name;
(2) Manufacturer part number and name;
(3) Current published list price;
(4) Whether the Part is reworkable; and
(5) Calculated actual mean-time-between-failure.
5.2 Parts Identification. All Parts which are subassemblies or
modules and which are identified on the complete Parts List of Section 5.1
above shall have permanently fixed markings, including:
(1) Seller part number, and when available;
(2) Date of manufacture.
5.3 Recommended Parts List. If not previously provided, Seller shall
also provide to AT&T, upon execution of this Agreement, a recommended Parts
List showing those Parts (and quantities) which Seller recommends be
carried in stock.
5.4 Parts Availability. Seller shall make available to AT&T such
Parts as AT&T may reasonably require for all Products purchased by AT&T
from Seller. Seller further agrees to make the same available to AT&T
pursuant to the pricing and other terms and conditions of this Agreement
applicable to Parts for a period of not less than [*] (the "Parts
Availability Period") after the date of delivery by Seller of the last unit
of each Product delivered to AT&T or any other buyer that may require such
Parts, and shall use its best efforts to give AT&T at least [*] written
notice prior to the termination of that period. If, during the Parts
Availability Period, Seller ceases production or acquisition of Parts,
Seller shall notify AT&T at least [*] to cessation so that AT&T may, at its
option, provide Seller with a reasonable forecast of ongoing requirements
of Parts for the remainder of the period. This Parts availability
requirement shall survive the term and any termination of this Agreement.
5.5 Parts for Other Seller Products. The provisions of Section 5.4
shall apply to parts for all products previously manufactured by or for
Seller's Wichita, Kansas facility, which parts were available from that
facility immediately prior to the Closing Date. Seller will provide such
parts for a parts
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availability period which for each product shall be negotiated in good
faith by the parties and which shall be calculated from the date of last
shipment of each Product prior to the closing date. Prices for such parts
shall be based on a reasonable markup over Seller's actual cost, and shall
be negotiated in good faith.
6.0 Lead Time, Shipment, and Payment.
6.1 Lead Time for Products and Parts. Purchase Orders for Products
and regular (non-emergency) orders for Parts will be placed by AT&T in
advance of the required delivery date thereof, allowing for the Lead Time
specified in Exhibit B, unless a shorter Lead Time is mutually agreed to as
to Products and Parts covered under specific Purchase Orders.
6.2 Lead Time for Emergency Orders for Parts. Seller agrees to accept
emergency orders for Parts from AT&T by means of a facsimile or telex
message or verbal communication containing a Purchase Order number, and to
expedite placement of such emergency orders as if they were formal Purchase
Orders. Seller shall provide AT&T a specifically designated "contact point"
(including an individual's name, telephone number and facsimile number or
cable address) for receipt of emergency orders for Parts. Seller shall use
best efforts, including pulling critically needed Parts from production, to
drop ship such emergency Parts at AT&T's sole expense to those locations
specified by AT&T and provide notice to AT&T within [*] following receipt
of the order specifying the airway shipment xxxx number and flight schedule
information.
6.3 Shipment. Except as provided in Section 6.2, all Products and
regular orders for Parts purchased under this Agreement shall be shipped
F.O.B. Seller's plant of manufacture, freight collect, so as to be
received, allowing for normal transit times, in accordance with the
delivery schedule specified on the corresponding Purchase Order. If
Shipment is late due to Seller's fault, Seller shall ship by air freight or
other mode specified by AT&T, at [*].
6.4 Delivery of Products After Agreement. Purchase Orders placed
during the term of this Agreement shall specify delivery [*] the term of
this Agreement.
6.5 Mode of Shipment. The mode of shipment shall in each instance be
by surface transportation unless otherwise specified by AT&T on the
Purchase Order. In the absence of specific instructions, Seller will select
the surface carrier for shipment.
6.6 Risk of Loss. Risk of loss and damage shall pass from Seller to
AT&T upon delivery by Seller to the common carrier or AT&T's representative
at the F.O.B. point described in Section 6.3 above, and all claims for
damage thereafter shall be filed by AT&T directly with the carrier.
6.7 Packaging. All Products and Parts shall be packed by Seller in
accordance with the latest revisions of AT&T Corporate Packaging Standards
No. 10-001 (Packaging Testing Standard), No. 10-002 (Packaging Marking and
Graphics) and No. 10-004 (Packaging of Service Parts, Feature Kits, Cables
and Assembly Parts), attached hereto as Exhibit C, as well as other
requirements set forth in the Specifications. Seller shall package Parts
individually (except for small Parts, such as screws) with appropriate
protective material to guarantee safe arrival (e.g., plug-in boards should
be in static controlled packaging and in foam-lined packs or padded
cartons). Each box shall contain Products or Parts ordered under a single
Purchase Order, but multiple boxes may be placed in a larger container.
Under no circumstances shall Seller utilize any packaging material
consisting in whole or in part of polystyrene foam manufactured through a
process using any of the following blowing agents: CFC-11, CFC-12, CFC-113,
CFC-114, or CFC-115.
6.8 Insurance. AT&T shall have the responsibility to pay for
insurance. However, at the request of AT&T, Seller shall make arrangements
for purchase of insurance or supply required information, as AT&T may
direct, to either AT&T or to AT&T's insurance carrier so as to ensure that
AT&T will have timely information to effect insurance coverage.
6.9 Payment. It is understood and agreed that the terms of payment
for all Products and Parts purchased under this Agreement shall be [*] from
the date of AT&T's receipt of invoice for the first year
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from the Effective Date and for all subsequent years, [*] be either (A) [*]
from the date of AT&T's receipt of invoice or (B) [*] from the date of
AT&T's receipt of invoice.
7.0 Taxes.
7.1 Taxes Not Included. Product and Part prices as provided for in
this Agreement are exclusive of all applicable federal, state or local
sales, use, property, excise or similar taxes that may be levied upon
Seller as a result of sale or delivery of any Product or Part sold under
this Agreement. All such taxes shall be assumed and paid by AT&T. If a
resale certificate or other such document of exemption is required in order
to exempt the sale of Products or Parts from any such taxes, AT&T shall
furnish Seller, at Seller's request, with such a certificate or document
prior to shipment by Seller.
7.2 Taxes Paid by Seller. In the event that Seller is required to pay
or at the request of AT&T so pays any such taxes, AT&T agrees to reimburse
Seller therefor upon being appropriately invoiced for same in the exact
amount as required of Seller.
8.0 Program Managers, Product Qualification and Acceptance Procedure, and
Quality Assurance.
8.1 Appointment of Program Managers. Each party shall appoint Program
Managers who shall be responsible for all communications with the other
party, including those relating to Product qualification under Section 9,
inspection, testing and quality control procedures under Section 10, and
new product development under Section 23.
8.2 Establishing Product Qualification and Acceptance (PQA)
Procedure. At least [*] the first scheduled general release shipment of
Products or Parts to AT&T, Seller and AT&T shall confer, through their
respective Program Managers, and agree on a Product Qualification and
Acceptance (PQA) Procedure for each Product. Such PQA Procedure shall
establish the procedures for qualification testing (Section 9.1), ongoing
inspection and testing (Section 10.1), acceptance, inspection and testing
(Section 10.2) and facility surveys (Section 10.3), as well as any
physical, performance and quality requirements in addition to those
provided in the Specifications in Exhibit A. In the event that the parties
are unable or haven't, on or before such date, to reach an agreement as to
the PQA Procedure, then AT&T may, at its option, terminate this Agreement.
8.3 Quality Assurance. Seller shall implement and maintain such
quality assurance standards as are reasonably feasible to produce and
deliver to meet AT&T Products and Parts that are defect-free, as well as to
meet any other quality and reliability standards agreed to between the
parties.
9.0 Product Qualification.
9.1 Qualification Testing. Qualification testing of selected initial
production units of each Product manufactured by Seller for AT&T shall be
conducted and completed before the first scheduled shipment of that Product
to AT&T. Such testing shall occur, at the option of AT&T, either at
Seller's facility or on the premises of AT&T and shall be at the expense of
the party on whose premises the testing is conducted. Qualification testing
shall determine the acceptability of the Product in accordance with the
Specifications, and shall be conducted in accordance with the PQA
Procedure. Upon written agreement of Seller and AT&T that the qualification
tests have been successfully completed, the initial deliveries of
production units of that Product shall commence in accordance with the
scheduled shipment established by issued Purchase Orders.
9.2 Failure to Commence or Complete Qualification Testing. If
qualification testing has not been successfully completed in accordance
with the PQA Procedure prior to the first scheduled shipment of any
Product, then this Agreement shall, at AT&T's option, terminate with
respect to that Product unless AT&T shall have agreed in writing to an
extension of such testing, under like termination conditions as specified
herein.
9.3 Applicability. This Section 9 applies only to Products and Parts
that initially become subject to this Agreement after the Closing Date.
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10.0 Inspection, Acceptance Testing, and Quality Control Standards.
10.1 Ongoing Inspection and Testing. Notwithstanding the successful
completion of qualification testing under Section 9, all Products and Parts
shall be subject, at either Seller's manufacturing facility or at AT&T's
premises, to further inspection, acceptance testing, and review for
conformance to ongoing quality control standards as may be established in
the Specifications, PQA Procedure, and other standard industry practices
and procedures.
10.2 Acceptance Inspection and Acceptance Testing. All Products and
Parts shall be subject to acceptance inspection and testing by AT&T, [*],
on Seller's premises, during normal business hours and following a
reasonable notice to Seller, on AT&T's premises, [*] (including the
premises of any customer of AT&T). When conducted on Seller's premises by
Seller, copies of all documents prepared by Seller indicating the results
of such inspection and testing shall be provided to AT&T at AT&T's request.
Inspection and testing at AT&T's facilities or locations [*] shall be
commenced for each Product and Part within the time set forth in Exhibit A
for that product after arrival thereof. The inspection and testing shall be
in accordance with the PQA Procedure and other quality control procedures
and tests agreed upon by the parties.
10.3 Facility Surveys. Following reasonable notice to Seller, AT&T
reserves the right to review, during regular business hours, Seller's
physical facilities and Seller's quality control procedures, both prior to
first Product deliveries and periodically thereafter, in order to assure
compliance with the Specifications, PQA Procedure, and other standard
industry practices and procedures. Seller shall maintain quality control
procedures mutually agreed upon by AT&T and Seller as a result of such
facility survey. In the event that AT&T determines in good faith, during
any facilities survey, that Sellers procedure is insufficient to insure
consistent acceptable quality, AT&T shall so advise Seller, specifying the
deficiency AT&T believes exists and reasonable proposals for correction.
Seller shall fully correct any deficiency [*]; provided, however, that if
any deficiency would be considered "material" under any applicable ISO
standard to which AT&T is certified, Seller shall correct that deficiency
[*] to at least the extent necessary to reduce the deficiency to a level of
"immateriality" under such standard, and shall thereafter fully correct the
deficiency [*]. Failure to correct any deficiency within these time periods
shall entitle AT&T to terminate this Agreement and cancel all
then-outstanding Purchase Orders for Products and Parts without liability
or consequence.
10.4 Acceptance Testing Results. AT&T shall provide notification to
Seller upon completion of acceptance testing setting forth the specific
date of acceptance or rejection of each Product and Part included in the
notification. If any Product or Part is rejected, Seller shall thereafter
proceed forthwith to correct the defects indicated by AT&T, either by
repairing the defective Product or Part at the point of delivery or within
Seller's facility, if possible, or by supplying a new Product or Part. The
cost associated with any such repair or replacement, including
transportation charges for return to Seller and subsequent return to AT&T,
shall be borne by Seller. Products and Parts for which acceptance tests are
not completed within the time set forth in Exhibit A for that Product or
Part after arrival at AT&T's delivery destination shall be deemed to have
been accepted by AT&T as of such time.
10.5 Failure to Meet Minimum Standards. If, during either
qualification or acceptance testing, AT&T determines that any Product is
not materially defect-free or cannot comply with minimum quality standards
of the PQA Procedure or as otherwise established between the parties'
respective Program Managers, this Agreement may be terminated with respect
to that Product at AT&T's option and AT&T may cancel without liability or
consequence any Purchase Order for that Product previously issued.
10.6 Seller Personnel. Seller shall provide, at AT&T's request and at
locations selected by AT&T, and at no charge to AT&T, technically competent
personnel of Seller to assist in the identification and resolution of any
performance problems which may jeopardize the progress of the first
installation of a Product. Seller shall also provide, at AT&T's request,
any performance information available from any source which could aid AT&T
in evaluation of Product performance.
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10.7 No Waiver of Warranty. In no event shall the inspection,
qualification, and acceptance of any Product or Part pursuant to Section 9
or this Section 10, or the payment for any such Product or Part by AT&T, in
any way impair or reduce AT&T's rights under the warranty of Section 12 of
this Agreement, or AT&T's rights to further inspection or testing.
10.8 No Manufacturing License. Termination of this Agreement by AT&T
under any of the paragraphs of Section 9 or this Section 10, for failure of
a Product to pass testing or inspection, shall not give rise to or
otherwise be considered a cause entitling AT&T to a manufacturing license
of that Product under this Agreement.
10.9 AT&T shall provide no notice of default for deficiency under
Section 10.3 for [*] from the Closing Date. AT&T may provide notices of
deficiency prior to closing.
11.0 Specification, Engineering and Other Changes.
11.1 Changes in Specification. The Specifications may be amended or
otherwise changed from time-to-time by written agreement of Seller and
AT&T. Prior to any such change becoming effective, all Products and Parts
shipped by Seller to AT&T shall conform to the existing Specifications,
unless AT&T shall otherwise request. After the effective date of any
change, all Products and Parts shipped by Seller shall conform to such
changed Specifications, except that Seller shall continue to make
available, for the period specified in Section 5.4, Parts under all
previous Specifications unless change to the Part does not affect its
interchangeability with Parts manufactured before such time. Drawing
corrections and minor changes which have no effect on interchangeability
shall not be deemed to be a change in the Specifications.
11.2 AT&T Channels. AT&T may propose changes to the Specifications
and, in such event, Seller shall consider the feasibility of any such
proposal. Seller shall, within a reasonable period of time, not to exceed
[*] after receipt of the AT&T proposal, furnish to AT&T in writing its
comments regarding such proposed changes, including its willingness to
implement the same, the price change, if any, and the time schedule
required for implementation.
11.3 Chance In Source of Parts. Seller shall notify AT&T in advance
of and the reasons for any change in the source (including addition of new
vendors) of purchased Parts which affect form, fit, function, field
maintenance or safety agency approval, and AT&T shall have the right to
approve such source change, which approval will not be unreasonably
withheld.
11.4 Change Induced Problems. In the event AT&T determines, after any
engineering or any other change by Seller, that Products or Parts do not
operate in accordance with the Specifications or fail to meet the
Acceptance Test Procedure of Section 9, and upon AT&T's request, Seller
shall promptly evaluate any defective Product or Part and shall notify AT&T
of the result of its evaluation and its corrective action plan, if needed,
within [*] after receipt of such request from AT&T.
11.5 Parts Obsolescence. In the event that any engineering or any
other change made by Seller obsoletes any Parts purchased by AT&T, Seller
shall so notify AT&T, in writing, and shall, at Seller's expense, [*].
11.6 Changes in Parts. In the event that any change to Products or
Parts affects the interchangeability of latest version and previous version
Parts, Seller shall provide a different part number for the latest version
Parts. Seller will indicate whether each previous version is
interchangeable with the latest version and whether the latest version is
interchangeable with each previous version. All Products thereafter
delivered by Seller shall be promptly identified to AT&T by serial number
so as to reflect which version Part may be used therein.
11.7 Engineering Change Documentation. Seller shall, at its expense,
provide AT&T with a copy of each Engineering Change Order (ECO) or like
documentation issued by it during the term of this Agreement, and
thereafter as long as Parts are made available under Section 5.4, with
respect to operation or maintenance of a Product. Such copy shall be
provided to AT&T as soon as practicable, but
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no later than [*] after the issuance by Seller. AT&T may reject any change
unless it has been agreed to pursuant to Section 11.1.
12.0 Warranty and Product Liability.
12.1 General Warranty. Seller warrants that all Products and Parts
will conform to the Specifications, will be of good material and
workmanship, and will be free from defects in material, workmanship and
programming. Claims for Products or Parts not complying with this warranty
shall be submitted by AT&T the later of [*] of the non-complying Product or
Part to AT&T or such other warranty period offered by Seller to any other
Buyer or Customer (for example [*]). Seller shall at its option and
expense, either promptly repair or replace non-complying Products or Parts
or shall pay AT&T its costs of remedying such non-compliance (provided that
AT&T shall have sought Seller's prior written consent, which shall not
unreasonably be withheld, before incurring any such expense). The shipment
of non-complying Products or Parts by AT&T to Seller, and the return
shipment of repaired or replacement Products or Parts by Seller to AT&T
under this Section 12.1, shall be at Sellers expense. AT&T shall receive a
credit for any non-complying Products or Parts returned for repair or
replacement.
12.2 Safety and Regulatory Agency Requirements. Seller further
warrants that all Products and Parts will comply with all applicable
federal, state and other governmental safety regulations in effect at the
time of manufacture, will be listed with Underwriters Laboratory (UL) in
the name of AT&T, and will comply with such other governmental regulations
and be listed with such other certification organizations as are specified
in Exhibit D.
12.3 FCC Compliance. Seller further warrants that all Products and
Parts will comply with current rules and regulations of the Federal
Communications Commission (FCC) concerning Electromagnetic Interference,
including, without limitation, equipment labeling and instruction manual
information requirements.
12.4 Epidemic Failures. Seller further warrants that Products and
Parts will comply with the failure rate and/or safety and/or reliability
requirements set forth in the Specifications. Claims for non-compliance
will be established from AT&T's service records for that Product and by
showing that the average failure rate of the monitored Products is not in
conformance with the Specifications. In the event of such non-compliance,
Seller shall correct the cause on all Products and Parts to be shipped
thereafter and, at its sole option and expense, either repair or replace
all Products and Parts shipped within the previous [*], or pay AT&T its
costs of remedying such non-compliance (provided that AT&T shall have
sought Sellers prior written consent, which shall not unreasonably be
withheld, before incurring any such expense). If Seller disagrees with
AT&T's determination of an Epidemic Failure, the matter will be submitted
for dispute resolution in accordance with Section 9.7 of the Purchase and
Sale Agreement, provided, however, that (a) the "Senior Executives"
identified in Section 9.7(b) will be senior members of the Seller's OEM
sales business, and the Buyer's supply line management or purchasing
organizations; (b) the time period specified in Section 9.7(c) will apply;
and (c) the parties shall request hearing pursuant to the AAA's rules for
expedited hearing.
12.5 Warranty Notwithstanding Acceptance. Seller shall have the
warranty obligations provided in this Section 12 as to all Products and
Parts, notwithstanding their acceptance by AT&T.
12.6 Product Liability Indemnification. Seller agrees to protect,
indemnify and hold AT&T harmless from and against all liability resulting
from any and all claims by third parties for loss, damage or injury
(including death) allegedly caused by any Product or Part purchased under
this Agreement, to the extent not caused by misuse, abuse or other fault
directly attributable to AT&T or its customer, and provided that Seller is
promptly notified by AT&T of all such claims following AT&T's initial
notification of such claims, and provided further that Seller is given full
control over any negotiation, arbitration, or litigation concerning such
claims.
12.7 Product Liability Insurance. Seller shall maintain, at its
expense, Product Liability Insurance as [*] AT&T and its officers, agents
and employees, from claims relating to the Products or Parts
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12.8 Survival. The provisions of this Section 12 shall survive the
term and any termination of this Agreement.
13.0 Out-of-Warranty Repair. Seller agrees to repair any out-of-warranty
Products or Parts which AT&T may elect to have repaired by Seller and which
Seller deems repairable. Seller further agrees to update all such repaired
Products and Parts to the latest engineering change and to xxxx or tag the same
to show the latest revision level. The cost to AT&T for such repair by Seller
shall be at the repair prices as negotiated in good faith and in accordance with
Section 4.2.
14.0 Product Information and Training.
14.1 Documentation. If not previously provided to AT&T, and promptly
following the issuance of any updates, Seller will furnish to AT&T, at
Sellers expense, the following documentation for the Product(s):
(1) User, Operator and Systems Administrator manuals, including
marketing materials that describe functionality for maintenance.
(2) Maintenance and Support documents, including, (i) engineering
drawings of all assemblies and schematics, and logic and timing
diagrams; (ii) adjustment, operational and functional specifications;
(iii) service test procedures and a list of any special tools and
service test equipment designed by Seller, (iv) site preparation and
installation specifications and instructions; (v) when necessary to
effect an interface or for maintenance purposes, Software and firmware
source listings and related documentation; (vi) Parts information as set
forth in Article 5; (vii) Training course materials as described in
Paragraph 14.4; (viii) technical bulletins, engineering change orders
and, if applicable, bulletin board access; and (ix) other documentation
concerning the operation and maintenance of the Product which will
permit AT&T to market, install and service the Products:
(3) Evidence substantiating the escrow of any agreed upon
information in accordance with Section 25.
(4) Any necessary manufacturing documentation to support building
Products to customer requirements.
Documentation will be of the type which is generally made available to Seller's
customers and/or used by Seller personnel, will be in a form suitable for
reproduction, and will be updated by new documentation from time-to-time as it
becomes available. AT&T will have the right to copy, modify and use, and have
copied, modified and used, the documentation provided by Seller for the purpose
of providing desired manuals or the like concerning the Product, provided that
any Seller copyrights therein are appropriately safeguarded, and AT&T will have
the right to copyright any manuals developed by AT&T.
14.2 Publish End-User Documentation. Seller will include with each
Product unit purchased, a complete set of documentation relating to the
operation and/or maintenance thereof as is customarily supplied to end
users.
14.3 Technical Support. During the term of this Agreement and for [*]
from the time of delivery of the last unit of a Product and Part to AT&T,
Seller will provide at rates negotiated in good faith between the parties
(except as to warranted Products and Parts for which technical support is
included in the price of the Product or Part), access via telephone to
technically competent personnel of Seller as may be reasonably required to
assist in the identification and resolution of any Product performance
problems. In the event Seller is unable to resolve problems remotely,
Seller will, at AT&T's request, provide on-site technical support. Travel
expenses for such out-of-warranty support shall be at AT&T's expense but
shall be pre-approved by AT&T. Support requirements are further defined in
Exhibit E.
14.4 Training.
(1) Seller will provide, at [*], adequate training and information
to AT&T with respect to installation and service of each Product,
including training on any special tools or test equipment. In the case
of software, training will include instruction on features, functions
and capabilities of the
9
software. Training will take place upon request of AT&T and will be
conducted by technically competent Seller personnel for the benefit of
AT&T instructors, field service personnel and other AT&T personnel
involved with the Product. The training will take place at a mutually
agreed upon time and location.
(2) Seller will provide AT&T a copy (including a syllabus) of all
operator, maintenance and technical training course materials. Training
materials will be of the type which is generally made available to
Seller's customers and/or used by Seller personnel, will be in a form
suitable for reproduction, and will be updated by new training materials
from time to time as they become available. AT&T will have the right to
copy, modify and use, and have copied, modified and used, the training
materials provided by Seller for the purpose of providing desired
training or the like concerning the Product, provided that any Seller
copyrights therein are appropriately safeguarded, and AT&T will have the
right to copyright any training materials developed by AT&T. All course
materials will be kept current, with updates furnished to AT&T Global
Information Solutions Company.
15.0 Confidentiality.
15.1 Non-Confidentiality Preferred. We agree that it is preferable to
conduct business under this Agreement on a non-confidential basis and agree
to do so to the maximum extent possible. If it becomes necessary for us to
exchange any confidential information, then, unless we otherwise agree in
writing, the exchange of such information shall be governed by the balance
of this Section 15.
15.2 Information Received. Each party shall use reasonable efforts,
to the extent it does with respect to its own proprietary and confidential
information of like nature, to prevent any of the other party's proprietary
and confidential information which it receives under the scope of this
Agreement in written form and designated "CONFIDENTIAL" from being
disclosed to third parties.
15.3 No Obligation. Section 15.2 shall not apply and the receiving
party shall have no obligation with respect to any information which:
(1) is or becomes public knowledge through no wrongful act of the
receiving party;
(2) is already known to the receiving party;
(3) is rightfully obtained by the receiving party from any third
party without similar restriction and without breach of any obligation
owed to the disclosing party;
(4) is independently developed by the receiving party;
(5) is furnished to a third party by the disclosing party without a
similar restriction on the third party's rights;
(6) is incorporated in a machine or apparatus (including a Product)
which has been placed on sale;
(7) is disclosed pursuant to a lawful requirement or request of a
governmental agency;
(8) is disclosed to the extent necessary to fulfill the business
obligations of the receiving party to customers who are purchasers or
lessees of a Product; or
(9) is approved for release by written authorization of the
disclosing party.
15.3 Third Party Contractors. Notwithstanding the restrictions of
Section 15.2, AT&T shall be entitled to provide confidential information of
Seller on a need-to-know basis to Affiliates who have executed a written
obligation of confidentiality conforming to that of this Section 15.
Notwithstanding the foregoing, Seller may from time to time identify to
AT&T certain Affiliates to whom it does not wish Seller confidential
information disclosed without prior notice from AT&T. From the date of
receipt of Seller's notice, AT&T will use its Best Efforts to avoid
disclosure to those Affiliates without first obtaining Seller's consent,
which shall not be unreasonably withheld.
10
15.4 Survival. The obligations of the parties arising under this
Section 15 shall survive for a period of [*] following the term or any
termination of this Agreement.
16.0 Indemnification for Infringement.
16.1 Current Products. AT&T understands and agrees that Seller
provides no indemnification for intellectual property claims arising from
AT&T's purchase, use, or resale of Products included on Exhibit A as of the
Closing Date, or which fall within the scope of the indemnification
provisions of Article 9 of the Purchase and Sale Agreement. Seller agrees
that it will promptly notify AT&T if it becomes aware of any claim or
threatened claim that any such Product infringes the intellectual property
rights of a Third Party, and will render any reasonable assistance that
AT&T may request in investigating or defending such a claim.
16.2 Future Products. With respect to Products which may be added to
Exhibit A after the Closing Date, Seller undertakes and agrees that, upon
being notified promptly and given authority, information, and offered
assistance, Seller will promptly investigate and defend, at its own
expense, all claims, allegations, suits, actions, or proceedings in which
AT&T or its Affiliates, agents, distributors or customers, are made
defendants or claimed potential defendants for any infringement, claimed
infringement, or alleged inducement of infringement, or unauthorized, or
unlawful use of any patent, copyright, trademark, trade secret, mask work,
proprietary data, or other information, resulting from the sale, use, lease
or other disposition of any Product or Part purchased from Seller under
this Agreement; provided, however, that the provisions of this Section 16.2
shall not apply to any claim, allegation, suit or proceeding that falls
within the scope of the indemnification provisions of Article 9 of the
Purchase and Sale Agreement. Seller further agrees to pay and discharge any
and all judgments or decrees which may be rendered in any such suits or
proceedings against any such defendants. Seller shall have the right to
settle any such suits, actions, or proceedings on terms and conditions of
Seller's own selection, provided they are not in conflict with the terms
and conditions provided herein. In the event Seller fails to promptly
investigate and defend or settle as provided hereinabove, then AT&T shall,
following notification to Seller, have the right from that time forward to
have sole control of the defense of such claim, allegation, suit, action,
or proceeding and all negotiations for its settlement or compromise, and
Seller agrees to pay, as they become due, all of the costs, expenses, and
reasonable attorneys' fees incurred by AT&T and judgments or decrees which
may be rendered against AT&T or such defendants in providing the services
that Seller has failed to provide. This indemnity does not extend to any
suit or proceeding which is based upon a patent claim covering a
combination of which the Product or Part purchased under this Agreement is
merely an element of the claim combined with other devices or elements not
provided by Seller, unless Seller is a contributory infringer, nor does it
extend to any Product or Part whose infringement is a direct result of
Seller being required to adhere to a specific design provided by AT&T and
not originating with Seller.
16.3 Survival. The provisions of this Section 16 shall survive the
term and any termination of this Agreement.
17.0 Identification of Product and Absence of Restrictions.
17.1 Identification. Any and all Products purchased from Seller under
this Agreement may be marketed under any AT&T or Affiliate's trademark or
any product name selected by AT&T, and Seller shall affix, when so
requested by AT&T, such trademark or name, and serial numbers or nameplates
as AT&T shall specify. The Product, in all AT&T advertising literature and
elsewhere, may be referred to by AT&T as an AT&T product. All shipping
containers shall bear the AT&T logo, Purchase Order number, class and
serial number of the Product and all other information or markings desired
by AT&T or required by law.
17.2 Absence of Restrictions. Except as may be required pursuant to
any applicable export control law or regulation, AT&T sing not be
restricted as to its sale or use of Products purchased hereunder including,
without limitation, worldwide marketing to any end user or remarketer, and
use by AT&T for the benefit of others. Further, this Agreement shall not be
construed as preventing AT&T from acquiring
11
at any time products similar or related to the Products from any other
source, including, without limitation, purchase from any third party vendor
or manufacturer by AT&T.
18.0 Term and Termination.
18.1 Term. This Agreement shall continue for an initial term of three
(3) years from its effective date and shall be automatically renewed for
successive one (1) year periods thereafter, unless notice of termination is
given by one party to the other at least one hundred and eighty (180) days
prior to the termination date of the initial term or of any yearly renewal
term, or unless earlier terminated under any other provision of this
Agreement.
18.2 Termination for Default. Either party may terminate this
Agreement upon [*] prior written notice to the other party for failure of
such other party to fulfill any of its material obligations hereunder,
including failure due to causes specified in Sections 24.1 and 24.2;
provided, however, if during the period of such notice the other party
shall have remedied such failure, this Agreement shall continue in full
force and effect as it would have had such failure not occurred. In the
event of termination under this paragraph, the terminating party shall be
entitled to return of any amounts paid in anticipation of performance not
rendered by the other party. In the event of termination under this Section
by Seller for AT&T's default, AT&T shall, upon Seller's written request,
buy under any AT&T Purchase Order then outstanding all completed Products
in Seller's possession as of the date of termination, at the per unit
price(s) set forth on such Purchase Order, provided that AT&T shall have
all rights of inspection, acceptance, and warranty provided by this
Agreement with respect to such Products.
18.3 Termination for Other Reasons. This Agreement shall terminate
forthwith, at the option of either party by notice in writing to the other
party, upon the other party ceasing to carry on its business or in the
event the other party becomes the subject of any proceedings under state or
federal law for the relief of debtors or otherwise becomes insolvent,
bankrupt, or makes an assignment for the benefit of creditors, or upon the
appointment of a receiver for the other party, or its reorganization for
the benefit of creditors.
19.0 Rights After Termination.
19.1 Other Remedies. Termination of this Agreement by either party
shall not prejudice it or the other party to recover any money amounts or
require performance of any obligations due at the time of such termination.
19.2 Completed Products. In the event of termination of this
Agreement by AT&T under Section 18.2, Seller shall, at AT&T's option, pass
title and deliver to AT&T completed Products in its possession meeting the
Specifications, provided AT&T pays a reasonable price not to exceed the
price which would have applied if Seller had delivered those Products
according to the terms of purchase hereunder and at the then current price
established in Exhibit B. AT&T shall also have the option to purchase raw
materials and/or work-in-process attributable to the Products or Parts.
19.3 Purchase Orders Canceled. In the event of any termination of
this Agreement under Sections 8.2, 9.2, 10.3, 10.5, or 18.2 (if termination
is due to Seller's breach), all outstanding Purchase Orders for Products
and Parts previously issued by AT&T under this Agreement shall be
automatically and immediately canceled without penalty, notwithstanding any
firm order period, cancellation penalty or maximum cancellation requirement
stated under this Agreement.
19.4 Manufacturing License Not Affected. Termination of this
Agreement by either Seller or AT&T under Section 18.2 or by AT&T under
Section 18.3 shall not prejudice or otherwise affect any Manufacturing
License to which AT&T is or may become, entitled.
20.0 Manufacturing License.
20.1 Scope. This Section 20 shall only apply to the extent that AT&T
does not independently possess all rights necessary to manufacture the
Product(s) in question.
12
20.2 Manufacturing License for Cause. In the event this Agreement is
terminated by AT&T pursuant to Sections 18.2 or 18.3, or if Seller is, for
any reason including discontinuation, unable to supply AT&T with AT&T's
"reasonable requirements" of any Product ordered by AT&T under the terms of
this Agreement, AT&T may require Seller to grant to AT&T an irrevocable,
non-exclusive, [*] worldwide right and license under Seller Intellectual
Property Rights and any other manufacturing or other rights of Seller
necessary for AT&T to manufacture or have manufactured that Product and its
Parts. Seller shall, under such circumstances and at such time, furnish to
AT&T without cost all necessary assistance as will permit AT&T to commence
manufacture of the Product(s) and Parts including, but not limited to,
providing a complete documentation package of all Seller Know-How along
with a reasonable amount of Seller Technical Assistance. [*]. For purposes
of this Section 20.2, Seller shall be deemed unable to supply AT&T's
"reasonable requirements" only if:
(1) Seller fails to deliver the full quantity of any Product
ordered by AT&T for any [*], and
(2) [*]
[*]
21.0 License of Software.
21.1 As to software which may be provided under this Agreement
(either separately or with a Product) and which is not fully licensed to
AT&T pursuant to the Purchase and Sale Agreement or its ancillary
agreements, Seller hereby grants to AT&T (under Seller's or its suppliers
sublicensed patents, copyrights, and other intellectual property rights
relating to that software) a perpetual, worldwide, non-exclusive,
non-transferable license to resell or reproduce copies of the software in
object code format only, onto a floppy disk or the hard disk of a system,
one copy per system, and to distribute such copies to AT&T's customers. If
the software package includes a "break the seal" license agreement in the
package containing the software, AT&T may transfer the package to its
customer without altering the package or its contents and the license
agreement will be between Seller and the customer. If the software does not
contain a "break the seal" license agreement or if AT&T opens the package
for installation of the Software prior to resale, AT&T will license the
software to its customers pursuant to its standard terms and conditions.
21.2 Seller grants to AT&T a world-wide non-exclusive license to use
Seller's trademarks and tradenames on or in connection with the software
copies made under this license. No other rights to the software are granted
by Seller to AT&T under this Agreement. Appropriate copyright notices will
be placed on the software documentation and will be embedded in the
software code and such notices will be retained on any copies made by AT&T.
Both parties agree to take such reasonable steps as may be necessary to
preserve copyrights to the software and software documentation.
22.0 Assignment.
22.1 No Assignment. Neither this Agreement nor any right or
obligations it governs may be assigned or delegated by either party without
the prior written consent of the other party, which consent shall not
unreasonably be withheld, except that either party may assign or delegate
this Agreement to any Affiliate without the other's consent.
22.2 Successor. Notwithstanding anything in this Agreement to the
contrary, this Agreement and all rights and obligations hereunder shall be
binding upon and inure to the benefit of any successor to which either
party directly or indirectly transfers all or a substantial part of its
business and assets pertaining to the Products, whether by merger, sale of
assets, sale of stock or otherwise. Upon request of the other party the
party making such a transfer shall assign this Agreement and the rights and
obligations hereunder and obtain from the assignee, in a form satisfactory
to counsel for the other party, an acceptance of such assignment and an
assumption of all of the assignor party's obligations under this Agreement.
23.0 Notices and Communications. Except as otherwise specifically provided
herein, notices and other communications by a party under this Agreement shall
be deemed given five (5) business days after the date
13
when deposited in the United States mails, registered mail postage prepaid,
addressed as follows or as from time to time otherwise directed in writing by
either party:
To AT&T:
AT&T Global Information Solutions Company
00000 Xxx xxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: VP of Manufacturing
with 1st class mail copy to
AT&T Global Information Solutions Company
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxx 00000
Attn: Business Law Section
Law Department
To Seller:
Symbios Logic, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attn: President & Law Dept.
24.0 New Technology or Product and Discontinuation of Production.
24.1 Replacement Products. Should Seller acquire or develop a type of
product which is like the Product, or performs a similar function, or would
obsolete the Product due to new technology (a "Replacement Product"),
Seller shall give AT&T notice at least equal to the normal purchase
lead-time prior to the initial shipping date for that Replacement Product
and furnish to AT&T the specifications and other pertinent description
thereof and, at the request of AT&T, arrange an engineering evaluation of
such product immediately upon a working model of it becoming available. At
its option, AT&T may elect to substitute such Replacement Product for the
Product under this Agreement or add such it to this Agreement, at a price
mutually agreeable between the parties. Such Replacement Product shall
thereafter be considered the Product under the terms and conditions of this
Agreement as if initially included hereunder. However, upon a substitution
of such Replacement Product, Seller shall continue to make Parts available
for the original Product under this Agreement, as required under Section
5.4.
24.2 Discontinuation of Production. In addition to any other notices
that may be required in connection with termination of this Agreement by
Seller, Seller shall provide notice of either at least [*] for Committed
Products or [*] for Optional Products (plus the lead time specified in
Exhibit B) prior to the discontinuation of production of a Product. The
amount of notice per Product is specified in Exhibit B. If Seller ceases
production or acquisition of a Product, during the notice period, AT&T may,
at its option, provide Seller with a reasonable forecast of ongoing
requirements of Product for the remainder of the notice period. This
Product availability requirement shall survive the term and any termination
of this Agreement.
24.3 New Products. The parties contemplate that as Seller develops new
RAID or SCSI products, they will be offered for sale to AT&T as Products
under this Agreement. If any such product is made generally available for
sale by Seller, Seller will promptly notify AT&T and, at AT&T's sole
option, the parties will negotiate in good faith the price and other terms
for its inclusion as a Product under this Agreement. The parties further
contemplate that AT&T may request Seller to develop new Products. The
parties agree to work together to develop processes and procedures for
effective communication and management of the product development process.
24.4 The parties agree to have [*] storage technology meetings in
which, under non-disclosure, future product strategies (that are
contractually disclosable) will be discussed.
14
25.0 Software Source Code.
25.1 Seller agrees that it will at all times maintain a complete
package of source code or programs, statements, and software documentation
(the "Documentation Package") corresponding to the software which AT&T does
not have in its possession. Seller further agrees to maintain the
aforementioned source programs, statements, and documentation current by
updating the Documentation Package to include any modifications,
improvements, enhancements or replacement programs within [*] after their
availability.
25.2 In the event that Seller ceases to carry on business on a regular
basis, or fails or is unable to maintain any software licensed under this
Agreement for any reason for a period of [*], Seller will deliver the
Documentation Package(s) to AT&T. Delivery of the deposited materials will
be made to AT&T after written request by AT&T, stating the grounds upon
which the request is made. Once the deposited materials have been delivered
to AT&T, AT&T will have the non-exclusive right to use the materials, [*],
to maintain the software and software documentation for its present
customer base. If Seller disagrees with AT&T's determination that the
Documentation Package should be delivered, the matter will be submitted for
dispute resolution in accordance with Section 9.7 of the Purchase and Sale
Agreement, provided; however, that (a) the "Senior Executives" identified
in Section 9.7(b) will be senior members of the Seller's OEM sales
business, and the Buyer's supply line management or purchasing
organizations; (b) the time period specified in Section 9.7(c) will apply;
and (c) the parties shall request hearing pursuant to the AAA's rules for
expedited hearing.
25.3 In the event that AT&T reasonably believes that Seller will
either cease carrying on business on a regular basis, or fail to provide
software support as required by this Agreement, then AT&T may request, and
Seller will agree, to negotiate in good faith the terms of an escrow
agreement governing the Documentation Package(s).
26.0 Miscellaneous.
26.1 Excused Performance. Neither party shall be liable for damages
because of delays in or failure of performance required under this
Agreement when such delay or failure is due to acts of God, acts of civil
or military authority, fire, flood, strikes, war, epidemics, shortage of
power, or other cause beyond such party's reasonable control and without
its fault or negligence, provided that such party (a) uses best efforts to
promptly notify the other in advance of conditions which will result in any
such delay in or failure of performance, (b) uses best efforts to avoid or
remove such conditions, and (c) immediately continues performance whenever
such conditions are removed.
26.2 Curtailed Production. In the event that Seller's overall
production of Products is curtailed for any reason, Seller will ship AT&T a
percentage of its Orders for Products and Parts at least equivalent to that
shipped for similar products to any other customer. Acceptance by AT&T of
such percentage of its Orders shall not operate as a waiver of any rights
or remedies which AT&T shall have as a result of Seller's failure to ship
all Products and Parts under such Orders.
26.3 Parties Bound. All rights granted to either party in this
Agreement may be exercised by any Affiliate agreeing to be bound by this
Agreement.
26.4 Entire Agreement. This Agreement and Exhibits A-F annexed hereto
contain the entire Agreement between the parties and may not be altered,
amended or modified, except by formal agreement in writing signed by duly
authorized representatives of both parties. Purchase Orders, Purchase Order
acknowledgments, acceptance forms, and other printed documents shall not
constitute an alteration, amendment or modification, even if acknowledged
by the party sought to be bound.
26.5 Waiver or Delay. Any waiver or delay in the exercise by either
party hereto of its right to terminate hereunder or to enforce any
provision of this Agreement for any breach by the other party shall not
prejudice such party's right of termination or enforcement for any further,
continuing or other breach by the other party.
15
26.6 Severability. In the event that any provision contained in this
Agreement should, for any reason, be held to be invalid or unenforceable in
any respect under the laws of any jurisdiction where enforcement is sought,
such invalidity or unenforceability shall not affect any other provision of
this Agreement and this Agreement shall be construed as if such invalid or
unenforceable provision had not been contained herein.
26.7 Arbitration and Governing Law. Any controversy or claim, whether
based on contract, tort or other legal theory (including but not limited to
any claim of fraud or misrepresentation), arising out of or related to this
Agreement, or any subsequent agreement between the parties, shall be
resolved by arbitration pursuant to Section 9.7 of the Purchase and Sale
Agreement.
26.8 Headings. The Section headings within this Agreement are for
convenience only and shall neither be considered a part of, nor affect the
construction or interpretation of, any provision of this Agreement.
26.9 Toxic Materials. Nothing used in the manufacture of the Products
and/or Parts covered by this Agreement shall contain Polychlorinated
Biphenyl (PCB) or Cadmium.
26.10 Duty Drawback. AT&T shall be entitled to claim duty drawback on
Products and Parts exported by or for AT&T. Seller shall submit, with each
shipment of Products and Parts containing imported components, a
Certificate of Delivery of Imported Merchandise (Customs Form 331 or 7543),
shall retain all records required by US statues and regulations and
identified in any drawback contract covering Products and Parts, and shall
otherwise assist AT&T as reasonably requested in order to claim duty
drawback for Products and Parts.
26.11 Country of Origin. Seller shall provide to AT&T, prior to the
first delivery of any Product and Part hereunder, a certificate of origin
stating the country of origin for such Product or Part. If the country of
origin for any Product or Part should change, Seller shall provide a new
certificate of origin prior to the first delivery of any Product or Part
affected by such change.
26.12 Compliance with Laws. Seller shall, in the manufacture and sale
of the Products and Parts to AT&T, and in all other performance under the
provisions of this Agreement, fully comply with all applicable federal,
state, local and other governmental laws and regulations.
26.13 Personal Warranties. Seller and AT&T represent and warrant to
each other that each has the right and power to enter into this Agreement.
Seller further warrants that it has not knowingly violated and will not
knowingly violate any patent, copyright, trade secret or other property
rights of any third party with regard to the development and manufacture of
any Product.
26.14 Relationship of Parties. The relationship of Seller and AT&T as
established under this Agreement shall be and at all times remain one of
independent contractors, and neither party shall at any time or in any way
represent itself as being a dealer, agent or other representative of the
other party or as having authority to assume or create obligations or
otherwise act in any manner on behalf of the other party.
26.15 Periods of Time. In computing any period of time under this
Agreement where a specified number of days are required or permitted for
notice, response, or other action on the part of either party, Saturdays,
Sundays, and holidays shall be included in such period of time.
26.16 Disclaimer and Limitation of Liability. IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT REGARDLESS OF WHETHER THE PARTY
HAS BEEN NOTIFIED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
26.17 Precedence. In the event of any conflict between this Agreement
and the Purchase and Sale Agreement, the terms of this Agreement shall
prevail.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed in duplicate by their respective authorized representatives.
SELLER AT&T GLOBAL INFORMATION SOLUTIONS COMPANY
By: /s/ Illegible By: /s/ Illegible
--------------------------------------------- ---------------------------------------------
Title: President & CEO Title: Assistant Secretary
--------------------------------------------- ---------------------------------------------
Date: February 7, 1996 Date: January 16, 1996
--------------------------------------------- ---------------------------------------------
17
FIRST AMENDMENT TO THE
OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995
This First Amendment ("Amendment") to the
OEM Purchase Agreement dated
February 15, 1995 ("Agreement") between Symbios Logic Inc. ("Symbios") and AT&T
Global Information Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR") is
entered into by the parties and made effective this 2nd day of January, 1996
("Amendment Effective Date"). Capitalized terms used but not defined herein
shall have the meaning ascribed to them in the Agreement. This Amendment shall
be coterminous with the Agreement.
I. Section 2.0. DEFINITIONS, is hereby amended as follows:
The following is added at the end of Paragraph 2.8 "Affiliate":
Affiliate shall not include such persons or entities who are engaged
in businesses directly competitive with those of Seller without Seller's
advance written consent in each case, which consent shall not be withheld
in bad faith.
II. Section 3.0. PURCHASE ORDERS, is hereby amended as follows:
The following is added to Paragraph 3.1 "Placement of Purchase Orders"
after the fourth sentence (ending in "such Purchase Order.") and replaces the
balance of the paragraph:
NCR will provide Symbios will a [*] of its estimated requirements for
Products covered under this Agreement. Symbios will indicate its
concurrence or otherwise with such forecasts in writing to NCR. Symbios
will secure resources required to meet the forecast. NCR will update its
forecasts on a [*]. At no additional cost, NCR will have the following
percentage quantity upside and downside flexibility within its
forecast/Purchase Orders:
Flexibility
DAYS PRIOR TO CSD STANDARD MODELS NON-STANDARD MODELS
------------------------ ------------------------ ------------------------
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
Symbios will use commercially reasonable efforts to accommodate NCR's
requests for upside or downside flexibility beyond the above flexibility
limits. Symbios is not obligated to meet NCR's improved flexibility
requests if Symbios cannot reasonably comply with such requirements.
Paragraph 3.2 is changed to read as follows:
3.2 Acceptance or Rejection of Purchase Orders and Shipment Fidelity
Symbios agrees to accept and acknowledge, on NCR's acknowledgment
form, Purchase Orders placed by NCR in conformance with the terms of this
Agreement. Symbios will use commercially reasonable efforts to establish
Committed Ship Dates (CSD) in accordance with section 6.1. Symbios agrees
to provide written order acknowledgment to a Purchase Order and provide a
CSD within [*] for Standard Models and within [*] for Non-Standard Models
after receipt of a Purchase Order. A Standard Model is defined as a Product
or kit which is part of a subset of Products that represents in aggregation
at least [*]. Standard Models are listed in Exhibit Al. The initial list of
Standard Models is comprised of [*]. Exhibit A1 may be updated at any time
by the addition or deletion of Products by the mutual agreement of both
parties. A Non-Standard Product is defined as all other Products or kits
offered by Symbios that are not classified as a Standard Model. Symbios
will be measured by actual ship date versus
1
the latest mutually agreed upon written CSD provided on the order
acknowledgement. Symbios may not modify the CSD unless permitted to do so
by NCR in writing. Symbios agrees to provide NCR a weekly report detailing
NCR ship date performance by product. Specific metrics for CSD performance
are as follows:
PERCENT
BEGINNING TIME PERCENT [*]
PERIOD PRODUCT ON-TIME DAYS LATE
-------------- ------------ ------- ----------
03/01/96 All Products [*] [*]
04/01/96 All Products [*] [*]
07/01/96 All Products [*] [*]
10/01/96 All Products [*] [*]
04/01/97 All Products [*] [*]
The metric for actual shipment performance for each respective quarter
will be measured at the end of the quarter.
Symbios will not reject a Purchase Order for Product or Parts for
reason of quantity purchased or delivery dates, whenever the same is within
the availability and schedules for such Products or Parts specified in
Section 6.1.
Paragraph 3.3 "Cancellation of Purchase Orders" is amended as follows:
The sentence "AT&T's maximum liability to Seller on account of such
cancellation shall be as specified on the AT&T Purchase Order." in lines
3-4 is stricken in its entirety.
Paragraph 3.3 is further amended by adding the following language at the
end of the paragraph:
NCR agrees to share in expenses incurred by Symbios due to order
cancellations. NCR shall be responsible for the amount of the cost of
non-returnable long lead components procured by Symbios to support NCR's
forecast, provided there is a joint discussion and understanding of the
involved costs. Symbios may additionally charge NCR a material burden
charge equal to the actual charges incurred by Symbios in canceling and
returning components to the original supplier, not to exceed [*] of the
returned components.
Paragraph 3.5 "Purchase Commitment" is stricken in its entirety. Paragraph
3.6 "Right to Offer New Products" is renumbered to 3.5, and the Paragraph
entitled "Special Requirements" is numbered as 3.6.
A new Paragraph 3.7 is added as follows:
3.7 Evaluation/Benchmark Units.
3.7.1 Symbios will loan NCR the equipment listed below, and may loan
NCR certain related hardware, software, firmware, documentation, and
information for NCR's use with that equipment. Each piece of equipment may
be used by NCR for a period of [*]. However, NCR shall have up to [*] from
the date of shipment by Symbios in which to return the equipment to Symbios
(to cover repackaging, transit, etc.). NCR shall issue orders for these
units of evaluation equipment from a single point of contact. When returned
to Symbios, the units will be refurbished, at the charges indicated below,
to "as-new" condition and will have the same warranty as a new unit. Units
refurbished by Symbios will be completely updated to the latest revision
levels. If an evaluation or benchmark unit of equipment is not returned
within 135 days of receipt by NCR, Symbios may xxxx NCR upon notification
to NCR of its intent to do so, and NCR agrees to pay any such xxxx, which
billed amount shall be equal to the full price for such units NCR shall be
responsible far shipping charges for the initial shipment out and the
return shipment associated with the evaluation equipment.
2
REFURBISH
MODEL # CHARGE
------- ---------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
3.7.2 During the equipment loan period, NCR will use reasonable
efforts to maintain the equipment in good operating condition other than
normal wear and tear and damage attributable to product defects. In the
event a loaner unit has damage beyond normal wear, NCR agrees to pay the
actual costs associated to repair the unit, provided that Symbios issues an
itemized list of repairs prior to the actual work being performed. Symbios
will provide standard warranty coverage during the loan period.
3.7.3 Unless otherwise agreed in writing, NCR will not buy refurbished
units of Products that were evaluated by anyone other than NCR. Symbios
shall apply refurbished units used previously through the NCR
evaluation/benchmark program to new NCR Orders. NCR may direct that certain
Orders not be filled with refurbished units by including a statement to
that effect on the Order itself and/or by providing Symbios a list of
customers who will not accept refurbished systems. Notwithstanding the
foregoing. NCR agrees to accept all refurbished units which have not been
shipped against NCR Orders after [*] by Symbios and shall be billed at and
agrees to pay full price for such units.
III. SECTION 4.0. PRICES, is hereby amended as follows:
The following is added to the end of Paragraph 4.1 "Product and Part
Prices":
Additional Product and Part prices are set forth in Exhibit B1, which
prices may be further negotiated based upon changes in market condition or
any other appropriate factor. In the event that differing prices for the
sane Product(s) are specified in Exhibit B and Exhibit B1, the price set
forth in Exhibit B1 shall be the correct price. Product and Parts prices
specified in Exhibit B, Exhibit B1 the Parts List shall be [*] to the
extent permitted by Exhibit B, Section 3.0.
A new paragraph 4.4 is added as follows:
4.4 Disk Drive Price Reductions. Symbios will pass through to NCR [*]
that Symbios receives from its supplier(s). Price reductions to NCR on disk
drives will become effective [*] following the date of the price reduction
provided by Symbios' supplier. This Section 4.4 will become effective on
April 01, 1996.
IV. SECTION 5.0. PARTS LIST, IDENTIFICATION AND AVAILABILITY, is hereby
amended as follows:
Paragraph 5.4 "Parts Availability":
Line 8: "for integrated controllers and [*] written notice prior to
the termination of that period for subsystems" is inserted at the end of
the second sentence after "of that period".
V. Section 6.0. LEAD TIME, SHIPMENT, AND PAYMENT, is hereby amended as
follows:
Paragraph 6.1 is changed to read as follows:
6.1 Lead Time for Products and Parts. Purchase Order for Products and
regular (non-emergency) orders for Parts will be placed by NCR in advance
of the required delivery date thereof allowing for the Lead Time specified
in the chart below, unless a shorter Lead Time is mutually agreed upon as
to Products and Parts covered under specific Purchase Orders. Symbios will
use commercially reasonable efforts to execute and improve the Product Lead
Time. The Lead Time shall mean the maximum period between Symbios' receipt
of a Purchase Order, and the actual shipment to NCR's specified delivery
location. The Lead Times for Products are contingent upon NCR providing a
monthly forecast with
3
flexibility limits as specified in Section 3.2. The Lead Times shall be as
set forth below, but shall not apply to Purchase Orders with longer Lead
Times requested by NCR.
BEGINNING TIME PERIOD PRODUCT LEAD TIME
--------------------- ------- ---------
January 2, 1996 [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
October 1, 1996 [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
April l, 1997 [*] [*]
VI. Section 8.0. PROGRAM MANAGERS, PRODUCT QUALIFICATION AND ACCEPTANCE
PROCEDURE, AND QUALITY ASSURANCE, is hereby amended as follows:
The last sentence of Paragraph 8.2 "Establishing Product Qualification and
Acceptance (PQA) Procedures" is changed to read as follows:
In the event that the parties do not, on or before such date, reach an
agreement as to the PQA Procedure for a Product or Part, then NCR, may, at
its option, terminate this Agreement with respect to that Product or Part.
VII. Section 12.0. WARRANTY AND PRODUCT LIABILITY, is hereby amended as
follows:
Paragraph 12.1 is changed to read as follows:
12.1 General Warranty
12.1.1 [*]. (The text of Paragraph 12.1 of the Agreement is
inserted here in its entirety.)
12.1.2 [*]. A dispatch shall mean any time that as NCR Customer
Service Engineer is required to make an onsite service call during the
warranty period for the Product where a defect has been corrected which
in NCR's reasonable opinion was covered by the applicable Symbios
warranty. Multiple dispatches may occur in closing an open "incident".
12.1.2.1 To effect this reimbursement, NCR shall be responsible for
notifying Symbios of the warranty dispatch and shall provide the
following information:
a. The tracer/serial number of the system
b. The Part(s) required for the dispatch
c. The NCR trouble ticket number
d. The Part(s) ship to location and contact information
12.1.2.2 Immediately upon notification by NCR, Symbios will verify
the warranty entitlement on the system and for those systems which are
so verified will ship the required Part(s) and issue an RMA for the
Part(s) to be returned to Symbios. Symbios guarantees [*] for requests
received and verified by Symbios prior to [*]. NCR shall be responsible
for returning the failed Part(s) from the system in the same package or
equivalent as the replacement Part(s) arrive in. Symbios may xxxx NCR
far any such warranty claim Part(s) not so returned to Symbios within
[*] at the applicable rate for NCR.
4
12.1.2.3 NCR will invoice Symbios [*] for the warranty dispatches.
Such billing will include the date of the dispatch, NCR trouble ticket
number and the Symbios RMA number for each warranty dispatch.
12.1.2.4 Symbios will conduct or subcontract failure analysis on
all Parts returned from NCR. On a [*] basis Symbios and NCR will
calculate the ratio of no trouble found (NTF), if any, on the Part(s)
returned to Symbios by NCR. If the NTF rate exceeds [*].
12.1.3 [*]
Paragraph 12.4 "Epidemic Failures" is modified as follows:
Line 8: The clause "in the lot containing the actual or potential
defect(s) and/or defective component(s) which lead to breach of this
warranty" is inserted after "Parts".
A new Paragraph 12.8 is added as follows:
12.8 Field Retrofit Orders (FRO). Either NCR or Symbios may request
that an FRO be generated. Upon agreement that the FRO is needed, Symbios
will provide part numbers. estimated time of process, and instruction. NCR
will be responsible for writing the actual FRO. For all Products shipped by
Symbios after the Amendment Effective Date, Symbios Logic agrees to
reimburse NCR for NCR's labor for each FRO installed by NCR on the Products
at a rate of [*]. The reimbursement applies to those FROs where Symbios
Logic and NCR agree that end customer impact merits such treatment. It is
agreed that product safety and potential for catastrophic data loss are the
catastrophic data loss are the primary criteria for FRO labor
reimbursement. Payment will be based on the [*]. In the event that NCR and
Symbios are unable to agree on the need for a reimbursable FRO, the parties
may elect to resolve the issue through arbitration as set forth in
Paragraph 26.7.
Paragraph 12.8 of the Agreement is renumbered to Paragraph 12.9.
VII. Section 20.0. MANUFACTURING LICENSE, is hereby amended as follows:
Paragraph 20.2 "Manufacturing License for Cause" is changed to read as
follows:
In the event that Seller discontinues its business operations with
respect to the Products provided hereunder, NCR may require Seller to grant
to NCR an irrevocable, non-exclusive, [*] worldwide right and license under
Seller Intellectual Property Rights and any other manufacturing or other
rights of Seller necessary for NCR to manufacture or have manufactured the
Products and Parts. Seller shall, under such circumstances and at such
time, furnish to NCR all necessary assistance as will permit NCR to
commence manufacture of the Product(s) and Parts including, but not limited
to, providing a complete documentation package of all Seller Know-How along
with a reasonable amount of Seller Technical Assistance. In addition,
Seller agrees to sell or lease to NCR, if NCR desires, and based on its
then fair market value, [*].
IX. Section 21.0. LICENSE OF SOFTWARE, is hereby amended as follows:
The following is added at the end of Paragraph 21.1:
NCR shall pay to Seller a royalty for each copy of the software
distributed by NCR to its customers hereunder.
XII. Section 24.0. NEW TECHNOLOGY OR PRODUCT AND DISCONTINUATION OF
PRODUCTION, is hereby amended as follows:
The first two sentences of Paragraph 24.2 "Discontinuation of
Production" are stricken and replaced with the following:
In addition to any other notices that may be required in connection
with termination of this Agreement by Seller, Seller shall provide notice
at least [*] prior to the discontinuation of integrated controllers and [*]
prior to the discontinuation of production of a subsystem.
5
Except as amended by this Amendment, all other terms and conditions of the
Agreement remain the same.
THE PARTIES HAVE CAUSED THIS AMENDMENT TO BE EXECUTED BY THEIR AUTHORIZED
REPRESENTATIVES EFFECTIVE AS OF THE AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX SYMBIOS LOGIC INC.
(FORMERLY AT&T GLOBAL INFORMATION
SOLUTIONS COMPANY)
Signed: /s/ XXXXXXX [ILLEGIBLE] Signed: /s/ XXXXX X. XXXXXXX
------------------------------------- -------------------------------------
Printed: Printed: Xxxxx X. Xxxxxxx
------------------------------------ ------------------------------------
Title: Title: Vice-President, Business Units
--------------------------------------- ---------------------------------------
Date: Date: 1-14-98
--------------------------------------- ---------------------------------------
6
EXHIBIT A1 STANDARD MODELS
This Exhibit will contain the information provided in page 4 of the fax from
Symbios on Jan 23 at 9:51 am EST. The actual information will added to this
document prior to its execution.
Standard Models
1.
2.
3.
4.
Standard Kits
1.
2.
7
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 [*]. THE INFORMATION
OMITTED CONSISTS OF 2 PAGES.
EXHIBIT B1
[*]
8
SECOND AMENDMENT TO THE
OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995,
AS AMENDED BY THE FIRST AMENDMENT DATED JANUARY 2, 1996
This Second Amendment ("Second Amendment") to the
OEM Purchase Agreement
dated February 15, 1995 ("Agreement") between Symbios Logic Inc. ("Symbios") and
AT&T Global Information Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"),
as amended by the First Amendment dated January 2, 1996 ("First Amendment"), is
entered into by the parties and made effective this 5th day of March, 1997
("Second Amendment Effective Date"). Capitalized terms used but not defined
herein shall have the meaning ascribed to the in the Agreement or the First
Amendment, as applicable. This Second Amendment shall be coterminous with the
Agreement.
I. Section 3.0, PURCHASE ORDERS, is hereby amended as follows:
Paragraph 3.7, added to the Agreement in the First Amendment, is hereby
modified to read as follows:
3.7 Evaluation/Benchmark Units.
3.7.1 Symbios will loan NCR the equipment listed below, and may
loan NCR certain related hardware, software, firmware, documentation,
and information for NCR's use with that equipment. Symbios shall
determine the total value of the equipment permitted to be loaned to NCR
based on [*], and Symbios shall have the right, at its sole discretion,
to change such limitation at any time upon notice to NCR. Any such
change shall not affect loaned equipment in NCR's possession as of the
effective date of such change, which equipment NCR shall be permitted to
continue to use until the expiration of the applicable loan period. In
the event that the total value of the equipment loaned to NCR is
permitted to exceed such limitation, NCR shall pay to Symbios each [*].
The [*] carrying charge shall be payable throughout the loan period,
calculated from the date on which the units are shipped from Symbios to
the date on which the units are returned to Symbios, with [*]. Each
piece of equipment may be used by NCR for a period of [*]; however, NCR
shall have up to [*] by Symbios in which to return the equipment to
Symbios (to cover repackaging, transit, etc.). NCR shall issue orders
for these units of evaluation equipment from a single point of contact.
When returned to Symbios, the units will be refurbished, at the charges
to NCR indicated below, to "as-new" condition and will have the same
warranty as a new unit. Units refurbished by Symbios will be completely
updated to the latest revision levels. If an evaluation or benchmark
unit is not returned within [*], Symbios may xxxx NCR upon notification
to NCR of its intent to do so, and NCR agrees to pay any such xxxx,
which billed amount shall be equal to the full price for such units. NCR
shall be responsible for shipping charges for the initial shipment out
and the return shipment associated with all evaluation equipment.
REFURBISHMENT
MODEL # CHARGE
------- -------------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
3.7.2 (The text of Paragraph 3.7.2 of the First Amendment is
inserted here in its entirety.)
3.7.3 (The text of Paragraph 3.7.3 of the First Amendment is
inserted here in its entirety)
Except as amended by this Second Amendment, all other terms and conditions
of the Agreement and the First Amendment remain the same.
1
THE PARTIES HAVE CAUSED THIS SECOND AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE SECOND AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX SYMBIOS LOGIC INC.
(FORMERLY AT&T GLOBAL INFORMATION
SOLUTIONS COMPANY)
Signed: /s/ XXX XXX Signed: /s/ XXX XXXXXXXX
------------------------------------- -------------------------------------
Printed: Xxx Xxx Printed: Xxx Xxxxxxxx
------------------------------------ ------------------------------------
Title: AVP, CSG, SM&L Title: VP GM Storage Systems
--------------------------------------- ---------------------------------------
Date: Date: 1-14-98
--------------------------------------- ---------------------------------------
2
THIRD AMENDMENT TO THE
OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995
This Third Amendment ("Third Amendment") to the
OEM Purchase Agreement
dated February 15, 1995 ("Agreement") between Symbios Logic Inc. ("Symbios") and
AT&T Global Information Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"),
as amended by prior amendments executed by the parties, is entered into by the
parties and made effective this 13 day of August, 1997 ("Third Amendment
Effective Date"). Capitalized terms used but not defined herein shall have the
meaning ascribed to the in the Agreement. This Third Amendment shall be
coterminous with the Agreement.
WHEREAS, Symbios has provided or caused to be provided to NCR through
Symbios' authorized agent(s) the quotation(s) listed below for additional work
not set forth in the Agreement; and
WHEREAS, NCR desires that Symbios perform such additional work in
accordance with such quotation(s);
NOW, THEREFORE, the parties agree as follows:
I. The following quotation(s) attached hereto are hereby incorporated
into the Agreement by mutual agreement of the parties.
QUOTATION NUMBER SUBJECT
---------------- -------
[*] NSC Assembly & Test
II. The above listed quotation(s) and all work to be performed and all
payments to be made thereunder shall be subject to the terms and conditions
of the Agreement and all prior amendments thereto, except as expressly set
forth herein or in the quotation(s).
Except as amended by this Third Amendment, all other terms and conditions
of the Agreement and all prior amendments thereto remain the same.
THE PARTIES HAVE CAUSED THIS THIRD AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE THIRD AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX SYMBIOS LOGIC INC.
(FORMERLY AT&T GLOBAL INFORMATION
SOLUTIONS COMPANY)
Signed: /s/ XXX XXX Signed: /s/ XXX XXXXXXXX
------------------------------------- -------------------------------------
Printed: Xxx Xxx Printed: Xxx Xxxxxxxx
------------------------------------ ------------------------------------
Title: AVP SM&L Title: Vice President Storage Systems
--------------------------------------- ---------------------------------------
Date: Date: 8/19/97
--------------------------------------- ---------------------------------------
1
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 [*]. THE INFORMATION
OMITTED CONSISTS OF 3 PAGES.
[*]
GROUP 2000 SALES, INC.
The Choice of Intelligence
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000-000-0000 FAX 000-000-0000
7/14/97
[*]
2
FOURTH AMENDMENT TO THE
OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995
This Fourth Amendment ("Fourth Amendment") to the
OEM Purchase Agreement
dated February 15, 1995 ("Agreement") between Symbios Logic Inc. ("Symbios") and
AT&T Global Information Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"),
as amended by prior amendments executed by the parties, is entered into by the
parties and made effective this 13 day of August, 1997 ("Fourth Amendment
Effective Date"). Capitalized terms used but not defined herein shall have the
meaning ascribed to the in the Agreement. This Fourth Amendment shall be
coterminous with the Agreement.
WHEREAS, Symbios has provided or caused to be provided to NCR through
Symbios' authorized agent(s) the quotation(s) listed below for additional work
not set forth in the Agreement; and
WHEREAS, NCR desires that Symbios perform such additional work in
accordance with such quotation(s);
NOW, THEREFORE, the parties agree as follows:
I. The following quotation(s) attached hereto are hereby incorporated
into the Agreement by mutual agreement of the parties.
QUOTATION NUMBER SUBJECT
---------------- -------
[*] Quarray Development
II. The above listed quotation(s) and all work to be performed and all
payments to be made thereunder shall be subject to the terms and conditions
of the Agreement and all prior amendments thereto, except as expressly set
forth herein or in the quotation(s).
Except as amended by this Fourth Amendment, all other terms and conditions
of the Agreement and all prior amendments thereto remain the same.
THE PARTIES HAVE CAUSED THIS FOURTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE FOURTH AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX
(FORMERLY AT&T GLOBAL INFORMATION
SOLUTIONS COMPANY) SYMBIOS LOGIC INC.
Signed: /s/ XXX XXX Signed: /s/ XXX XXXXXXXX
--------------------------------------------- ---------------------------------------------
Printed: Xxx Xxx Printed: Xxx Xxxxxxxx
--------------------------------------------- ---------------------------------------------
Title: AVP, SM&L Title: Vice President Storage Systems
--------------------------------------------- ---------------------------------------------
Date: Date: 8/19/97
--------------------------------------------- ---------------------------------------------
1
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 [*].
[*]
GROUP 2000 SALES, INC.
The Choice of Intelligence
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000-000-0000 FAX 000-000-0000
7/25/97
[*]
2
FIFTH AMENDMENT TO THE
OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995
This Fifth Amendment ("Fifth Amendment") to the OEM Purchase Agreement
dated February 15, 1995 ("Agreement") between Symbios Logic Inc. now known as
Symbios, Inc. ("Symbios") and AT&T Global Information Solutions Company, now
known as XXX Xxxxxxxxxxx ("NCR"), as amended by prior amendments executed by the
parties, is entered into by the parties and made effective this day of
, 1998 ("Fifth Amendment Effective Date"). Capitalized terms used but
not defined herein shall have the meaning ascribed in the Agreement. This Fifth
Amendment shall be coterminous with the Agreement.
WHEREAS, Symbios has provided or caused to be provided to NCR through
Symbios' authorized agent the quotation listed below for additional work not set
forth in the Agreement; and
WHEREAS, NCR desires that Symbios perform such additional work in
accordance with such quotation;
NOW, THEREFORE, the parties agree as follows:
1.0 Additional Work
I. The following quotation attached hereto is hereby incorporated into
the Agreement by mutual agreement of the parties.
QUOTATION NUMBER SUBJECT
---------------- -------
Dated 2/27/98 SYMplicity(TM)
II. The above listed quotation and all work to be performed and all
payments to be made thereunder shall be subject to the terms and conditions
of the Agreement and all prior amendments thereto, except as expressly set
forth herein or in the quotation.
III. The SYMplicity(TM) storage manager for Solaris X86, version 6.X,
will be licensed to NCR in accordance with Section 21 of the Agreement.
IV. The SYMplicity(TM) storage manager for Solaris X86, version 6.X,
will be supported by Symbios in accordance with Section 14 of the
Agreement.
2.0 Exhibit G -- Equipment Loaner Agreement: The attached Exhibit G is
added in its entirety to the Agreement.
3.0 Section 12.0, WARRANTY AND PRODUCT LIABILITY, of the Agreement is
hereby amended as follows:
II. A new Paragraph 12.1.4 is added as follows:
12.1.4 Virus Warranty for SYMplicity(TM) Storage Manager for
Solaris X86: During the warranty period set forth in Section 12.1.1,
Symbios warrants that if Symbios learns or suspects that SYMplicity(TM)
Storage Manager for Solaris X86 provided by Symbios to NCR in connection
with this Agreement contains any Virus, Symbios shall immediately notify
NCR and shall make every reasonable effort to immediately remove the
Virus and supply a copy of replacement software to NCR. For purposes of
this warranty, "Virus" shall mean any code, programming instructions or
set of instructions that is designed to damage, interfere with or
otherwise adversely affect computer programs, data files or hardware
without the consent or intent of the user of the Product.
Except as amended by this Fifth Amendment, all other terms and conditions
of the Agreement and all prior amendments thereto remain the same.
1
THE PARTIES HAVE CAUSED THIS FIFTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE FIFTH AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX
(FORMERLY AT&T GLOBAL INFORMATION SYMBIOS, INC.
SOLUTIONS COMPANY) (FORMERLY SYMBIOS LOGIC INC.)
Signed: Signed:
-------------------------------------- --------------------------------------
Printed: Xxxxx Xxxxxxx Printed:
------------------------------------- -------------------------------------
Title: VP, SM&L Title:
--------------------------------------- ----------------------------------------
Date: Date:
---------------------------------------- ----------------------------------------
2
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 [*].
[*]
GROUP 2000 SALES, INC.
The Choice of Intelligence
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000-000-0000 FAX 000-000-0000
2/27/98
[*]
3
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 [*]. THE INFORMATION
OMITTED CONSISTS OF 3 PAGES.
EXHIBIT G
EQUIPMENT LOANER AGREEMENT
[*]
SIXTH AMENDMENT TO THE OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995
This Sixth Amendment ("Sixth Amendment") to the OEM Purchase Agreement
dated February 15, 1995 ("Agreement") between Symbios Logic Inc. now known as
Symbios, Inc. ("Symbios") and AT&T Global Information Solutions Company, now
known as XXX Xxxxxxxxxxx ("NCR"), amended by prior amendments executed by the
parties, is entered into by the parties and made effective this 30th day of
June, 1998 ("Sixth Amendment Effective Date"). Capitalized terms used but not
defined herein shall have the same meaning ascribed to in the Agreement. This
Sixth Amendment shall be coterminous with the Agreement.
The parties agree as follows:
1.0 AT&T Global Information Solutions has changed its name to XXX
Xxxxxxxxxxx and Symbios Logic, Inc. has changed its name to Symbios, Inc. The
parties agree that this amendment and any other subsequent amendments to the
Agreement will use these names or such other names the parties may use in the
future.
2.0 Revise section 21.1 as follows:
21.0 LICENSE OF SOFTWARE
21.1 As to software which may be provided under this Agreement
(either separately or with a Product) and which is not fully licensed to
NCR pursuant to the Purchase and Sale Agreement or its ancillary
agreements, patents, copyrights, and other intellectual property rights
relating to that software) a perpetual, worldwide, non-exclusive,
non-transferable license to reproduce or distribute, either directly or
through its replicator, contract manufacturer/computer system OEM
supplier or distributor, under terms no less stringent than those
contained in this Agreement, copies of the software in object code
format only, onto a floppy disk or the hard disk of a system, one copy
per system, and to distribute such copies to NCR's customers. NCR may
distribute a pre-installed copy and a copy on removable media for use
with each system. For purposes of royalty or license fee accounting, the
pre-installed and the removable copy distributed with a single system
shall be treated as a single copy. If the software package includes a
"break the seal" license agreement in the package containing the
software, NCR may transfer the package to its customer without altering
the package or its contents and the license agreement will be between
Seller and the customer. If the software does not contain a "break the
seal" license agreement or if NCR opens the package for installation of
the software prior to resale, NCR will license the software to its
Customers pursuant to its standard terms and conditions. NCR shall pay
to Symbios a royalty for each copy of the software distributed by NCR to
its customers hereunder.
3.0 Section 12.0, WARRANTY AND PRODUCT LIABILITY, of the Agreement is
hereby amended as follows:
I. Revised Section 12.1.4 as follows:
12.1.4 Virus Warranty for Software Products: During the warranty
period set forth in Section 12.1.1, Symbios warrants that if Symbios
learns or suspects that Software Products provided by Symbios to NCR in
connection with this Agreement contains any Virus, Symbios shall
immediately notify NCR and shall make every reasonable effort to
immediately remove the Virus and supply a copy of replacement software
to NCR. For purposes of this warranty, "Virus" shall mean any code,
programming instructions or set of instructions that is designed to
damage, interfere with or otherwise adversely affect computer programs,
data files or hardware without the consent or intent of the user of the
Product.
1
II. A new Paragraph 12.1.5 is added as follows:
12.1.5 Year 0000 Xxxxxxxx for Y2K-Compliant Software Products: For
the period commencing on the Sixth Amendment Effective Date and ending
on the 31st day of January, 2001, Symbios warrants that the Symbios
Year-2000 compliant Products listed in the attachment to this Sixth
Amendment (Attachment A), shall accurately process date/time data
(including but not limited to calculating, comparing, and sequencing)
from, into and between the twentieth century and the twenty-first
century, and the years 1999 and 2000 and leap year calculations and that
the Symbios Year-2000 compliant Products will, when used in combination
with other data processing technology, accurately process date/time data
if the other information technology properly exchanges date/time data
with it. Upon receipt of written notification from NCR of any
non-compliance with this warranty, Symbios shall make every reasonable
effort to immediately correct the non-compliance and supply a copy of
replacement software to NCR.
4.0 Section 4.0, PRICES, of the Agreement is hereby amended as follows:
A new Paragraph 4.5 is added as follows: 4.5 SOFTWARE PRICE CHANGES
Symbios may not change the prices for any Software product listed in
Attachment B of this amendment under this Agreement any time during the
first calendar year after Symbios' first shipment to NCR. After the first
year Symbios may notify NCR of Software price changes and the basis for
such changes. NCR shall commence paying new prices effective [*] after
Symbios' written notice of Software price change, unless otherwise agreed
to by the parties. Thereafter Symbios may exercise its rights under this
Section 4.0 (Prices) with regard to price changes for Software.
Except as amended by this Sixth Amendment, all other terms and conditions
of the Agreement and all prior amendments thereto remain the same.
THE PARTIES HAVE CAUSED THIS SIXTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE SIXTH AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX SYMBIOS, INC.
Signed: Signed: /s/ Xxx Xxxxxxxx
-------------------------------------------- --------------------------------------------
Printed: Xxxxx Xxxxxxx Printed: Xxx Xxxxxxxx
-------------------------------------------- --------------------------------------------
Title: VP SM&L Title: VP & General Manager, Symbios Storage
-------------------------------------------- Systems
Date: --------------------------------------------
-------------------------------------------- Date: 7/6/98
--------------------------------------------
2
ATTACHMENT A
SYMBIOS LOGIC YEAR 2000-COMPLIANT PRODUCTS
1. Raid Manager 5.02.03 or later
2. SYMplicity(TM) Storage Manager 6.20 or later
3. Series 3/Series 4 RAID controllers application firmware, 2.01 or later
4. Series 3/Series 4 RAID controllers boot firmware versions 2.01, 2.02,
2.03.04 or later, 2.04, 2.05 or later
5. SYMplicity(TM) Storage Manager for Solaris X86, version 6.01.XX or later
ATTACHMENT B
Software Products:
Raid Manager for UNIX MP RAS Version 5.05
SYMplicity Storage Manager for Solaris X86 Version 6.01.XX
SYMplicity Storage Manager for NT Version 6.20.XX
SEVENTH AMENDMENT TO THE OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995
This Seventh Amendment ("Seventh Amendment") to the OEM Purchase Agreement
dated February 15, 1995 (Agreement") between Symbios Logic Inc. now known as
Symbios, Inc. ("Symbios") and AT&T Global Information Solutions Company, now
known as XXX Xxxxxxxxxxx ("NCR"), amended by prior amendments executed by the
parties, is entered into by the parties and made effective this day of
, 1998 ("Seventh Amendment Effective Date"). Capitalized terms used
but not defined herein shall have the meaning ascribed in this Agreement. This
Seventh Amendment shall be coterminous with the Agreement.
WHEREAS, the parties desire NCR to loan equipment to Symbios in support of
Symbios' testing and certification of the NCR 6288 QuArray disk array for the
NCR Eclipse platform; and
WHEREAS, NCR and Symbios desire to amend and addend the Agreement to add
the new list of supporting equipment to "Exhibit G: Equipment Loaner Agreement"
of the Fifth Amendment to this OEM Purchase Agreement ("Fifth Amendment");
NOW, THEREFORE, the parties agree as follows:
1.0 Add "Attachment 1A to Loaner Agreement" in its entirety, attached
hereto, to the Fifth Amendment's Exhibit G: Equipment Loaner Agreement.
3.0 Throughout the Agreement, references to Attachment 1 to Loaner
Agreement, will refer equally to the added Attachment 1A.
Except as amended by this Seventh Amendment, all other terms and conditions
of the Agreement and all prior amendments thereto remain the same.
THE PARTIES HAVE CAUSED THIS SEVENTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE SEVENTH AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX SYMBIOS, INC.
(FORMERLY AT&T GLOBAL (FORMERLY SYMBIOS LOGIC, INC.)
INFORMATION SOLUTIONS COMPANY)
Signed: /s/ XXXXX XXXXXXX
-------------------------------------------- Signed:
------------------------------------
Printed: Xxxxx Xxxxxxx
-------------------------------------------- Printed:
------------------------------------
Title: VP SM&L
-------------------------------------------- Title:
--------------------------------------
Date: 11/17/98
-------------------------------------------- Date:
--------------------------------------
1
ATTACHMENT 1C TO EQUIPMENT LOANER AGREEMENT EXHIBIT G1
(AMENDMENT #5)
EQUIPMENT DESCRIPTION
[*]
ATTACHMENT A-1 TO EQUIPMENT LOANER AGREEMENT EXHIBIT G1
(AMENDMENT #8)
EQUIPMENT DESCRIPTION
[*]
ATTACHMENT 1B TO EQUIPMENT LOANER AGREEMENT EXHIBIT G1
EQUIPMENT DESCRIPTION
The following is a part of the Loaner Agreement by and between XXX
Xxxxxxxxxxx and Symbios Inc.
The hardware/software configurations to be supplied by NCR to you are as
follows:
Hardware Description (include memory & peripherals)
[*]
Software Description (include OS & applications)
[*]
Documentation
NONE
EIGHTH AMENDMENT TO THE OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995
This Eighth Amendment ("Eighth Amendment") to the OEM Purchase Agreement
dated February 15, 1995 ("Agreement") between Symbios Logic Inc., now known as
LSI Logic Storage Systems, Inc. ("Symbios"), and AT&T Global Information
Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"), amended by prior
amendments executed by the parties, is entered into by the parties and made
effective the 15th day of December, 1998 ("Eighth Amendment Effective Date").
Capitalized terms used but not defined herein shall have the meaning ascribed in
the Agreement. This Eighth Amendment shall be coterminous with the Agreement.
WHEREAS, the parties desire NCR to loan equipment to Symbios in support of
Symbios' testing and certification of the [*]; and
WHEREAS, NCR and Symbios desire to amend and addend the Agreement to add
the new list of supporting equipment to "Exhibit G: Equipment Loaner Agreement"
of the Fifth Amendment to this OEM Purchase Agreement ("Fifth Amendment");
NOW, THEREFORE, the parties agree as follows:
1.0 Add "Attachment 1B to Loaner Agreement" in its entirety, attached
hereto, to the Fifth Amendment's Exhibit G: Equipment Loaner Agreement.
2.0 Term of Use. The term of use of the Equipment will be effective as
of the Eighth Amendment Effective Date and will terminate [*] from the
Effective Date, unless NCR earlier terminates or extends such dates.
3.0 Location of Equipment. The Equipment will be located at your
facility at:
LSI Logic Storage Systems, Inc.
4420 Arrows Xxxx Xxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
4.0 Throughout the Agreement, references to Attachment 1 to Loaner
Agreement, will refer equally to the added Attachment 1B.
Except as amended by this Eighth Amendment, all other terms and conditions
of the Agreement and all prior amendments thereto remain the same.
THE PARTIES HAVE CAUSED THIS EIGHTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE EIGHTH AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX LSI LOGIC STORAGE SYSTEMS, INC.
(FORMERLY AT&T GLOBAL (FORMERLY SYMBIOS LOGIC, INC.)
INFORMATION SOLUTIONS COMPANY)
Signed: /s/ XXXXX XXXXXXX Signed: /s/ XXXX XXXXXX
-------------------------------------------- --------------------------------------------
Printed: Xxxxx Xxxxxxx Printed: Xxxx Xxxxxx
-------------------------------------------- --------------------------------------------
Title: VP SM&L Title: VP & GM, Storage Components Div
-------------------------------------------- --------------------------------------------
Date: 12/20/98 Date: 12/22/98
-------------------------------------------- --------------------------------------------
1
ATTACHMENT 1B TO EQUIPMENT LOANER AGREEMENT EXHIBIT G1
EQUIPMENT DESCRIPTION
[*]
ATTACHMENT 1A TO LOANER EXHIBIT G1 TO LOANER AGREEMENT
TO LOANER AGREEMENT
EQUIPMENT DESCRIPTION
[*]
NINTH AMENDMENT TO THE OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 19, 1995,
This Ninth Amendment ("Ninth Amendment") to the OEM Purchase Agreement
dated February 15, 1995 ("Agreement") between Symbios Logic Inc., now known as
LSI Logic Storage Systems, Inc. ("LSI"), and AT&T Global Information Solutions
Company, now known as XXX Xxxxxxxxxxx ("NCR"), amended by prior amendments
executed by the parties, is entered into by the parties and made effective the
27th day of March, 2000 ("Ninth Amendment Effective Date"). Capitalized terms
used but not defined herein shall have the meaning ascribed in the Agreement.
This Ninth Amendment shall be coterminous with the Agreement.
WHEREAS, the parties desire NCR to loan equipment to LSI in support of
LSI's testing and certification [*]; and
WHEREAS, NCR and LSI desire to amend and addend the Agreement to add this
new list of supporting equipment to "Exhibit G: Equipment Loaner Agreement" of
the Fifth Amendment to this OEM Purchase Agreement ("Fifth Amendment");
WHEREAS, the parties desire LSI to loan equipment to NCR in support of
NCR's testing and certification of new [*] for NCR disk arrays supplied by LSI;
and
WHEREAS, NCR and LSI desire to amend and addend the Agreement to add this
new list of supporting equipment to "Attachment A: Symbios, Inc. Equipment Loan
Agreement" of the Eighth Amendment to this OEM Purchase Agreement ("Eighth
Amendment");
NOW, THEREFORE, the parties agree as follows:
1.0 For the loan of equipment by NCR to LSI, add "Attachment 1C to
Loaner Agreement" in its entirety, as attached hereto, to the Fifth
Amendment's Exhibit G: Equipment Loaner Agreement.
1.1 Term of Use. The term of use of the Equipment will be effective as
of the Ninth Amendment Effective Date and will terminate six (6) months
from the Effective Date, unless NCR earlier terminates or extends such
dates.
1.2 Location of Equipment. The Equipment will be located at LSI's
facility at:
LSI Logic Storage Systems, Inc.
0000 Xxxxx Xxxx Xx.
Xxxxxxx, XX 00000
1.3 Throughout the Agreement, references to Attachment 1 to Loaner
Agreement, will refer equally to the added Attachment 1C.
2.0 For the loan of equipment by LSI to NCR, add "Attachment A-1 to
Symbios, Inc. Equipment Loan Agreement", as attached hereto, to the Eighth
Amendment.
2.1 Term of Use. The term of use of the Equipment will be effective as
of the Ninth Amendment Effective Date and will terminate six (6) months
from the Effective Date, unless LSI earlier terminates or extends such
dates.
2.2 Location of Equipment. The Equipment will be located at NCR's
facility at:
XXX Xxxxxxxxxxx
00000 Xxx xxx Xxxxx
Xxx Xxxxx, XX 00000
2.3 Throughout the Agreement, references to Attachment A to Loaner
Agreement, will refer equally to the added Attachment A-1.
Except as amended by this Ninth Amendment, all other terms and conditions
of the Agreement and all prior amendments thereto remain the same.
1
THE PARTIES HAVE CAUSED THIS NINTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE NINTH AMENDMENT EFFECTIVE DATE.
XXX XXXXXXXXXXX LSI LOGIC STORAGE SYSTEMS, INC.
(formerly AT&T Global (formerly Symbios, Inc.)
Information Solutions Company)
Signed: /s/ XXXX XXXX Signed:
-------------------------------------------- ------------------------------------
Printed: Xxxx Xxxx, VP & GM Printed:
------------------------------------ ------------------------------------
Title: Teradata Development Division Title:
-------------------------------------- --------------------------------------
Date: 4/3/00 Date:
-------------------------------------- --------------------------------------
2
TENTH AMENDMENT TO THE OEM PURCHASE AGREEMENT ("AGREEMENT")
BETWEEN LSI LOGIC STORAGE SYSTEMS, INC. ("LSI") AND
XXX XXXXXXXXXXX, ("NCR") FORMERLY AT&T GIS
This Tenth Amendment ("Tenth Amendment") to the OEM Purchase Agreement
dated February 15, 1995 ("Agreement") between Symbios Logic Inc., now known as
LSI Logic Storage Systems, Inc. ("LSI"), and AT&T Global Information Solutions
Company, now known as XXX Xxxxxxxxxxx ("NCR"), amended by prior amendments
executed by the parties, is entered into by the parties and made effective
September 17, 2001 ("Tenth Amendment ("Effective Date"). Capitalized terms used
but not defined herein shall have the meaning ascribed in the Agreement. This
Tenth Amendment shall be coterminous with the Agreement.
1.0 Scope
Unless otherwise specified, all defined terms in the OEM Agreement shall
have the same meaning when used in this Tenth Amendment. NCR will act as the
primary point of contact for all NCR customers experiencing product problems.
LSI plays a key role in enabling NCR to support its Customers. This Tenth
Amendment details LSI's responsibilities with respect to that support.
2.0 Technical Information
2.1 To the extent available now, and during the life of this
Agreement, LSI shall provide the following, collectively referred to as
"Technical Information," [*]:
2.1.1 Problem History Database. A regularly updated problem history
database of problems that have been called into this group that include a
mutually agreed upon list of items.
2.1.2 Documentation. All information necessary to install, diagnose,
repair and maintain the Product, such as User, Operator, Diagnostic,
Service and Systems administrator manuals; Service test procedures; List of
any special hardware tools and service hardware test equipment used; Site
preparation and installation specifications; and related documentation for
the purpose of problem identification and resolution; Technical bulletins;
Engineering change orders; Software updates; Bulletin board access and web
site access; Other relevant materials. Engineering drawings and schematics;
Logic and timing diagrams; Software source code will be made available if
Products are discontinued or when mutually agreed that a customer
requirement necessitates further engineering analysis.
2.2 Documentation will be in an electronic format suitable for both
reproduction and for publishing on NCR's Corporate Intranet, and will be
updated by new Documentation from time-to-time as it becomes available [*].
Documentation currently available will be provided to NCR as soon as
practicable, but not more than [*] following the signing of this Agreement.
New Product Documentation will be provided to NCR no later than [*] prior
to Product shipment to the NCR Customer.
2.3 NCR will have the right to copy, modify and use, and have copied,
modified and used, the Documentation provided by LSI for the purpose of
providing desired manuals, training or support materials or the like
concerning the Product(s), provided that any LSI copyrights therein are
appropriately safeguarded. Such manuals, training or support materials are
to be used solely to support the Product(s). LSI shall include with each
unit of Product purchased a complete set of Documentation agreed upon by
NCR and LSI relating to the operation and/or maintenance thereof as is
customarily supplied to end users.
3.0 Technical Support
3.1 General Description. NCR shall attempt to resolve Customer
problems independently using the training and information provided by LSI.
If a greater level of technical expertise is required, NCR will engage LSI
in resolving the Customer's problem and will be the interface to the
customer throughout the problem resolution process. NCR will assign the
problem priority as detailed in Attachment 1 to this Exhibit and provide
LSI with a unique reference number. LSI shall use the same reference number
when communicating with NCR. NCR will provide LSI with all information
relevant to the problem, including, if applicable, the method used by NCR
to duplicate the problem on its own systems. NCR will
1
convey such information to LSI by whatever means both parties agree are
most expedient. LSI shall make available via telephone or other appropriate
means of communication 7 days per week, 24 hours per day, 365 days per year
individuals sufficiently skilled to assist NCR in problem resolution. If
necessary, LSI's technical representative shall be available to provide
on-site support at Customer's location. LSI agrees that LSI Technical
Support shall be provided at an agreed upon Technical Support charge and
stated in Exhibit B. If LSI fails to meet agreed upon performance metrics
(shown in Section 4.8.3) or the Product quality falls below product
specifications, NCR has the right to readdress the LSI Technical Support
charge.
3.2 Levels of Support -- NCR shall provide Level l and Level 2
support. LSI agrees to provide Xxxxx 0 support on an as-required basis.
3.2.1 Level 1 -- Call acceptance and ownership until resolution.
Gather problem information and determine criticality. Search knowledge
base and deliver known solutions to Customer. Dispatch NCR Customer
Engineer as appropriate. Escalate to Xxxxx 0 support as required.
3.2.2 Level 2 -- Respond to Xxxxx 0 escalations with a higher level
of expertise in a specific technology area. Develop and gain customer
agreement for problem isolation, solution creation and solution
implementation plan. Provide an existing fix, work-around solution, or
escalate to LSI for assistance. Coordinate LSI's response.
3.2.3 Level 3 -- Assign resources as required to resolve problem in
accordance with Attachment 1 and Section 3.3 below. Work with XXX Xxxxx
0 support to coordinate the development and delivery of problem
solutions.
3.3 Response, Update and Resolution Guidelines -- When LSI has been
engaged by NCR in problem resolution, LSI will use commercially reasonable
efforts to comply with the guidelines specified in Attachment 1 enabling
NCR to meet commitments to its customers.
3.3.1 Time frame measurements specified in Attachment 1 begin when
LSI is first contacted by NCR. Problem resolution is considered complete
when LSI communicates a recommended problem solution to NCR and NCR
verifies successful implementation of the recommended solution with the
NCR customer, Account Team, or field support representative.
3.3.2 After hour support requests by NCR will be limited to
Priority One and Priority Two customer calls unless otherwise mutually
agreed upon by NCR and LSI. LSI's product specialist shall be available
via telephone to enable an expected engagement [*].
3.3.3 Both NCR and LSI support organizations agree to log all
reported customer problems into their respective problem resolution
tracking systems. Incidents logged, and their associated documented
activities in each party's problem tracking system, for the same
reported customer problem, will be tracked manually between the parties
(phone, Fax, etc.) until such time as NCR and LSI can interface
electronically into each other's problem tracking system. NCR and LSI
will work towards implementing this systems interface within [*], but
not more than [*], of this Tenth Amendment implementation.
3.4 LSI Logic Point(s) of Contact. LSI's point(s) of contact for
Technical Support shall be provided to NCR as soon as practicable, but not
more than [*] following the signing of the Tenth Amendment.
3.5 Continuing Availability. LSI's Technical Support as described in
this Section 3 shall be available to NCR during the term of the Agreement
and for [*].
3.6 Reporting. LSI shall provide NCR with a [*] report which details
LSI's performance relative to the Response and Resolution Guidelines
specified in this Section 3 and Attachment 1. At a minimum, the report will
include a complete list of problems escalated to LSI, the time and date
each call was received, a brief description of each problem, its Priority
Level, the time between LSI's call receipt and initial response, problem
status, and if resolved, the date and time of closure.
2
4.0 Parts
4.1 Identification. A complete Parts list will be provided to NCR at
least [*] prior to the delivery of the first new Product of each type
ordered by NCR. LSI will use best efforts to provide a [*] leadtime on
emergency changes. LSI shall provide a recommended spare Parts list
designating those Parts (and quantities) which are recommended for spare
Parts and those parts that are not. NCR may add components to the
recommended spare parts list. NCR will define the subassembly level of
orderable spare Parts. LSI shall provide a translation table relating the
LSI Part to NCR Part number for each Product. This list shall include the
prime and all family members of all part and products.
4.2 Availability. LSI shall make available to NCR such Parts as NCR
may require for all Products purchased by NCR from LSI for a period of not
less than [*]. LSI shall notify NCR in writing at least [*] for integrated
controllers and [*] for subsystems and other parts prior to discontinuing
the availability of these Parts during and after this period. NCR may then
buy, and LSI shall provide, such quantities as NCR deems necessary to
fulfill its Product support requirements.
4.3 First Article Inspection.
4.3.1 All initial purchases of a particular type of Part or Product
from LSI shall be subject to first article inspection by NCR at NCR
Peachtree City-Parts Distribution and Repair Center (PDRC).
4.3.2 A minimum of [*] is required for proper evaluation of product
during the first article inspection process. If the initial order
quantity is [*], future Orders will be subject to first article
inspection until the minimum quantity requirement has been successfully
met.
4.3.3 First article inspection is based on the Part or Product's
conformance to functional specifications, engineering drawings,
procurement specifications, NCR standards for workmanship, Electro
Static Discharge, packaging, and the NCR Supplier Guide, as long as it
does not conflict with the original Statement of Work. Any rejected
product will be returned for corrective action at the expense of the LSI
pursuant to the OEM Agreement.
4.4 Lead Time. Lead Time for RAID Products, all other current
products, and Parts are provided in the OEM Agreement and within Amendment
One to the OEM Agreement. Lead time will be measured from receipt of NCR's
purchase order to availability for shipment.
4.5 Emergency Orders. LSI shall accept Emergency Orders from NCR
seven (7) days a week, twenty-four (24) hours per day, three hundred sixty
five (365) days per year for all Parts. LSI shall fill all Emergency Orders
at an agreed to charge as specified in Exhibit B. LSI shall use best
efforts, including taking material from production or from other customers'
non-Emergency orders, to make the Part available for shipment within [*]
following receipt of the Emergency Order. LSI shall provide waybill
information to NCR no later than [*]. LSI's point(s) of contact for
Emergency Orders and point(s) of contact for escalation of problems
associated with Emergency Orders will be provided to NCR as soon as
practicable, but not more than [*] following the signing of this Agreement.
4.6 Reworkable Parts. "Reworkable Parts" are Parts that have failed,
but may be reworked to perform in accordance with their Specifications. LSI
shall repair and restore defective Parts and/or Products (including the
cosmetic appearance) to a like-new condition. A like-new condition means
the Part or Product will be repaired to meet the latest OEM specifications
and/or revision levels and the requirements of this Agreement, including
but not limited to, performance, reliability, and life expectancy. LSI
shall restore the Parts or Products to normal operating condition by
readjustments and/or material replacement of components. NCR will assist
the LSI with part number specification due to board revisions.
4.6.1 Upon receipt of Reworkable Parts, LSI Logic shall rework the
part within a lead time of [*] (measured from receipt of the defective
part by LSI to shipment of the repaired part to NCR) and return the part
to NCR.
3
4.6.2 Reworkable Parts no longer under warranty at the time of
failure may be returned to LSI for repair at the identified rework price
provided by LSI as outlined in Exhibit B of the Agreement; however, NCR
reserves the right to choose an alternate repair Supplier as mutually
agreed to on a case by case basis. Upon receipt of Reworkable Parts, LSI
shall rework the part and return it to NCR within the lead time
specified in Section 4.6.1. LSI's location(s) for receipt of Reworkable
Parts shall be provided to NCR as soon as practicable, but not more than
[*] following the signing of the Agreement.
4.6.3 LSI shall attach a rework label to each reworked Product or
Part returned to NCR in accordance with the NCR Supplier Guide. The
rework label provides a repair status and a new label will be used each
time a Product or Part is repaired. All previous rework labels shall
remain on the Product or Part.
4.6.4 If LSI determines the Part or Product is non-repairable, LSI
shall contact the NCR Buyer listed on the Purchase Order for disposition
instructions. Decisions to scrap NCR property will be solely that of NCR
and will not be independently made by LSI without consultation with NCR.
Material will be returned to NCR freight collect within [*] to NCR of
non-repairable.
4.6.5 LSI shall notify NCR in writing at least [*] prior to
discontinuing repair services for any Part or Product. LSI shall provide
to NCR applicable Engineering drawings, Product specifications, and all
other information relevant to the manufacturing and repair of the
Product that will allow NCR to identify the Product and repair
requirements to an alternate repair source.
4.6.6 LSI agrees that Parts and packaging will be in clean,
like-new condition, and are subject to the same cosmetic, quality and
acceptance criteria under the Agreement as new Products and Parts. LSI
shall package parts individually in a protective package that is
suitable for individual distribution, and which includes a label
identifying both the LSI and NCR part number. Each shipment will have
its own packing list that will identify the NCR part numbers and
purchase order numbers included. Any exception must be negotiated with
NCR. If displays or monitors are reworked, phosphor xxxxx are not
allowed anywhere on the CRT. No bends or twists in metal frames,
brackets, enclosures, etc. are allowed. NCR will provide workmanship
standards for cosmetic details and standards concerning acceptable
defects on printed circuit boards upon request.
4.6.7 LSI will provide NCR with a [*] repair activity report
containing the following information:
1. NCR Part Number
2. Description
3. Serial Number
4. Warranty Status
5. NFF Status
6. Repair Action Description
7. Repair Price
8. NFF Price
9. Purchase Order Number
4.6.8 Inspection of Repair Services. If any repair services do not
conform to the requirements of this Agreement, NCR may require LSI to
perform the repairs again to conform with the requirements, at no
additional cost to NCR. LSI shall provide a Return Material
Authorization
4
(RMA) number within [*] of NCR's request for a RMA enabling NCR to
return non-conforming Parts or Products. If defects in services cannot
be corrected by re-performance, NCR may:
4.6.8.1 Require LSI to take necessary action to ensure that
future performance conforms to requirements; and
4.6.8.2 Reduce the purchase order price to reflect the reduced
value of the Services performed.
4.6.9 Any shipment of non-complying Products or Parts by NCR to LSI
and the return shipment of repaired or replacement Products or Parts by
LSI to NCR will be at LSI's expense.
4.6.10 Title and Risk of Loss. NCR shall retain title to all its
property furnished to LSI for repair under this Agreement. LSI assumes
the risk of, and shall be responsible for, any loss, destruction of, or
damage to NCR property upon its delivery to LSI, and such risk shall
remain with LSI until the repaired Parts and/or Products are delivered
to NCR's designated carrier.
4.7 Ordering and Invoicing. NCR's Worldwide Service Logistics
("WSL") organization prefers to use EDI or other electronic methods for
ordering and invoicing. LSI agrees to cooperate with NCR in establishing
electronic ordering and invoicing processes, and to obtain and operate such
hardware and software as is reasonably required to implement such
processes. The terms of payment for all invoices is net [*] predicated on
WSL previously receiving a defect free shipment. All properly matched
invoices are paid by check in US Dollars.
Where EDI transactions are not used, all invoices must be mailed to:
XXX Xxxxxxxxxxx
X.X. Xxx 0000
Xxxxxxxxx Xxxx, XX 00000
Attention: Finance Department
LSI may obtain additional information about an invoice by contacting the
NCR WSL buyer or purchasing manager. LSI agrees to participate in [*] telephone
calls with NCR to reconcile open invoice and purchase order issues.
4.8 LSI Performance Evaluation.
4.8.1 The LSI Performance Evaluation shall be performed [*] by NCR
to review and evaluate LSI performance pursuant to technical compliance,
on-time delivery, quality level, purchase price variance, and overall
responsiveness to contractual requirements. The primary vehicle for
evaluating LSI performance will be the LSI Scorecard.
4.8.2 The LSI Performance Evaluation will measure delivery and
conformance for general purchases and rework. Delivery performance will
be measured by comparing the number of days late or early against the
contract ship date. NCR will rate LSI Out-of-Box failure ("OBF")
performance as a critical component in LSI Logic's performance. NCR will
monitor LSI performance during the warranty period as a major component
in overall LSI performance. Spare Part receipt conformance (packaging,
labeling, etc.) will be measured against the requirements contained in
the NCR Supplier Guide.
4.8.3 At a minimum, the following shall be part of the [*] LSI
scorecard review:
- [*]
4.8.4 All formal and informal reviews shall be documented by NCR
and LSI to include all action plans and action items.
5
5.0 Closed Loop Corrective Actions
5.1 LSI must have a documented quality policy identifying a complete
close loop corrective action (CLCA) procedure, which is comprised of the
following elements: Problem Identification, Determination of Root Cause,
Timely and Effective Corrective Action, and Verification of Corrective
Action.
5.2 NCR shall have the option of returning all failures for full,
root-cause, corrective action Failure Analysis by LSI. At NCR's discretion,
failures will be routed for analysis and return, or analysis and repair.
LSI shall provide a Return Material Authorization (RMA) number within [*]
of NCR's request for an RMA. NCR must provide the Part serial number and
failure data. LSI shall maintain equipment and personnel to provide prompt
and accurate failure analysis or standard repair on all Parts and Products
covered by this agreement.
5.3 Detailed failure analysis data and recommended corrective action
measures shall be provided to NCR upon completion of all failure analysis
actions.
5.3.1 For non-critical Failure Analysis requirements, LSI shall
conduct Failure Analysis and report the final Failure Analysis results
to NCR within [*] from receipt of the product.
5.3.2 For mutually agreed upon critical Failure Analysis
requirements (e.g. data corruption/data integrity issues), LSI shall
perform and report final Failure Analysis results within [*] and conform
to the times specified below for LSI's Closed Loop Corrective Action
process from receipt of a failed Product or Part. LSI shall communicate
the results of each step of the process to NCR.
- [*]
6.0 Packaging, Shipping, and Transportation
6.1 Specific packaging, shipping, and transportation requirements and
information are provided in the NCR Supplier Guide.
6.2 The shipping method of purchased items shall be determined by NCR.
An NCR designated carrier shall make all shipments. NCR will monitor
compliance with shipments via NCR designated carriers. If shipments are
made to NCR via non-approved carriers without prior coordination with NCR,
LSI shall pay to NCR the difference in shipping charges between shipment
via the NCR designated carrier and the carrier used. NCR will report and
xxxx for shipping non-compliance on a quarterly basis.
7.0 NCR Supplier Guide
7.1 Details of NCR operational procedures related to Parts ordering,
labeling, packaging, shipping, and transportation are available in the NCR
Supplier Guide. LSI may request the Supplier Guide on 3.5 inch diskette
(Microsoft Word format) or in hard (paper) copy.
7.2 The Supplier Guide is available for current and potential NCR
Service Parts Suppliers. The Supplier Guide contains guidelines that the
Supplier shall follow to be considered as a business partner with NCR.
7.3 LSI shall immediately notify NCR if it is unable to comply with
any provision of the Supplier Guide prior to signing the Agreement.
8.0 Product Changes
Change Notification
LSI shall send notification for changes that affect form, fit, or function
of hardware, software, firmware, diagnostics and documentation changes.
Any notice of change from LSI must include at a minimum the following:
- Reason for change (e.g., availability of a part, cost reduction, etc.) If
fix, describe symptom: i.e., operator message, error code, customer
impact, etc.
6
- Desired date of manufacturing incorporation
- Difference between the old and new
- New Part MTBF, if applicable
- Results of testing that support same or better resulting performance
- Means of differentiating Products or Parts by identification number
change, revision level change, or by some other means so, that NCR can
discern the difference in parts, SW/FW packages, and documentation.
- Hardware stock disposition
- Interchangeability and migration restrictions
- Hardware rework instructions, if applicable
Delivery of Change Notification
LSI will provide the appropriate change notification to a designated
primary point of contact and one designated alternate point of contact within
NCR at the following address:
XXX Xxxxxxxxxxx
00000 Xxx xxx Xxxxx
Xxx Xxxxx, XX 00000
Sending Change Notifications
LSI shall send the change notifications to NCR via US mail or e-mail
(preferred), and the NCR contact person shall immediately acknowledge receipt by
sending an email to the LSI contact person. LSI shall issue change notices at
least [*] before the change is to be implemented, except in cases of emergency.
8.1 Interchangeability. If any change to Products or Parts affects
the interchangeability of the latest version and previous version Part, LSI
shall provide a different Part number for the latest version Parts. LSI
shall indicate whether each previous version is interchangeable with the
latest version and whether the latest version is interchangeable with each
previous version. LSI shall identify by tracer or serial number and NCR
part number those Products requiring the newer version Part. LSI shall
continue to make available, for the time period specified in Section 4.3 of
this Tenth Amendment, Parts which are identical to or two-way
interchangeable with the previous version.
8.2 Software Fixes and Updates. Fixes are bug fixes, critical
patches, modified documentation or other changes intended to correct
feature/function deficiencies in the Product. Updates are changes to the
Product which incorporate accumulated Fixes and new features into the
then-current version of the Product. Version Changes are new releases to
the software and/or firmware which incorporate fixes and well as new
features and enhancements. Major Releases have substantially different
software and firmware features. Major Releases will be signified by a
change to the release version in the most significant digit (6.22 versus
7.0.1), while a Version change will have a part number change to a lesser
significant digit (6.22 versus 6.23).
8.3 LSI hereby grants to NCR a [*], non-exclusive, worldwide license
to reproduce, use and distribute Fixes and Updates to affected Customers.
NCR will not knowingly provide such Fixes and Updates to Customers who have
not licensed the corresponding Product. All copies made by NCR will contain
any copyright, trademark, disclaimer or patent notices that appear on or in
the original provided by LSI.
8.4 Software Version Changes. If a Version change to the Product
addresses an identified Customer problem that has not been previously
resolved by a Fix or Update, LSI shall, provide NCR with the new Version of
the Product to affected customers. LSI hereby grants to NCR a [*], non-
exclusive, worldwide, license to reproduce, use and distribute the new
Version to Customers. NCR will not knowingly provide the new Version to
Customers who have not licensed the corresponding Product.
7
All copies will contain any copyright, trademark, disclaimer or patent
notices that appear on or in the original provided by the LSI Logic LSI
reserves the right to charge an upgrade fee at a mutually agreed upon
amount if the Version change is a Major Release with the exception of
Firmware changes.
9.0 Warranty Reimbursement
9.1 LSI shall reimburse NCR for Parts as described below. LSI Logic
Parts will be assigned to one of two Warranty Tiers.
9.1.1 LSI will [*].
9.1.2 Tier 3. Parts that fall into this Tier are normally
re-workable. LSI shall ensure that each Part has a serial number, model
number, date of manufacture, or some other identification that will
enable LSI to verify whether the part is under warranty. NCR will
accumulate the consumed Parts and periodically contact LSI to get a
Return Material Authorization (RMA). For Parts returned to LSI which are
still under warranty, LSI shall provide to NCR, at NCR's option, for
each Part shipped, (i) a replacement Part (new reworked to perform like
new), or (ii) a refund or purchase credit equal to LSI's NCR price for
the Part.
9.2 Warranty Period.
9.2.1 Specifics of General Warranty coverage for RAID products, all
other current products, and Disk drives are provided in basic OEM
Agreement and within Amendment 1 to the OEM Agreement.
9.2.2 LSI shall provide a [*] warranty on new buy spare Parts and a
[*] warranty on repaired Parts, and against defects in material and
workmanship for all products and parts from the time of repair. LSI
shall acknowledge its warranty obligation within [*] of receipt of a
Part or Product returned by NCR. All warranty eligibility will be based
on the Part Serial Number.
8
INITIAL STATUS TARGETED TYPICAL
PRIORITY RESPONSE UPDATES RESOLUTION PROBLEM
LEVEL TO NCR TO NCR TIMEFRAME [*] CHARACTERIZATION
-------- -------- ------- ---------- --- ----------------
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
9
AGREED TO AND ACCEPTED
XXX XXXXXXXXXXX LSI LOGIC STORAGE SYSTEMS
By: /s/ XXXXX X. XXXXXX By: /s/ X.X. XXXXXXXXXXX
----------------------------------------- -----------------------------------------
Name: Xxxxx X. Xxxxxx Name: X.X. Xxxxxxxxxxx
----------------------------------------- -----------------------------------------
Title: Vice President Title: VP & GM
----------------------------------------- -----------------------------------------
Date: 11/19/01 Date: 10/15/01
----------------------------------------- -----------------------------------------
10
AMENDMENT A TO AMENDMENT ONE OF THE OEM PURCHASE AGREEMENT
BETWEEN
LSI LOGIC STORAGE SYSTEMS, INC. ("LSI") AND XXX XXXXXXXXXXX ("NCR")
This is Amendment A to Amendment One ("Amendment" dated February 15, 1995)
of the OEM Purchase Agreement ("Agreement") dated February 15, 1995 between
Symbios Logic Inc., now known as LSI Logic Storage Systems, Inc. ("LSI") and
AT&T Global Information Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"),
amended by prior amendments executed by the parties, is entered into by the
parties and made effective September 17, 2001, Amendment A to Amendment One
("Effective Date"). Capitalized terms used but not defined herein shall have the
meaning ascribed in the Agreement. This Amendment A to Amendment One shall run
co-terminous with the Agreement.
Section 12.1.1 to 12.2.4 of Amendment One is deleted and replaced with the
following:
12.1 General Warranty
12.1.1 Class [*]. (The text of Paragraph 12.1 of the Agreement is
inserted here in its entirety.)
12.1.2 Class [*]. For Products of these types shipped after the
Amendment Effective Date, LSI shall provide a [*] from the date of LSI'
shipment to NCR.
12.1.2.1 Immediately upon notification by NCR, LSI will verify the
warranty entitlement on the system, and for those systems, which are so
verified, will ship the required Part(s) and issue an RMA for the Part(s)
to be returned to LSI. [*]. NCR shall be responsible for returning the
failed Part(s) from the system in the same package or equivalent as the
replacement Part(s) arrive in. LSI may xxxx NCR for any such warranty claim
Part(s) not so returned to LSI within [*] at the applicable rate for NCR.
12.1.2.2 LSI will conduct or subcontract failure analysis on all Parts
returned from NCR.
Section 12.8 of Amendment One is hereby deleted and replaced with the
following:
12.8 Epidemic and Equipment Field Retrofit Orders (FRO). FRO's are required
modifications to installed Products and Parts to meet safety requirements,
correct a known or discovered data corruption design deficiency, or address a
quality issue impacting systems availability in the Field. LSI and NCR can issue
an FRO for any reason. The criteria for determining if labor reimbursement
applies will be mutually agreed upon and revised annually. If a Product or
Part's performance does not conform to the mutually agreed criteria, then LSI
will provide labor reimbursement for the FRO.
In other instances where failure rates do not meet this criteria but the
impact to the end customer merits such treatment, it will be mutually agreed
upon by both parties whether an FRO and NCR's FRO labor cost reimbursement is
required. Methods for data collection and interpretation for FROs will be shared
with and agreed upon by both parties for the FRO to be considered valid.
Either NCR or LSI may request that an FRO be generated. If an FRO is
needed, LSI will provide part numbers, estimated time of process and
instruction. NCR will be responsible for writing the actual FRO. [*]. Payment
will be based on the [*] to repair for each FRO. In the event that NCR and LSI
are unable to agree on the need for a reimbursable FRO, the parties may elect to
resolve the issue through arbitration as set forth in Paragraph 26.7 of the
Agreement.
1
Exhibit E of the Agreement is hereby deleted.
APPROVALS:
XXX XXXXXXXXXXX LSI LOGIC STORAGE SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXX Name: /s/ X.X. XXXXXXXXXXX
----------------------------------------- -----------------------------------------
Title: Vice President Title: VP & GM
----------------------------------------- -----------------------------------------
Date: 11/19/01 Date: 10/15/01
----------------------------------------- -----------------------------------------
2
ELEVENTH AMENDMENT TO THE OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS
DATED FEBRUARY 15, 1995
This Eleventh Amendment ("Eleventh Amendment") to the OEM Purchase
Agreement dated February 15, 1995 ("Agreement") between Symbios Logic Inc., now
known as LSI Logic Storage Systems, Inc. ("LSI"), and AT&T Global Information
Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"), amended by prior
amendments executed by the parties, is entered into by the parties and made
effective the 16th day of April, 2001 ("Eleventh Amendment Effective Date").
Capitalized terms used but not defined herein shall have the meaning ascribed in
the Agreement. This Eleventh Amendment shall be coterminous with the Agreement.
WHEREAS, the parties desire NCR to loan equipment to LSI in support of
LSI's testing and certification of NCR's [*]; and
WHEREAS, NCR and LSI desire to amend and addend the Agreement to add this
new list of supporting equipment to "Exhibit G: Equipment Loaner Agreement" of
the Fifth Amendment to this OEM Purchase Agreement ("Fifth Amendment");
NOW, THEREFORE, the parties agree as follows:
1.0 For the loan of equipment by NCR to LSI, add "Attachment 1D to
Loaner Agreement" in its entirety, as attached hereto, to the Fifth
Amendment's Exhibit G: Equipment Loaner Agreement.
1.1 Term of Use. The term of use of the Equipment will be effective
as of the Eleventh Amendment Effective Date and will terminate [*] from the
Effective Date, unless NCR earlier terminates or extends such dates.
1.2 Location of Equipment. The Equipment will be located at LSI's
facility at:
LSI Logic Storage Systems, Inc.
0000 Xxxxx Xxxx Xx.
Xxxxxxx, XX 00000
1.2 Throughout the Agreement, references to Attachment 1 to Exhibit G:
Equipment Loaner Agreement, will refer equally to the added Attachment 1D.
Except as amended by this Eleventh Amendment, all other terms and
conditions of the Agreement and all prior amendments thereto remain the same.
THE PARTIES HAVE CAUSED THIS ELEVENTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE ELEVENTH AMENDMENT EFFECTIVE
DATE.
XXX XXXXXXXXXXX LSI LOGIC STORAGE SYSTEMS, INC.
(formerly AT&T Global Information Solutions (formerly Symbios, Inc.)
Company)
Signed: /s/ XXXX XXXX Signed: /s/ X.X. XXXXXXXXXXX
----------------------------------------- -----------------------------------------
Printed: Xxxx Xxxx Printed: X.X. Xxxxxxxxxxx
----------------------------------------- -----------------------------------------
Title: VP & GM Teradata Dev Div Title: VP & GM
----------------------------------------- -----------------------------------------
Date: 4/11/01 Date: 4/17/01
----------------------------------------- -----------------------------------------
1
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 [*]. THE INFORMATION
OMITTED CONSISTS OF 2 PAGES.
ATTACHMENT 1D TO EQUIPMENT LOANER AGREEMENT EXHIBIT G
(ADDED IN AMENDMENT #5)
EQUIPMENT DESCRIPTION
[*]
FIFTEENTH AMENDMENT TO THE OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS DATED FEBRUARY 15, 1995
This Fifteenth Amendment ("Fifteenth Amendment") to the OEM Purchase
Agreement dated February 15, 1995 ("Agreement") between Symbios Logic Inc., now
known as LSI Logic Storage Systems, Inc. ("LSI"), and AT&T Global Information
Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"), amended by prior
amendments executed by the parties, is entered into by the parties and made
effective the 17th day of September, 2001 ("Fifteenth Amendment Effective
Date"). Capitalized terms used but not defined herein shall have the meaning
ascribed in the Agreement. This Fifteenth Amendment shall be coterminous with
the Agreement.
WHEREAS, the parties desire NCR to loan equipment to LSI in support of
LSI's exhibiting of [*]; and
WHEREAS, NCR and LSI desire to amend and addend the Agreement to add this
new list of supporting equipment to "Exhibit G: Equipment Loaner Agreement" of
the Fifth Amendment to this OEM Purchase Agreement ("Fifth Amendment");
NOW, THEREFORE, the parties agree as follows:
1.0 For the loan of equipment by NCR to LSI, add "Attachment 1G to
Loaner Agreement" in its entirety, as attached hereto, to the Fifth
Amendment's Exhibit G: Equipment Loaner Agreement.
1.1 Term of Use. The term of use of the Equipment will be effective as
of the Fifteenth Amendment Effective Date and will terminate [*] from the
Effective Date, unless NCR earlier terminates or extends such dates.
1.2 Location of Equipment. The Equipment will be located at Partners
2001 Exhibit at:
LSI Logic Storage Systems, Inc.
WDW Dolphin Convention Center, Booth #419
0000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxx Xxxxx, XX 00000
1.3 Throughout the Agreement, references to Attachment 1 to Exhibit G:
Equipment Loaner Agreement, will refer equally to the added Attachment 1G.
Except as amended by this Fifteenth Amendment, all other terms and
conditions of the Agreement and all prior amendments thereto remain the same.
THE PARTIES HAVE CAUSED THIS FIFTEENTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE FIFTEENTH AMENDMENT EFFECTIVE
DATE.
XXX XXXXXXXXXXX LSI LOGIC STORAGE SYSTEMS, INC.
(FORMERLY AT&T GLOBAL (FORMERLY SYMBIOS LOGIC, INC.)
INFORMATION SOLUTIONS COMPANY)
Signed: /s/ XXXX XXXX Signed: /s/ X.X. XXXXXXXXXXX
-------------------------------------------- --------------------------------------------
Printed: Xxxx Xxxx Printed: X.X. Xxxxxxxxxxx
------------------------------------ ------------------------------------
Title: VP & GM, Teradata Dev Div Title: VP & GM
-------------------------------------- --------------------------------------
Date: 9/17/01 Date: 9/18/01
-------------------------------------- --------------------------------------
1
ATTACHMENT 1G TO EQUIPMENT LOANER AGREEMENT EXHIBIT G
(ADDED IN AMENDMENT #5)
EQUIPMENT DESCRIPTION
[*]
SIXTEENTH AMENDMENT TO THE OEM PURCHASE AGREEMENT
BETWEEN SYMBIOS LOGIC INC. AND AT&T GIS DATED FEBRUARY 15, 1995
This Sixteenth Amendment ("Sixteenth Amendment") to the OEM Purchase
Agreement dated February 15, 1995 ("Agreement") between Symbios Logic Inc., now
known as LSI Logic Storage Systems, Inc. ("LSI"), and AT&T Global Information
Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"), amended by prior
amendments executed by the parties, is entered into by the parties and made
effective the 11th day of February, 2002 ("Sixteenth Amendment Effective Date").
Capitalized terms used but not defined herein shall have the meaning ascribed in
the Agreement. This Sixteenth Amendment shall be coterminous with the Agreement.
WHEREAS, the parties desire LSI TO LOAN EQUIPMENT TO NCR in support of
NCR's certification and release of the [*]; and
WHEREAS, NCR and LSI desire to amend and addend the Agreement to add this
new list of supporting equipment to "Attachment A: Symbios, Inc. Equipment Loan
Agreement" of the Eighth Amendment to this OEM Purchase Agreement ("Eighth
Amendment");
NOW, THEREFORE, the parties agree as follows:
1.0 For the loan of equipment by LSI to NCR, add "Attachment A-3 to
Symbios, Inc. Equipment Loan Agreement", as attached hereto, to the Eighth
Amendment,
2.1 Term of Use. The term of use of the Equipment will be effective
as of the Sixteenth Amendment Effective Date and will terminate 135 days
from the Effective Date, unless LSI earlier terminates or extends such
dates.
2.2 NCR reserves the right to purchase the Equipment at the conclusion
of the loan period. The asset values listed in Attachment A-3 are for
estimating purposes only. The actual purchase price will be as stated in
the LSI published price list in effect at the beginning of the Equipment
loan period. Attachment A-3 Erosion and Refurbishment prices will be waived
if NCR purchases the Equipment.
2.3 Location of Equipment. The Equipment will be located at NCR's
facility at:
XXX Xxxxxxxxxxx
00000 Xxx xxx Xxxxx
Xxx Xxxxx, XX 00000
2.3 Throughout the Agreement, references to Attachment A to Loaner
Agreement, will refer equally to the added Attachment A-3.
Except as amended by this Sixteenth Amendment, all other terms and
conditions of the Agreement and all prior amendments thereto remain the same.
THE PARTIES HAVE CAUSED THIS SIXTEENTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE SIXTEENTH AMENDMENT EFFECTIVE
DATE.
XXX XXXXXXXXXXX (FORMERLY AT&T GLOBAL LSI LOGIC STORAGE SYSTEMS, INC. (FORMERLY
INFORMATION SOLUTIONS COMPANY) SYMBIOS LOGIC, INC.)
Signed: /s/ XXXX XXXX Signed: /s/ X.X. XXXXXXXXXXX
------------------------------------ ------------------------------------
Printed: Xxxx Xxxx Printed: X.X. Xxxxxxxxxxx
------------------------------------ ------------------------------------
Title: Vice President, Teradata R&D Title: VP & GM
------------------------------------ ------------------------------------
Date: 2/12/02 Date: 2/21/02
------------------------------------ ------------------------------------
1
ATTACHMENT A-3 TO SYMBIOS, INC. EQUIPMENT LOANER AGREEMENT
(AMENDMENT #8 OF OEM PURCHASE AGREEMENT)
The following is a part of the OEM Purchase Agreement by and between XXX
Xxxxxxxxxxx ("NCR")(formerly AT&T Global Information Solutions Company) and LSI
Logic Storage Systems, Inc. ("LSI")(formerly known as Symbios Inc.).
2
EIGHTEENTH AMENDMENT TO THE OEM PURCHASE AGREEMENT
("AGREEMENT")
BETWEEN LSI LOGIC STORAGE SYSTEMS, INC. ("LSI") AND
XXX XXXXXXXXXXX, ("NCR") FORMERLY AT&T GIS
This Eighteenth Amendment ("Eighteenth Amendment") to the OEM Purchase
Agreement dated February 15, 1995 ("Agreement") between Symbios Logic Inc., now
known as LSI Logic Storage Systems, Inc. ("LSI"), and AT&T Global Information
Solutions Company, now known as XXX Xxxxxxxxxxx ("NCR"), amended by prior
amendments executed by the parties, is entered into by the parties and made
effective August 1, 2002 (Eighteenth Amendment "Effective Date"). Capitalized
terms used but not defined herein shall have the meaning ascribed in the
Agreement. This Eighteenth Amendment shall be coterminous with the Agreement.
1.0 The Tenth Amendment to the Agreement, with an effective date of
September 17, 2001, is hereby renumbered as the Seventeenth Amendment to correct
duplicate numbering.
2.0 Section 3.0, Technical Support. Paragraph 3.7, which was added in
Amendment #1 and revised in Amendment #2, is hereby changed to read as follows:
3.7 Loaner Units.
3.7.1 LSI will loan NCR equipment for various purposes related to this
Agreement (including, but not limited to, evaluation and benchmarking), and
may loan NCR certain related hardware, software, firmware, documentation,
and information for NCR's use with that equipment. The total value of the
equipment permitted to be loaned to NCR is based on [*] ("Loaner Pool
Value"). The value of any additional equipment permitted to be loaned over
and above the Loaner Pool Value shall be calculated at [*]. Such
limitations may be changed at any time upon mutual written agreement of the
parties. Any such change shall not affect loaned equipment in NCR's
possession as of the effective date of such change, which equipment NCR
shall be permitted to continue to use until the expiration of the
applicable loan period. In the event that the total value of the equipment
loaned to NCR is permitted to [*], NCR shall pay to [*] which needs to be
approved by NCR. [*]. Each piece of equipment may be used by NCR for a
period of [*] commencing on the date of shipment by LSI and ending upon the
date of return of the equipment to LSI. NCR shall issue orders for these
loaner units from a single point of contact. When returned to LSI, the
units will be refurbished to "as-new" condition and will have the same
warranty as a new unit. Refurbishment charges to NCR will not exceed [*]
per module. Units refurbished by LSI will be completely updated to the
latest revision levels. Returned units are also subject to actual drive
erosion charges, to the extent that such charges are stated in the
applicable Equipment Request for NCR (of the type marked Exhibit I and
attached hereto) which has been signed by NCR and LSI, which will be
specified in the individual "Equipment Request for NCR" form issued by LSI
in conjunction with each loan. If a loaner unit is not returned within [*],
LSI will invoice NCR for the loaner unit(s) at full NCR OEM value and the
loaner return will not be accepted at the LSI factory. NCR shall be
responsible for shipping charges for the initial shipment out and the
return shipment associated with all loaner equipment.
3.7.2 LSI will provide standard warranty coverage during the loan
period.
3.7.3 Unless otherwise agreed by NCR in writing, NCR will not buy
refurbished units of Products that were evaluated by anyone other than NCR.
LSI shall apply refurbished units used previously through the NCR loaner
program to new NCR orders. NCR may direct that certain Orders not be filled
with refurbished units by including a statement to that effect on the Order
itself and/or by providing LSI a list of customers who will not accept
refurbished systems. Notwithstanding the foregoing, NCR agrees to accept
all refurbished units which have not been shipped against NCR Orders after
[*] from the date of refurbishment by LSI, and shall be billed at and
agrees to pay full price for such units.
1
A new paragraph 3.7.4 is added as follows:
3.7.4 The parties agree that when LSI agrees to loan equipment to NCR
the terms of this Agreement will apply and that the parties will separately
execute an "Equipment Request for NCR" of the type marked Exhibit I and
attached hereto, for all loans by LSI to NCR. In the event of a conflict
between the terms and conditions of this Agreement and the applicable
Equipment Request for NCR, the terms and conditions of the applicable
Equipment Request for NCR will apply.
A new paragraph 3.7.5 is added as follows:
3.7.5 NCR may loan LSI equipment for various purposes related to this
Agreement (including, but not limited to, testing and certification of NCR
products), and may loan LSI certain related hardware, software, firmware,
documentation, and information for LSI's use with that equipment. The
parties agree that when NCR agrees to loan equipment to LSI the terms of
this Agreement, and specifically those of Exhibit G -- Equipment Loaner
Agreement added in the Fifth Amendment to the Agreement, will apply and
that the parties will separately execute an "Equipment Request for LSI" of
the type marked Exhibit J and attached hereto, for all loans by NCR to LSI.
In the event of a conflict between the terms and conditions of this
Agreement and the applicable Equipment Request for LSI, the terms and
conditions of the applicable Equipment Request for LSI will apply.
A new paragraph 3.7.6 is added as follows:
3.7.6 The terms of this Amendment shall be subject to and open for
review and negotiation by either party at the [*]. Any changes to the terms
must be mutually agreed upon in writing by both parties. If mutual
agreement cannot be reached on revised terms, then the disputed terms will
be escalated to senior management of both parties for resolution.
Except as amended by this Eighteenth Amendment, all other terms and
conditions of the Agreement and all prior amendments thereto remain the same.
The Agreement and this Eighteenth Amendment represent the complete and
exclusive statement of the agreement of LSI and NCR regarding the subject matter
thereof and hereof, and supersede all prior oral and written agreements,
understandings, and communications about it. The terms of this Eighteenth
Amendment may only be modified in a written document signed by authorized
representatives of both parties.
THE PARTIES HAVE CAUSED THIS EIGHTEENTH AMENDMENT TO BE EXECUTED BY THEIR
AUTHORIZED REPRESENTATIVES EFFECTIVE AS OF THE EIGHTEENTH AMENDMENT EFFECTIVE
DATE.
AGREED TO AND ACCEPTED:
XXX XXXXXXXXXXX LSI LOGIC STORAGE SYSTEMS
By: /s/ XXXXX XXXXXX By: /s/ XXXXXX XXXXXXXX
------------------------------------- -------------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------------- -------------------------------------
Title: Vice President, Business Operations & Title: President, LSI Logic Storage Systems,
Intellectual Property Management Inc.
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Date: 8/16/02 Date: 08/02/02
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2
