exv10w95



 






Exhibit 10.95



Integrated
Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



This Statement of Work #4 (“SOW”) #4905RL2050 adopts and incorporates by reference the terms
and conditions of Goods Agreement, as amended, # ROC-P-68 (“GA”) between International Business
Machines Corporation (hereinafter “Buyer”) and Brocade Communications Systems, Inc with offices at
1745 Technology Drive, San Jose, CA 95110 and Brocade Communications Switzerland, SarL, with an
office located at 29 Route de l’Aeroport, Case Postale 105, CH-1215, Geneva 15, Switzerland
(individually and collectively hereinafter “Supplier”). This SOW is effective beginning on August
12, 2005 (“Effective Date”). For the purposes of interpreting this SOW only, any conflicting,
additional or different terms contained in this SOW will be deemed to supercede and replace those
in the GA.




1.0 DEFINITIONS



“Documentation” is the user manuals and other technical or operating instructions related to, and
generally delivered by Supplier with the Software.



“End of Life” or “EOL” means the date and process by which Supplier discontinues the manufacture of
a Program.



“End User(s)” mean(s) Buyer’s end-user customer(s)



“Error” is a) a mistake, problem or defect that causes a Program to fail to meet its material
specifications; or b) any incorrect or incomplete statement or diagram in the related documentation
that causes a Program to be materially inaccurate or inadequate.



“General Availability” shall mean, with respect to a particular Program, the date on which such
Program is available for purchase by members of the general public by Buyer and or by Buyer’s
Authorized Third Party.



“Lead Time” means the minimum length of time prior to a specific delivery date that Supplier must
receive a release against a purchase order from Buyer to ensure delivery by such date.



“Marketing Materials” are Program brochures, manuals, technical specification sheets, demonstration
presentations, and other marketing sales literature provided by Supplier to Buyer for Buyers use in
performance of marketing activities. Buyer’s use of Marketing Materials may include transmission of
them through electronic marketing services.



“Programs” for purposes of this SOW are the current versions of Supplier software program
entitled, “Brocade Fabric Manager 5.0” in object code form only, including Documentation, related
materials, maintenance modifications, basic enhancements and any security devices or “locks” that
are listed in Exhibit B to this Agreement.



“Program Support” is the Supplier’s service offerings for the Program provided by Supplier directly
to an End User under Supplier’s standard support terms and conditions for such offerings, which
terms and conditions are available for review at
www.brocade.com/support and which Supplier support
offerings are in turn offered for resale by Buyer to End Users or are purchased by an End User
directly from Supplier.




					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 1 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050




2. Territory



The territory for this Agreement shall consist [**] in which Buyer is
directly or indirectly conducting business (“Territory”).




3. Grant of Rights



3.1 Resale of the Program. Supplier grants Buyer the [**] rights
to distribute the Program as specified in the “Program License” in the GA, except that the parties
agree that the Exhibit A to Amendment 2 to the GA is superseded and replaced with Exhibit A to this
SOW #4 for purposes of this SOW and the rights granted in this Section 3.1. Notwithstanding the
foregoing, the Programs may contain third-party software that is supplied with or incorporated into
the Programs but that is subject to additional terms and conditions as provided in Section 3.2 of
this SOW. Buyer agrees that Supplier may seek injunctive or other equitable relief to restrain
breach of this Section 3.1, whether threatened or actual. Except as expressly authorized herein,
Buyer will not (i) disassemble, decompile, or reverse translate any Program; or (ii) copy or
otherwise reproduce any Program, in whole or in part; or (iii) remove, modify or otherwise tamper
with any notice or legend on any Program or any labeling on any physical media containing a Program
or portions thereof; or (iv) use Programs in any manner to provide time sharing, or other computer
services to third parties (Not Allowed); or (v) create derivative works from, adapt, modify, change
or enhance Programs without Supplier’s prior written consent; (vi) use, modify, enhance, copy or
sublicense the Program except as explicitly authorized under the Program License in the GA; or
(vii) make any warranties, representations, promises or commitments on behalf of Supplier without
the prior written authorization of Supplier; or (viii) deliver Programs to End Users without
Supplier’s End User Agreement attached hereto as Exhibit A. Buyer’s rights in the Program will be
limited to those expressly granted in this SOW.



3.2 Third Party Software. Supplier may sublicense third party software to Buyer under
terms different from those in Section 3.1, depending on the requirements of Supplier’s third party
licenses. For example, Buyer will receive open source software under the applicable open source
licenses and such software will be subject to all rights, terms, conditions, disclaimers, and
limitations of these licenses. Supplier shall provide Buyer with access to all such licenses, via
Supplier’s website located at http://www.brocade.com/ for such open source code included in a
Program prior to delivery of such Program to Buyer.



3.3 Trademark License. For the term of this Agreement and accordance with the terms and
conditions herein, Supplier grants Buyer a [**] license to use Supplier
trademarks and trade names (“Trademarks”) for use in connection with the distribution,
advertisement, promotion and marketing of Program (“Trademarks”), provided that every use is (i) in
accordance with Supplier’s guidelines, which are available at Supplier’s website at
http://www.brocade.com/news/productagreement.jhtml, as such guidelines may be amended from time to
time with Supplier’s notice to Buyer; and (ii) truthful, fair, and not misleading; or






 




			
	[**]	 	Certain
information on this page has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested
with respect to the omitted portions.





					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 2 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



made with the approval, or at the direction, of Supplier; or based on or consistent with Supplier’s
printed specifications or representations.



3.4 Trademark License Restrictions. Buyer (i) agrees to not challenge Supplier’s ownership
or use of any Trademarks, or apply to register any Trademark or mark confusingly similar thereto;
(ii) shall assign immediately to Supplier any rights, registrations, right of priority, and/or
applications for any Trademark, together with all associated goodwill, which Buyer may acquire by
operation of law or otherwise; and (iii) shall not incorporate any Trademarks in any Buyer product
name, company name, trade name, or similar designation.



3.5 Government End Users. End User customers may include agencies or other units of a
government, or third parties under contract with a government (“Public Sector”). Programs are, and
shall be delivered as “commercial item(s),” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995),
consisting of “commercial computer software” and “commercial computer software documentation,” as
such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements
of various U.S. government agencies, as applicable), all U.S. Government end users acquire the
Programs with only those rights set forth herein.



3.6 Buyer Internal Use. Supplier hereby grants Buyer the worldwide, non-transferable,
non-exclusive right and license to use [**] Programs for marketing, sales
demonstration purposes, education, qualification testing and training, at no charge. This license
grant includes the ability for Buyer to: (a) use, store, transmit, execute, display or operate the
Programs with a computer system; (b) use the documentation provided with the Programs in support of
the use of the Programs; and (c) make a copy of the Programs and Documentation for archival
purposes. Buyer’s internal use of the Programs shall be governed by the terms of this SOW and the
terms of Supplier’s End User License Agreement.



3.7 Certificate of Originality. Supplier warrants at all times the accuracy of all
statements in the attached completed Certificate of Originality. Supplier agrees to complete a new
Certificate of Originality before modifying existing Programs or adding any new Programs, if any,
to this Agreement.



3.8 No Implied Rights. This Agreement does not grant Buyer or its Affiliates any ownership
of any rights in the Programs, or other intellectual property of Supplier.




4. Supplier’s Responsibilities



4.1 Delivery: All orders of the Program by Buyer are subject to acceptance by Supplier.
Supplier agrees to deliver units of the Programs specified by Buyer in an order that has been
accept by Supplier, and will use commercially reasonable efforts to meet Buyer’s requested delivery
dates and quantities. Supplier will include a copy of the End User License with each unit of the
Programs shipped. All shipments from Supplier will be directly to an End User location specified by
the Buyer order, unless the parties mutually agree on a different ship to






 




			
	[**]	 	Certain
information on this page has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested
with respect to the omitted portions.





					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 3 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



address. Supplier will notify Buyer within [**] days of its receipt of
Buyer’s order if Supplier cannot meet Buyer’s request, and will include a proposed alternate
delivery schedule. Buyer can accept the proposed alternate delivery schedule or cancel the order
without liability. Supplier agrees to electronically confirm to Buyer within
[**] days the date Supplier’s Programs shipped to Buyer’s End
Users, that includes IBM’s original order notice Supplier agrees to pay all transportation charges
required for the shipment of the Programs to the location Buyer specifies, excluding duties, taxes,
and local VAT. Title to the Programs remains with Supplier but title to media containing the
Programs ordered under this SOW and risk of loss or damage will pass from Supplier to Buyer upon
Supplier’s delivery of the Programs to the common carrier.



4.2 Product EOL Notice: Supplier represents that the Programs available to Buyer under this
Agreement are always the most current release or version that is generally commercially available
to Supplier End User customers. Supplier will give Buyer at least [**]
notice prior to the EOL for the Program.



4.3 Marketing Materials: Supplier agrees to provide to Buyer at no additional charge, a
[**] copies of the Marketing Materials related to the Programs. Supplier
authorizes Buyer to alter the Marketing Materials solely to indicate that Buyer has the authority
to market, price and license the Programs. Supplier also agrees to provide to Buyer a
[**] copies of Supplier Programs for demonstration purposes, as
provided for in this SOW and listed on Exhibit B.



4.4 Program Support: Supplier agrees to offer Program support services directly to End
Users that are [**] Supplier generally offers to
[**] customers for the Programs.




5. FORECASTS AND ORDERS



5.1 Orders. Buyer shall order units of the Programs by submitting written orders to
Supplier. Every order placed by Buyer, (i) is subject to acceptance by Supplier and to Supplier’s
standard lead times, not to exceed [**] days prior to the requested
shipment date and forecast requirements; (ii) shall state the quantity, part number and description
of the Program ordered, AAS order information, feature code / PID, requested delivery dates and
shipping instructions; and (iii) may request delivery dates up to [**] days
after the date on which Supplier receives the order. All orders placed for the part numbers
referenced on Exhibit B shall be deemed to include the provisions of this SOW. All orders shipped
against this SOW will be revenue generating, except for those licenses detailed in Section 3.6.



5.2 Conflict. Any terms and conditions of any order which are in addition to or
inconsistent with the terms and conditions of this SOW will be deemed stricken from such order,
notwithstanding any acknowledgment or acceptance of such order.






 




			
	[**]	 	Certain
information on this page has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested
with respect to the omitted portions.





					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 4 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



5.3 Changes or Cancellation by Buyer. Buyer may cancel any purchase order for units of the
Program, except within [**] days of the scheduled ship date. Should Buyer
request a cancellation within the [**] day lead time, then the parties
agree to work together in good faith to mitigate disposition of such order. Buyer may reschedule
any purchase order for units of the Program, within that Program’s applicable lead-time. No
modification or cancellation shall be effective without Supplier’s written confirmation of receipt
of Buyer’s request.



5.4 Cancellation by Supplier. Supplier reserves the right to cancel any orders placed by
Buyer and accepted by Supplier as set forth above, or to refuse or delay shipment thereof, if Buyer
fails to comply with the terms and conditions of this SOW. Supplier reserves the right to
discontinue the manufacture, sale or distribution of any or all units of the Programs at any time,
with the required [**] notification, and to cancel any orders for such
discontinued Programs without liability of any kind on the part of Supplier to Buyer or any third
party. No such cancellation, refusal or delay will be deemed a termination (unless Supplier so
advises Buyer) or breach of this Agreement by Supplier.



5.5 Sales Forecast. Buyer will provide Supplier with a non-binding but good faith,
rolling, [**] forecast of its Program sales, on a
[**] basis.



5.6 Right of Return: Buyer may receive a credit for any unused or uninstalled Programs
from Supplier, in the event such Program(s) are either physically returned or certified destroyed
to Supplier within [**] days of shipment. This right will be limited to
[**] of the total number of Programs shipped by Supplier within the prior
monthly payment period.




6. Payment



6.1 Payment Terms: Buyer agrees:





	 	(a)	 	the obligation to make payment to Supplier is based upon shipment of the
Program to the End User by Supplier.
	 
	 	(b)	 	to pay the total price, indicated in Exhibit B, for shipped Programs, in U.S.
dollars net [**]from the end of the standard monthly payment
period, pursuant to the provisions of Section 6.2 below.
	 
	 	(c)	 	send payments to Supplier via electronic funds transfer; and
	 
	 	(d)	 	provide a reconciliation of Supplier’s shipments versus payment at the end of
each monthly payment period. The reconciliation will identify individual shipment
detail.




6.2 Payment Deferral Rights: Buyer, may at its sole option, defer payment of any Program,
shipped by Supplier during the last [**] days of each month, until the next
monthly payment cycle. However, The parties expressly acknowledge that such deferral does not
effect Buyer’s obligation for final payment to Supplier. Any Program shipped, and for which
payment is






 




			
	[**]	 	Certain
information on this page has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested
with respect to the omitted portions.





					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 5 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



deferred to the next monthly payment period, shall be paid for in that next monthly payment period
or returned to the Supplier, subject to Buyer’s Right of Return in Section 5.6. All units of the
Program shall be deemed accepted upon receipt.



6.3 In the event Buyer offers an End User a special discount (e.g. Special Bids), Buyer may request
a different Buyer Price for such transaction. If Supplier agrees to such different Buyer Price,
Supplier will provide to Buyer in writing (via DDO Form / LOA process) Supplier approval to adjust
the Buyer Price.



6.4 Supplier agrees to give Buyer the benefit of any price decreases Supplier offers for Products
not yet shipped by Brocade from the date a price decrease becomes effective. In the event Buyer
finds it necessary to reduce its published list price for the Products, Buyer may request a lower
Buyer Price. If Supplier agrees to any such lower Buyer Price, Supplier will provide to Buyer in
writing (to include either electronic mail or a facsimile transmission) Supplier approval to adjust
the Buyer Price.



6.5 Supplier agrees to give Buyer prior written notice of any changes to Supplier list price for
the Products. The parties will sign an amendment to this Agreement indicating the new Buyer Price.



6.6 Audit Rights. Buyer agrees to maintain, in accordance with U.S. generally accepted
accounting principles, account records for the current year plus the previous calendar year that
are necessary to ascertain Buyer’s compliance with the terms and conditions under this SOW, and
shall make such records available for examination and audit by Supplier and/or its auditors or
agents. Supplier will have the right to audit such records during normal business hours upon
[**] notice to Buyer. In the event that an audit discloses any
under-payment, the total amount so determined will be promptly credited to the account of Supplier
or paid to Supplier upon demand. Nothing in this paragraph is intended to preclude any other
remedies that Supplier may have as a result of any such payment discrepancy. To the extent the
audit reveals an under-payment of [**] or more, based on the payment
provisions of Section 6.1 above, then Buyer shall pay for the cost of the audit.




7. Taxes



Supplier will ensure that the Prices do not include any sales, use or other similar taxes that do
not apply to Buyer as a reseller of Programs and/or Services. As may be necessary from time to
time, the parties agree to negotiate in good faith to establish the terms and conditions for all
legal, regulatory and administrative requirements, in addition to all associated duties and fees,
associated with importation of Programs into the country where the Program is received by Buyer,
which terms will be incorporated into this Agreement when signed by both parties. Supplier’s
invoices shall state applicable taxes owed by the Buyer, if any, by tax jurisdiction and with a
proper breakdown between taxable and non-taxable Programs and Services. Supplier shall remit such
tax payments to the appropriate jurisdiction. Supplier agrees to use its commercially reasonable
efforts to properly calculate any applicable Taxes at the time of






 




			
	[**]	 	Certain
information on this page has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested
with respect to the omitted portions.





					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 6 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



invoice. Supplier and Buyer agree to cooperate to minimize any applicable Taxes, including
reasonable notice and cooperation in connection with any audit. Any incremental taxes shall be
Supplier’s responsibility. If Buyer provides certification of an exemption from Tax or reduced
rate of Tax imposed by an applicable taxing authority, then Supplier shall not invoice for nor pay
over any such Tax unless and until the applicable taxing authority assesses such Tax, at which time
Supplier shall invoice and Buyer shall pay any such Tax that is legally owed.



Buyer shall withhold taxes, if required under the law to be withheld on payments made to Supplier
hereunder and shall be required to remit to Supplier only the net proceeds thereof. Buyer shall
remit the taxes withheld to the appropriate government authority and agrees to provide Supplier in
a timely manner with properly executed documentation or other information or receipts or
certificates evidencing Buyers payment of any such withholding tax.



8. Notices.

Any notice required or permitted under this Agreement will be sent to the representative named
below, and shall be effective upon receipt as demonstrated by reliable written confirmation (for
example, certified mail receipt, courier receipt, facsimile receipt confirmation sheet.) Each party
will notify the other if their representative changes.




	 	 	 
	Buyer’s Representative:

	 	Supplier Representative:
	IBM

	 	Brocade Communications Systems, Inc
	3039 Cornwallis Road

	 	1745 Technology Drive
	RTP, NC 27709

	 	San Jose, CA 95110
	Attn: Rob Tice, OEM Procurement GCM

	 	Attention: Ric Pepe, Vice President, OEM
	 

	 	Sales and
	 

	 	Channel Development
	 

	 	1-408-333-8000
	 
	 	 
	 

	 	Copy to: General Counsel






9. Program Warranty.



Notwithstanding the provisions of Section 6.1 of the GA, all warranties for the Programs, if any,
shall be given directly to End Users by Supplier, and Supplier specifically disclaims all Program
warranties to Buyer for the products, whether express, implied, or otherwise.




	 	 	 	 	 	 	 
	AGREED TO:	 	AGREED TO:
	International Business Machines Corporation	 	Brocade Communications Systems, Inc. 
	 
	 
	By:
/s/ Robert J. Tice

	 	 	 	By: /s/ Ian Whiting	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 





					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 7 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050




	 	 	 	 	 	 	 
	Print Name	 	Print Name
	 
	 	 	 	 	 	 
	OEM
Procurement
	 	VP Worldwide Sales	 	 	 	 
	 	 	 
	 	 	 	 	Print Title
	 
	 	 	 	 	 	 
	8/25/05
	 	 	 	8/12/05	 	 
	 	 	 
	Date	 	Date






AGREED TO:

Brocade Communications Switzerland,
SarL.




	 	 	 	 	 
	By:

	 	/s/ Ulrich Plechschmidt	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Ulrich Plechschmidt
	 	 	 	 
	 	 	 
	Print Name	 	 
	 
	 	 	 	 
	Director,
EMEA & LATAM
	 	 	 	 
	 	 	 
	Print Title	 	 
	 
	 	 	 	 
	8/15/05
	 	 	 	 
	 	 	 
	Date	 	 






					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 8 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050




Exhibit A — End User License




BROCADE END USER LICENSE AGREEMENT



Single User License. Subject to the terms and conditions of this Agreement and payment of the
applicable license fees, Brocade Communications Systems, Inc. (“Brocade”) and its suppliers grant
to Brocade (“End User”) a non-exclusive, non-transferable license to use the Software in object
code form solely for the purpose of operating Brocade storage area networking switches and solely
on the number of Brocade storage area networking switches and on the number of servers for which
End User is licensed to use this Software. End User may make such backup copies of the Software as
may be necessary for End User’s lawful use, provided End User affixes to such copies all trademark,
copyright, patent, and notices of other proprietary rights that appear on the original.



Limitations. Except as otherwise expressly provided in this Agreement, End User shall have no
right, and End User specifically agrees not to, and not to permit third parties to: (i) modify,
adapt, change, enhance or create derivative works based upon the Software; (ii) copy, or otherwise
reproduce the Software in whole or in part; (iii) decompile, translate, reverse engineer,
disassemble or otherwise reduce the Software to human-readable form, except to the extent expressly
permitted under local law; (iv) use the Software on any Brocade storage area networking switches in
excess of the maximum number of Brocade storage area networking switches and servers for which End
User is licensed; or v) remove, modify or otherwise tamper with any notice or legend on any
labeling on any physical media containing the Software. End-User’s rights in the Software will be
limited to those expressly granted herein.



Upgrades and Additional Copies. For purposes of this Agreement, “Software” shall also include any
upgrades, updates, bug fixes or modified versions (“Upgrades”) provided to End User by Brocade or
an authorized distributor, along with any backup copies of the Software, and for which End User had
paid the applicable license and support and maintenance fees. Notwithstanding the foregoing, End
User acknowledges and agrees that Brocade and its resellers and distributors shall have no
obligation to provide any Upgrades. If Upgrades or additional copies of the Software are provided,
End User acknowledges and agrees that it has no license or right to use such additional copies or
Upgrades unless End User, at the time of acquiring such copy or Upgrade, already holds a valid
license and the corresponding software keys to the original Software for the applicable number of
copies, and is subject to a then-current Software support and maintenance program with Brocade or
its authorized distributor.



Third Party Software. Certain components of the Software may incorporate “open source” software.
Such software is subject to the applicable open source license (e.g., GNU General Public License)
and is not subject to this Agreement. To obtain a copy of the source code and applicable licensing
terms for the open source software used by Brocade, please see
http://www.brocade.com/support/oscd.jsp.




					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 9 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



No Support. Brocade may, but is not required to, provide technical support for this Software.
Technical Support may be provided on either; a time and material basis or under the terms of a
separate Maintenance and Support Agreement.



Security Notice. Software may include security features that End User can use, along with other
security tools, to implement increased security in End User’s storage area network (“SAN”).
However, use of the security features of the Software does not guarantee the security of End User’s
SAN or overall network. There are numerous factors that affect the security of a SAN, including,
without limitation, correct installation and setup of the security features of Software and all
related requirements, correctly configured security policies, selection of hardware and software
(including network security tools), correct installation, configuration, and maintenance of the
hardware and software, the interoperability of the various components of End User’s SAN and End
User’s network, and a physically and electronically secure operating environment. In addition,
Software may utilize digital certificates in connection with its access control features. Although
digital certificates are a useful authentication security measure that improves overall security,
they do not guarantee authenticity or security. To help End User evaluate the digital certificate
functionality of Software, End User can obtain details from the Certification Practices Statement,
which is included with the documentation End User received with this product or which End User can
view at http://www.switchkeyactivation.com/cps. In designing the security of End User’s SAN, it is
End User’s responsibility to evaluate all of these factors to ensure End User’s SAN meets End
User’s security requirements. End User’s experience may vary based on these and other factors. End
User’s use of Software, including the digital certificates, is subject to and governed by the terms
of this license agreement and to End User’s compliance with the policies and procedures for the use
of the security features of Software and digital certificates, which may be made available to End
User by Brocade from time to time. If Brocade becomes aware of a breach of the security of its
digital certificate infrastructure, Brocade reserves the right to re-issue digital certificates. In
that event, End User will be required to submit new certificate signing requests and install
reissued certificates across End User’s SAN. End User should plan for any network disruption that
this may cause. END USER ACKNOWLEDGES THAT END USER HAS ACCESS TO SUFFICIENT INFORMATION TO ENSURE
THAT END USER CAN MAKE AN INFORMED DECISION AS TO THE EXTENT TO WHICH END USER CHOOSES TO RELY ON
DIGITAL CERTIFICATES AND OTHER SECURITY FEATURES IN SOFTWARE (“SECURITY”).



Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BROCADE PROVIDES THE
SOFTWARE “AS IS” WITHOUT WARRANTY OF ANY KIND. BROCADE DOES NOT WARRANT THAT THE SOFTWARE IS ERROR
FREE OR THAT END USER WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTIONS. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BROCADE AND ITS SUPPLIERS, DISTRIBUTORS, AND
RESELLERS DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT, AND SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR
TRADE PRACTICE.




					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 10 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



Limitation of Liability. End-User acknowledges that the Software is not designed, manufactured or
intended for use in connection with the design, construction, maintenance, and/or operation of any
system where a failure of such system could result in a situation that threatens the safety of
human life. Except as otherwise provided herein, Brocade shall not be liable to End-User, in whole
or in part, for any claims or damages arising from such use, or resale to End-User by a third party
for such purposes, and End-User agrees to indemnify, defend (with counsel approved in writing in
advance by Brocade) and hold Brocade harmless against any claims for cost, damage, expense
(including reasonable attorneys’ fees) or liability arising out of or in connection with any such
use.



EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LOCAL LAW, IN NO EVENT WILL BROCADE OR ITS SUPPLIERS,
RESELLERS, OR DISTRIBUTORS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE
THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF BROCADE OR
ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BROCADE’S OR
ITS SUPPLIERS’, RESELLERS’, OR DISTRIBUTORS’ TOTAL LIABILITY TO END USER, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PRICE PAID BY END USER. THE FOREGOING LIMITATIONS
SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES
OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE
ABOVE LIMITATION MAY NOT APPLY TO END USER.



Proprietary Rights. End-User acknowledges that the Software is the proprietary/confidential
information of Brocade and any unauthorized disclosure to a third party constitutes a material
breach of this Agreement. The Software, including all intellectual property rights therein, is and
will remain the sole and exclusive property of Brocade or its suppliers.



Term and Termination. This Agreement is effective until terminated. End User’s license rights
under this Agreement will terminate immediately without notice from Brocade if End User fails to
comply with any provision of this Agreement. Upon termination, End User must destroy all copies of
Software and the corresponding software keys in its possession or control and certify such
destruction in writing to Brocade or its authorized distributor.



Compliance With Law. Each party agrees to comply with all applicable laws, rules and regulations
in connection with its activities under this Agreement. Without limiting the foregoing, End User
acknowledges and agrees that the Software, including technical data, is subject to United States
export control laws, including the United States Export Administration Act and its associated
regulations, and may be subject to export or import regulations in other countries. End User
agrees to comply strictly with all such regulations and acknowledges that End User has the
responsibility to obtain licenses to export, re-export, or import the Software.



Restricted Rights. The Software under this Agreement is commercial computer software as that term
is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency,
the U.S. Government acquires this commercial computer software and/or commercial




					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 11 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050



computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R.
12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations
(“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of
Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial
computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R.
227.7202-3 of the DOD FAR Supplement (“DFAR”) and its successors.



General. This Agreement will bind and inure to the benefit of each party’s successors and assigns,
provided that End User may not assign or transfer this Agreement, in whole or in part, without
Brocade’s written consent. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, United States of America, as if performed wholly within the
state and without giving effect to the principles of conflict of law. No failure of either party
to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.
If any portion hereof is found to be void or unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter hereof, superseding and replacing
any and all prior agreements, communications, and understandings (both written and oral) regarding
such subject matter.




					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 12 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050




EXHIBIT B

PRODUCT DESCRIPTION AND PRICE LIST




	 	 	 	 	 	 	 	 	 
	IBM	 	 	 	 	 	 	 	 
	Feature	 	Brocade Product	 	 	 	Total	 	[**]
	Code	 	SKU	 	Description	 	Price [**]	 	Maintenance
	[**]

	 	[**]
	 	IB,FABRIC
MANAGER 5.X- ENT
W/1 YR STD SUPPORT
	 	[**]
	 	[**]
	[**]

	 	[**]
	 	IB,FABRIC
MANAGER 5.X- 4.X
ENT UPGR W/1 YR STD
SUPPORT
	 	[**]
	 	[**]
	[**]

	 	[**]
	 	IB,FABRIC
MANAGER 5.X- ENT
W/3 YR STD SUPPORT
	 	[**]
	 	[**]
	[**]

	 	[**]
	 	IB,FABRIC
MANAGER 5.X- 4.X
ENT UPGR W/3 YR STD
SUPPORT
	 	[**]
	 	[**]






NOTE:





	 	1)	 	The price listed in the Total Price column of this price list [**]
	 
	 	2)	 	End User’s may purchase Program Support directly from Supplier
[**].







 




			
	[**]	 	Certain
information on this page has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested
with respect to the omitted portions.





					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 13 of 14
	 	Form Release: 8/98

Revision: 05/02      






 









 






Integrated Statement of Work for Production Procurement Goods Agreement

Goods Agreement # ROC-P-68 Master Agreement Number

SOW4 # 4905RL2050




CERTIFICATE OF ORIGINALITY




Attachment — Certificate of Originality



 




You may use this questionnaire to cover on complete
Product, event if that Product includes multiple modules.



Please do not leave any questions blank. Write “not
applicable” or “N/A” if a question is not relevant to the
furnished software material. Depending on your responses,
IBM may require additional information.



1) Please identify the software material including version,
release, and modification numbers for programs and any
documentation.



 



2) Was any portion of the software material written by
anyone other than you or your employees within the scope of
their employment?




Yes _____ No _____



If YES, provide, as an attachment, the following information:



A) Indicate if the whole software material or only a portion
thereof was written by such party, and identify such
portion:



(i) Specify for each involved party the name, address and
citizenship;



(ii) If the party is a company, how did it acquire title to
the software material (e.g., software material was written
by company’s employees within the scope of their
employment);



(iii) If the party is an individual, did he/she create the
software material while employed by or under contractual
relationship with another party?




Yes _____ No _____



If YES, provide name and address of the other party and
explain the nature of the contractual relationship:



 



B) How did you acquire title to the software material
written by the other party?



 



3) Are any copyright, confidentiality, or proprietary
notice(s) present on the software material(s)?



Yes ___ No ___



If YES, please describe such notice(s):






4) Was any portion of the software material (e.g., Code,
associated documentation, etc.) derived from preexisting
works (either yours or a third party’s), including any code
from freeware, shareware, electronic bulletin boards, or the
Internet?




Yes _____ No _____



If YES, please identify the material, author, owner and
copyright notice, if any, for each of the preexisting
materials:



 



5) Does any of the software material (e.g., Code, associated
documentation) include recognizable voice, pictures, icons
or other licenses?



Yes ___No ___



If YES, how did you acquire the rights to use such
recognizable voices, pictures, icons and other licensees?



 



6) Provide as an attachment, an explanation of any other
circumstance which might affect IBM’s ability to reproduce,
distribute and market this software material, including
whether your software material was prepared from any
preexisting materials which have any: (a) confidentiality or
trade secret restrictions to others; (b) known or possible
royalty obligations to others; (c) used other preexisting
materials developed for another party or customer (including
government) where you may not have retained full rights to
such other preexisting materials.



7) You recognize that, for copyright registration or
enforcement of legal rights relating to the furnished
software material, IBM may need you to produce additional
information related to the software material. You hereby
agree to cooperate with IBM and provide such information to
IBM at IBM’s request. As an authorized representative of
your company, you hereby certify him above to be true and
accurate.




	 	 	 	 	 
	By:
	 	 	 	 
	 	 	 
	(Authorized Signature)

	 
	 	 	 	 
	Name:
	 	 	 	 
	 	 	 
	                (Type or Print)	 	(Date)
	 
	 	 	 	 
	Title:
	 	 	 	 





 








					
	 	 	 	 	 
	Form Title: Agreement Title

Form Owner: Global Procurement
	 	Page 14 of 14
	 	Form Release: 8/98

Revision: 05/02