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EXHIBIT 10.11
MCDATA CORPORATION
RESALE AGREEMENT
AGREEMENT NO. 90-00-0109-07
"MCDATA"
McDATA Corporation
310 Interlocken Parkway
Broomfield, CO 80021-3464
"RESELLER"
International Business Machines Corporation
Poughkeepsie, NY 12601
This Master Resale Agreement ("Agreement") is entered into by and between McDATA
and Reseller, and commences on the date accepted and executed by McDATA
("Effective Date").
Each of the identified documents is incorporated by reference.
X Resale Agreement
X Exhibit A Products and Pricing
X Exhibit B Warranty and Post Warranty Services and Pricing
Figure B-1 Prices for Warranty, Enhanced Warranty, Post
Warranty Services
Figure B-2 McDATA Maintenance Agreement
Figure B-3 McDATA Product Exhibit
X Exhibit C Click-through Software License Agreement
X Exhibit D Shrinkwrap Software License Agreement
X Exhibit E McDATA Warranty and Disclaimer Statement
This Agreement and the applicable Exhibits identified above, are the complete
agreement between McDATA and Reseller with respect to the Products on Exhibit A
of this Agreement, and replace all prior oral or written representations or
agreements between the parties on the subject matter of this Agreement.
Executed and agreed to: Accepted and agreed to:
MCDATA CORPORATION (MCDATA) INTERNATIONAL BUSINESS MACHINES
CORPORATION (RESELLER)
By: /s/ Donald Beauchesne By: /s/ John F. McDonnell
--------------------------- ---------------------------
Name: Donald Beauchesne Name: John F. McDonnell
Title: Group Manager of Procurement Title: President and CEO
Date Signed: February 22, 2000 Date Signed: February 22, 2000
Effective Date: February 22, 2000
* Certain information in this agreement has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions. Asterisks within brackets denote omissions.
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Resale Agreement No90-00-0109-07 - 02/22/00 IBM Corporation / McDATA Corporation
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MCDATA CORPORATION
RESALE AGREEMENT
TABLE OF CONTENTS
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Section Title Page
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1 DEFINITIONS ...................................................................................... 1
2 SCOPE ............................................................................................ 1
3 APPOINTMENT ...................................................................................... 1
3.1 Products ................................................................................ 1
3.2 End User Services ....................................................................... 2
3.3 Reseller Services ....................................................................... 2
4 RELATIONSHIP OF PARTIES .......................................................................... 3
4.1 Independent Contractor .................................................................. 3
5 TERM ............................................................................................. 3
6 RESALE AUTHORIZATION.............................................................................. 3
7 FORECASTS ........................................................................................ 3
8 SOLITATION OF ORDERS ............................................................................. 3
9 PRODUCT PRICING .................................................................................. 4
9.1 Prices .................................................................................. 4
9.2 Review and Price Changes ................................................................ 4
9.3 Most Favored Nations Benefits ........................................................... 4
10 RESELLER'S PURCHASE ORDER......................................................................... 4
10.1 Issuance of Purchase Order............................................................... 4
10.2 Acceptance of Reseller's Purchase Order.................................................. 4
10.3 Shipment Date............................................................................ 5
10.4 Order Rescheduling....................................................................... 5
10.5 Order Cancellation....................................................................... 5
10.6 Ship and Uninstall Procedure............................................................. 5
10.7 Payment Terms............................................................................ 5
10.8 Payment Terms for Beta Products.......................................................... 5
10.9 Taxes.................................................................................... 5
10.10 Shipment/Delivery........................................................................ 6
10.11 Title and Risk of Loss................................................................... 6
10.12 Acceptance of Products................................................................... 6
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Section Title Page
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11 PRODUCTS ......................................................................................... 6
11.1 Identification of Products, Trade Name and Trademark Rights ............................. 6
11.2 Product Configuration Validation ........................................................ 7
11.3 Product Warranty, Enhanced Warranty, and Post Warranty Services ......................... 7
11.4 Engineering Changes ..................................................................... 7
11.5 Field Modifications ..................................................................... 8
11.6 Improvements ............................................................................ 8
11.7 Reseller Modifications .................................................................. 8
11.8 Product Discontinuance .................................................................. 8
12 SOFTWARE LICENSE AND RESTRICTIONS ................................................................ 8
13 INDEMNIFICATION .................................................................................. 9
13.1 McDATA Indemnification .................................................................. 9
13.2 Reseller Indemnification ................................................................ 9
14 CONFIDENTIALITY OF INFORMATION ................................................................... 9
15 LIMITATION OF LIABILITY .......................................................................... 10
16 TERMINATION ...................................................................................... 10
17 GENERAL PROVISIONS................................................................................ 10
17.1 Entire Agreement......................................................................... 10
17.2 Waiver................................................................................... 10
17.3 Contract Changes......................................................................... 10
17.4 Governing Law............................................................................ 11
17.5 Severability............................................................................. 11
17.6 Compliance with Laws..................................................................... 11
17.7 Notices.................................................................................. 11
17.8 Assignment............................................................................... 11
17.9 Headings................................................................................. 12
17.10 Force Majeure............................................................................ 12
17.11 Records.................................................................................. 12
17.12 Gifts.................................................................................... 12
17.13 Press Release............................................................................ 12
17.14 Publications and Marketing Materials..................................................... 12
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EXHIBIT A PRODUCTS AND PRICING
EXHIBIT B WARRANTY AND POST WARRANTY/SERVICES AND PRICES
Figure B-1 Prices for Warranty, Enhanced Warranty and Post
Warranty Services
Figure B-2 McDATA Maintenance Agreement
Figure B-3 McDATA Product Exhibit
EXHIBIT C McDATA Click-through Software License
EXHIBIT D McDATA Shrinkwrap Software License
EXHIBIT E McDATA WARRANTY AND DISCLAIMER STATEMENT
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Resale Agreement No90-00-0109-07 - 02/22/00 IBM Corporation / McDATA Corporation
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MASTER RESALE AGREEMENT
McDATA and Reseller agree as follows:
1 DEFINITIONS
1.1 "RESELLER" means the buying entity executing this Agreement,
and all subsidiaries or affiliates thereof, which order
Products for resale to Channel Partners or End User Customers
pursuant to the provisions of this Agreement.
1.2 "CHANNEL PARTNER" means any business entity used by Reseller
to market and resell Products to End User Customers in
accordance with the terms of this Agreement.
1.3 "MCDATA AUTHORIZED RESELLING AGENT" means any business entity
authorized by McDATA to resell Products to End User Customers.
1.3 "END USER CUSTOMER" means any entity which (i) purchases
McDATA-manufactured Products from Reseller or Reseller's
Channel Partner; and/or (ii) licenses Software associated
therewith from McDATA; and/or (iii) receives End User Services
from McDATA.
1.4 "SOFTWARE" means the computer software, in machine executable
object code format only, which is delivered by McDATA with the
Product and licensed to the End User Customer.
1.6 "PRODUCTS" means certain McDATA hardware, Software, related
features, conversions, and options, as further described in
Exhibit A of this Agreement (attached hereto and incorporated
herein by reference as may be amended from time to time) which
Reseller is authorized to resell and distribute.
1.7 "END USER SERVICES" means the collective reference to warranty
and post warranty (maintenance) services as set forth in
Section 3.2 below, and as more fully described in Exhibit B
(attached hereto and incorporated herein by reference as may
be amended from time to time).
1.8 "RESELLER SERVICES" means the collective reference to (i)
educational services and professional services as set forth in
Section 3.3 below, which services may be provided by McDATA to
Reseller and Channel Partners.
1.9 "TERRITORY" means all countries on a worldwide basis.
2 SCOPE. This Agreement establishes the terms and conditions under which
Reseller will market and resell McDATA Products, End User Services and
Reseller Services.
3 APPOINTMENT. Subject to the terms and conditions of this Agreement,
McDATA hereby authorizes and appoints Reseller as a non-exclusive
McDATA Authorized Reselling Agent to resell the McDATA Products and End
User Services in the Territory.
3.1 PRODUCTS.
3.1.1 Reseller is authorized to use the Products internally
and to resell and sublicense the Products to End User
Customers in accordance with the terms and conditions
of this Agreement.
3.1.2 Reseller is authorized to resell and sublicense the
Products to Channel Partners in
Resale Agreement No. 90-00-0109-07 IBM Corporation / McDATA
Corporation
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accordance with the terms and conditions of this
Agreement, provided Reseller and such Channel Partner
have entered into written agreements with terms and
conditions that substantially conform to those
contained in this Agreement. Reseller will ensure
that Channel Partner is contractually obligated to
perform in accordance with the appropriate terms and
conditions as set forth in this Agreement.
3.1.3 Reseller is authorized to accept purchase orders from
End User Customers and Channel Partners for Products,
and to issue purchase orders to McDATA for such
Products. Such purchase orders shall specify the
information required in Section 10.1.
3.1.4 McDATA will ship Product, together with all
appropriate manuals and/or documentation, to the End
User Customer, to the address provided by Reseller on
its purchase order.
3.1.5 At the time of shipment, McDATA will issue an invoice
to Reseller for such Products, and Reseller agrees to
pay such invoice in accordance with the terms and
conditions herein.
3.1.6 Reseller will issue an invoice to its Channel Partner
or End User Customer, as applicable, for such
Products. Reseller is responsible for the collection
of funds against such invoice. McDATA bears no
responsibility for such collection.
3.2 END USER SERVICES. McDATA will provide End User Services
directly to End User Customers.
3.2.1 Standard Warranty Services. McDATA will provide
standard warranty services to End User Customers in
accordance with the warranty provisions of Section
11.3 and Exhibit B herein.
3.2.2 Enhanced Warranty and Post Warranty Services. McDATA
will provide for fee enhanced warranty services and
post warranty maintenance services directly to End
User Customer. Reseller or Channel Partner will
present End User Customer with a description and
price quote for such services. A description of such
services is provided in the appropriate Product
Exhibit (a sample of which is attached hereto as
Figure B-3 of Exhibit B, which product exhibit may be
modified by McDATA from time to time). At the same
time, Reseller or Channel Partner will present
McDATA's Maintenance Agreement (a sample of which is
attached hereto as Figure B-2 of Exhibit B, which
agreement may be modified by McDATA from time to
time) for enhanced warranty and/or post warranty
maintenance services to End User Customer for
execution by End User Customer. In the event End User
Customer wishes to avail itself of such services,
Reseller and/or its Channel Partner will direct that
End User Customer issues a purchase order for such
enhanced warranty or post warranty services directly
to McDATA. Such purchase order and an executed
Maintenance Agreement must be returned to McDATA
before such services are performed by McDATA.
Reseller is not authorized to change or modify any of
the terms of such agreement. The Maintenance
Agreement, once signed by McDATA and the End User
Customer, will be solely between McDATA and the
applicable End User Customer.
3.3 RESELLER SERVICES
3.3.1 Educational Services. McDATA will make certain
educational services ("McDATA Fibre Channel
Educational Services") available to Reseller and its
Channel Partners. Reseller and its Channel Partners
may purchase or license such educational
Resale Agreement No. 90-00-0109-07 IBM Corporation / McDATA
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services from McDATA as mutually agreed to under a
separate agreement.
3.3.2 Professional Services. McDATA will make certain
professional services methodology and packaged
educational courseware ("McDATA Fibre Channel
Professional Services Products") available to
Reseller and its Channel Partners. Reseller and its
Channel Partners may license such professional
services and courseware from McDATA as mutually
agreed to in a separate agreement.
3.3.3 Marketing Services. McDATA will provide Reseller with
all reasonable assistance and technical sales support
as may be necessary to consummate the sale of Product
in such situations where Reseller presents McDATA
with an End User Customer opportunity,
4 RELATIONSHIP OF PARTIES.
4.1 INDEPENDENT CONTRACTOR. In all matters relating to this
Agreement, Reseller shall act as an independent contractor,
and neither Reseller nor its employees, agents or others
associated with Reseller in the performance of this Agreement
are employees, agents or representatives of McDATA, nor do
they have authority to represent themselves as such or in any
capacity except as set forth in this Agreement. Reseller will
assume all liabilities and obligations imposed by any law with
respect to all persons employed by or associated with the
Reseller in performance of this Agreement. Reseller assumes
full responsibility for the actions of such personnel while
Reseller is performing services pursuant to this Agreement.
Nothing contained in this Agreement shall be construed as
granting to Reseller, or any employee, agent or associate of
Reseller, rights under any McDATA employee benefit plan. This
Agreement is non-exclusive. Neither of us is a legal
representative or legal agent of the other. Neither of us is
legally a partner of the other (for example, neither of us is
responsible for the debts incurred by the other).
5 TERM. The initial term of this Agreement commences on the Effective
Date and continues in effect for a period of five (5) years, unless
sooner terminated pursuant to the termination provisions in this
Agreement. Thereafter, this Agreement shall be automatically renewed
for successive one (1) year terms, unless the Agreement is cancelled by
either Reseller or McDATA by notifying the other party in writing of
its intent to do so at least sixty (60) days prior to the end of the
initial term or any renewal term.
6 RESALE AUTHORIZATION. Reseller is authorized to resell the Products
both directly and through Channel Partners in the Territory in
accordance with the terms of this Agreement.
7 FORECASTS. Within [*] after the Effective Date, Reseller will give
McDATA a non-binding forecast in writing of its projected purchases for
resale of Products to Channel Partners and End User Customers for the
following [*]; quantities are to be identified by model and by month.
On or before the [*] of each [*] thereafter, Reseller will provide
McDATA with an updated forecast covering the projected purchases for
the subsequent rolling [*] period. Forecasts are Reseller's best effort
projections of intended total purchases and are not commitments to buy.
Reseller has no expressed or implied liability with regard to its
forecasts.
8 SOLICITATION OF ORDERS. Reseller shall solicit orders from End User
Customers by lawful and proper means. In connection with performing
these duties, Reseller shall:
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
Resale Agreement No. 90-00-0109-07 IBM Corporation / McDATA
Corporation
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8.1 Establish and maintain a business relationship with End User
Customers, becoming knowledgeable of their requirements and
proposing to satisfy those requirements with Products, and, at
McDATA's reasonable and infrequent request, assist McDATA with
problem determination and resolution associated solely with
Reseller's End User Customers.
8.2 Be responsible for establishing and maintaining End User
Customer satisfaction with respect to all Reseller's
activities under this Agreement and to participate in customer
satisfaction programs as McDATA and IBM may mutually agree
upon.
8.3 Implement this Agreement effectively by using catalogs,
samples, advertising literature, and sales aids which McDATA
provides to carry out this Agreement. Such catalogs, samples,
advertising literature, and sales aids shall be provided by
McDATA at McDATA expense and remain the property of McDATA
and, upon termination or expiration of this Agreement, any
remaining such items shall be returned to McDATA or disposed
of;
8.4 Become and remain informed concerning all information,
bulletins, and price changes in connection with Products which
may be issued by McDATA to Reseller;
8.5 Participate in any sales training provided by McDATA for
Reseller's sales personnel at such locations, times and for
such periods as are mutually agreed; and
8.6 Reseller will not offer or make payments or gifts (monetary or
otherwise) to anyone for the purpose of illegally influencing
decisions in favor of McDATA, directly or indirectly.
9 PRODUCT PRICING
9.1 PRICES. Reseller shall purchase Products from McDATA at the
prices listed on the attached Exhibit A.
9.2 REVIEW AND PRICE CHANGES. Either party hereto may request at
any time a meeting to discuss changes in market conditions,
product cost, special bid pricing, or volume consideration,
and the other party agrees to meet as soon as practicable with
the requesting party to negotiate in good faith product price
or quantity adjustments.
9.3 MOST FAVORED NATIONS BENEFITS. [*] to [*] that the [*] for the
[*] of this [*] do not [*] those [*] to any [*] of a [*] with
[*] and [*] further [*] that it [*] to [*] and [*] or [*]
which it [*] to [*] of its [*] or McDATA [*] of [*] with [*]
and [*]. If during the term of [*] to [*]such [*] for [*] or
[*] or [*] which are [*] those [*] to [*] will [*] those [*]
or [*] or [*] to [*] the [*] were [*] by [*] to its [*] or
[*].
10 RESELLER'S PURCHASE ORDER.
10.1 ISSUANCE OF PURCHASE ORDER. Reseller shall, from time to time,
release purchase orders to McDATA for Products for End User
Customers. Such purchase orders shall be in writing and
identify model, features, quantities, prices; End User
Customer name; End User Customer's address to which McDATA
will ship the Products; End User Customer installation address
if different from ship-to address; End User Customer technical
contact name, phone number; and the level of warranty or post
warranty service requested by End User Customer. Such purchase
orders are Reseller's commitments to buy the Products
specified on such purchase orders.
Reseller may transmit purchase orders by facsimile or other
electronic means. Orders are considered binding upon receipt
by McDATA of such facsimile or other electronic means, subject
to acceptance as set forth below.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
Corporation
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10.2 ACCEPTANCE OF RESELLER'S PURCHASE ORDER. Purchase orders shall
be considered as accepted by McDATA unless McDATA provides
Reseller with written or verbal notice of any discrepancy or
the reason for rejection within [*] after receipt of such
purchase order. Unless Reseller is in material breach of this
Agreement, McDATA shall be obligated to accept Reseller's
purchase orders if such purchase orders materially conform to
the terms of this Agreement. All such purchase orders shall be
governed by the terms and conditions of this Agreement, and
none of the terms or conditions of Reseller's purchase order
shall be applicable if they are in conflict with the terms or
conditions of this Agreement.
10.3 SHIPMENT DATE. Upon acceptance of a purchase order, McDATA
will provide Reseller with an estimated delivery date. McDATA
will upon Reseller's request ship/deliver Products within [*]
after receipt of Reseller's purchase order (ARO) for
forecasted quantities of Products. If Reseller requires
quantities in excess of the forecast or shipment lead times
less than [*], McDATA will use its reasonable commercial
efforts to comply with such request.
10.4 ORDER RESCHEDULING. McDATA agrees to receive Reseller's
purchase change orders specifying changes in the configuration
of any Product at any time prior to [*] from the scheduled
date of shipment, and McDATA agrees to use its commercially
reasonable efforts to accept such change order. McDATA agrees
to accept Reseller's purchase change orders specifying changes
in the ship to address for any Product at any time prior to
[*] from the scheduled date of shipment, and provided all
export documentation is available on a timely basis, McDATA
agrees to accommodate such change order. In the event McDATA
cannot satisfy any such change order without impacting
scheduled delivery, it will apprise Reseller of the
possibility of a delay and of the revised ship date within [*]
of its receipt of such Purchase Change Order such that
Reseller can manage the situation with its End User Customer.
10.5 ORDER CANCELLATION. Reseller may cancel purchase orders [*]
prior to shipment.
10.6 SHIP AND UNINSTALL PROCEDURE. Ship and Uninstall ("S&U") is
hereby defined as Product, features or options which have been
shipped to Reseller or Reseller's End User Customer which have
not been removed from its original shipping boxes nor
installed at an End User Customer's site, and which Reseller
wishes to return to McDATA for credit.
McDATA agrees to accept the return of any S&U units, features
or options which have been returned to Reseller as
cancellations from Reseller's End User Customers; provided,
such S&U returns are initiated within [*] of the original
shipment date from McDATA for domestic orders or within [*] of
the original shipment date from McDATA for international
orders. For such S&U units, features or options, McDATA will
charge a base handling fee of [*] of the original hardware
purchase price, with a minimum fee of [*] and a maximum of
[*]. Any costs associated with damages to or reconfiguration
of the unit will be additive to this [*] fee.
10.7 PAYMENT TERMS. Payment is [*] from the date of a conforming
invoice for invoices generated by Electronic Data Interchange
("EDI") or [*] from the date of conforming invoice for
invoices submitted by means other than EDI. All transactions
shall be in U.S. dollars or as may be required by governmental
requirements.
10.8 PAYMENT TERMS FOR BETA PRODUCTS. "Beta Program Products" means
Products provided to Reseller for early testing and evaluation
by a mutually agreed upon set of End User
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Customers. For those Beta Program Products [*], at the end of
the Beta Program [*] for such Beta Program Products. Reseller
will pay McDATA in accordance with the provisions of Section
10.6.
10.9 TAXES. All prices for Products and Services provided under
this Agreement are exclusive of any taxes, duties or
government levies (including, but not limited to, value added,
property, sales, use, privilege, excise, or similar taxes)
imposed by the United States, and State, territory, or any
other governmental entity. Reseller is purchasing Product for
resale. Reseller shall provide McDATA with a resale or other
appropriate exemption certificate in conjunction with this
Agreement. Reseller shall be liable for sales and use taxes on
purchases that are not subject to such exemption. In the event
that Reseller does not provide to McDATA a resale or other
appropriate exemption certificate, any such taxes or amounts
in lieu thereof that are charged to or payable by McDATA
(exclusive of taxes based on McDATA's net income) will be
invoiced to and paid by Reseller in the manner set forth in
Section 10.6 of this Agreement. Reseller is responsible for
all taxes resulting from this Agreement or any activities
hereunder, excluding taxes based on McDATA's net income.
Further, Reseller is responsible for collecting from End User
Customers all applicable taxes, and remitting same to the
appropriate taxing authorities.
10.10 SHIPMENT. All shipments will be EXW McDATA's factory, and
Reseller is responsible for all shipping charges. Reseller
will specify in writing on its purchase order the location to
which the Products are to be shipped. As used in this
Agreement, shipment and delivery are synonymous. For purposes
of this Agreement, shipment and delivery occur upon delivery
of Products by McDATA at McDATA's factory to the common
carrier specified by Reseller.
10.11 TITLE AND RISK OF LOSS. Title and risk of loss will pass to
Reseller upon shipment, except that title to the Software
shall at all times remain with McDATA.
10.12 ACCEPTANCE OF PRODUCTS. Reseller's acceptance of each Product
shall occur upon delivery unless McDATA is otherwise notified
in writing, by facsimile or other means of electronic
transfer, by Reseller [*] from delivery that such Product does
not conform to specifications. Payment for any Product by
Reseller shall not constitute acceptance nor reduce the [*]
available for inspection and reporting of any nonconformance.
Such defective Product shall be repaired or replaced (at
McDATA's option and expense) pursuant to the terms of Exhibit
E attached hereto (as may be amended from time to time).
11 PRODUCTS. McDATA agrees to sell to Reseller the Products listed on Exhibit
A of this Agreement, at the prices specified on such Exhibit, and under the
terms specified in this Agreement. Subject to Section 11.8 below, McDATA
reserves the right to revise the list of Products in said Exhibit A at any
time during the term of this Agreement upon ninety (90) days notice to
Reseller. Additionally, McDATA reserves the right at any time to make
changes to any Products, including changes which are required to facilitate
performance in accordance with Product Specifications.
11.1 IDENTIFICATION OF PRODUCTS, TRADE NAME AND TRADEMARK RIGHTS
11.1.1 Identification of Products. Reseller acknowledges
that the Products to be sold by Reseller shall always
be sold under trademarks and trade names owned by or
licensed to McDATA. Reseller agrees that it will not
remove, alter or obscure in any way any proprietary
markings on any Product at any time.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
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11.1.2 Trademark and Trade Name Rights. During the term of
this Agreement, McDATA grants permission to Reseller
to use McDATA's trade name and trademarks only as
follows: (i) in connection with the sale, lease,
licensing, distribution, advertisement or promotion
of the Products in the Territory; and (ii) to
identify Reseller as a "McDATA Authorized Selling
Agent". Reseller shall use McDATA's trademarks in
sales literature and all other promotional materials,
and in all media advertisement, shall use McDATA's
trade name solely to reflect the source of such
Products, and shall identify trademarks and trade
names as being the property of McDATA.
Prior to publication or commercial use, samples of
Reseller's use of McDATA's trademark and/or trade
name in all printed material shall be delivered to
McDATA for review and approval. McDATA reserves the
right to discontinue use or to substitute any McDATA
trademark or trade name at any time. Immediately upon
written notice from McDATA of discontinued use,
Reseller shall immediately (or upon prompt
liquidation of inventory) stop using the trademark
and/or trade name, and if so instructed by McDATA,
destroy or return to McDATA, at McDATA's expense,
any remaining goods, advertising and packaging
materials bearing such trademark and/or trade name.
In the event of substitution, Reseller shall
immediately use such new trademark and/or trade name,
and stop using the previous trademark and/or trade
name, and if so instructed by McDATA, destroy or
return to McDATA, at McDATA's expense, any remaining
goods, advertising and packaging materials bearing
such previous trademark and/or trade name.
McDATA will, in its sole discretion, in its name and
at its expense, apply for certificates of use or
registration of its trademark(s), as applicable.
Reseller acknowledges that all right, title and
interest in said trademarks and trade names shall at
all times vest in McDATA or McDATA's licensors, and
Reseller will not apply for or register trademarks
and/or trade names which are the same as or
confusingly similar thereto, except with McDATA's
prior written consent.
No right is granted hereunder for either party to use
the trademarks of the other party, except as provided
herein or as specifically permitted in writing by
such other party.
Reseller may allow its Channel Partners to use
McDATA's trade name and/or trademarks provided such
Channel Partner has agreed in writing to comply with
the provisions of this Section.
11.2 PRODUCT CONFIGURATION VALIDATION. The parties agree that
McDATA will test and measure systems level interoperability of
Reseller's product(s) with the Products in a Fibre Channel
Storage Area Network ("SAN") environment. The parties agree to
define a Fibre Channel SAN system configuration ("SAN
Configuration") and test plan, and execute such test plan to
validate the interoperability of such products and Products
within the defined SAN Configuration.
11.3 PRODUCT WARRANTY, ENHANCED WARRANTY, AND POST WARRANTY
SERVICES. McDATA will provide warranty, enhanced warranty, and
post warranty services for the Products directly to the End
User Customer in accordance with the terms set forth in
Sections 3.2.1 and 3.2.2 herein, and in accordance with the
processes, policies, procedures, and prices outlined on
Exhibit B. For warranty services, McDATA shall ensure that End
User Customer is provided a copy of the McDATA Warranty and
Disclaimer Statement (a sample of which is attached hereto as
Exhibit E and which may be modified by McDATA from time to
time), together with an appropriate McDATA Product Exhibit (a
sample of which is attached hereto as Figure B-3
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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and which may be modified by McDATA from time to time.) For
enhanced warranty and post warranty services, Reseller shall
present McDATA documents to End User Customer in accordance
with the terms set forth in Section 3.2.2 herein.
11.4 ENGINEERING CHANGES. McDATA reserves the right to make a
change to any Products at any time prior to shipment if (a)
the change is necessary to make the Products function in
accordance with the specifications current at the time of
shipment of such Products and/or meet the then-current
requirements for operation as published by any of the
regulatory agencies listed in the specifications, or (b)
subject to Section 11.2, McDATA in good faith determines that
such change does not adversely affect End User Customer's use
of the Products. McDATA will communicate as expeditiously as
possible any changes that adversely affect End User Customer's
use. All rights in and to any Product design changes will be
the exclusive property of McDATA.
11.5 FIELD MODIFICATIONS. To the extent that McDATA determines that
any Product in the field requires modification as the result
of an engineering change, McDATA shall be responsible for such
field modification, whether such change is retrofitable in the
field or requires returning such Product to McDATA.
11.6 IMPROVEMENTS. If McDATA makes generally available to its
resellers and end user customers any new or improved Product
which may include new models of or options or features
("Improved Products"), McDATA agrees to give Reseller the
right to purchase and resell such Improved Products pursuant
to this Agreement and to have access to such Improved Products
including volumes, samples, timing and technical support
services at least equal to that provided to any other party.
11.7 RESELLER MODIFICATION. Reseller represents that in no event
shall Reseller alter any Product in any way to modify the
performance characteristics of that Product without the prior
written permission of McDATA. The appropriate identification
labels, regulatory agency marks and verification of FCC Class
A Compliance or the licensed agency number are indicated on
the Products at the time of shipment. Reseller shall not
modify any marks or labels affixed to the Products by McDATA
with those showing Reseller's name, or otherwise modify or
replace such marks or labels. McDATA hereby disclaims any
liability for the possession, use, resale, or operation of any
Products which, as a result of an alteration by Reseller or
any third party, affects its compliance with the applicable
regulations and/or requirements.
11.8 PRODUCT DISCONTINUANCE. McDATA reserves the right to
discontinue Products by notifying Reseller in writing at least
ninety (90) days prior to the discontinuance date. McDATA
agrees to honor all purchases orders received and accepted by
McDATA prior to the date specified on the discontinuance
notice.
12 SOFTWARE LICENSE AND RESTRICTIONS.
12.1 Reseller understands that the Software is proprietary to and
copyrighted by McDATA or its suppliers. Reseller further
understands that Reseller and its Channel Partners and End
User Customers are acquiring only the right to use the
Software, and that all ownership, copyright, and other
intellectual property rights vested in this Software shall
remain with McDATA or its suppliers.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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8
<PAGE> 12
12.2 McDATA grants to Reseller the non-exclusive, non-transferable
worldwide right and license to use the Software, in Object
Code form only, for support, marketing, sales and
demonstration purposes and for the training of its Channel
Partners and End User Customers and to use the Software with
Product purchased by Reseller for internal use.
12.3 Reseller agrees that it shall not attempt to modify, reverse
engineer, decompile, disassemble, decode or translate the
Software. Reseller further agrees that it shall not copy the
Software except for archival or back-up purposes, as may be
necessary for use on or with the Products.
12.4 McDATA shall ensure that each End User Customer is provided a
copy of the Software license that is between such End User
Customer and McDATA or its suppliers. Such Software license
may be in the form of a click-through and/or shrinkwrap
license. A sample of McDATA's click-through software license
language is attached hereto as Exhibit C and incorporated
herein by reference. A sample of McDATA's shrinkwrap software
license is attached hereto as Exhibit D and incorporated
herein by reference.
12.5 Reseller may sublicense the foregoing right and license to its
Channel Partners, provided such Channel Partners are subject
to the foregoing restrictions and have executed a written
agreement with Reseller regarding same.
13 INDEMNIFICATION
13.1 MCDATA INDEMNIFICATION. McDATA agrees to indemnify, defend and
hold Reseller harmless from any and all damages, liabilities,
costs and expenses finally awarded against Reseller as a
result of any third party claim, judgment or adjudication
against Reseller (a) which claims that Products or Software
infringe any patent, copyright, trademark, trade secret, or
other intellectual property right of any third party in the
United States, Canada, Mexico, Japan, Australia, New Zealand,
Singapore, Brazil, United Kingdom, Germany, France, and other
European Union member countries, or (b) for damage to property
and tangible personal property or bodily injury (including
death) caused by the Products or Software or McDATA's
negligence or willful misconduct. As a condition of McDATA's
obligation described in this Section 13.1, Reseller must
promptly notify McDATA in writing of the claim, and cooperate
with and grant to McDATA the sole control of the defense of
any action and all negotiations for settlement and compromise.
McDATA shall not be obligated to indemnify Reseller for any
claim based upon (x) any alteration or modification made to
the Product or Software unless made pursuant to McDATA's
instructions, where such infringement, damage or injury would
not have occurred but for such modification or alteration, and
(y) any improper installation, storage, handling or use of the
Products or Software not conforming to McDATA's published
specifications by Reseller or its Channel Partners or End User
Customers.
In order to realize the worldwide intent of this Agreement as
referenced in Section 6 above, and subject to Reseller's prior
written notification of no less than thirty (30) days of its
intent to sell Products or Software into additional countries
not listed in subsection (a) above, the parties shall mutually
agree to extend the above indemnification to such additional
countries within thirty (30) days of such request. McDATA's
agreement to extend the above indemnification of Reseller to
such additional countries shall not be unreasonably withheld.
In the event the Products or Software become, or in McDATA's
opinion are likely to become, the subject of an infringement,
McDATA shall have the right, at its option and expense, to (i)
obtain the rights to continued use of such Product or
Software, (ii) modify the Product or Software so that it is no
longer infringing, or (iii) replace the Product or Software
with a
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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<PAGE> 13
solution that is functionally equivalent, or (iv) refund to
Reseller at the End User Customer's net book value for the
Product.
The foregoing remedies are the sole remedies for infringement
of any intellectual property rights.
13.2 RESELLER INDEMNIFICATION. Reseller agrees to indemnify, defend
and hold McDATA harmless for claims (a) made against McDATA by
third parties for damage to real property and tangible
personal property or bodily injury (including death) arising
out of Reseller's misuse of the Products and/or Reseller's
negligence or willful misconduct and for which Reseller is
legally liable, and (b) based upon misrepresentation by
Reseller in conducting its activities under this Agreement.
14 CONFIDENTIALITY OF INFORMATION. McDATA and Reseller acknowledge that in the
course of purchasing Products and meeting their respective obligations
under this Agreement, each may be obliged to obtain information relating to
the Products and to each other which is of a confidential or proprietary
nature and which is marked as such ("McDATA Proprietary Information" or
"Reseller Proprietary Information" or equivalent). Such Proprietary
Information may include, but is not limited to, trade secrets, know-how,
inventions, techniques, processes, programs, schematics, data, customer
lists, financial information, and sales and marketing plans. McDATA and
Reseller agree that to the extent that exchanges of Proprietary Information
are necessary, any such exchange will be disclosed pursuant to the terms
and conditions of that certain Confidential Disclosure Agreement No.
011898MCD dated March 31, 1998. Except as otherwise set forth herein, all
information exchanged under this Agreement will be deemed to be
non-confidential.
Either party may publicly disclose the existence of this Agreement
subject to prior review and approval by the other party; however,
neither party shall disclose the specific terms and conditions to any
third parties except by written agreement between McDATA and Reseller
dated subsequent to the Effective Date, or as required by law or the
order of a court of competent jurisdiction. This restriction in no way
limits McDATA's ability to use the general form of this Agreement with
other Resellers.
15 LIMITATION OF LIABILITY. EXCEPT FOR McDATA'S LIABILITY FOR INFRINGEMENT
UNDER SECTION 13.1 AND EXCEPT FOR BREACH BY EITHER PARTY OF SECTION 14, IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF ANTICIPATED
REVENUE OR LOSS RESULTING FROM BUSINESS DISRUPTION) ARISING IN CONNECTION
WITH THIS AGREEMENT, WHETHER IN AN ACTION FOR CONTRACT OR TORT AND WHETHER
OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND
FOR ACTUAL DIRECT DAMAGES IN EXCESS OF [*].
Neither party will bring any legal action against the other more than
one (1) year after the cause of action arose.
16 TERMINATION.
16.1 In addition to any other rights or remedies which may be
available at law or in equity, either party may terminate this
Agreement upon the occurrence of any one of the following:
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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<PAGE> 14
(i) If either party is in default of any material
provision of this Agreement and such default is not
corrected within thirty (30) days of receipt of
written notice specifying the nature and extent of
the breach of the other party, this Agreement may be
terminated by the party not in default. If the
default is such that it cannot be reasonably cured
within thirty (30) days, then the defaulting party
must commence cure within thirty (30) days and
proceed to cure with due diligence. The written
notice shall state the defaults and the effective
date of termination if the defaults are not cured.
(ii) In the event of proceedings in bankruptcy or
insolvency invoked by or against either party, or in
the event of the appointment of an assignee for the
benefit of creditors or a receiver, the other party
may elect to immediately terminate the Agreement by
providing written notice of its election to
terminate.
16.2 Termination of this Agreement shall not relieve either party
of the obligations incurred under this Agreement pursuant to
Sections 3.2.1, 10.7, 10.8, 11.1, 11.3, 12.3, 12.5, 13, 14,
17.4, 17.6, 17.8 and Exhibit B, which Sections shall survive
such termination. In addition, any other obligations under
this Agreement which by their nature extend beyond the
expiration date or other termination of this Agreement shall
survive and remain in effect until all such obligations are
satisfied.
16.3 Upon termination of this Agreement by McDATA or by Reseller,
each party shall return all of the other's tangible
confidential information, prototypes and loaned equipment
provided in connection with this Agreement, except as set
forth in Section 14, within sixty (60) calendar days. The
provisions of the confidentiality agreement shall survive
termination of this Agreement.
17 GENERAL PROVISIONS
17.1 ENTIRE AGREEMENT. This Agreement, together with the documents
and other agreements referenced herein are the final,
complete, and exclusive agreement between Reseller and McDATA
with respect to the subject matter herein. This Agreement
takes precedence over any additional or different terms from
whatever source, including those of Reseller, to which
objection is hereby made by McDATA.
17.2 WAIVER. No waiver of any right or remedy on one occasion by
either party shall be deemed a waiver of such right or remedy
on any other occasion.
17.3 CONTRACT CHANGES. Except as provided herein, this Agreement
may not be modified or amended except by an instrument in
writing signed by duly authorized representatives of both
parties. The parties acknowledge that from time to time McDATA
and Reseller may wish to implement changes to this Agreement.
17.4 GOVERNING LAW. This Agreement shall be governed by the
substantive laws of the State of New York. Any proceeding to
enforce, or to resolve disputes relating to, this Agreement
shall be brought before a court of competent jurisdiction in
the State of New York, including a federal District Court
sitting within such State. In such proceedings. neither party
shall assert that a court lacks jurisdiction over such party
or the subject matter hereof. The parties hereto expressly
waive any right they might have to a jury trial and agree that
any proceeding under this Agreement shall be tried by a judge
without a jury. The United Nations Convention on the
International Sale of Goods (CISG), as provided for in Article
6 thereof, is specially excluded and shall not be applicable
to any transaction contemplated herein.
17.5 SEVERABILITY. If any part of this Agreement is found to be
invalid by any court, the remainder
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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11
<PAGE> 15
will remain in full force and effect.
17.6 COMPLIANCE WITH LAWS. The parties as well as Channel Partners
shall comply with all applicable laws, including, without
limitation, the import and export control laws of the United
States of America, any import and export control regulations
of the United States, and any applicable laws or regulations
of those countries involved in transactions concerning the
exporting, importing and re-exporting of Products purchased
under application of these terms and conditions. The parties
as well as Channel Partners shall also comply with the United
States Foreign Corrupt Practices Act and shall indemnify
McDATA from and against any liabilities, damage, costs and
expenses, including reasonable attorneys' fees with respect to
claims resulting from violations of such act by a party and/or
a Channel Partner.
Reseller covenants to McDATA that it shall not export from the
United States or reexport from the country to which McDATA
initially exports any of the Software in any form, without the
prior written consent of McDATA and any agency of the United
States government where such consent is necessary.
17.7 NOTICES. Notices required hereunder shall be in writing, and
shall be deemed given when transmitted by facsimile (provided
such facsimile is subsequently confirmed in writing within
five (5) days of the facsimile date) or deposited with an
express delivery service with guaranteed third day delivery,
prepaid, addressed as follows:
To McDATA:
McDATA Corporation
310 Interlocken Parkway
Broomfield, Colorado 80021-3464
Attn.: Vice President of Sales
Facsimile # (303) 460-3235
To Reseller:
International Business Machines Corporation
2455 South Road
Poughkeepsie, NY 12601-5400
Attn: Manager OEM Products
Facsimile # (914) 433-9617
17.8 ASSIGNMENT. Neither Reseller nor McDATA shall assign this
Agreement or any rights hereunder without the prior written
consent of the other party, which consent shall not be
unreasonably withheld.
17.9 HEADINGS. The headings provided in this Agreement are for
convenience only and shall not be used in interpreting or
construing this Agreement.
17.10 FORCE MAJEURE. Neither party shall be responsible for any
failure to perform or delay in performing any of its
obligations due to causes beyond the reasonable control of the
party, including but not limited to acts of God, war, riot,
embargoes, acts of civil or military authorities, fire,
floods, accidents, strikes, or shortages of transportation,
facilities, fuel, energy, labor, or materials. In the event of
such delay, either party may defer the performance for a
period equal to the time of such delay, provided however if
such period to time exceeds one (1) month Reseller may without
penalty cancel or reschedule any or all unfilled purchase
orders and if such period exceeds three (3) months either
party may terminate this Agreement.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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12
<PAGE> 16
17.11 RECORDS.
17.11.1 During the term of this Agreement and for a period of
two (2) years after termination or expiration of this
Agreement, Reseller shall maintain a full and
complete record of all Reseller's shipments of
Software to Channel Partners and End User Customers.
During such time, but no more often than once per
year, McDATA retains limited rights to audit such
records. Such audit shall be conducted by an
independent third party at McDATA's expense and is
subject to reasonable notice by McDATA and shall take
place during Reseller's normal business hours.
17.11.2 During the term of this Agreement and for a period of
two (2) years after termination or expiration of this
Agreement, Reseller retains limited rights to audit
McDATA's relevant business records for McDATA's
compliance with Section 9.3 and Section 2.5 of
Exhibit B of this Agreement. Such audit shall be
conducted by an independent third party at Reseller's
expense and is subject to reasonable notice by
Reseller and shall take place during McDATA's normal
business hours.
17.12 GIFTS. Neither party shall knowingly offer or give employees
or members of their families of the other party gifts or
gratuities of any type.
17.13 PRESS RELEASE. Following execution of this Agreement, each
party may issue a press release announcing that Reseller is a
reseller of the Products. The parties shall to agree upon the
text of said press releases prior to such announcement, and
such agreement shall not be unreasonably withheld. Failure to
reach such agreement shall not be grounds for termination of
this Agreement.
17.14 PUBLICATIONS AND MARKETING MATERIALS.
17.14.1 Publications. English language soft copies of each
applicable technical End User Customer manual will be
available to Reseller at no charge.
17.14.2 Marketing Materials. McDATA will make available to
Reseller soft copies of marketing literature for the
Products, subject to retention of all copyright
notices and/or confidentiality legends.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
02/22/00
13
<PAGE> 17
EXHIBIT A
PRODUCTS AND PRICING
<TABLE>
<CAPTION>
FEATURE DESCRIPTION REFERENCE RESELLER DISCOUNT
NET PRICING FROM
REFLECTING REFERENCE
APPROPRIATE
DISCOUNT
<S> <C> <C> <C> <C>
ED-5000 Base Assembly [*] [*] [*]
5010 G_Port Short-Wave (1 x 9 )* [*] [*] [*]
5011 G_Port Long-Wave (1 x 9 )* [*] [*] [*]
5012 Combo Port Board [*] [*] [*]
5020 High-Availability Hardware [*] [*] [*]
Pkg
5021 High-Availability Power [*] [*] [*]
Supply
3755 EFC Server PC (Console) [*] [*] [*]
5030 Ethernet Hub [*] [*] [*]
3750 EFC Manager (Software)** [*] [*] [*]
3775 ED-5000 Product Manager** [*] [*] [*]
</TABLE>
** Release 2.0 Pricing
** ED-5000 Product Manager required for each ED-5000 installed
** ED-5000 Manager required for initial ED-5000 installed in a fabric and can
manage upto (32) ED-5000's directly connected via E port
Sample Configurations
<TABLE>
<CAPTION>
Non-HA 1 Power Supply, 2 Fans, 1 CTP, 1 MPC, 1 CMM, EFC S/W, EFC Server PC, PM,Hub
<S> <C> <C> <C>
8 Ports [*] [*] [*]
16 Ports [*] [*] [*]
32 Ports [*] [*] [*]
</TABLE>
<TABLE>
<CAPTION>
HA with EFC Manager and Console
2 Power Supplies, 2 Fans, 2 CTP, 2 MPC, 2 CMM, EFC S/W, EFC Server PC, PM,Hub
<S> <C> <C> <C>
8 Ports [*] [*] [*]
16 Ports [*] [*] [*]
32 Ports [*] [*] [*]
</TABLE>
<TABLE>
<CAPTION>
HA without EFC Manager and Console
2 Power Supplies, 2 Fans, 2 CTP, 2 MPC, 2 CMM, EFC S/W, EFC Server PC, PM,Hub
<S> <C> <C> <C>
8 Ports [*] [*] [*]
16 Ports [*] [*] [*]
32 Ports [*] [*] [*]
</TABLE>
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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14
<PAGE> 18
EXHIBIT B
WARRANTY AND POST WARRANTY
SERVICES AND PRICES
NOTE: McDATA reserves the right to modify this Exhibit from time to time, to
delete Services, or to include additional Services which it will make available
to End User Customers.
1 WARRANTY
McDATA warrants the Products to the End User Customer in accordance with the
McDATA Warranty and Disclaimer Statement (Exhibit E, attached hereto and
incorporated herein by reference, as may be modified by McDATA from time to
time).
The warranty period for each Product is stated on a McDATA Product Exhibit for
such Product (see copy attached to this Exhibit as Figure B-3 as may be modified
by McDATA from time to time).
2 SERVICES
2.1 WARRANTY SERVICES
The warranty services available to the End User Customer for
each Product are outlined on a McDATA Product Exhibit for such
Product (see sample attached to this Exhibit as Figure B-3).
Warranty services include standard services for which there is
no charge to the End User Customer.
2.2 ENHANCED WARRANTY SERVICES
The enhanced warranty services available to the End User
Customer for each Product are outlined on a McDATA Product
Exhibit for such Product (see sample attached to this Exhibit
as Figure B-3) at the prices stated on Figure B-1 of this
Exhibit. An End User Customer must execute a McDATA
Maintenance Agreement (Figure B-2, attached hereto and
incorporated herein by reference, as may be amended from time
to time) to receive such enhanced warranty services.
2.3 POST WARRANTY SERVICES
The post warranty services available to the End User Customer
for each Product are outlined on a McDATA Product Exhibit for
such Product (see sample attached to this Exhibit as Figure
B-3) at prices stated on Figure B-1 of this Exhibit. An End
User Customer must execute a McDATA Maintenance Agreement
(Figure B-2, attached hereto and incorporated herein by
reference, as may be amended from time to time) to receive
such post warranty services.
2.4 INSTALLATION
Reseller will install Products at its expense.
2.5 INCENTIVE
If at the time the End User Customer purchases Products from
Reseller it purchases a three year, 24x7 upgrade contract from
McDATA, and McDATA invoices such End User Customer for the
three year, 24x7 upgrade contract, McDATA will pay Reseller an
[*] commission on
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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15
<PAGE> 19
the value of such invoice. Such commission will be paid to Reseller biannually
for the periods ending June 30th and December 31st. On or before the 15th day of
each month, McDATA will issue a report to Reseller stating the value of the
total of such three year contracts invoiced by McDATA in the previous month. On
or before the 15th day of July and January, McDATA will issue a check to
Reseller in the amount of the earned commission for the previous period.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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16
<PAGE> 20
FIGURE B-1
PRICES FOR WARRANTY, ENHANCED WARRANTY AND POST WARRANTY SERVICES
<TABLE>
<CAPTION>
FEATURE DESCRIPTION OF SERVICE SERVICE FEE FOR SERVICE FEE FOR EMEA SERVICE FEE FOR ASIA
NORTH AMERICA PACIFIC
CODE TOTAL MONTHLY TOTAL MONTHLY TOTAL MONTHLY
<S> <C> <C> <C> <C> <C> <C> <C>
N/A 8x5 Next Business Day Warranty
Unit 13 [*] [*] [*]
months
EFC Manager, 3 months [*] [*] [*]
Product Manager, 3 Months [*] [*] [*]
FC-5310 8x5 Next Business Day 2nd Year
Unit [*] [*] [*]
EFC Manager [*] [*] [*]
Product Manager [*] [*] [*]
[*] [*] [*] [*] [*] [*]
FC-5311 24x7 Enhanced Warranty Upgrade 1st Year
Unit [*] [*] [*]
EFC Manager [*] [*] [*]
Product Manager [*] [*] [*]
[*] [*] [*] [*] [*] [*]
FC-5312 24x7 2nd year
Unit [*] [*] [*]
EFC Manager [*] [*] [*]
Product Manager [*] [*] [*]
[*] [*] [*] [*] [*] [*]
</TABLE>
<TABLE>
<CAPTION>
FC-5313 24x7 Upgrade, 3 year contract (1 year enhanced warranty upgrade, 2 years post warranty) *
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Unit [*] [*] [*]
EFC Manager [*] [*] [*]
Product Manager [*] [*] [*]
[*] [*] [*]
Discount [*]% [*] [*] [*]
Install [*] [*] [*]
Total [*] [*] [*] [*] [*] [*]
</TABLE>
* NOTE: End User Customer receives [*] discount for prepaying a three year
contract.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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17
<PAGE> 21
FIGURE B-2
MCDATA MAINTENANCE AGREEMENT
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
Corporation
Figure B-3
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<PAGE> 22
[McDATA LOGO]
MAINTENANCE AGREEMENT FC-5313
Thank you for doing business with McDATA Corporation. We strive to provide you
with services of the highest quality. If, at any time, you have any questions
or problems, or are not completely satisfied, please let us know. Our goal is
to do our best for you.
This McDATA Maintenance Agreement (called the "Maintenance Agreement") covers
all business transactions you may do with us to acquire Services. This
Maintenance Agreement is the complete agreement regarding these transactions,
and replaces any oral or written communications between us. By signing below
for our respective companies, both of us agree to the terms of this Maintenance
Agreement.
<TABLE>
<CAPTION>
BILL-TO LOCATION INSTALLATION LOCATION
<S> <C>
Customer Name:______________________ Customer Name:________________________
Address:____________________________ Address:______________________________
Address:____________________________ Address:______________________________
Attention:__________________________ Technical Contact:____________________
Phone:_____________FAX:_____________ Phone:________________FAX:____________
Cell #________________Pager___________
</TABLE>
PRODUCT SCHEDULE FOR SERVICES
<TABLE>
<CAPTION>
FEATURE CODE PRODUCT SERVICE LEVEL ANNUAL SERVICE
FEE
-------------------------------------------------------------------------------
<S> <C> <C> <C>
FC-5313 ED-5000 Director 3 year 24x7 Upgrade* $[*]
EFC Manager 3 year 24x7 Upgrade* $[*]
Product Manager 3 year 24x7 Upgrade* $[*]
----
Total - 3 year 24x7 contract (before [*]) $[*]
[*] -$[*]
TOTAL - 3 YEAR 24x7 CONTRACT $[*]
</TABLE>
*Includes 1 year enhanced warranty upgrade and 2 years post warranty 24x7
service. You receive a [*] for prepaying three years.
DESCRIPTION OF SERVICES:
24X7: 24x7 on-site service is available within Principal Area of Maintenance
(PAM). If on-site service is required, the response time is 4 hours.
TELEPHONE SUPPORT AND UNIT MONITORING: 24x7 telephone support is available for
all levels of warranty/post warranty service. Call the McDATA Call Center at
1-800-752-4572. If you purchase the optional EFC Manager Server/Software and
Product Manager Software, and provide a dial-up phone line, McDATA will provide
24x7 unit monitoring (Call Home Monitoring).
HARDWARE UPGRADES: Upgrades to the Product hardware will be provided to you
as required.
SOFTWARE UPGRADES: Mandatory Maintenance Release upgrades to the Software will
be distributed to you. Non-mandatory Maintenance Release upgrades to the
Software will be provided as required. Functional Release upgrades to the
Software will be made available for fee to you.
Out of scope on-site technical support maintenance service is available at an
hourly Time and Materials rate of [*], with a required 2-hour minimum.
------------------------------------------------------------------------------
DEFINITIONS:
PRINCIPAL AREA OF MAINTENANCE (PAM): An area situated within a specified radius
of the business center of a city in which a McDATA authorized service center is
located. The radius is approximately 50 miles.
NEXT BUSINESS DAY: Next Business Day service is available within the Principal
Area of Maintenance (PAM). If on-site service is required, McDATA will dispatch
a representative within 24 hours of your request, unless such dispatch would
fall on a weekend or McDATA holiday, in which case the representative will be
dispatched on the next McDATA business day. In response to a call placed during
normal business hours (8-5 your local time) a Customer Engineer (CE) will
arrive at your site before 5:00 pm the next business day. Any call received
after 5:00 pm local time will be handled as if received the next day.
MAIL-IN REPAIR: The Product must be returned to McDATA under the Return
Material Authorization (RMA) repair process. Contact the McDATA Call Center at
800-752-4572 for RMA instructions. The unit will be repaired or replaced within
10 days of receipt and returned to you.
MAINTENANCE RELEASE: Software "fixes" for known problems. Maintenance Releases
are available to you under warranty, extended warranty, or post warranty at no
additional charge.
FUNCTIONAL RELEASE: New releases to Software providing new features or
significantly enhanced operability. McDATA reserves the right to charge
additional
----------------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions. Asterisks within brackets denote omissions.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
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Figure B-3
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<PAGE> 23
fee(s) for such Functional Releases.
The parties hereby acknowledge that they have read and understand this
Maintenance Agreement, and agree to all terms and conditions stated herein.
MCDATA CORPORATION CUSTOMER:
---------------------------
Signed: Signed:
------------------------- -----------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
Date: Date:
--------------------------- -------------------------------
AFTER SIGNING, PLEASE RETURN A COPY OF THIS AGREEMENT ALONG WITH YOUR PO FOR
THE AMOUNT STATED ABOVE TO:
MCDATA CORPORATION, 310 INTERLOCKEN PARKWAY, BROOMFIELD, CO 80021-3464
Resale Agreement No. 90-00-0109-07 IBM Corporation/McData
Corporation
Figure B-3
02/22/00
20
<PAGE> 24
McDATA
MAINTENANCE TERMS AND CONDITIONS
1 DEFINITIONS:
1.1 SERVICES are either Enhanced Warranty Services or Post Warranty
Services that we provide to you for a fee. The descriptions of these
Services and the fees we charge for them are described on the first
page of this Agreement.
1.2 ENHANCED WARRANTY SERVICES are services in addition to standard
warranty services, which we will provide to you for a fee during the
warranty period for the McDATA product(s) you have purchased.
1.3 POST WARRANTY SERVICES are services we will provide to you for a fee
after the expiration of the warranty period for the McDATA product(s)
you have purchased.
1.4 PRODUCT refers to hardware, software, and/or related features which
were manufactured or developed by McDATA (or its suppliers) and which
are subject to the Services described on the first page of this
Agreement.
1.5 TIME AND MATERIALS charges are fees charged by McDATA for non-standard
out of scope Services.
2 PAYMENT TERMS AND TAXES. Payment terms are net thirty (30) days after date
of invoice. You are responsible for paying any applicable sales taxes for
the Services.
3 SERVICES AND LIMITATIONS.
3.1 McDATA may repair the failed Product or component or replace it at our
discretion. Replacement parts may be new or refurbished. When the type
of Service requires that you deliver the failing Product to McDATA,
you agree to ship the Product suitably packaged (prepaid unless we
specify otherwise) to a location we designate. After we have repaired
or exchanged the Product, we will return it to you at our expense
unless we specify otherwise. We are responsible for loss of, or damage
to, your Product while it is in our possession or in transit in those
cases where we are responsible to the transportation charges.
McDATA will install engineering changes which improve the performance,
reliability or safety of a Product ("Field Change Orders" or "FCOs").
3.2 Services will not include repair or replacement of any Product
(a) which has been damaged by misuse, accident, modification,
unsuitable physical or operating environment, or improper
maintenance by you;
(b) which has been used in combination with other equipment or
software which are not recommended for use with such Product in
McDATA's written specifications;
(c) which has been moved, installed, deinstalled, altered or repaired
by anyone other than McDATA or McDATA's authorized representative;
(d) on which the original identification marks have been removed; or
(e) fails because of a product for which we are not responsible.
If McDATA provides services which are covered by any of the
limitations described above, you agree to pay McDATA for such services
at our then-current Time and Materials rates.
4 YOUR OTHER RESPONSIBILITIES. You agree to:
(a) promptly notify McDATA of any material failure, malfunction or error
in the Products which you detect, and provide McDATA with a
description of the problem and the conditions under which it occurred;
(b) allow McDATA support personnel access to your premises, resources,
equipment and personnel as we reasonably require to perform the
Services;
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
Corporation
Figure B-3
2/22/00
21
<PAGE> 25
(c) provide a dedicated analog modem phone line for remote diagnostics;
(d) properly care for the Products, as specified in the documentation for
the Products, including maintaining a proper site environment
(temperature, humidity, power, etc.);
(e) ensure that all of your Product software and data files used in
connection with the Products are routinely archived and documented;
(f) if, during the contract term(s), you wish to relocate Product(s) from
the initial installation site to a new location, you agree to notify
McDATA in writing ninety (90) days prior to the relocation date.
Upon receipt of such notification, McDATA may, at its option, prepare
the Products for such relocation, and reinstall the Products at
McDATA's then-current rates.
5 WARRANTY FOR SERVICES. McDATA warrants that we will perform the Services
using reasonable care and skill. THIS WARRANTY AND THE APPLICABLE WARRANTY
ACCOMPANYING THE PRODUCT ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL
OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
6 LIMITATION OF LIABILITY
6.1 Circumstances may arise where, because of a default on our part or
other liability, you are entitled to recover damages from us. In each
instance, regardless of the basis on which you are entitled to claim
damages from us (including fundamental breach, negligence,
misrepresentation, or other contract or tort claim), we are liable
for no more than;
(a) damages for bodily injury (including death) and damage to real
property and tangible personal property; and
(b) the amount of any other actual direct damages up to the greater
of [*] or the annual fees paid by you for Services.
This limit also applies to any of our subcontractors. It is the
maximum for which we and our subcontractors are collectively
responsible.
6.2 ITEMS FOR WHICH WE ARE NOT LIABLE
Under no circumstances are we or our subcontractors liable for any of
the following:
(a) third party claims against you for damages (other than those
under Section 6.1(a) above);
(b) loss of, or damage to, your records or data; or
(c) special, incidental, or indirect damages or for any economic
consequential damages (including lost profits or savings), even
if we are informed of their possibility.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS. ASTERISKS WITHIN BRACKETS DENOTE OMISSIONS.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
Corporation
Figure B-3
02/22/00
22
<PAGE> 26
FIGURE B-3
McDATA PRODUCT EXHIBIT
ED-5000 FIBRE CHANNEL DIRECTOR
This McDATA PRODUCT EXHIBIT provides specific information regarding the
warranty, enhanced warranty and post warranty maintenance services available
for the ED-5000 Fibre Channel Director ordered by End User Customer and/or to
be maintained by McDATA.
WARRANTY
The warranty period for evaluations and purchases is thirteen (13) months from
the date of shipment from McDATA.
WARRANTY SERVICES:
NEXT BUSINESS DAY**: The standard warranty services available within the
Principal Area of Maintenance (PAM)* are on a Next Business Day** basis for
the ED-5000. If on-site service is required, the response time is 8:00 am
to 5:00 pm Next Business Day**.
TELEPHONE SUPPORT AND UNIT MONITORING: 24x7 telephone support is available
for all levels of warranty service. Call the McDATA Call Center at
1-800-752-4572. If End User Customer purchases the optional EFC Manager
Server/Software and Product Manager Software, and provides a dial-up phone
line, McDATA will provide 24/7 unit monitoring (Call Home Monitoring)
HARDWARE UPGRADES: Upgrades to the Product hardware will be provided to the
End User Customer as required.
SOFTWARE UPGRADES: Mandatory Maintenance Release**** upgrades to the
Software will be distributed to End User Customer. Non-mandatory
Maintenance Release**** upgrades to the Software will be provided as
required. Functional Release**** upgrades to the Software will be made
available for fee to End User Customer.
ENHANCED WARRANTY SERVICES:
24x7: If on-site service is required, the response time is 4 hours. 24x7
warranty services are available in most major cities, within Principal Area
of Maintenance (PAM)*. Contact your McDATA Account Manager for warranty
upgrade charges. Mail-In Repair*** service is available for Product located
outside the PAM*.
TELEPHONE SUPPORT AND UNIT MONITORING: Services are the same as described
above for Warranty Services.
HARDWARE UPGRADES: Services are the same as described above for Warranty
Services.
SOFTWARE UPGRADES: Services are the same as described above for Warranty
Services.
POST WARRANTY SERVICES:
NEXT BUSINESS DAY**: Services are the same as described above for Warranty
Services.
24X7: Services are the same as described above for Enhanced Warranty
Services.
TELEPHONE SUPPORT AND UNIT MONITORING: Services are the same as described
above for Warranty Services.
HARDWARE UPGRADES: Services are the same as described above for Warranty
Services.
SOFTWARE UPGRADES: Services are the same as described above for Warranty
Services.
INSTALLATION:
Installation of the Products will be provided by IBM personnel.
Installation will consist of attaching End User Customer-supplied cabling
to the Products, configuring Product, attaching and testing the Call Home
Monitoring feature, and ensuring the Products are operating properly.
DEFINITIONS:
PRINCIPAL AREA OF MAINTENANCE (PAM): An area situated within a specified radius
of the business center of a city in which a McDATA-authorized service center is
located. The radius is approximately 50 miles.
NEXT BUSINESS DAY: If on-site support is deemed necessary by McDATA, McDATA
shall dispatch a representative within 24 hours of the Customer's request,
unless such dispatch would fall on a weekend or McDATA holiday, in which case
the representative will be dispatched on the next McDATA business day. In
response to a call placed during normal business hours (8-5 Customer local
time) a Customer Engineer (CE) will arrive at Customer site before 5:00pm the
next business day. Any call received after 5:00pm local time will be handled as
if it was received the next day.
MAIL-IN REPAIR: The Product must be returned to McDATA under the Return
Material Authorization (RMA) repair process. Contact the McDATA Call Center at
800-752-4572 for RMA instructions. The unit will be repaired or replaced within
10 days of receipt and returned to End User Customer.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA
Corporation
Figure B-3
02/22/00
23
<PAGE> 27
MAINTENANCE RELEASE: Software "fixes" for known problems. Maintenance Releases
are available to End User Customer under warranty, enhanced warranty, or post
warranty at no additional charge.
FUNCTIONAL RELEASE: New releases to Software providing new features or
significantly enhanced operability. McDATA reserves the right to charge
additional fee(s) for such Functional Releases.
Resale Agreement No. 90-00-0109-07 IBM Corporation/McData
Corporation
Figure B-3
02/22/00
24
<PAGE> 28
EXHIBIT C
McDATA CLICK-THROUGH SOFTWARE LICENSE
LICENSE AGREEMENT
CUSTOMER LICENSE AGREEMENT AND CONDITIONS OF SOFTWARE ACCEPTANCE
IMPORTANT: This Agreement contains important information about this software and
its use. Read this Agreement before installing this software.
THIS IS A LEGAL AGREEMENT AND THE EXCLUSIVE AGREEMENT BETWEEN THE USER ("YOU")
AND McDATA CORPORATION ("McDATA"). IF YOU AGREE WITH THE TERMS OF THIS LICENSE,
CLICK THE "YES" BUTTON BELOW TO INSTALL THE SOFTWARE. IF YOU DO NOT AGREE WITH
THE TERMS OF THIS LICENSE, CLICK THE "NO" BUTTON BELOW TO QUIT THE INSTALLATION
OF THIS SOFTWARE, AND PROMPTLY RETURN THE CD-ROM AND ACCOMPANYING ITEMS
(INCLUDING WRITTEN MATERIALS AND CONTAINERS) TO McDATA. INSTALLATION OR USE OF
THIS SOFTWARE INDICATES YOUR ACCEPTANCE OF THE TERMS OF THIS LICENSE.
LICENSE. This Software, including any corrections, modifications or
enhancements, is proprietary to, trade secret of, and copyrighted by McDATA or
its suppliers. You have the non-exclusive right to use the Software subject to
the terms and conditions set forth in the License Agreement.
You may:
- install and use the Software on a single computer,
- make one (1) copy of the Software into any machine-readable format
solely for backup and archival purposes, provided that You include all
copyright notices and any proprietary legends on such copy, and
- physically transfer the Software from one computer to another,
provided that the Software is removed from the computer on which it
was installed and is used only on one (1) computer at a time, subject
to the restrictions set forth herein.
- transfer this License, together with the original and all back-up
copies of the Software and related documentation, only if: (a) you
give McDATA written notice of the transfer; and (b) the transferee
agrees to comply with the provisions of this License; and (c) you
destroy all copies of the Software and related documentation not
transferred by you to the transferee.
RESTRICTIONS ON USE AND TRANSFER. You agree that you will not copy, modify,
decompile, disassemble, or export the Software from the country where such
Software is furnished to you, or transfer the Software, or any copy,
modification, or merged portion of such program in whole or in part, except as
expressly provided for in this license.
TITLE. The original and any copies of the Software or accompanying
documentation, in whole or in part, including translations, compilations,
partial copies, modifications, and updates are the property of McDATA. You have
only the limited rights granted by this license, and shall not use the Software
except as expressly authorized herein. You are not an owner of any copy of the
Software, and therefore 17 U.S.C. section 117 does not apply. You must reproduce
and include the proprietary rights notices on any copy of the Software and
accompanying documentation.
TERMINATION. You may terminate Your license to the Software at any time by
destroying the Software and accompanying documentation together with all copies,
modifications and merged portions in any form. The license will also terminate
if You fail to comply with any term or condition of this Agreement. You agree
upon such termination to destroy the Software and accompanying documentation,
together with all copies, modifications and merged portions in any form.
LIMITED WARRANTY. McDATA warrants that this electronic media will perform
substantially in accordance with published specifications, under normal use, for
a period of 90 days after the date of delivery. If, during this 90-day period,
you discover a defect in the electronic media, you may return the defective
electronic media to McDATA and the electronic media will be replaced without
charge. Your sole remedy in the event of a defect in the electronic media is
limited to, at McDATA's option, the replacement, of the defective media as
provided above, or refund of the cost of the electronic media.
WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OR
CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT ARE SPECIFICALLY DISCLAIMED WITH RESPECT TO THE SOFTWARE. THE
ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS WITH YOU AND
SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT McDATA, RESELLER OR DEALER)
ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, McDATA
MAKES NO WARRANTIES AS TO THE ACCURACY OR
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA Corporation
Exhibit C - 02/22/00
25
<PAGE> 29
COMPLETENESS OF USER DOCUMENTATION, OR THAT THE SOFTWARE IS ERROR FREE.
LIMITATION OF LIABILITY. EXCEPT FOR THE TERMS OF THE LIMITED WARRANTY PARAGRAPH
OF THIS LICENSE, McDATA MAKES NO ADDITIONAL WARRANTIES, EITHER EXPRESSED OR
IMPLIED. NEITHER McDATA NOR ANY THIRD PARTY ASSOCIATED WITH THE CREATION,
PRODUCTION, OR DELIVERY OF THIS SOFTWARE OR RELATED DOCUMENTATION SHALL BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, LOST PROFITS, SPECIFIC, OR CONSEQUENTIAL
DAMAGES IN CONNECTION WITH OR ARISING FROM THE FURNISHING, PERFORMANCE, OR USE
OF THE LICENSED SOFTWARE OR RELATED DOCUMENTATION, EVEN IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR ANY CLAIM BY ANY OTHER PARTY. IN NO EVENT SHALL
McDATA'S LIABILITY EXCEED THE RELEVANT PURCHASE PRICE PAID BY LICENSEE FOR THE
PRODUCT TO WHICH THIS LICENSE RELATES. SOME STATES DO NOT ALLOW THE LIMITATION
OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. McDATA HAS NO LIABILITY TO YOU
UNDER THIS SECTION FOR ANY CLAIM BASED UPON YOUR USE, COMBINATION OR OPERATION
OF THE PRODUCT WITH ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY McDATA, OR BASED
UPON ALTERATION OF EQUIPMENT OR MODIFICATION OF SOFTWARE BY YOU OR ANYONE OTHER
THAN A McDATA-AUTHORIZED SERVICE REPRESENTATIVE.
ACKNOWLEDGMENT. Your acceptance of this Software License Agreement acknowledges
that you have read this License Agreement and agree to its terms. Furthermore,
you agree this License Agreement is the complete and exclusive statement of the
agreement between us respecting the Software and related documentation, and it
supersedes any proposal or prior agreement - oral or written - and any other
communication between us relating to the subject matter of this License
Agreement. This License Agreement cannot be modified by any purchase order or
other document submitted by you.
YEAR 2000 COMPLIANCE. McDATA represents and warrants that the Software is Year
2000 ready. "Year 2000 ready" means that the Software when used in accordance
with its associated documentation, is capable of correctly processing,
providing, and/or receiving date data within and between the 20th and 21st
centuries, provided all other products (for example, software, hardware, and
firmware) used with the Software properly exchange accurate date data with it.
GENERAL. If any provision of this Agreement is held unenforceable, that
provision shall be enforced to the maximum extent permissible so as to give the
intent of the parties, and the remainder of this Agreement shall continue in
full force and effect. This Agreement is governed by the laws of the State of
Colorado, without reference to its conflict of law principles. You agree to
comply with all U.S. and foreign export control laws and regulations.
THE FOLLOWING TEXT IS APPLICABLE TO GOVERNMENT AGENCIES:
"RESTRICTED RIGHTS NOTICE. The Software or documentation on which this
notice is affixed or embedded was developed entirely at private expense by
the Contractors named below, and is deemed to be "commercial software" and
"commercial computer software documentation," respectively, pursuant to
DFAR Section 227.7202 and FAR 12.212(b) as applicable. Any use,
modification, reproduction, release, display or disclosure of the Software
and/or documentation by the U.S. Government or any of its agencies shall be
governed by the terms of this Agreement. It may not be used, duplicated, or
disclosed by the Government except as expressly permitted by this Agreement
and is subject to the restrictions set forth in FAR Section 52.227-19 or
52.227-14 (ALT III) as applicable. Any technical data provided that is not
covered by the above provisions is deemed to be "technical data-commercial
items" pursuant to DFAR Sections 227-7015(a). Any use, modification,
reproduction, release, display or disclosure of such technical data shall
be governed by the terms of DFAR Section 227.7015(b) or as otherwise
expressly provided by the Contractors. The Contractors are McDATA
Corporation, 310 Interlocken Parkway, Broomfield, Colorado 80021-3464, and
McDATA's suppliers."
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA Corporation
Exhibit C-02/22/00
26
<PAGE> 30
EXHIBIT D
MCDATA SHRINKWRAP SOFTWARE LICENSE
MCDATA CORPORATION
CUSTOMER LICENSE AGREEMENT AND CONDITIONS OF SOFTWARE ACCEPTANCE
IMPORTANT: This Agreement contains important information about this software
and its use. Read this Agreement before installing this software.
PLEASE READ BEFORE OPENING
IMPORTANT: THE PRODUCTS YOU HAVE PURCHASED CONTAIN SOFTWARE THAT IS PROPRIETARY
TO, TRADE SECRET OF, AND COPYRIGHTED BY MCDATA AND/OR ITS SUPPLIERS. MCDATA
CORPORATION ("MCDATA") LICENSES THE ENCLOSED SOFTWARE TO CUSTOMERS ONLY FOR
THEIR USE ON THE TERMS SET FORTH BELOW. OPENING AND KEEPING THIS PACKAGE
INDICATES YOUR ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS
AND CONDITIONS, PARTICULARLY THE LIMITATIONS OF LIABILITY AND WARRANTY, DO NOT
USE THIS SOFTWARE AND IMMEDIATELY CONTACT YOUR SALES REPRESENTATIVE TO RETURN
THIS SOFTWARE AND ALL ACCOMPANYING DOCUMENTATION AND CONTAINERS.
1. LICENSE. You have a single-user, non-exclusive right to use the enclosed
Software resident in CD, diskette, tape, ROM, EPROM, or any other electronic
media format, on a single computer and subject to the terms and conditions set
forth in the License Agreement. You may install and use the Software on a
single computer, and make one (1) copy of the Software into any
machine-readable format solely for backup and archival purposes, provided
that you include all copyright notices and any proprietary legends on such
copy. You may physically transfer the Software from one computer to another,
provided that the Software is removed from the computer on which it was
installed and is used only on one (1) computer at a time, subject to the
restrictions set forth herein. You may transfer this License, together with the
original and all back-up copies of the Software and related documentation, only
if: (a) you give McDATA written notice of the transfer; and (b) the transferee
agrees to comply with the provisions of this License; and (c) you destroy all
copies of the Software and related documentation not transferred by you to the
transferee.
2. RESTRICTIONS ON USE AND TRANSFER. You agree that you will not sell, copy,
modify, decompile, disassemble, or export the Software from the country where
such Software is furnished to you, or transfer or sublicense the Software, or
any copy, modification, or merged portion of such program in whole or in part,
except as expressly provided for in this License.
3. TITLE. The original and any copies of the Software or accompanying
documentation, in whole or in part, including translations, compilations,
partial copies, modifications, and updates are the sole and exclusive property
of McDATA and/or its suppliers. You have only the limited rights granted by
this License, and you shall not use the Software except as expressly authorized
herein. You are not an owner of any copy of the Software, and therefore 17
U.S.C. section 117 does not apply. You must reproduce and include the
proprietary rights notices on any copy of the Software and accompanying
documentation.
4. TERMINATION. You may terminate your license to the Software at any time by
destroying the Software and accompanying documentation together with all
copies, modifications and merged portions in any form. This License will
automatically terminate if you fail to comply with any term or condition of this
Agreement. You agree upon such termination to destroy the Software and
accompanying documentation, together with all copies, modifications and merged
portions in any form.
5. LIMITED WARRANTY. McDATA warrants that this electronic media will perform
substantially in accordance with published specifications, under normal use,
for a period of 90 days after the date of delivery. If, during this 90-day
period, you discover a defect in the electronic media, you may return the
defective electronic media to McDATA and the electronic media will be replaced
without charge. Your sole remedy in the event of a defect in the electronic
media is limited to, at McDATA's option, the replacement of the defective media
as provided above, or refund of the cost of the electronic media. THIS LIMITED
WARRANTY IS VOID IF FAILURE OF THIS SOFTWARE HAS RESULTED FROM ACCIDENT, ABUSE
OR MISAPPLICATION.
6. WARRANTY DISCLAIMER. EXCEPT AS TO THE MEDIA ON WHICH THE SOFTWARE IS
FURNISHED AS EXPRESSLY PROVIDED ABOVE, THIS SOFTWARE IS PROVIDED "AS IS"
WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THE
IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT ARE SPECIFICALLY DISCLAIMED WITH RESPECT
TO THE SOFTWARE. MCDATA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE
SOFTWARE WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THIS SOFTWARE IS WITH YOU AND SHOULD THE SOFTWARE PROVE
DEFECTIVE, YOU (AND NOT McDATA, RESELLER OR DEALER) ASSUME THE ENTIRE COST OF
ALL NECESSARY SERVICING, REPAIR OR CORRECTION. McDATA MAKES NO WARRANTIES AS TO
THE ACCURACY OR COMPLETENESS OF USER DOCUMENTATION, OR THAT THE SOFTWARE IS
ERROR FREE.
7. LIMITATION OF LIABILITY. EXCEPT FOR THE EXPRESS TERMS OF THE LIMITED
WARRANTY PARAGRAPH OF THIS LICENSE, McDATA MAKES NO ADDITIONAL WARRANTIES,
EITHER EXPRESS OR IMPLIED. NEITHER McDATA NOR ANY THIRD PARTY ASSOCIATED WITH
THE CREATION, PRODUCTION, OR DELIVERY OF THIS SOFTWARE OR RELATED DOCUMENTATION
SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, LOST PROFITS, SPECIFIC, OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING FROM THE FURNISHING,
PERFORMANCE, OR USE OF THE LICENSED SOFTWARE OR RELATED DOCUMENTATION, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY
Resale Agreement No. 90-00-0109-07 IBM Corporation / McDATA Corporation
Exhibit E - 02/22/00
27
<PAGE> 31
CLAIM BY ANY OTHER PARTY. IN NO EVENT SHALL McDATA'S LIABILITY EXCEED THE
RELEVANT PURCHASE PRICE PAID BY LICENSEE FOR THE PRODUCT TO WHICH THIS LICENSE
RELATES. THE LIMITED WARRANTY, LIMITED REMEDIES AND LIMITED LIABILITY ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN McDATA AND YOU. McDATA
WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS. SOME STATES
DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU. McDATA HAS NO LIABILITY TO YOU UNDER THIS SECTION FOR ANY CLAIM BASED UPON
YOUR USE, COMBINATION OR OPERATION OF THE PRODUCT WITH ANY EQUIPMENT OR SOFTWARE
NOT SUPPLIED BY McDATA, OR BASED UPON ALTERATION OF EQUIPMENT OR MODIFICATION OF
SOFTWARE BY YOU OR ANYONE OTHER THAN A McDATA-AUTHORIZED SERVICE REPRESENTATIVE.
8. ACKNOWLEDGMENT. Your acceptance of this Software License Agreement
acknowledges that you have read this License Agreement and agree to its terms.
Furthermore, you agree this License Agreement is the complete and exclusive
statement of the agreement between us respecting the Software and related
documentation, and it supersedes any proposal or prior agreement - oral or
written - and any other communication between us relating to the subject matter
of this License Agreement. This License Agreement cannot be modified by any
purchase order or other document submitted by you.
9. YEAR 2000 COMPLIANCE. McDATA represents and warrants that the Software is
Year 2000 ready. "Year 2000 ready" means that the Software when used in
accordance with its associated documentation, is capable of correctly
processing, providing, and/or receiving date data within and between the 20th
and 21st centuries, provided all other products (for example, software,
hardware, and firmware) used with the Software properly exchange accurate date
data with it.
10. GENERAL. If any provision of this Agreement is held unenforceable, that
provision shall be enforced to the maximum extent permissible so as to give the
intent of the parties, and the remainder of this Agreement shall continue in
full force and effect. This Agreement is governed by the laws of the State of
Colorado, without reference to its conflict of law principles. You agree to
comply with all U.S. and foreign export control laws and regulations.
11. RESTRICTED RIGHTS NOTICE. THE FOLLOWING TEXT IS APPLICABLE TO GOVERNMENT
AGENCIES: The Software or documentation on which this notice is affixed or
embedded was developed entirely at private expense by the Contractors named
below, and is deemed to be "commercial software" and "commercial computer
software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR
12.212(b) as applicable. Any use, modification, reproduction, release, display
or disclosure of the Software and/or documentation by the U.S. Government or any
of its agencies shall be governed by the terms of this Agreement. It may not be
used, duplicated, or disclosed by the Government except as expressly permitted
by this Agreement and is subject to the restrictions set forth in FAR Section
52.227-19 or 52.227-14 (ALT III) as applicable. Any technical data provided that
is not covered by the above provisions is deemed to be "technical
data-commercial items" pursuant to DFAR Sections 227-7015(a). Any use,
modification, reproduction, release, display or disclosure of such technical
data shall be governed by the terms of DFAR Section 227.7015(b) or as otherwise
expressly provided by the Contractors. The Contractors are McDATA Corporation,
310 Interlocken Parkway, Broomfield, Colorado 80021-3464, and McDATA's
suppliers.
EXHIBIT E
McDATA WARRANTY AND DISCLAIMER STATEMENT
The following statement will be included by McDATA with each Product shipped to
End User Customer:
WARRANTY:
PRODUCT WARRANTY. McDATA warrants that, throughout the specific warranty period
identified in the McDATA Product Exhibit for the Product(s) ordered hereunder,
such Product(s) and Software will, as delivered and under normal use, be in
good working order and will conform to McDATA's published specifications in
effect at the time of shipment. If, during the warranty period, the Product(s)
fails to conform to McDATA's published specifications, McDATA shall, at its
sole option and expense, either repair or replace such non-conforming item in
order to satisfy this warranty.
WARRANTY SERVICES. McDATA offers standard warranty services and enhanced
warranty services as specified in the attached McDATA Product Exhibit(s).
LIMITATIONS. This warranty shall not apply if repair or parts replacement is
required because of accident,
Resale Agreement No. 90-00-0109-07 IBM Corporation/McDATA Corporation
Exhibit E-02/22/00
28
<PAGE> 32
neglect, abuse or misuse, failure of electrical power, air conditioning or
humidity control, theft, fire or water damage, or causes other than ordinary
use, or maintenance performed by End User Customer or persons other than a
McDATA-authorized service representative in a manner which McDATA reasonably
determines to have adversely affected performance or reliability.
McDATA does not warrant that the Products will meet End User Customer's
requirements; that it will operate in the combinations which End User Customer
may select for use; that the operation of the Product(s) will be uninterrupted
or error free; or that all Software programming errors will be corrected.
McDATA shall not be required to adjust or repair any Product if it would be
impractical or hazardous to do so because of unauthorized alterations in the
Product or its connection by mechanical or electrical means to equipment or
devices not identified as compatible in McDATA product specifications.
DISCLAIMER:
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. McDATA'S LIABILITY FOR
BREACH OF ANY WARRANTY SET FORTH HEREIN SHALL IN NO EVENT EXCEED THE PURCHASE
PRICE OF THE AFFECTED ITEM.
Resale Agreement No. 90-00-0109-07 IBM Corporation / McDATA Corporation
Exhibit E-02/22/00
29
