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Exhibit 10.21
Confidential treatment has been requested for portions of this document.
Redacted material is identified by double asterisks (i.e. "**"). The redacted
material has been filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
HP TERMS AND CONDITIONS OF SALE AND SERVICE
HP's sale of Products and Support and HP's license of Software are governed by
these HP Terms and Conditions of Sale and Service.
1. DEFINITIONS
a) "Delivery" means standard HP shipping to and arrival at the
receiving area at the "Ship To" address in the country where
Customer's order is placed, unless otherwise indicated on the
quotation.
b) "Exhibits" means attachments that describe or otherwise apply to the
sale or license of Products or Support.
c) "Products" means hardware, Software, documentation, accessories,
supplies, parts and upgrades that are determined by HP to be
available from HP upon receipt of Customer's order. "Custom
Products" means Products modified, designed or manufactured to meet
Customer requirements.
d) "Software" means one or more programs capable of operating on a
controller, processor or other hardware Product ("Device").
Software is either a separate Product, included with another Product
("Bundled Software"), or fixed in a Device and not removable in
normal operation ("Firmware").
e) "Specifications" means specific technical information about HP
Products which is published in HP Product manuals and technical data
sheets in effect on the date HP ships Customer's order.
f) "Support" means hardware maintenance and repair; Software updates
and maintenance; training; and other standard support services
provided by HP. "Custom Support" means any agreed non-standard
Support, including consulting and custom project services.
2. PRICES
a) Prices include Delivery charges, unless otherwise indicated on the
quotation, and are valid for the period indicated on the quotation
or for the applicable purchase agreement ordering period, whichever
expires first. Prices remain valid for ** from the original order
date unless otherwise indicated on the quotation. Change orders that
extend Delivery beyond those validity periods become new orders at
prices in effect when HP receives the change orders. Support prices,
except for Custom and prepaid Support, may be changed by HP upon
60 days written notice.
b) Prices are exclusive of, and Customer will pay, applicable sales,
use, service, value added or like taxes, unless Customer has
provided HP with an appropriate exemption certificate for the
Delivery jurisdiction.
3. ORDERS
a) All orders are subject to acceptance by HP. Product orders must
specify Delivery within ** from order date, unless otherwise
agreed or indicated on the quotation.
b) Customer will specify Ship To addresses within the country where the
order is placed, unless otherwise agreed.
c) Customer may cancel orders for Products (except Custom Products)
prior to shipment at no charge. Customer will pay all charges for
returning Products to HP's shipping location if Product orders are
cancelled after shipment.
4. DELIVERY
HP will make reasonable efforts to meet Customer's Delivery requirements.
If HP is unable to meet Customer's Delivery requirements, alternative
arrangements may be agreed. In the absence of such agreement, Customer's
sole remedy is to cancel the order.
5. SHIPMENT AND RISK OF LOSS
HP will ship according to HP's standard commercial practice, and risk of
loss and damage will pass to Customer at Ship To address. If special
packing or shipping instructions are agreed, charges will be billed
separately to Customer, and risk of loss and damage will pass to Customer
on delivery to Customer's carrier.
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HP TERMS AND CONDITIONS OF SALE AND SERVICE
6. INSTALLATION AND ACCEPTANCE
a) Product installation information is available with Products, on
quotations or upon request. Installation by HP, when included in the
purchase price, is complete when the Product passes HP's
installation and test procedures.
b) For Products with installation included in the purchase price,
acceptance by Customer occurs upon completion of installation by HP.
For Products without installation included in the purchase price,
acceptance by Customer occurs upon Delivery, and will be presumed
unless Customer demonstrates within ** after Delivery that the
Product does not pass HP's established test procedures or programs.
c) If Customer schedules or delays installation by HP more than **
after Delivery, Customer acceptance of the Product(s) will occur on
the ** after Delivery.
7. PAYMENT
a) Payment terms are subject to HP credit approval. Payment is due 30
days from HP's invoice date. Invoices for contractual support
services and maintenance will be issued in advance of the Support
period. HP may change credit or payment terms at any time when, in
HP's opinion, Customer's financial condition, previous payment
record, or the nature of Customer's relationship with HP so
warrants.
b) HP may discontinue performance if Customer fails to pay any sum due,
or fails to perform under this or any HP related agreement if, after
** written notice, the failure has not been cured.
c) Title to hardware Products will pass upon the later of full payment
or Delivery of Products.
8. SUPPORT
a) Customer may order Support from HP's then current Support offering.
Some Support (and related Products) may not be available in all
countries. Orders for Support are subject to the terms of the
Support Exhibit or quotation in effect on the date of order.
b) To be eligible for Support, Products must be at current specified
revision levels and, in HP's reasonable opinion, in good operating
condition.
c) HP may, at **, modify Products to improve
operation, supportability and reliability, or to meet legal
requirements.
d) Relocation of Products is Customer's responsibility. Relocation may
result in additional Support charges and modified service response
times. Support of Products moved to another country is subject to
availability.
e) HP will provide Support for products not supplied by HP when
approved by HP in writing. HP will provide Support for HP Products
when Customer allows HP to perform modifications if requested by HP
under Section 8. c) above. Customer is responsible for removing any
products not eligible for Support to allow HP to perform Support
services. If Support services are made more difficult because of
such product(s), HP will charge Customer for the extra work at HP's
standard rates.
f) Support does not cover any damage or failure caused by:
1) use of non-HP media, supplies and other products; or
2) site conditions that do not conform to HP's site
specifications; or
3) neglect, improper use, fire or water damage, electrical
disturbances, transportation by Customer, work or modification
by people other than HP employees or subcontractors, or other
causes beyond HP's control; or
4) inability of any non-HP products in Customers environment to
correctly process, provide or receive date data (i.e.,
representations for month, day, and year), and to properly
exchange date data with the Products supplied by HP.
g) Customer is responsible for maintaining a procedure external to the
Products to reconstruct lost or altered Customer files, data or
programs. Customer will have a representative present when HP
provides Support services at Customer's site. Customer will notify
HP if Products are being used
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HP TERMS AND CONDITIONS OF SALE AND SERVICE
in an environment which poses a potential health hazard to HP
employees or subcontractors; HP may require Customer to maintain
such Products under HP supervision.
h) Customer may delete Products under Support or cancel Support orders
upon 30 days written notice. Upon 60 days written notice, HP may
cancel Support orders or delete Products no longer included in HP's
Support offering.
9. WARRANTY
a) Product warranty period and additional information is available with
Products, on quotations, or upon request.
b) Products purchased from HP outside the U.S. will receive the
standard warranty in the country of purchase. If Customer moves such
Products to another country where HP has Support presence, then
Customer will receive the destination country standard warranty.
c) Products purchased in the U.S. based on the **. A global
warranty means that the Product will include the destination
country's standard warranty in any country where the Product is
moved provided that HP has Support presence in that country.
d) Additional warranty coverage may be purchased and that warranty will
be limited to the country in which the additional coverage was
purchased. Customer may receive a different warranty when the
Product is purchased as part of a system. HP reserves the right to
change the warranty. Such changes will affect only new orders.
e) The warranty period begins on the date of Delivery, or the date of
installation if installed by HP. If Customer schedules or delays
installation by HP more than ** after Delivery, the warranty
period begins on the ** after Delivery.
f) HP warrants HP hardware Products against defects in materials and
workmanship. HP further warrants that HP hardware Products conform
to Specifications. These warranties do not include periodic
recalibration (recommended for some HP Products), unless
specifically covered in the warranty terms for such Products.
g) HP warrants that Software will not fail to execute its programming
instructions due to defects in materials and workmanship when
properly installed and used on the Device designated by HP. HP
further warrants that HP owned standard Software will substantially
conform to Specifications. HP does not warrant that Software will
operate in hardware and software combinations selected by Customer,
or meet requirements specified by Customer.
h) HP does not warrant that the operation of Products will be
uninterrupted or error free.
i) HP warrants that each HP hardware, software, and firmware Product
delivered under these HP Terms and Conditions of Sale and Service
will be able to accurately process date data (including, but not
limited to, calculating, comparing, and sequencing) from, into,
and between the twentieth and twenty-first centuries, and the
years 1999 and 2000, including leap year calculations, when used
in accordance with the Product documentation provided by HP
(including any instructions for installing patches or upgrades),
provided that all other products (e.g. hardware, software,
firmware) used in combination with such HP Product(s) properly
exchange date data with it. If the Specifications require that
specific HP Products must perform as a system in accordance with
the foregoing warranty, then that warranty will apply to those HP
Products as a system, and Customer retains sole responsibility to
ensure the Year 2000 readiness of its information technology and
business environment. The duration of this warranty extends
through **. To the extent permitted by local law, this warranty
applies only to branded HP Products and not to products
manufactured by others that may be sold or distributed by HP.
This warranty Section 9 i) applies only to HP Products shipped
after **. The remedies applicable to this Section, 9 i), are
those provided in Section 9 j) below. Nothing in this warranty
will be construed to limit any rights or remedies provided
elsewhere in these HP Terms and Conditions of Sale and Service
with respect to matters other than Year 2000 compliance.
j) If HP receives notice of defects or non-conformance to hardware
Specifications, or substantial non-conformance to HP owned standard
Software Specifications during the warranty period, HP will, at its
option, repair (and recalibrate only as necessitated by repairs), or
replace the affected Products. If HP is unable, within a reasonable
time, to repair, replace or correct a defect or non-conformance in a
Product to a condition as warranted, Customer will be entitled to a
refund of the purchase price upon prompt return of the Product to
HP. Customer will pay expenses for return of such Products to HP. HP
will pay expenses for shipment of repaired or replacement Products,
except for Products returned to Customer from another country.
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HP TERMS AND CONDITIONS OF SALE AND SERVICE
k) HP warrants that HP Support will be provided in a professional and
workmanlike manner. HP will replace, at no charge, parts which are
defective and returned to HP within ** of delivery.
l) Some newly manufactured HP Products may contain and HP Support may
use remanufactured parts which are equivalent to new in performance.
m) The above warranties do not apply to defects resulting from improper
or inadequate maintenance or calibration by Customer; Customer or
third party supplied software, interfacing or supplies; unauthorized
modification; improper use or operation outside of the
Specifications for the Product; abuse, negligence, accident, loss or
damage in transit; improper site preparation; or unauthorized
maintenance or repair.
n) THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER
WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. HP SPECIFICALLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
10. LICENSES
"Use" means storing, loading, installing, executing or displaying Software
on a Device.
"Software License" means the Use authorization(s) for the Software
specified by HP: in its quotation, invoice or other documentation. Each
Software License has a corresponding License Fee.
"License Fee" means the fee or fees designated by HP for Use of Software.
Different License Fees may apply to particular Software if more than one
Software License is available for that Software.
a) In return for the License Fee, HP grants Customer a non-exclusive
license to Use the Software listed in Customer's order in
conformance with the applicable Software License. Details of the
types of Software Licenses offered are available from HP on request.
If no Software License is specified, then, in return for the
applicable fee, HP grants Customer a license to Use one copy of the
Software on one Device at any one time. All Software Licenses will
be perpetual unless terminated, transferred or otherwise specified.
If Customer is an HP authorized reseller, Customer may sublicense
the Software to an end-user for its Use, or (if applicable)
sublicense the Software to an HP authorized reseller for subsequent
distribution to an end-user for its Use. These sublicenses must
incorporate the terms of this Section 10 in a written sublicense
agreement, which will be made available to HP upon request.
b) Unless otherwise permitted by HP, Customer may only make copies or
adaptations of the Software for archival purposes or when copying or
adaptation is an essential step in the authorized Use of the
Software on a backup Device, provided that copies and adaptations
are used in no other manner and provided further that the Use on the
backup Device is discontinued when the original or replacement
Device becomes operable.
c) Customer must reproduce all copyright notices in or on the original
Software on all permitted copies or adaptations. Customer may not
copy the Software onto any public or distributed network.
d) Bundled Software or Firmware provided to Customer may only be used
when operating the associated Device in configurations as sold or
subsequently upgraded by HP. Customer may transfer Firmware only
upon transfer of the associated Device.
e) Updates, upgrades or other enhancements are available under HP
Support agreements. HP reserves the right to require additional
licenses and fees for Use of the Software on upgraded Devices.
f) The Software is owned and copyrighted by HP or by third party
suppliers. Customer's license confers no title or ownership and is
not a sale of any rights in the Software, its documentation, or the
media on which they are recorded or printed. Third party suppliers
may protect their rights in the Software in the event of any
infringement.
g) Customer will not disassemble or decompile the Software without HP's
prior written consent. Where Customer has other rights under
statute, Customer will provide HP with reasonably detailed
information regarding any intended disassembly or decompilation.
Customer will not decrypt the Software unless necessary for
legitimate use of the Software.
h) Customer's Software License is transferable subject to HP's prior
written authorization and payment to HP of any applicable fees.
Customer will immediately upon transfer deliver all copies of the
Software to the transferee. The transferee must agree in writing to
the terms of Customer's license. All license terms will be binding
on involuntary transferees, notice of which is hereby given.
Customer's license will automatically terminate upon transfer.
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HP TERMS AND CONDITIONS OF SALE AND SERVICE
i) HP may terminate Customer's or any transferee's or sublicensee's
Software License upon five (5) days notice for failure to comply
with any applicable license terms. Immediately upon termination, the
Software and all copies of the Software will be destroyed or
returned to HP. Copies of the Software that are merged into
adaptations, except for individual pieces of data in Customer's or
transferee's or sublicensee's data base, will be removed and
destroyed or returned to HP. With HP's written consent, one copy of
the Software may be retained subsequent to termination for archival
purposes.
j) If the Software is licensed for use in the performance of a U.S.
government prime contract or subcontract, Customer agrees that
Software is delivered as "Commercial computer software" as defined
in DFARS 252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or
DFARS 252.227-7014 (Jun 1995), or as a "commercial item" as defined
in FAR 2.101(a), or as "Restricted computer software" as defined in
FAR 52.227-19 (Jun 1987), whichever is applicable. Customer agrees
that the regulations and obligations in Exhibit U1 apply to all such
Software and that the Software is adequately marked when the
Restricted Rights legend in Exhibit U1 is affixed to the Software
media. Customer further agrees that the Software has been developed
entirely at private expense.
11. INTELLECTUAL PROPERTY RIGHTS
a) HP will defend or settle any claim against Customer, (or third
parties to whom Customer is authorized by HP to resell or
sublicense), that Products or Support (excluding Custom Products and
Custom Support), delivered under these HP Terms and Conditions of
Sale and Service infringe a patent, utility model, industrial
design, copyright, trade secret, mask work or trademark in the
country where Products are used, sold or receive Support, provided
Customer:
1) promptly notifies HP in writing; and
2) cooperates with HP in, and grants HP sole control of the
defense or settlement.
b) HP will pay infringement claim defense costs, settlement amounts and
court-awarded damages. If such a claim appears likely, HP may modify
the Product, procure any necessary license, or replace it. If HP
determines that none of these alternatives is reasonably
available, **.
c) HP has no obligation for any claim of infringement arising from:
1) HP's compliance with Customer's designs, specifications or
instructions;
2) HP's use of technical information or technology provided by
Customer;
3) Product modifications by Customer or a third party;
4) Product use prohibited by Specifications or related
application notes; or
5) use of the Product with products not supplied by HP.
d) These terms state HP's entire liability for claims of intellectual
property infringement.
12. LIMITATION OF LIABILITY AND REMEDIES
a) Products are not specifically designed, manufactured or intended for
sale as parts, components or assemblies for the planning,
construction, maintenance, or direct operation of a nuclear
facility. Customer is solely liable if Products or Support purchased
by Customer are used for these applications. Customer will indemnify
and hold HP harmless from all loss, damage, expense or liability in
connection with such use.
b) To the extent HP is held legally liable to Customer, HP's liability
is limited to:
1) **;
2) **;
3) **;
4) **; and
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HP TERMS AND CONDITIONS OF SALE AND SERVICE
5) other direct damages for any claim based on a material breach
of any other term of these HP Terms and Conditions of Sale and
Service, up to a limit of U.S.$1,000,000 or the amount paid to
HP for the associated Product, whichever is less.
c) Notwithstanding Section 12 b) above, in no event will HP or its
affiliates, subcontractors or suppliers be liable for any of the
following:
1) actual loss or direct damage that is not listed in 12 b)
above;
2) damages for loss of data, or software restoration;
3) damages relating to Customer's procurement of substitute
products or services (i.e., "cost of cover"); or
4) incidental, special or consequential damages (including
downtime costs or lost profits, but excluding payments
described in Section 11 above and damages for bodily injury).
d) THE REMEDIES IN THESE HP TERMS AND CONDITIONS OF SALE AND SERVICE
ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.
13. GENERAL
a) Transactions may be conducted through Electronic Data Interchange
("EDI") or other electronic methods, as agreed.
b) HP will not be liable for performance delays or for non-performance,
due to causes beyond its reasonable control.
c) If either party becomes insolvent, is unable to pay its debts when
due, files for bankruptcy, is the subject of involuntary bankruptcy,
has a receiver appointed, or has its assets assigned, the other
party may cancel any unfulfilled obligations.
d) Neither party may assign any rights or obligations hereunder without
prior written consent of the other party.
e) Customer who exports, re-exports or imports Products, technology or
technical data purchased hereunder, assumes responsibility for
complying with applicable laws and regulations, and for obtaining
required export and import authorizations. HP may suspend
performance if Customer is in violation of applicable regulations.
f) Disputes arising in connection with these HP Terms and Conditions of
Sale and Service will be governed by the laws of the country and
locality in which HP accepts the order.
g) Provisions herein which by their nature extend beyond the
termination of any sale or license of Products or Support will
remain in effect until fulfilled.
h) These HP Terms and Conditions of Sale and Service and any Exhibits
constitute the entire agreement between HP and Customer, and
supersede any previous communications, representations or agreements
between the parties, whether oral or written, regarding transactions
hereunder. Customer's additional or different terms and conditions
will not apply. Customer's purchase or license of Products and
Support will constitute Customer's acceptance of these HP Terms and
Conditions of Sale and Service, which may not be changed except by
an amendment signed by an authorized representative of each party.
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