exv10w4






Exhibit 10.4




     Agreement No:



NETRONOME SYSTEMS INC.

ORIGINAL EQUIPMENT MANUFACTURER AGREEMENT




     This ORIGINAL EQUIPMENT MANUFACTURER AGREEMENT is entered into as of November 25, 2008 (the
“Effective Date”) between Netronome Systems Inc., a Delaware corporation with its principal place
of business at 144 Emeryville Drive, Suite 230, Cranberry Township, PA 16066 (“Netronome”) and
Sourcefire, Inc., a Delaware corporation with its principal place of business at 9770 Patuxent
Woods Drive, Columbia, MD 21046 (“OEM”). Capitalized terms used in this Agreement and not
otherwise defined in Exhibit A (“Definitions”) hereto shall have the meanings set forth
elsewhere in this Agreement. Netronome and OEM may be individually referred to herein as a “Party”
and collectively as the “Parties”.



BACKGROUND




     Netronome manufactures and sells, among other things, Equipment as more fully described below.
OEM desires to purchase the Equipment and license the Licensed Materials from Netronome on an
original equipment manufacturer basis in order to resell, sublicense or lease such Equipment or
other Licensed Materials to its Customers throughout the Territory in combination with its own
products and services. Netronome is willing to sell such Equipment and license such Licensed
Materials to OEM. The provisions of this “Background” section are intended to generally explain the
reasons that Netronome and OEM have entered into this Agreement, but do not constitute a portion of
the contractual obligations, terms or conditions agreed to by the Parties, which are set forth in
the following sections of the Agreement



     NOW, THEREFORE, in consideration of the mutual promises contained herein, and intending to be
legally bound hereby, the Parties agree as follows:



1. APPOINTMENT AND AUTHORITY OF OEM




     1.1. Appointment. Subject to the terms and conditions set forth herein, Netronome hereby
appoints OEM as Netronome’s nonexclusive distributor of the Equipment and other Licensed Materials
to OEM’s Customers and End-Users in the Territory, and OEM hereby accepts such appointment.
Nothing in this Agreement shall preclude Netronome from marketing, selling, leasing or maintaining
any Netronome Products to or for any other customer, including, without limitation, End-Users,
original equipment manufacturers or other distributors.



     1.2. Territorial Responsibility. OEM may not market or distribute any Netronome Products to
End-Users located outside of the Territory without the prior written consent of Netronome and shall
refer to Netronome all inquiries and referrals received by OEM regarding potential sales of
Netronome Products outside the Territory.



     1.3. Independent Contractors. The relationship of Netronome and OEM established by this
Agreement is that of independent contractors, and nothing contained in this Agreement shall be
construed to (i) give either Party the power to direct and control the day-to-day activities of the
other, (ii) constitute the Parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking, or (iii) allow either Party to create or assume any
obligation on behalf of the other Party for any purpose whatsoever.



2. TERMS OF PURCHASE OF EQUIPMENT BY OEM




     2.1. Terms and Conditions. This Agreement covers the (i) purchase of the Hardware components
of the Equipment, (ii) license and permitted use of the Licensed Materials, (iii) purchase of
Support Services associated with the Equipment and the Licensed Materials; and (v) the purchase of
other Services pursuant to the terms and conditions contained in a separately executed statement of
work. All purchases of Equipment and
licenses of Licensed Materials by OEM from Netronome during the Term shall be subject to the terms
and conditions of this Agreement, and except as otherwise agreed in writing by the Parties nothing
contained in any



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Purchase Order shall in any way modify such terms of purchase or license, or
otherwise add any additional terms or conditions.



     2.2. Purchase Prices. The Purchase Price for any Equipment purchased or Licensed Materials
licensed hereunder shall be the List Price therefore as of the date Netronome Receives a Purchase
Order therefore, less the applicable discount set forth in Exhibit C-2 (“OEM Pricing”).
Netronome shall have the right at any time to prospectively revise the List Price for any Equipment
or Licensed Materials upon at least forty-five (45) days’ advance written notice to OEM, provided
that any proposed increase in the Purchase Price shall be tolled for as long as and to the extent
necessary to take into account the following restrictions: (i) any such price increase may not be
greater than those sold to another customer with similar volumes, (ii) any such price increase
shall only apply to Purchase Orders Received by Netronome after the effective date of such price
revision, (ii) any such price increase shall not affect unfulfilled Purchase Orders accepted by
Netronome prior to the effective date of the price revision, (iii) any such price decrease shall
apply to unfulfilled Purchase Orders accepted by Netronome prior to the effective date of the price
revision but not yet shipped, and (iv) except as mutually agreed to by the Parties, the Purchase
Price for any Equipment purchased or Licensed Materials licensed hereunder may be increased no more
than by five percent (5%) in any twelve (12) month period, unless such price increase is directly
attributable to the increase in the production costs of the Equipment.. In the event the Parties
fail to agree upon a Purchase Price increase proposed under Section 2.2.(iv) by the proposed
effective date of the change, then pursuant to Section 7.2.2. hereof (“Termination for Cause”), OEM
shall have the right to terminate this Agreement for “cause”, as well as any outstanding Purchase
Orders placed against this Agreement affected by the proposed increase, without any cost to, or
liability or obligation of, OEM related to such outstanding Purchase Orders and any remaining units
under the Cumulative Commitment. .



     2.3. Taxes. OEM agrees to pay, and to indemnify and hold Netronome harmless from, any sales,
use, excise, import or export, value added or similar tax, not based on Netronome’s net income, as
well as the collection or withholding thereof, including penalties and interest, as well as any
costs associated with the collection or withholding thereof, and all government permit or license
fees and all customs, duty, tariff and similar fees levied upon Delivery of the Equipment or other
Licensed Materials, as well as any costs associated with the collection of any of the foregoing
items. OEM will be responsible for obtaining, at its expense, all required import licenses, permits
or other governmental orders. If a resale certificate or other certificate, document or other
evidence of exemption or payment or withholding of taxes by OEM is required in order to exempt the
distribution of the Equipment or licensing of the Licensed Materials from any such liability or to
enable Netronome to claim any tax exemption, credit, or other benefit, OEM will promptly furnish
such certificate or document to Netronome.



     2.4. Order and Acceptance. All Purchase Orders for Equipment or Licensed Materials submitted
by OEM shall be initiated by a Purchase Order sent to Netronome and requesting a Scheduled Delivery
Date during the Term; provided, however, that a Purchase Order may initially be placed orally or by
telecopy or telex if a confirming hard copy of the Purchase Order is received by Netronome within
ten (10) days after such oral, telecopy or telex Purchase Order. No Purchase Order shall be
binding upon Netronome until accepted by Netronome in writing (electronically or otherwise), and
Netronome shall have no liability to OEM with respect to Purchase Orders that are not accepted.
Netronome shall use reasonable commercial efforts to notify OEM of the acceptance or rejection of a
Purchase Order and of the assigned delivery date for accepted Purchase Orders within five (5) days
after Receipt of the Purchase Order. OEM shall submit Purchase Orders and Change Orders to
Netronome consistent with the applicable lead times set forth in Exhibit B-1 (as amended
from time to time by Netronome). No partial shipment of a Purchase Order shall constitute the
acceptance of the entire Purchase Order, absent the written acceptance of such entire Purchase
Order. Netronome shall use reasonable commercial efforts to Deliver Equipment or other Licensed
Materials as specified in Netronome’s written acceptance of OEM’s Purchase Order; provided,
however, that in the case of an accepted Emergency Purchase Order, Netronome shall use reasonable
best efforts to Deliver such Equipment or other Licensed Materials.



     2.5. Cancellation and Reschedule Charges. OEM may utilize written change orders (“Change
Order(s)”) without penalty for Purchase Orders that have not yet been accepted by Netronome. For
Purchase Orders that have been accepted by Netronome but have not yet been shipped, OEM may utilize
a Change Order to
change the quantity ordered, delay Delivery, or cancel the Purchase Order altogether. Unless
Netronome agrees otherwise in writing (electroncally or otherwise), no Change Order shall be
effective unless accompanied by the following
Change Order Fees, if any, specified below:



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     2.5.1. Requests Made Greater than 60 Days. In the event Netronome Receives a
Change Order more than sixty (60) days before the Scheduled Delivery Date as specified under
the current Purchase Order, Netronome will honor the modified Purchase Order as requested at
no charge.




     2.5.2. Requests Made Between 31 and 60 Days. In the event (i) (a) Netronome
Receives a Change Order between sixty (60) and thirty-one (31) days before the Scheduled
Delivery Date as specified under the current Purchase Order, and (b) OEM agrees to
pay Netronome a Change Order Fee equal to ten percent (10%) of the Purchase Price of the
Equipment requested to be modified under the Change Order, then (ii) Netronome may either
(a) accept the Change Order as requested and invoice OEM for the Change Order Fee, or (b)
cancel the Purchase Order.




     2.5.3. Requests Made 30 Days or Less. In the event Netronome Receives a Change
Order thirty (30) days or less before the Scheduled Delivery Date as specified under the
current Purchase Order, Netronome shall not be obligated to honor the modified Purchase
Order as requested.


Notwithstanding subsections 2.5.2. and 2.5.3. above, (i) in no event shall OEM be liable for any
Change Order Fees to the extent the the Change Order, if accepted, would result in an increase in
quantity of the units of Equipment ordered under the current Purchase Order, and (ii) in no event
will either Party be liable for the fees described therein to the extent the Change Order seeks to
(a) correct any typographical or clerical errors, or (b) change the Place(s) of Delivery prior to
the date of shipping. Any increase in the quantity of the Equipment on a Change Order may be at a
Scheduled Delivery Date different than the original Purchase Order.




     2.6. Delivery. Netronome shall ship the Equipment to the Place(s) of Delivery specified in
the Purchase Order, and Delivery shall be deemed to have occurred at Netronome’s shipping point
upon shipment in accordance with this Agreement. Unless otherwise stipulated in this Agreement,
the Equipment shall be Delivered duty unpaid. The time of Delivery as specified in this Agreement
shall be strictly adhered to, and time shall be of the essence. Netronome may Deliver any
Equipment or other Licensed Materials electronically to the extent that such Equipment or other
Licensed Materials, or portion thereof, can be so Delivered subject to its then-current delivery
procedures.



     2.7. Shipping. To the extent any Equipment or other Licensed Materials cannot be Delivered
electronically, Netronome will ship, unless instructed otherwise, by standard ground and prepay and
add freight costs from Netronome’s shipping point to the Place(s) of Delivery specified on the
Purchase Order. All freight arrangements will be billed to OEM. All Equipment shipped pursuant to
the terms of this Agreement shall be suitably packed for shipment in Netronome’s standard shipping
cartons, marked for shipment to the Place(s) of Delivery, and shipped FOB Origin (Netronome’s
designated manufacturing facility in Cranberry Township, Pennsylvania). Upon Delivery, risk of
loss to the Equipment or other Licensed Materials (and title to the Hardware included in such
Equipment) shall pass to OEM. Unless otherwise instructed in writing by OEM, Netronome shall
select the carrier. All freight, insurance and other special shipping expenses, as well as any
special packing expense, shall be paid by OEM from the FOB shipping point.



     2.8. Payment. Netronome shall invoice OEM upon shipment in United States dollars, net thirty
(30) days from the date of invoice, including any freight, taxes or other applicable costs
initially paid by Netronome but to be borne by OEM. OEM agrees to pay any amounts invoiced by
Netronome in accordance with this Agreement by wire transfer or as otherwise directed by Netronome.
With Netronome’s written permission, OEM may off-set any amounts due under such invoices by any
claim for discrepancies and/or defective Equipment made in accordance with this Agreement. In the
event the number of DOA units exceed twenty percent (20%) of the total comparable unit shipments
for the previous ninety (90) day period, OEM may, without penalty, hold-back up to twenty percent
(20%) of its payment of any valid invoice rendered hereunder (“short pay”) until such time as the
DOA percentage falls below twenty percent (20%) of the total unit shipments measured over a
succeeding ninety (90) day period. Netronome reserves the right to charge OEM a late payment in
the event OEM fails to remit
invoice payments when due, in an amount not to exceed one and one-half percent (11/2%) per month with
respect to any amount in arrears, or the maximum rate allowable by law, whichever is less. OEM
shall pay all of Netronome’s costs and expenses (including reasonable attorney’s fees) to enforce
Netronome’s rights under this section (Section 2.8).



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     2.9. Inspection; Quality Assurance. The Parties acknowledge the requirement that the
Equipment be supplied with as close to a “zero defect rate” as is practicably possible, that they
be designed for long life and robustness and that they should generally perform to their
Specifications for up to five years (the “Service Life”). The Equipment and the Licensed Materials
should be subjected to the quality test plan specified in Exhibit H (“Quality Test Plan”).
Prior to Delivery of the Equipment, Netronome will perform its standard test procedures or programs
which are applicable to the Equipment and the Licensed Materials as well as the Enhanced Inspection
specified in Exhibit G (“Enhanced Inspection”) hereto. If OEM has conveyed in writing its
intention to witness Netronome’s tests or the Enhanced Inspection, OEM shall be responsible for any
out-of-pocket expenses or charges that may be associated with witnessing such tests. OEM shall be
deemed to have accepted each such Netronome Product upon Netronome’s completion of final acceptance
tests at Netronome’s designated facility in Cranberry Township, Pennsylvania.



     2.10. Epidemic Failure. In the case of an Epidemic Failure, Netronome shall, within ten (10)
business days, propose an action plan to fix the failure of any affected Netronome Product(s) and
to implement this action plan immediately upon OEM’s acceptance thereof. If the action plan is not
acceptable to OEM, OEM can require Netronome to repair or replace, at Netronome’s option, the
affected Netronome Product(s). The repair or replacement shall be done at mutually agreed-upon
location(s); provided, however, that costs of repair or replacement together with the reasonable
shipping, transportation and other costs of gathering and redistributing the Netronome Products
shall be borne by Netronome. In addition to bearing the costs associated therewith, if requested by
OEM, Netronome shall support and provide at Netronome’s expense a sufficient number of Netronome
Products to permit the field exchange or “hot swap” of Netronome Product(s) at customer sites. The
Parties agree to make all reasonable efforts to complete the repair and replacement of all of the
affected Netronome Product(s) within thirty (30) business days after written notice of Epidemic
Failure by either Party. Netronome also agrees that OEM will be supported with accelerated
shipments of replacement Netronome Product(s) to cover OEM’s supply requirements. OEM to make all
reasonable efforts to return any replaced Netronome Products as soon as reasonably practicable.



     2.11. Allocation. If Netronome is unable to meet its Delivery commitments hereunder and is
required to allocate its capacity, inventory, test equipment, resources, use of personnel, parts,
components, supplier resources or capabilities under 2-615 of the Uniform Commercial Code (or 13
Pa. C.S. §2615), Netronome may adopt an equitable plan of allocation and adjust delivery schedules
accordingly, taking into consideration the percentage of volume purchased by OEM for specific
Equipment or resources affected by the plan, and provided that Netronome (i) acts in good faith,
and (ii) allocates its capacity, inventory, test equipment, resources, use of personnel, parts,
components, and available supply of Equipment to fill orders for OEM in accordance with the
following priorities: (a) Emergency Purchase Orders for Spare(s) to be filled first; and (b) a fair
allocation between OEM’s other Purchase Orders and Netronome’s other non-expedited purchase orders
/ requirements to be filled next.



3. SOFTWARE LICENSING RIGHTS




     3.1. License to OEM. Subject to the terms of this Agreement, Netronome hereby grants to OEM
(including its Affiliates) a non-exclusive, royalty-free, fully-paid license and right to use,
copy, market, distribute and demonstrate the Licensed Materials in the Territory in carrying out
OEM’s rights and obligations under this Agreement. Such rights shall not include sub-licensing the
Licensed Materials except as permitted in Section 3.2.



     3.2. Right to Sublicense. Subject to the terms of this Agreement, Netronome hereby grants to
OEM (including its Affiliates) a non-exclusive, royalty-free, non-transferable, right to sublicense
the Licensed Materials (directly or indirectly through one or more tiers of distribution) to its
Customers and End-Users located in the Territory solely for use with the Equipment purchased or
leased by such End-Users. Each sale of Equipment shall
include a non-exclusive, royalty-free, fully-paid license for the Licensed Materials which OEM may
transfer and sublicense to its Customers and End-Users within the Territory. Except as set forth
in this Agreement, no right or license is granted by this Agreement to OEM to use, copy, sublicense
or otherwise transfer the Licensed Materials apart from the Equipment or to make any modifications
or derivative works to the Licensed Materials. OEM shall not copy the Licensed Materials in whole
or in part, except as reasonably necessary for distribution or maintenance of the Equipment. All
copies of the Licensed Materials must contain all proprietary marks, legends and copyright notices
that appear on the original copies delivered to OEM by Netronome.



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     3.3. End-User Software License Agreement. OEM is authorized to transfer and sublicense the
Licensed Materials to End-Users under the terms and restrictions of an End-User Software License
Agreement provided it remains at least as protective of Netronome’s Intellectual Property Rights as
those found in Netronome’s form of End-User license agreement attached hereto as Exhibit
D-2 (“Netronome Form of End User License Agreement”). OEM shall require each End-User to
accept the End-User Software License Agreement as a condition precedent to the purchase of the
Equipment. Netronome has the right to review procedures for ensuring that End-Users enter into the
End-User Software License Agreement and OEM shall comply with all modifications to such procedures
reasonably requested by Netronome. OEM agrees that it will accept the return of the Equipment from
End-Users who have not consented to be bound by the terms and restrictions of such End-User
Software License Agreement.



4. LIMITED WARRANTIES AND DISCLAIMERS




     4.1. Limited Warranties. Netronome shall, and hereby does, provide the following limited
warranties for the warranty periods specified below; provided, however, that OEM’s subscription to
Netronome’s Support Plan may include the continuation of the warranty obligations specified below
for the term of the Support Plan subscription:




     4.1.1. Equipment Warranty. Netronome warrants that the Equipment delivered
under this Agreement will be (i) made entirely from new or equivalent to new parts, and (ii)
free and clear of all liens, claims, encumbrances and other restrictions. In addition,
Netronome warrants that during the period of fifteen (15) months following the Warranty
Start Date (the “Equipment Warranty Period”), any Equipment obtained under this Agreement
will (i) be free of defects in materials and workmanship, and (ii) under normal use,
substantially conform to its Documentation.




     4.1.2. Software Warranty. Netronome warrants that during the period of ninety
(90) days following the Warranty Start Date (the “Software Warranty Period”), any Software
obtained under this Agreement will, under normal use, substantially conform to its
Documentation.




     4.1.3. Media Warranty. Netronome warrants that for a period of one hundred and
twenty (120) days following the Warranty Start Date, any media containing the Software (but
not the Software itself) will, under normal use, be free of defects in materials and
workmanship. If a defect in any such media should occur during this one hundred and twenty
(120) day period, the media may be returned to Netronome and Netronome will replace the
media without charge. Netronome shall have no responsibility to replace media if the
failure of the media results from OEM’s accident, abuse or misapplication of the media.




     4.1.4. DOA Warranty. Netronome warrants that for a period of sixty (60) days
following the Warranty Start Date, in the event any Equipment or other Licensed Materials
materially fails to substantially perform in accordance with its respective Documentation
(“DOA”), Netronome shall replace the failed Netronome Product with a new Netronome Product
by shipping its replacement within five (5) days of notification (including the results of
any diagnostic tests reasonably requested by Netronome support), waiving any expedited
charges, in order to effect the earliest reasonable replacement of such defective Netronome
Product(s). Notwithstanding the foregoing, cosmetic or other deficiencies that do not
materially affect the Equipment or other Licensed Materials’ performance shall not, in and
of themselves, render Equipment or other Licensed Materials “DOA” hereunder.



     4.2. Exclusive Remedy. If any Equipment or Licensed Materials furnished by Netronome under
this Agreement fails to conform to any warranty during the applicable warranty period, Netronome’s
sole and exclusive liability for breach of warranty under this Article 4 will be, at Netronome’s
option, to either repair or replace the Equipment or other Licensed Materials. To receive the
benefit of the foregoing warranties, OEM (or its designated agent) shall, within the applicable
warrany period, notify Netronome of its warranty claim and request a Return Material Authorization
(“RMA”) number. Netronome shall use reasonable commercial efforts to either (i) notify OEM of the
RMA number within three (3) business days after Receipt of the request, or (ii) elect to advance
replace any Equipment or other Licensed Materials subject to a warranty claim after consultation
with OEM. In either event, within ten (10) days after Receipt of the RMA number or Netronome’s
confirmation that it will advance



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replace the Equipment or other Licensed Materials subject to the
warranty claim, OEM (or its designated agent) shall return to Netronome the Equipment or other
Licensed Materials subject to the warranty claim, freight prepaid, in an appropriate shipping
carton with the RMA number displayed on the outside of the carton. As promptly as possible but no
later than thirty (30) working days after receipt by Netronome of properly rejected Equipment or
other Licensed Materials, Netronome shall, at its option and expense, either repair or replace the
Equipment or other Licensed Materials. Netronome shall pay the shipping charges back to OEM for
properly rejected Equipment or other Licensed Materials; otherwise, OEM shall be responsible for
the shipping charges. This is the Netronome’s only liability and OEM’s exclusive remedy for any
claim under this Article 4, whether arising in tort or contract.



     4.3. Disclaimer. EXCEPT FOR WARRANTIES SPECIFICALLY STATED IN THIS ARTICLE 4, NETRONOME
HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.



     4.4. Limitation of Liability. NETRONOME’S LIABILITY UNDER THE WARRANTY SHALL BE LIMITED TO A
REFUND OF OEM’S PURCHASE PRICE. IN NO EVENT SHALL NETRONOME BE LIABLE FOR THE COST OF PROCUREMENT
OF SUBSTITUTE GOODS BY OEM OR OEM’S CUSTOMER OR FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES FOR BREACH OF WARRANTY.



     4.5. Prohibition of Equipment Use In High Risk Activities and Life Support Applications. The
Equipment is not designed, manufactured or intended for use or resale as on-line control equipment
in hazardous environments requiring fail-safe performance, such as in the operation of nuclear
facilities, aircraft navigation or communications systems, air traffic control, life support
systems, human implantation, nuclear facilities or systems or any other application where product
failure could lead to loss of life or catastrophic property damage or weapons systems, in which the
failure of the program could lead directly to death, personal injury, or severe physical or
environmental damage (“High Risk Activities”). Accordingly Netronome and, where applicable,
Netronome’s third party licensors specifically disclaim any express or implied warranty of fitness
for High Risk Activities. OEM will indemnify, defend and hold Netronome harmless from any loss,
cost or damage resulting from OEM’s breach of the provisions of this Section 4.5, including without
limitation attorneys’ fees and costs relating to any lawsuit or threatened lawsuit, arising out of
such use or sale.



5. ADDITIONAL OBLIGATIONS OF OEM




     5.1. Minimum Commitment(s). In consideration of the licenses granted above and discounting
schedules extended in Exhibit C-2 (“OEM Pricing”), during the Term OEM agrees to purchase
the Minimum Commitment(s) of Equipment outlined in Exhibit C-2 (“OEM Pricing”).



     5.2. Reports, Forecasts and Business Reviews.



          5.2.1. Sales Reports. To the extent necessary to facilitate Netronome’s production
scheduling, by April 30th, July 31st, October 31st and January
31st of each year during the Term, OEM shall provide Netronome with a quarterly sales
report in an electronic format mutually agreeable to the Parties (“Quarterly Sales Report”). At a
minimum, such Quarterly Sales Report shall include: (i) the description and quantities of the
Equipment purchased during the prior calendar quarter, (ii) an inventory of all Equipment in OEM’s
stock as of the end of the prior calendar quarter, (iii) an inventory of all Equipment shipped in
the prior calendar quarter, and (iv) reasonable geographic information related to the units of
Equipment sold during the prior calendar quarter, including, at least, whether the sale was within
or outside of United States.




          5.2.2. Forecasts. To the extent necessary to facilitate Netronome’s production
scheduling, by April 30th, July 31st, October 31st and January
31st of each year during the Term, OEM shall provide Netronome with a good faith
forecast (“Forecast”) of its anticipated future Purchase Orders for Equipment for the next six (6)
months. Netronome may rely on the most recent Forecast in anticipating the need for Equipment
components and manufacturing for the six (6) month period following the Forecast (e.g., Netronome
may rely on the April 30th Forecast for the six (6) month period ending October
31st in the same year).




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          5.2.3. Business Reviews. OEM and Netronome shall hold business review meetings at
least three (3) times annually. At a minimum, the meetings shall discuss product roadmaps, product
issues, and other operational items.




     5.3. Performance Obligations. OEM shall represent the Netronome Products accurately and
fairly and shall avoid any misleading or unethical business practices. OEM shall not (i) make
warranties of functionality or performance on any Netronome Products except as specifically set
forth in the Documentation, or (ii) except as set forth in Section 9.3, alter, re-label or change
the Netronome Products or the Documentation without the prior written approval of Netronome. OEM
shall take all necessary steps to ensure compliance by its employees or its other representatives
with OEM’s obligations under this Agreement.



     5.4. Installations. While as between the Parties OEM shall be solely responsible for the
installation and operation of the Equipment covered hereby, in connection with OEM’s use of or
installation of any such Equipment or other Licensed Materials, OEM may (i) rely on Netronome’s
written instructions and related technical advice offered or given in connection with the use of or
installation of any such Equipment or other Licensed Materials, and (ii) use, duplicate and
disclose written instructions or related technical data delivered or disclosed by Netronome to OEM
for the purpose of installation, operation or maintenance of the Equipment purchased by OEM. OEM,
or its subcontractors, shall use industry standard practices when installing or operating the
Equipment.



     5.5. Audit of OEM. OEM will keep and maintain, for a period of three (3) years, proper
records and books of account relating to the license of the Licensed Materials under this
Agreement. Upon reasonable notice to OEM, Netronome may exercise its Audit Rights with respect to
such records no more than once every six (6) months to verify OEM’s performance hereunder; provided
that OEM shall not be responsible for any of costs associated with the audit unless the audit
reveals a discrepancy in payments due of more than five percent (5%), in which case OEM shall
reimburse Netronome for the reasonable fees of the auditor conducting the Audit Rights.



6. ADDITIONAL OBLIGATIONS OF NETRONOME




     6.1. Delivery Time. In consideration of OEM’s efforts hereunder, Netronome shall deliver high
quality products in conformance with the Documentation, minimize delivery time as much as practical
and timely fulfill delivery obligations as committed in any acceptance of a Purchase Order
hereunder.



     6.2. Advance Notification of Modifications. Netronome, in its sole discretion, shall have the
right to make Modifications to any Equipment or other Licensed Materials; provided, however, that
Netronome agrees to use reasonable best efforts to notify OEM in writing at least ninety (90) days
in advance of making any significant form, fit, or functional change(s) to the Equipment or other
Licensed Materials. In the event a critical situation occurs which forces a change to occur prior
to expiration of this ninety (90) day notification period, OEM will be provided with notification
promptly upon Netronome becoming aware of the situation. Furthermore, Netronome agrees to provide
OEM with the option to evaluate potential changes which affect form, fit, or function, in advance
of forecasted or requested shipments to OEM. Such option may include the loan of Equipment for
thirty (30) days. If the proposed changes are deemed unacceptable to OEM because they are likely
to, or will ultimately, result in a material adverse effect on OEM’s business arrangement
hereunder, upon written notification, Netronome will, at receipt of OEM’s Purchase Order, supply
OEM with up to six (6) months of the forecasted requirements at the previous configuration before
making the proposed change. If Netronome is not able to provide the previous configuration,
Netronome will use reasonable commercial efforts to: (i) provide information to assist OEM in
making changes to OEM’s products to accommodate changes, or (ii) provide OEM with End of Life
Equipment or other Licensed Materials in accordance with this Agreement. If in OEM’s and
Netronome’s mutual good faith judgment such remedies will be insufficient to enable to OEM to
satisfy its on-going contractual obligations, OEM may elect to exercise its “Make or Manufacture
Option” specified in Section 6.8 with respect to any Equipment or other Licensed Materials subject
to such modifications.



     6.3. Equipment Discontinuance. Netronome, in its sole discretion, shall have the right to
discontinue or otherwise “End of Life” (“EOL”) any Equipment or other Licensed Materials; provided,
however, that Netronome agrees to use reasonable commercial efforts to notify OEM in writing at
least one hundred eighty (180) days prior to any such discontinuation of Equipment or other
Licensed Materials. If the proposed EOL is deemed unacceptable to OEM because it is likely to, or
will ultimately, result in a material adverse effect on OEM’s



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business arrangement hereunder, upon
written notification, Netronome will, at receipt of OEM’s Purchase Order, supply OEM with up to six
(6) months of the forecasted requirements at the previous configuration before effectuating the EOL
change. If Netronome is not able to provide the previous configuration, Netronome will use
reasonable commercial efforts to: (i) provide information to assist OEM in making changes to OEM’s
products to accommodate changes, or (ii) provide OEM with End of Life Equipment or other Licensed
Materials in accordance with this Agreement. If in OEM’s and Netronome’s mutual good faith
judgment such remedies will be insufficient to enable to OEM to satisfy its on-going contractual
obligations, OEM may elect to exercise its “Make or
Manufacture Option” specified in Section 6.8 with respect to any Equipment or other Licensed
Materials subject to such EOL status.



     6.4. Support Services. In addition to any warranty services provided under Article 4, during
the period that OEM provides End-User Maintenance Services to End-Users, OEM may enroll in
Netronome’s Support Plan by paying Netronome the specified Maintenance Fee. Upon payment of the
Maintenance Fee, Netronome shall provide OEM with the applicable level of Support Services set
forth in the Support Plan. Any Enhancements provided to OEM pursuant to the Support Plan shall be
deemed part of the Licensed Materials licensed hereunder.



     6.5. End-User Maintenance. Provided OEM is up to date with the payment of Maintenance Fees,
during the Term and for a period of five (5) years following the expiration or termination of this
Agreement for any reason, Netronome shall offer to provide OEM with Support Services necessary or
prudent to enable OEM to provide its End-Users with End-User Maintenance Services for the Equipment
and other Licensed Materials distributed hereunder.



     6.6. Training. Upon OEM’s request and at Netronome’s prevailing rates, Netronome shall
provide training to OEM’s personnel regarding installation and service of the Equipment and other
Licensed Materials. The training shall take place at a mutually agreed upon time and location and
OEM shall reimburse Netronome for all reasonable out-of-pocket expenses, including travel and
living expenses.



     6.7. Additional Services. OEM may request Netronome to perform consulting and support
Services in addition to the Services set forth in this Article 6, including any services excluded
under Section 6.4. Netronome may, at its sole option, agree to provide such Services at its
prevailing rates then in effect for such Services, plus reimbursement for all reasonable
out-of-pocket expenses. All fee-based and/or cost-based Services performed by Netronome for OEM
are sold and itemized separately. Such Services shall be mutually agreed upon in a separate written
and signed agreement as defined in a written Statement of Work. The Services covered under this
Section 6.7 shall include but not be limited to design; design engineering; integration and
assembly; testing; software, system, or hardware installation and configuration; component
programming or coding; special storage, handling, or logistics; special packaging and/or labeling;
kitting; and manufacturing or production support services.



     6.8. Make or Manufacture Option.



          6.8.1. Escrowed Materials; Release Conditions. During the Term of this Agreement,
Netronome shall within thirty (30) days of the first customer shipment of the Netronome Products
and thereafter within thirty (30) days of any material change in Source Code deliver the Escrowed
Materials to an independent third party designated by OEM to be held in escrow at OEM’s expense.
OEM shall be entitled to the release of the Escrowed Materials in the event of any of the following
release conditions (each a “Release Condition”): (i) in the event OEM is entitled to exercise the
“Make or Manufacture Option” in accordance with Sections 6.2 or 6.3 of this Agreement, or (ii) in
the event Netronome (a) seeks protection under any bankruptcy, receivership or comparable
proceeding, or if any such proceeding is instituted against Netronome (and not dismissed within
ninety (90) days), or (b) is in material default of (1) its Support Services obligations, as
defined in Exhibit F, and such material default has not been cured per the cure period as
defined in Section 7.2.2, (2) its obligations to supply the Equipment or Licensed Materials to OEM,
or (3) its Financial Covenant and other obligations set forth in Section 6.11 and Exhibit I
(“Financial Covenant”) hereof. Notwithstanding the foregoing, to the extent that OEM exercises its
right to the “Escrowed Materials” due to Netronome being in breach of its Financial Covenant, OEM
agrees to suspend its use of the Escrowed Materials released hereunder upon Netronome’s
demonstration that it has come back into compliance with its Financial Covenant.




Page 8









 








          6.8.2. Technology License. Subject to the terms and conditions of this Agreement
(including without limitation any payment obligations), OEM shall have and Netronome hereby grants
to OEM, a limited, non-exclusive, non-transferable, non-sublicensable license to view, use, modify
and make derivatives of the Escrowed Materials, at no charge, sufficient to enable OEM to “step
into Netronome’s shoes” to manufacture the Equipment and Licensed Materials. OEM shall only seek
to exercise this license to the Escrowed Materials in the
event of a Release Condition, and only for no more than the shorter period of (i) thirty (30)
months following the first release of the Escrowed Materials, or (ii) one (1) year following the
expiration or earlier termination of the Term of this Agreement.



OEM shall be prohibited from: (i) disclosing, selling, copying or otherwise transferring the
Escrowed Materials except as necessary to carry out OEM’s right to distribute, support, maintain
and manufacture the Equipment or Licensed Materials; (ii) removing the Escrowed Materials from
OEM’s facilities or the facilities of OEM’s authorized manufacturer(s) of the Equipment or Licensed
Materials, or (iii) creating any Enhancements, Modifications or Upgrades other than those to
correct Material Defects. OEM further agrees, at all times while in possession of the Escrowed
Materials, to protect against unlawful disclosure and ensure the integrity and protection of
Netronome’s Intellectual Property Rights therein by maintaining, as applicable, Netronome’s
proprietary rights notices on all technical manuals and related Documentation for the program(s).




     6.9. Audit of Netronome. Netronome will keep and maintain, for a period of three (3) years,
proper records and books of account relating to the payment obligations to OEM under this
Agreement. Upon reasonable notice to Netronome, OEM may exercise its Audit Rights with respect to
such records no more than once every six (6) months to verify Netronome’s performance hereunder;
provided that Netronome shall not be responsible for any of costs associated with the audit unless
the audit reveals a discrepancy in payments due of more than 5%, in which case Netronome shall
reimburse OEM for the reasonable fees of the auditor conducing the Audit Rights.



     6.10. Insurance. During the Term of this Agreement, Netronome shall maintain any insurance
required by law and, to the extent not so required, the following insurance: (i) Worker’s
Compensation insurance and Employer’s Liability insurance for its employees which shall fully
comply with the statutory requirements of all applicable state and federal laws; (ii) Commercial
General Liability Insurance, including contractual liability, products liability and completed
operations coverage, premises-operations, broad-form property damage, independent contractors,
personal injury) with limits of at least $1,000,000.00 for bodily injury, including death, to any
one person, $1,000,000.00 as a result of any one occurrence, and $1,000,000.00 for each occurrence
of property damage; (iii) Professional Liability (Errors and Omissions) insurance, with limits of
not less than $2,000,000.00 per occurrence; and (iv) Umbrella Liability Insurance coverage with a
minimum combined single and aggregate limit of $5,000,000.00. Netronome shall furnish OEM with
certificates and/or adequate proof of the foregoing insurance. OEM shall be named as an additional
insured on the insurance policies referred to in clause (ii), (iii) and (iv) above. Upon request by
OEM, all the required insurance policies shall contain a provision stating OEM’s name and address
and shall require the insurer to notify OEM in writing at least thirty (30) days prior to
cancellation of, or any material change to, the policies.



     6.11 Financial Covenant.



          6.11.1 Financial Covenant. During the Term of this Agreement, Netronome shall
maintain, on a consolidated basis, the minimum cash balance (“Minimum Cash Balance”) set forth in
Exhibit I (“Minimum Cash Balance”) hereto and meet its other related obligations set forth
in this Section 6.11 (collectively, the “Financial Covenant”).




          6.11.2 Financial Information. To assist OEM in its confirmation of Netronome’s
continued compliance with its Financial Covenant, Netronome agrees to provide OEM with the
following: (i) quarterly during the Term, copies of its most recent Financial Statements, prepared
in accordance with GAAP (consistently applied), whether audited or not, (ii) by April
30th, July 31st, October 31st and January 31st of each
year during the Term, a cash flow forecast for Netronome, on a consolidated basis, for the next two
succeeding calendar quarters (the “Cash Flow Forecast”), in such form and with such detail as is
satisfactory to OEM, accompanied by such supporting detail and documentation as shall be requested
by OEM in its reasonable discretion, and (iii) such other information as OEM may reasonably request
concerning Netronome’s compliance with its Financial Covenant. As used herein,



Page 9









 






“Financial
Statements” means Netronome’s consolidated balance sheets and statements of operations (i.e.,
profit and loss statements) prepared in accordance with GAAP, consistently applied. “GAAP” means
the generally accepted accounting principles in the United States as in effect from time to time.



          6.11.3 Notice. Netronome agrees to promptly advise OEM if, to the best of its
knowledge after due inquiry, Netronome has failed to satisfy its Financial Covenant. Netronome
acknowledges and agrees that, for whatever period of time Netronome may be, or shall have been, in
breach of its Financial Covenant during the Term, OEM’s Minimum Commitments obligations set forth
in Section 5.1 and Exhibit C.2 (“OEM Pricing”) hereof may be tolled at OEM’s election for
so long as Netronome has not cured its Financial Covenant and OEM is not otherwise entitled to
exercise the “Make or Manufacture Option” in accordance with Section 6.8 of this Agreement.
Notwithstanding the foregoing, to the extent the Minimum Commitment Period specified in Exhibit
C-2 (“OEM Pricing”) hereof shall have been suspended due to Netronome being in breach of its
Financial Covenant, the tolled Minimum Commitment Period shall cease to be suspended upon
Netronome’s demonstration that it has come back into compliance with its Financial Covenant,
whereupon the Minimum Commitment Period shall be extended to give effect to whatever period of time
OEM’s Minimum Commitments obligations hereunder shall have been suspended.




7. TERM AND TERMINATION




     7.1. Term. This Agreement shall continue in force for a fixed term of three (3) years from
the Effective Date (the “Term”) unless terminated earlier under the provisions of this Article 7.
Upon the expiration of this Term, this Agreement shall terminate automatically without notice
unless prior to that time the Term of the Agreement is extended by mutual written consent of the
Parties.



     7.2. Termination.




     7.2.1. Termination for Convenience. This Agreement may be canceled by either
Party for any reason or no reason, whether or not extended beyond the initial Term, by
giving the other Party written notice three hundred sixty-five (365) days in advance.




     7.2.2. Termination for Cause. Except as set forth in Subsection 7.5 below, in
the event of any material breach of this Agreement, the non-breaching Party may terminate
this Agreement by giving thirty (30) days’ prior written notice to the breaching Party;
provided, however, that this Agreement shall not terminate if the breaching Party has cured
the breach prior to the expiration of such thirty (30) day period, or if such breach cannot
be cured within such thirty (30) day period, the breaching Party has taken steps within such
thirty (30) day period to cure the breach and thereafter cured such breach as soon as
practicable.




     7.2.3. Termination for Insolvency. This Agreement shall terminate, without
notice (i) upon the institution by or against either Party of insolvency, receivership or
bankruptcy proceedings or any other proceeding for the settlement of such Party’s debts,
(ii) upon either Party’s making an assignment for the benefit of creditors, or (iii) upon
either Party’s dissolution or ceasing to do business.



     7.3. Fulfillment of Purchase Orders upon Termination. Upon expiration or termination of this
Agreement for reasons other than solely for OEM’s breach or insolvency, Netronome shall continue to
fulfill, subject to the terms of Article 2 above, all Purchase Orders accepted by Netronome prior
to the date of termination.



     7.4. Return of Materials. Except as required for OEM to provide End-User Maintenance Services
hereunder, upon expiration or termination of this Agreement for any reason, the Parties shall
return to one another their respective Confidential Information, Documentation and all other
tangible materials related to the other Party’s products, including, without limitation, all
derivative works and translations thereof. If OEM shall cease to provide End-User Maintenance
Services hereunder for any reason, OEM shall return to Netronome all remaining tangible items
related to the Equipment or other Licensed Materials.



Page 10









 





     7.5. Survival. The provisions of Section 1.3 (“Independent Contractors”), Section 2.8
(“Payment”), Section 5.1 (“Minimum Commitment(s)”) Section 6.5 (“End-User Maintenance”), Section
6.8 (“Make or Manufacture Option”), Article 4 (“Limited Warranties and Disclaimers”), Article 8
(“Intellectual Property Rights
and Confidentiality”), Article 10 (“Intellectual Property Rights Indemnity”), and Article 12
(“General Provisions”) shall survive the expiration or termination of this Agreement for any
reason. All licenses to the Licensed Materials granted or otherwise entered into with End-Users
hereunder prior to the expiration or termination of this Agreement shall survive the expiration or
termination of this Agreement for any reason. All other rights and obligations of the Parties shall
cease upon termination of this Agreement.



8. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY




     8.1. Intellectual Property Rights. OEM hereby recognizes that, except as expressly and
unambiguously provided in this Agreement, nothing in this Agreement grants OEM any Intellectual
Property Rights in the Equipment, Licensed Materials, or Netronome’s Confidential Information or
Marks, and all rights to such Intellectual Property Rights are retained by Netronome. OEM also
agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the
Equipment, Licensed Materials, or Netronome’s Confidential Information or Marks delivered to OEM by
Netronome and all whole or partial copies thereof.



     8.2. Confidentiality. Each Party acknowledges that by reason of its relationship to the other
hereunder, it may have access to certain Confidential Information. Each Party agrees to observe
its obligations with respect to the Confidential Information of the other Party as set forth in
that certain Mutual Non-Disclosure Agreement, dated November 30, 2007, between the Parties.



     8.3. Source Code. OEM agrees that except as provided in Section 6.8 (“Make or Manufacturer
Option”) hereunder, (i) the Source Code of the Licensed Materials is not being provided to OEM, and
that OEM has no right to access or use such Source Code, and (ii) OEM may not decompile, reverse
engineer or otherwise manipulate the Software so as to derive such Source Code.



9. PUBLICITY; TRADEMARKS AND TRADE NAMES




     9.1. Publicity. Except as permitted under this Agreement, neither Party to this Agreement may
publicize the existence of the business relationship established by this Agreement in connection
with its products, promotions and publications without the written consent of the other Party,
which approval shall not be unreasonably withheld.



     9.2. Use of Marks. During the Term, (i) OEM shall have the right to indicate to the public
that its systems contain Equipment and other Licensed Materials and to designate such Equipment and
other Licensed Materials under the Marks that Netronome may adopt from time to time, and (ii)
either Party may use the logos of the other Party in its promotional materials and publications to
represent the Parties business relationship to the extent provided hereunder; provided that all
uses of each Party’s Marks must be in accordance with each Party’s usage guidelines therefore and
must be pre-approved by each Party’s respective marketing departments. Except as set forth in this
Article 9, nothing contained in this Agreement shall grant to either Party any right, title or
interest in either Party’s Marks. At no time during or after the Term shall either Party challenge
or assist others to challenge the Intellectual Property Rights in either Party’s Marks or the
registration thereof or attempt to register any Marks confusingly similar to either Party’s Marks.
Despite the foregoing, neither Party may disclose the specific terms of this Agreement, except as
required by applicable law or legal process.



     9.3. Equipment. Upon OEM’s request, Netronome shall affix to designated Equipment or other
Licensed Materials certain of Netronome’s and/or OEM’s Marks. OEM will pay Netronome’s reasonable
set-up costs plus any variance in product cost for such product labeling. Netronome and OEM must
approve in writing the affixation, use or other display of a Mark on Equipment or other Licensed
Materials, and the manner of such affixation. OEM may modify the external packaging and/or
labeling of Equipment or other Licensed Materials for the purpose of private labeling the products
consistent with other products manufactured by OEM. Any modifications to the Equipment or other
Licensed Materials are subject to Netronome’s prior approval of the technical content of those
modifications.





Page 11









 





10. INTELLECTUAL PROPERTY RIGHTS INDEMNITY





     10.1. Indemnification. Netronome shall indemnify, defend and hold OEM harmless from and
against any and all third party claims, actions or demands that the Equipment or other Licensed
Materials as provided by Netronome to OEM under this Agreement infringes or violates any
Intellectual Property Right. Netronome will pay any damages, settlements, costs or expenses
(including reasonable attorneys’ fees) attributable to such claims, actions or demands awarded
against OEM.



     10.2. OEM Obligations. Netronome’s obligations under this Article 10 are contingent on OEM
(i) providing prompt written notice to Netronome of such suit, claim, or proceeding, (ii) giving
Netronome reasonable information, assistance and cooperation required to defend such suit, claim,
or proceeding, so long as Netronome pays OEM its reasonable out-of-pocket expenses, and (iii)
allowing Netronome to control the defense of any such action and all negotiations for its
settlement or compromise. OEM may be represented in the defense of any such claim, at OEM’s
expense, by counsel of OEM’s selection. Netronome shall have no liability for settlements or costs
incurred without its consent.



     10.3. Injunctive Relief. In the event that an injunctive restraint is obtained against OEM’s
use of the Equipment or Licensed Materials by reason of infringement or violation of any
Intellectual Property Right, or if in Netronome’s opinion the Equipment or other Licensed Materials
is likely to become the subject of such an injunction, Netronome shall have the right, but not the
obligation, to (i) procure for OEM the right to continue to use the Equipment or other Licensed
Materials as provided in this Agreement, (ii) replace or modify the Equipment or other Licensed
Materials so that it becomes non-infringing (so long as the functionality of the Equipment or other
Licensed Materials is essentially unchanged), or (iii) if neither (i) or (ii) above are reasonably
commercially practical, terminate the right to use such Equipment or other Licensed Materials,
remove it and grant OEM a credit thereon as depreciated on a straight-line five (5) year basis.



     10.4. Limitation of Liability. The provisions of Section 10.1 notwithstanding, Netronome
assumes no liability under this Article 10 to the extent any claim of infringement or
misappropriation results from (i) use of a Netronome Product in combination with any other
products, if infringement would not have occurred but for such combination, (ii) trademark
infringements involving any marking or branding not applied by Netronome or involving any marking
or branding applied at the request of OEM; or (iii) infringements involving the modification or
servicing of the Equipment, or any part thereof, by anyone not under the control of, or not having
the written authorization of Netronome to do such modification or servicing, with the exception of
modifications or servicing by OEM in accordance with written instructions supplied by Netronome.



     10.5. Entire Liability. This Article 10 states the entire liability of Netronome with respect
to any alleged infringement of any Intellectual Property Rights by the Equipment or any part
thereof.



     10.6. Notification of Unauthorized Use. Each Party shall promptly notify the other in writing
upon its discovery of any unauthorized use or infringement of the other’s products, documentation,
Confidential Information or Intellectual Property Rights. In the event either Party seeks to bring
an infringement action or proceeding against any infringing third party, the other Party shall
cooperate and provide full information and assistance to Netronome and its counsel in connection
with any such action or proceeding.



11. LIMITATION OF LIABILITY




     EXCEPT FOR LIABILITY ARISING FROM SECTION 8 (“INTELLECTUAL PROPERTY RIGHTS AND
CONFIDENTIALITY”), SECTION 10 (“INTELLECTUAL PROPERTY RIGHTS INDEMNITY”), OR DEATH, REGARDLESS OF
THE FORM OF ANY CLAIM OR ACTION, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER
PARTY EXCEED THE GREATER AMOUNT OF FOUR MILLION DOLLARS ($4,000,000) OR THE TOTAL AMOUNT RECEIVED
BY NETRONOME HEREUNDER WITH RESPECT TO THE NETRONOME PRODUCT THAT IS THE SUBJECT OF A CLAIM
HEREUNDER.



WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY LOSS OF DATA, LOSS OF PROFITS (EXCEPT, FOR LIABILITY ARISING FROM SECTION 10 (“INTELLECTUAL
PROPERTY RIGHTS INDEMNITY”), TO THE EXTENT LOST PROFITS CONSTITUTE THE MEASURE OF DAMAGES UNDER
FEDERAL PATENT OR
COPYRIGHT LAWS OR APPLICABLE TRADE SECRET STATUTES), OR LOSS OF USE OF THE PRODUCTS OR
DOCUMENTATION OR ANY EQUIPMENT, OR FOR ANY SPECIAL, INCIDENTAL,



Page 12









 







CONSEQUENTIAL, EXEMPLARY, PUNITIVE,
MULTIPLE OR OTHER DAMAGES, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER
PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER OF LIABILITY FOR
DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE.



12. GENERAL PROVISIONS




     12.1. Export Compliance. OEM shall, at its own expense, pay all import and export licenses
and permits, pay customs charges and duty fees, and take all other actions required to accomplish
the export and import of the Equipment purchased by OEM from the point of delivery. OEM understands
that Netronome is subject to regulation by agencies of the U.S. government, including the U.S.
Department of Commerce, which prohibit export or diversion of certain technical products to certain
countries. OEM warrants that it will comply in all respects with the export and reexport
restrictions set forth in the export license for every Equipment shipped to OEM.



     12.2. U.S. Government Contracts. If OEM’s order is placed under a contract with the United
States Government, Netronome agrees to comply with those contract provisions and regulations with
which, pursuant to law, it must comply and of which OEM has, at the time of order placement, placed
Netronome on written notice. In no event will United States Government Cost Accounting Standards
apply. All rights in technical data and software owned or licensed by Netronome or any third party
licensor or manufacturer are hereby reserved and deemed restricted or limited. No provision of
OEM’s contract with the United States Government will be binding on Netronome or the third party
licensor or manufacturer except as expressly set forth in this paragraph.



     12.2. Governing Law. This Agreement, the covenants and provisions contained herein and
transactions contemplated hereby, are made under and shall be governed by, construed and enforced
in accordance with the laws of the State of New York, U.S.A., without regard to that body of law
controlling conflicts of law, and specifically excluding from application to this Agreement the
United Nations Convention on Contracts for the International Sale of Goods. The federal and state
courts within the State of New York, U.S.A., shall have exclusive jurisdiction to adjudicate any
dispute arising out of this Agreement. Each Party hereby expressly consents to (1) the personal
jurisdiction of the federal and state courts within New York, (ii) service of process being
effected upon it by registered mail sent to the address set forth at the beginning of this
Agreement, and (iii) the uncontested enforcement of a final judgment from such court in any other
jurisdiction wherein either Party or any of its assets are present.



     12.3. Entire Agreement. This Agreement sets forth the entire agreement and understanding of
the Parties relating to the subject matter herein and merges all prior discussions between them.
No modification of or amendment to this Agreement, nor any waiver of any rights under this
Agreement, shall be effective unless in writing signed by the Party to be charged.



     12.4. Notices. All notices and other communications required or permitted hereunder shall be
in writing and shall be deemed effective upon Receipt.



     12.5. Force Majeure. Neither Party will be liable for any failure to perform acts, other than
payment obligations, to the extent such performance is rendered impossible due to unforeseen
circumstances or causes beyond such party’s reasonable control, including, but not limited to, acts
of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage,
electronic viruses, worms or corrupting microcode, shortage of supply or delay in delivery by
Netronome’s vendors, fire, flood, earthquake, accident, strikes, radiation, inability to secure
transportation, failure of communications or electrical lines, facilities, fuel, energy, labor or
materials. In an event of force majeure, either party’s time for delivery or other performance will
be extended for a period equal to the duration of the delay caused thereby.



     12.6. Nonassignability and Binding Effect. Neither Party shall assign this Agreement or
otherwise transfer this Agreement to any third party without the prior written consent of the other
Party, which consent shall
not be unreasonably withheld, conditioned or denied. Notwithstanding the foregoing, either Party
may assign this Agreement without the consent of the other Party if a majority of its outstanding
voting capital stock is sold to a third party, or upon the merger or consolidation of one Party
into, or the sale of all or substantially all of the assets



Page 13









 







of such Party to, a third party.
Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the
Parties’ successors and their permitted assigns.



     12.7. Legal Expenses. The prevailing Party in any legal action brought by one Party against
the other and arising out of this Agreement shall be entitled, in addition to any other rights and
remedies it may have, to reimbursement for its expenses, including court costs and reasonable
attorneys’ fees.



     12.8. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which together shall constitute one instrument. This
Agreement may be executed by facsimile or scanned signatures. Each individual executing this
Agreement on behalf of a Party has the requisite power and authority to sign this Agreement on
behalf of such Party.



     12.9. No Waiver. The waiver by Netronome of any breach hereof or default in any payment by
OEM shall not be deemed to constitute a waiver of any succeeding breach or default. Similarly, the
acceptance by Netronome of a partial payment by OEM shall not constitute a waiver of a payment
default and shall not preclude Netronome from exercising any other remedy to which Netronome would
otherwise be entitled. In the event of default, Netronome shall have all the remedies provided by
law. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy
at another time or of any other remedy at any time. No action, regardless of form, arising out of,
or in any way connected with, the goods furnished or services rendered by Netronome, may be brought
by OEM more than one year after the cause of action has accrued.



     12.10. Mediation and Arbitration. The Parties will endeavor to settle amicably by mutual
discussions any disputes, differences, or claims whatsoever related to this Agreement. Except for
instance where equitable relief is permitted under this Agreement, any and all claims, disputes, or
controversies arising under, out of, or in connection with this Agreement or the breach thereof,
(herein “dispute”) shall be submitted to the chief operating officer (or equivalent) of each Party
(or their designee) for a good faith attempt to resolve the dispute. The position of each Party
shall be submitted, and the individuals promptly thereafter shall meet at a neutral site. If the
Parties are unable to reach agreement within fifteen (15) days following such meeting, then any
dispute which has not been resolved within said fifteen (15) days by good faith negotiations
between the parties shall be resolved at the request of either Party by final and binding
arbitration. Arbitration shall be conducted in Washington, D.C., by a single arbitrator. The
arbitrator shall be knowledgeable in the commercial aspects of software licensing, the GNU General
Public License, Internet applications, networking, network security, technical consulting services
and copyright and patent law and otherwise in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. The Parties shall meet to agree upon an arbitrator within
fifteen (15) days after the receipt by the noticed Party of the demand for arbitration delivered in
the manner set forth herein for providing notice to the parties. In the event the Parties cannot
agree on an arbitrator, then the American Arbitration Association shall select the arbitrator. The
arbitrator shall make detailed written finding to support his/her award. The arbitrator shall
render his/her decision no more than sixty (60) days after the parties finally submit the claim,
dispute or controversy. Judgment upon the arbitration award may be entered in any court having
jurisdiction.



Exhibits




	 	 	 
	Exhibit A

	 	Definitions
	Exhibit B-1

	 	Netronome Products
	Exhibit B-2

	 	Special Products
	Exhibit B-3

	 	Development Software
	Exhibit B-4

	 	Specifications
	Exhibit C-1

	 	List Price
	Exhibit C-2

	 	OEM Pricing
	Exhibit C-3


	 	Form of Purchase Order

	
Exhibit D-1

	 	
OEM Form of End User Software License Agreement
	Exhibit D-2

	 	Netronome Form of End User License Agreement
	Exhibit E

	 	Netronome End of Life Policy
	Exhibit F

	 	Support Plan
	Exhibit G

	 	Enhanced Inspection
	Exhibit H

	 	Quality Test Plan






Page 14









 





IN WITNESS WHEREOF the Parties have entered into this Agreement as of the Effective Date:




	 	 	 	 	 	 	 
	Netronome Systems Inc.

	 	 	 	Sourcefire, Inc.	 	 
	(Netronome)

	 	 	 	(OEM)	 	 
	 
	 	 	 	 	 	 
	By: /s/ Gary J. Brunner
 

Name: Gary J. Brunner

	 	 	 	By: /s/ Todd P. Headley
 

Name: Todd P. Headley
	 	 
	Title: Sr. VP Finance

	 	 	 	Title: CFO	 	 






[END]




Page 15









 








EXHIBIT A




DEFINITIONS



“Affiliates” means (i) any Company which controls, is controlled by, or is under common control
with a Party, and (ii) authorized systems integrators, value-added resellers, resellers and
distributors of such Party’s products or services. A Company shall be deemed to “control” another
if it owns or controls more than fifty percent (50%) of the voting stock or other ownership
interest of the Company. References herein to Netronome and OEM shall be deemed to include
reference to their Affiliates unless otherwise specified or the context otherwise requires.



“Agreement” shall mean this Original Equipment Manufacturer Agreement, its Exhibits, and their
Schedules or other attachments, which shall form an integral part of the Agreement. In the event of
any discrepancy, the documents to prevail shall be given precedence in the following order: (i)
this Original Equipment Manufacturer Agreement, (ii) the Exhibits, (iii) their Schedules or other
attachments, and (iv) the Purchase Order.



“Audit
Rights” shall mean a Party’s right to have a nationally-recognized accounting firm other than
the Party’s own accounting firm audit the other Party’s books and records on reasonable prior
notice for the purpose of making a factual determination of whether a specified event has occurred.
In carrying out such audit responsibilities, said accounting firm shall use generally accepted
accounting principles (hereafter “GAAP”), as consistently applied by the audited Party. The
auditor’s working papers shall not be made available to the Party requesting the audit.



“Company” shall mean a corporation, company, limited liability company or other entity.



“Confidential Information” shall have the meaning set forth in that certain Mutual Non-Disclosure
Agreement dated November 30, 2007, between the Parties.



“Customers” means, individually or collectively, as applicable, all Companies or other entities,
their successors and assigns, in the chain of distribution, sale and use of a Party’s products or
services, including without limitation, such Party’s Affiliates, third party licensees, resellers,
agents, representatives, distributors, system operators and End-Users.



“Day(s),” “month(s),” “quarter(s)” and “year(s)” shall mean calendar days, months, quarters or
years, unless otherwise specified.



“Delivery,” “Delivered,” “Deliver” or other forms of the term shall mean the physical transfer of
Equipment or other Licensed Materials by Netronome to (i) OEM, (ii) an OEM-specified common carrier
or freight forwarder, or (iii) otherwise as directed by OEM to an authorized agent.



“Development Software” shall mean any and all Software made available to OEM from Netronome, the
current versions of which are set forth in Exhibit B-3 (“Development Software”) hereto,
that facilitate or relate to the development of (i) the Equipment or other Licensed Materials, (ii)
interfaces between the Equipment or other Licensed Materials and other Hardware or Software, or
(iii) Enhancements to the Equipment or other Licensed Materials which have not yet been made
generally available for End-Users, including any Enhancements hereafter made or any revision
thereto.



“Documentation” shall mean any and all documentation (whether provided in hard copy, on-line or
electronic form) that relate to the Equipment or other Licensed Materials, including, without
limitation, user manuals, training materials, product descriptions and Specifications, technical
manuals, supporting materials and other printed information relating to the Equipment or other
Licensed Materials, in effect and generally available from Netronome as of the date the Equipment
or other Licensed Materials is shipped to OEM, and any succeeding changes thereto. Documentation
shall include, if applicable, documentation provided to Netronome by its suppliers or licensors to
the extent Netronome is authorized by such third parties to provide such material under the terms
in this Agreement. “Documentation” does not include Source Code.



“Effective Date” shall mean the date first identified above as the Effective Date.




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“Emergency Situation” shall mean a Material Defect in the Equipment or other Licensed Materials
that directly causes (i) substantial impairment to the operation of the network in which the
Equipment or other Licensed Materials is installed; or (ii) a material danger of bodily injury or
property damage to End-Users.



“Emergency Purchase Order” shall mean a Purchase Order designated by OEM to be critical with
Delivery required inside the standard lead times of the Equipment or Licensed Materials.



“End of Life” or “EOL” means Netronome’s published End of Life policy with respect to the Equipment
or other Licensed Materials, the current version of which is attached as Exhibit E
(“Netronome End of Life Policy”) hereto.



“End-User” shall mean any third party to whom a Party offers its products for purchase and/or
license solely for such third party’s own internal needs and not for subsequent resale.



“End-User Maintenance Services” shall mean the provision of Level 1 Support in relation to (i) the
diagnosis and correction of defects in the Equipment or other Licensed Materials via telephone
support and remote system access and (ii) providing qualified personnel at an End-User site to aid
in the diagnosis and correction of defects.



“End-User Software License Agreement” shall mean OEM’s standard End-User Software License Agreement
pursuant to which End-Users are granted the rights to utilize Licensed Materials in or provided
with OEM’s products, the current version of which is attached as Exhibit D-1 (“OEM Form of
End-User Software License Agreement”) hereto.



“Enhancements” shall mean any Modifications or Upgrades hereafter made or any revision thereto.



“Epidemic Failure” shall mean those substantial deviations from the Specifications which seriously
impair the use of Netronome Products existing at the time of Delivery but which are not reasonably
discernible at that time and which are evidenced by an identical, repetitive defect due to the same
cause and occurring in the same series of the Netronome Products.



“Equipment” shall mean any Netronome Products, Special Products or Spares, and any Enhancements
hereafter made or any revision thereto.



“Escrowed Materials” means all information necessary to manufacture the Equipment or Licensed
Materials in electronic media form, including, without limitation, (i) all Source Code and source
Documentation for the Software, (ii) all Hardware designs, specifications and other information
relative to the manufacturer of the Equipment, (iii) all manufacturing process instructions,
drawings, specifications, ICT test programs, functional test programs, schematics, mechanical PDF
and CAD files, (iv) all programmable files, PCB CAD files, gerber files, artwork files, (v) to the
extent it does not violate Netronome’s existing agreements with its suppliers, a costed Bill of
Materials for the Equipment and the Licensed Materials (if any), as well as all other bills of
material and authorized vendor lists for the Equipment or Licensed Materials, and any updates
thereto.



“Hardware” shall mean the hardware components of any Equipment.



“Installation” shall mean the date the Equipment is initially installed in OEM’s product(s) on
behalf of an End-User.



“Intellectual Property Rights” or “IPR” shall mean all forms of intellectual property rights and
protections that may be obtained for, or may pertain to, a Party’s products, documentation or
Confidential Information, and may include without limitation: (i) all right, title and interest in
and to all Letters Patent and all filed, pending or potential applications for Letters Patent,
including any reissue, reexamination, division, continuation or continuation-in-part applications
throughout the world now or hereafter filed; (ii) all right, title and interest in and to all trade
secrets, and all trade secret rights and equivalent rights arising under common law, state law,
U.S. Federal law and laws of foreign countries; (iii) all right, title and interest in and to all
mask works, copyrights and
other literary property or authors rights, whether or not protected by copyright or as a mask work,
under common law, state law, U.S. Federal law and laws of foreign countries; and (iv) all right,
title and interest in and to all Marks.




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“Level 1” support are those activities to assist the End-User in resolving “how to” and
operational-type questions, as well as technical questions on installation procedures.



“Level 2” support are those activities that require additional research and analysis of an End-User
problem. The [Service Request] database is checked to locate a duplicate of the problem being
reported and the previous solution applied to that problem.



“Level 3” support are those activities that require duplication of the user problem, analysis of
records and distribution of a fix to resolve the End-User problem.



“Licensed Materials” shall mean the Software, Development Software and Documentation, and any
Enhancements hereafter made or any revision thereto, subject to this Agreement, including, without
limitation, any “on-line” or electronic Documentation associated therewith. The Parties agree that
except as may be agreed to upon mutual written agreement, specifically identifying this Agreement
and stating an intent to make such changes, any reference to Licensed Materials being “sold” or
“purchased” hereunder is understood in fact to be a reference to the Licensed Materials being
licensed or leased.



“List Price” shall mean the price for the Equipment or other Licensed Materials as set forth in
Netronome’s published United States price list, the current version of which is attached as
Exhibit C-1 (“List Price”) hereto.



“Load-Balancing Interface Module” or “LBIM Assembly” means those load-balancing interface modules
made available to OEM by Netronome as Netronome Products under this Agreement, including LBIM
Spares set forth on Exhibit B-1 (“Netronome Products”).



“Maintenance Fees” shall mean the periodic fees to be paid by OEM to Netronome under Section 6.4
for Support Services provided by Netronome. The Maintenance Fees as of the Effective Date are set
forth in Exhibit C-2 (“OEM Pricing”) and may be amended from time to time upon the renewal
of the maintenance periods thereof.



“Marks” shall mean all proprietary indicia, trademarks, trade names, symbols, logos, service marks,
quality designations, brand names and any other proprietary words and symbols under common law,
state law, U.S. Federal law and laws of foreign countries adopted from time to time that either
Party uses to identify itself, its business products and services.



“Material Defect” shall mean any reported malfunction, error or other defect in the Equipment or
other Licensed Materials that: (i) can be reproduced by either Party; and (ii) constitutes a
substantial nonconformity with the Specifications for such Equipment or other Licensed Materials.



“Minimum Commitment(s)” shall have the meaning set forth in Exhibit C-2 (“OEM Pricing”).



“Modification” means a revision, new function or minor change to the Equipment or other Licensed
Materials intended to correct errors or non-conformance with Documentation and provided as a change
in the then current release or version of the Equipment or other Licensed Materials. Modifications
may be issued as a “point release” (that is, the version number of which release, in comparison to
the previous release, has not changed in the digits before the decimal point but has changed in the
first digit after the decimal point).



“Netronome Product(s)” shall mean the standard products and Spares that are manufactured by
Netronome for general availability to End-Users available for purchase by OEM hereunder, including
any Hardware or Licensed Materials, and any Enhancements hereafter made or any revision thereto.
The Netronome Product(s) listed in Exhibit B-1 (“Netronome Products”) hereto may be
modified or discontinued by Netronome and additional Netronome Product may be added to this list by
Netronome in accordance with the provisions of Sections 6.2 and 6.3.



“Object Code” shall mean computer programs assembled or compiled in magnetic or electronic binary
form on software media, which are readable and usable by machines, but expressed in a form that is
not generally readable or suitable for modification by humans without reverse-assembly,
reverse-compiling or reverse-engineering.




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“Place(s) of Delivery” means the location(s) or place(s) where the Equipment or other Licensed
Materials is to be shipped, as specified in the ‘SHIP TO’ named field of the Purchase Order. In
the absence of such specification, the Place(s) of Delivery shall be deemed OEM’s primary place of
business.



“Purchase Order” shall mean a written order in a form as mutually satisfactory to the Parties, an
example of which is attached as Exhibit C-3 (“Form of Purchase Order”) hereto.



“Purchase Price” shall mean the amount to be paid by OEM to Netronome for the Equipment or other
Licensed Materials as determined in accordance with Section 2.2 and net of any applicable shipping,
freight, taxes, and other charges or fees.



“Receipt” or “Received” means (a) with respect to any notice, Purchase Order or other communication
required or permitted under this Agreement (each a “Notice”) the earliest to occur as follows: (i)
the date upon which such Notice was delivered, when delivered by hand, or when telexed, when
delivered by facsimile transmission, (ii) the next business day if the Notice was emailed and the
recepient has confirmed its receipt, or (iii) on the fifth (5th) business day following the date
the Notice was mailed by registered or certified mail (return receipt requested), postage prepaid,
to a Party at the address first listed above for such Party, or at such other address for a Party
as shall be specified by like Notice, and (b) with respect to any other receipt of a tangible item,
the date upon which such item was actually delivered.



“Return Material Authorization” or “RMA” number means an authorizaton number granted by Netronome
to OEM to return Equipment or Licensed Materials.



“Scheduled Delivery Date” shall mean the latest possible delivery date by which the Equipment or
other Licensed Materials may be timely Delivered by Netronome to OEM as specified in the ‘DELIVERY
DATE’ named field in the Purchase Order accepted by Netronome.



“Services” shall mean those consulting, engineering, installation, optimization, maintenance,
repair, technical support, training, and other services referred to herein as being performed by
Netronome. These Services and pricing for such Services shall be set forth in Exhibit C-2
(“OEM Pricing”) hereto. The Parties may mutually agree in writing to amend Exhibit C-2
(“OEM Pricing”) hereto from time to time to expand or reduce the Services and prices therefore
covered under this Agreement.



“Severity Level” shall mean a designation (i.e., “Severe”, “Moderate” and “Minor”) assigned to
errors that is intended to indicate the seriousness of the error based upon the impact that the
error has on the End-User’s operation: (i) “Severe” is a “critical problem” — the product is
unusable or an error severely impacts an End-User’s operation, and there are no workarounds to
restore product functionality. A Severity Level of Severe requires maximum effort to resolve a
critical problem; (ii) “Moderate” is a “major problem” — significant product functionality is not
working according to product definitions, or significant business objectives cannot be met; (iii)
“Minor” is a “minor problem” — minor product functionality is not working according to product
definitions, or minor business objectives cannot be met.



“Software” shall mean the computer software (including firmware) of any form, provided by one Party
to the other Party, which enables their respective product to perform its functions and procedures
in accordance with its respective Documentation, including any Enhancements hereafter made or any
revision thereto. The Parties agree that except as may be agreed to upon mutual written agreement,
specifically identifying this Agreement and stating an intent to make such changes, any reference
to Software being “sold” or “purchased” hereunder is understood in fact to be a reference to the
Software being licensed or leased.



“Source Code” shall mean the original fully commented form on any media of the Software in the
language as used by a Party, or any translation or modification of such Software which
substantially preserves its original
identity together with: (i) all necessary proprietary information and technical documentation which
will enable a reasonably skilled software engineer(s) to maintain or enhance the Software without
the aid of the other Party or any other person or reference to any other materials; (ii)
maintenance tools (test programs and program specifications); (iii) proprietary or third party
system utilities (compiler and assembler descriptions); (iv) a


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description of the Software’s
system/program generation; and (v) descriptions and locations of hardware and software, if any, not
owned by the Party but required for use and/or support of the Software.



“Spare(s)” shall mean any field replaceable units, such as replacement parts, sub-assemblies,
circuit cards, modules and other electronic and mechanical assemblies necessary to support routine
operation and maintenance of the Equipment or other Licensed Materials, which may be purchased
separately as set forth in Exhibit C-2 (“OEM Pricing”) hereto.



“Special Products” shall mean the non-standard products that are manufactured by Netronome for
special use by OEM, the most current versions of which are listed in Exhibit B-2 (“Special
Products”) hereto, including any Equipment or other Licensed Materials, and any Enhancements
hereafter made or any revision thereto. The Special Product(s) listed in Exhibit B-2
(“Special Products”) hereto may be modified or discontinued by mutual agreement and additional
Special Product(s) may be added to this list by Netronome in accordance with the provisions of
Sections 6.2 and 6.3..



“Specifications” shall mean the technical performance and functionality descriptions and other
specifications published by Netronome applicable to the Equipment or other Licensed Materials that
are in effect as of the date the Equipment or other Licensed Materials is shipped to OEM, the
current version of which is attached as Exhibit B-4 (“Specifications”) hereto. The Parties
agree that changes to the Specifications, procedures and conditions contained in this Agreement may
be made from time to time upon mutual written agreement, specifically identifying this Agreement
and stating an intent to make such changes. During the Term, whenever Netronome substantially
amends the Specifications, Netronome shall promptly inform OEM of the revised Specifications.



“Standard Hours” shall mean the period of time from 8:00 a.m. until 5:00 p.m., Eastern time, Monday
through Friday, excluding Federal holidays within the United States.



“Subsidiary” shall mean a Company: (i) more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of directors or other managing
authority) are, now or hereafter, owned or controlled, directly or indirectly, by a Party; or (ii)
which does not have outstanding shares or securities, as may be the case in a partnership, joint
venture, or unincorporated association, but more than fifty percent (50%) of whose ownership
interest representing the right to make the decisions for such Company is, now or hereafter, owned
or controlled, directly or indirectly, by a Party; provided that such Company shall be deemed to be
a Subsidiary only so long as such ownership or control exists.



“Support Agreement” shall mean that certain Support Plan Terms & Conditions Agreement between the
Parties. A copy of the form of Support Agreement is attached as Exhibit F (“Support
Agreement”) hereto.



“Support Plan” shall mean the terms and conditions upon which Netronome shall provide the Support
Services, as specified in the Support Agreement.



“Support Services” shall mean the provision of maintenance and technical support Services in
accordance with the Support Plan.



“Term” shall mean the period beginning on the Effective Date and terminating on the date this
Agreement expires or otherwise is terminated in accordance with under Article 7.



“Territory” shall mean worldwide.



“Upgrades” shall mean additional or new modules, applications, modifications, features or
functions, including but not limited to major Modifications, which improve performance or increase
capacity of previously sold or leased Equipment or other Licensed Materials. Upgrades shall not
include Hardware.



“Warranty Start Date” means the date of Delivery.




[END]





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